AAI Limited t/as GIO v Amos

Case •

[2022] NSWPICMP 467

•

15 November 2022
DETERMINATION OF REVIEW PANEL
CITATION: AAI Limited t/as GIO v Amos [2022] NSWPICMP 467
CLAIMANT: Jesse Owen Amos

INSURER:

AAI Limited trading as GIO
REVIEW Panel
MEMBER: Susan McTegg
MEDICAL ASSESSOR: John O’Neill
MEDICAL ASSESSOR: Ian Wechsler
DATE OF DECISION: 15 November 2022

CATCHWORDS:

MOTOR ACCIDENTS – The claimant sustained facial injuries in a motor vehicle accident on 26 July 2018; prior to the accident the claimant had reported dizziness and been prescribed Serc; on about 24 August 2018 the claimant went outside to feed the cat and fell; claimant remembers feeling dizzy; question of whether claimant sustained post-traumatic paroxysmal positional vertigo as a result of the motor vehicle accident leading to fall; as a result of fall the claimant sustained a fractured right orbit and injury to the right infraorbital nerve; Held –  fall on or about 24 August 2018 was either accidental or related to the pre-accident non-specific dizziness; fall not caused or contributed to by the accident on 26 July 2018; the fractured right orbit was not caused by the accident and does not give rise to a permanent impairment under the Motor Accident Injuries Act2017. 

DETERMINATIONS MADE:  

MOTOR ACCIDENT INJURIES ACT 2017

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the Combined Certificate of Medical Assessor Nichols dated 15 February 2022 and issues a new certificate determined that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is not greater than 10%:

·     injury to the cervical spine;

·     injury to the lumbar spine;

·     injury to the left shoulder;

·     injury to the right shoulder;

·     injury to the abdomen;

·     body area: nose & air passage - fractured nasal bones with deviated nasal septum;

·     teeth – broken teeth, and

·     gum – lacerations.

The Review Panel revokes the Certificate of Medical Assessor Michael Steiner dated 31 March 2021 and issues a new certificate determining that the following injuries were not caused by the motor accident and do not give rise to a whole person impairment (WPI) which is greater than 10%:

eyes – fractured right orbit.

REASONS

This is to certify that permanent impairment was assessed by a Medical Review Panel comprising Member Susan McTegg, Medical Assessor John O’Neill and Medical Assessor Ian Wechsler and by Medical Assessor Joseph Scoppa, Medical Assessor Nichols and a Medical Review Panel comprising Member Susan McTegg, Medical Assessor Geoffrey (Paul) Curtin and Medical Assessor Drew Dixon.

Details of the assessments and full reasons are given in the following certificates:
Certificate of the Medical Review Panel dated 8 November 2022

The following injury was not caused by the accident and the permanent impairment is 0%:

·        eyes – fractured right orbit.

Certificate of the Medical Review Panel dated 11 October 2022

The permanent impairment in relation to the following injuries is 4%:

·        injury to the cervical spine;

·        injury to the lumbar spine;

·        injury to the left shoulder;

·        injury to the right shoulder, and

·        injury to the abdomen.

Certificate of Medical Assessor Nichols dated 24 April 2021
The permanent impairment in relation to the following injuries is 0%:

·        teeth – broken teeth, and

·        gum – lacerations.

Certificate of Medical Assessor Scoppa dated 28 January 2022
The permanent impairment in relation to the following injuries is 6%:

·        body area: nose & air passage - fractured nasal bones with deviated nasal septum.

The following injury was not caused by the accident:

·        head: vertigo & dizziness, headaches

PANEL REASONS FOR DECISION

INTRODUCTION

  1. On 26 July 2018 Jesse Amos (the claimant) was the front seat passenger in a vehicle which collided with the rear of a bus (the accident).

  2. Mr Amos asserts he sustained the following injuries in the accident:

    1.     (a)   injury to the cervical spine;

    2.     (b)   injury to the lumbar spine;

    3.     (c)   injury to the thoracic spine;

    4.     (d)   injury to the right shoulder,

    5.     (e)   injury to the left shoulder;

    6.     (f)    injury to the abdomen;

    7.     (g)   injury to the teeth and gums;

    8.     (h)   fractured right orbit;

    9.     (i)     injury to the nose;

    10.   (j)     injury to the head resulting in vertigo, dizziness and headaches, and

    11.   (k)   post-traumatic stress disorder.

  3. Mr Amos has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).

  4. AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr Amos under the MAI Act.

  5. Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

  6. This dispute is in relation to whether the degree of permanent impairment sustained by Mr Amos as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.

  7. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].

    [1] Section 7.20 of the MAI Act.

  8. A number of medical assessments were undertaken including the assessment of Medical Assessor Steiner, the subject of this review.

Certificate of Medical Assessor Shahzad

  1. Medical Assessor Shahzad issued a certificate dated 4 June 2021. Medical Assessor Shahzad found the following injuries caused by the accident gave rise to a permanent impairment of 26%:

    ·        cervical spine - cervico-thoracic injury;

    ·        lumbar spine - lumbar spine injury;

    ·        shoulder - left shoulder injury, and

    ·        shoulder - right shoulder injury

  2. Medical Assessor Shahzad found injury to the abdomen – musculo skeletal injury had resolved and did not result in permanent impairment.

  3. Medical Assessor Shahzad also issued the following certificate under s 7.23(1) of the MAI Act:

    ·        radiological investigations – the request for an MRI cervical spine was reasonable and necessary in the circumstances, and

    ·        chiropractic – chiropractic sessions for mobilisations, deep tissue massage and dry needling by Mr Nick Skalidas was not reasonable and necessary in the circumstances.

Certificate of Medical Assessor Nichols

  1. Medical Assessor Nichols issued a certificate dated 24 April 2021. Medical Assessor Nichols found the following injuries caused by the accident gave rise to a permanent impairment of 0%:

    ·        teeth – broken teeth, and

    ·        gum – lacerations.

Certificate of Medical Assessor Fukui

  1. Medical Assessor Fukui, psychiatrist issued a certificate dated 20 June 2021. Medical Assessor Fukui found the following injury, namely post-traumatic stress disorder caused by the accident gave rise to a permanent impairment of 17%.

Certificate of Medical Assessor Scoppa

  1. Medical Assessor Scoppa, ear, nose and throat (ENT) surgeon issued a certificate dated 28 January 2022.[2] Medical Assessor Scoppa found the following injuries caused by the accident gave rise to a permanent impairment of 6%:

    ·        body area: nose & air passage - fractured nasal bones with deviated nasal septum.

    [2] AD5 p 741

  2. Medical Assessor Scoppa concluded the following injuries were not caused by the accident:

    ·        body area: head: vertigo & dizziness, headaches.

  3. Medical Assessor Scoppa does not explain why he concluded the dizziness and vertigo were not caused by the accident other than to say the claimant had a history of prior dizziness and vertigo reported to Dr Voutros. However, he also notes the claimant reported aggravation of those symptoms after the accident.

  4. Medical Assessor Scoppa found a 0% WPI on the basis impairment due to disorders of equilibrium (vestibular impairment) is assessed in accordance with paragraphs 6.187 and 6.188 of the Motor Accident Guidelines. He noted under paragraph 6.187 the assessment of vestibular impairment is dependent on objective findings of vestibular dysfunction, and such date must be available to the medical assessor. His clinical assessment of the claimant’s vestibular function was normal; therefore, he found the claimant was within class 1 which equates to a WPI of 0%.

Certificate of Medical Assessor Steiner (the assessment under review)

  1. Medical Assessor Steiner issued a certificate dated 31 March 2021.[3] Medical Assessor Steiner found the following injuries caused by the accident gave rise to a permanent impairment of 29%:

    ·        eyes – fractured right orbit.

    [3] AD5 p 36

  2. Medical Assessor Steiner reported Mr Amos was a front seat passenger in a car which collided with the back of a bus when the bus pulled out. He reported Mr Amos hit the windscreen and loss consciousness and awoke in hospital. He had a broken nose, a fractured cheek, chipped teeth, a cut to the mouth and gums, an injury to the neck, the shoulder and bruised ribs. Two to three weeks later whilst at home Mr Amos reported he fell. He was taken to hospital again and he was told he had a fracture of the right orbit. He underwent surgical repair at Royal Prince Alfred Hospital.

  3. As to causation Medical Assessor Steiner reported:

    “Apparently this injury has been accepted as part of the motor vehicle accident as following the accident he was dizzy.”

  4. On examination Medical Assessor Steiner reported:

    “He was wearing glasses which he had done since he was ten years old. His uncorrected vision is less than 6/60 with each eye and on the right his uncorrected near vision was N10 and on the left was N6. With his glasses his vision was 6/24 on the right and 6/6-2 on the left. The right has become very slightly more myopic and corrects to 6/6 and with corrected vision he sees 6/6 with each eye and N5 for near with each eye. The ocular movements appear full and there was no obvious enophthalmos. There is diminished sensation in the distribution of the right infraorbital nerve. His intraocular pressures and fundi are normal.”

  5. Medical Assessor Steiner found some double vision within 20 degrees of fixation about fixation. He assessed a 24% WPI under the visual system and 6% WPI under the nervous system resulting in a 29% WPI.

  6. The insurer has sought a review of the certificate of Medical Assessor Steiner. It is that assessment which is the subject of this medical review.

Combined certificate of Medical Assessor Nichols

  1. Medical Assessor Nichols issued a Combined Certificate dated 15 February 2022 in which he assessed a combined permanent impairment of 52% having regard to the certificates of Medical Assessor Nichols dated 14 April 2021, Medical Assessor Shahzad dated 24 April 2021, Medical Assessor Steiner dated 13 February 2022 and Medical Assessor Scoppa dated 28 January 2022.

Certificate of Review Panel (review of Certificate of Assessor Shahzad)

  1. A Review Panel issued a certificate dated 12 October 2022 revoking the certificate of Medical Assessor Shahzad dated 4 June 2021. That Panel determined the following injuries were caused by the motor accident and gave rise to WPI which, in total, is not greater than 10% and is 4%:

    ·        injury to the cervical spine;

    ·        injury to the lumbar spine;

    ·        injury to the left shoulder;

    ·        injury to the right shoulder, and

    ·        injury to the abdomen.

  2. The Review Panel also found the following treatment and care:

    ·        an MRI of the cervical spine, if undergone by the claimant, and

    ·        past chiropractic sessions for mobilisation, deep tissue massage and dry needling by Mr Nick Skalidas

was reasonable and necessary and does relate to the injury caused by the motor accident.

REVIEW PROCEDURE

  1. The insurer lodged an application for review of the medical assessment of Medical Assessor Steiner on 22 March 2022 within 28 days of the date on which the combined certificate dated 15 February 2022 was made available to the parties on 22 February 2022.[4]

    [4] Section 7.26 (10)(a) of the MAI Act.

  2. On 14 June 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).

  3. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.

  4. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission). Accordingly, the President’s Delegate referred the matter to this Panel to assess.

  5. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.

  6. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]

    [5] Rule 128 of the PIC Rules.

  7. The review is by way of a new assessment of all matters with which the medical assessment is concerned.

  8. A Review Panel was initially constituted by Medical Assessor Ian Wechsler, Medical Assessor Geoffrey (Paul) Curtin and Member Susan McTegg (the first Panel). The first Panel held a teleconference on 18 August 2022 when it was agreed, having regard to the issue as to causation, that the Panel required the expertise of a neurologist. Accordingly, the Panel was reconstituted with Medical Assessor Ian Wechsler, Medical Assessor John O’Neill and Member Susan McTegg (the Panel). 

  9. On 29 August 2022 the Panel agreed an examination was required. Having regard to the dispute as to causation the Panel considered two medical examinations were required, one by Medical Assessor O’Neill and the other by Medical Assessor Wechsler.

RELEVANT LEGAL AUTHORITY

  1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).

  2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA4 Guides should be followed.

  3. Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

    “6.6  Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

    'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

    1.   The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

    2.   The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

    This, therefore, involves a medical decision and a non-medical informed judgement.

    6.7   There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

  4. In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[6] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.

    [6] [2021] NSWSC 804, Kinchela.

EVIDENCE BEFORE THE REVIEW PANEL

  1. The First Panel issued a Direction to the parties on 29 June 2022 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the insurer uploaded to the portal a bundle of documents marked AD5 paginated from pages 1 to 1,353. The claimant uploaded to the portal documents marked AD6 comprising submissions and an index to the additional documents. The additional documents are marked AD7 paginated from pages 1 to 249 and AD8 paginated from pages 1 to 210. The Panel has also had regard to the clinical notes of Royal Prince Alfred Hospital which were uploaded to the portal and marked R9. The Panel relied upon the documents produced by the parties in response to the Direction issued by the First Panel. 

  2. On 17 October 2022 the insurer uploaded to the portal an Application to Admit Late Documents marked AD9 seeking leave to rely upon the certificate of a Review Panel dated 12 October 2022 revoking the certificate of Medical Assessor Shahzad dated 4 June 2021.

Application for personal injury benefits

  1. The claimant is now 36 years of age, and he was 32 years of age at the time of the accident.

  2. The claimant completed an Application for personal injury benefits dated 8 August 2018.[7] He described the accident as follows:

    “I was the passenger in a vehicle driven by another driver, when attempting to accelerate to overtake a bus in front of the car, the bus stopped, the driver hit the brakes but could not stop in time and collided with the rear-end of the bus at speed. My head hit the windscreen, broke my nose and injured my body.”

    [7] AD5 p 43.

  3. Mr Amos said he suffered injury to his head, face, nose, lip, teeth, neck, shoulder, left and right, back, lower back, right arm and leg.

Statement of Jesse Amos[8]

[8] AD7 p 218.

  1. Mr Amos provided a statement dated 14 January 2022.[9] He provided the following description of the accident:

    “6.    … When the bus stopped suddenly and the driver hit the brakes, and because it could not stop in time, collided directly onto the back of the bus. My head hit the windscreen with force and the windscreen cracked from my head impact. If it was not that I was wearing a seatbelt, I believe I could have died. I hit my mouth, my face, and my nose into the dashboard….

    7.     I was bleeding profusely from my face and my nose. I lost consciousness again, all I remember then is while sitting on the side of the road is my nose bleeding, my neck, back and face were hurting with a fractured my nose, my teeth pushed back, my lips were also lacerated.

    13.   About four weeks later after the accident, I fell because of loss of balance, hitting my side face in the edge of a wall when going outside in the backyard of my home. I had urgent surgery on my right eye orbit and cheekbones ending up with a metal plate because of this fall due to the car accident.”

Photographs[10]

[9] AD7 p 218.

[10] AD5 p 316 and AD7 p 246.

  1. Photographs show the car impacting the rear of the bus and the significant frontal damage to the car including the cracked windscreen.

  1. Photographs of Mr Amos at the scene of the accident show that he is conscious, with bleeding from the nose, a laceration of the lip and bruising of the upper left arm.

Records from NSW Police Force

  1. In response to a Direction for Production the NSW Police Force produced a copy of the claimant’s criminal and traffic record. The records show numerous offences dating from 2005 including a record of serious domestic violence offences.[11]

    [11] AD5 p 770.

  2. The records also show a number of driving offences incurred subsequent to the accident, during periods when Mr Amos has suggested he rarely drove.

Bankstown Local Court

  1. Extensive records were also produced by Bankstown Local Court detailing the claimant’s criminal and driving history.

Treating medical records

Ambulance records

  1. Mr Amos was conveyed to hospital by ambulance.[12] The ambulance report stated the claimant was sitting on the grass with a nosebleed and denied any loss of consciousness. He ambulated to the ambulance and lay on the stretcher. He reported he struck his head on the windshield. He was assessed to have generalised neck and back pain and his nose looked as if it had been fractured.

    [12] AD5 p 110.

Bankstown-Lidcombe Hospital

  1. On 30 March 2008, the claimant attended the hospital after falling to the footpath whilst under the influence of ETOH.[13] He was subsequently treated for facial injuries.

    [13] AD5 p 539.

  2. On 17 July 2017, the claimant presented with neck pain and headache following a rear end collision.[14] He was driving with his seatbelt fastened and his head hit his arm on the steering wheel. Tenderness was noted at C5-T2 and L5-S1 levels.

    [14] AD5 pp 415 and 533.

  3. On 1 January 2018, the claimant was transported to hospital by ambulance, after he was reportedly ‘manic and agitated’ from possible cocaine use and alcohol consumption.[15] The claimant also reported “severe back pain” on this occasion.

    [15] AD5 p 685.

  4. On 26 July 2018 following the accident, the claimant was conveyed to the hospital by ambulance.[16] He was admitted overnight. The claimant did not recall the event but complained of pain everywhere mainly over his back and neck pain. The claimant underwent a CT of the cervical spine, of the brain and facial bones, of the abdomen and pelvis and an X-ray of the chest.

    [16] AD5 p 108.

  5. The CT scan of the head did not reveal any acute intracranial blood products. The CT scan of the facial bones[17] reported:

    “…there are comminuted fractures of the nasal bones along with overlying soft tissue gas in keeping with open fractures of the nasal bones. Extensive soft tissue swelling is seen in the nasal cavity with the fracture also involving the nasal septum, with displacement of up to approximately 3 – 4 mm. Bony fragment is also seen extending out into the subcutaneous soft tissues near the nasal bridge. There is a few mucous retention cyst in the maxillary sinuses”.

    [17] AD5 p 142.

  6. On 30 August 2018, the claimant attended in relation to a subsequent fall, where he was diagnosed with an orbital fracture.[18] The clinical notes report:

    “… Jesse Amos who presented to the ED with a blowout fracture of inferior and infero-medial aspects of the right orbit with herniation of orbital content into the roof of the right antrum and into the ethmoid sinus. The patient reports that he had MVA on 26/07/2018 and was seen in BDH and CT of facial bones showed nasal fracture only. 1/52 ago he was feeding his cats when fell forward and hit his face on ground. 2/7 ago seen by GP who organise CT facial bone and showed fracture…”

    [18] AD5 p 638.

  7. On 17 February 2020, the claimant was transported by ambulance to the hospital, for treatment of a suspected Benzodiazepine overdose.[19]

    [19] AD5 pp 543 and 603.

Royal Prince Alfred Hospital

  1. Mr Amos attended Royal Prince Alfred Hospital on 30 August 2018. The clinical notes report the following history:[20]

    [20] R9.

    “-     MVA 4 weeks ago

    -      reports subsequent facial numbness over nose, right cheek and superior gingiva

    -      subsequent dizziness

    -      pt. reports fall with LOC whilst feeding his cat on Thursday (one week ago)

    -      GP sent for CT brain and facial bones showing sizeable right orbital floor and medial wall fracture with herniation inferior rectus

    -      pt. reports no diplopia in neutral gaze and on most eye movement, but variable diplopia on end-gaze (non-specific directions)

    -      also reports some intermittent photopsias R eye since fall (one or two per day)

    -      denies any associated floaters or curtains

    -      VA otherwise unaffected”.

  2. Mr Amos was admitted between 4 September 2018 and 5 September 2018. He underwent surgery, namely, right orbital floor reconstruction.[21]

    [21] AD7 p 209.

Dr Peter Voutos, general practitioner

  1. On 6 June 2016 Dr Voutos reported Mr Amos had experienced anxiety and panic attacks since 2014 when an ex-girlfriend called the police alleged he was a gangster.[22] Dr Voutos prescribed Valium.

    [22] AD5 p 501.

  2. On 9 August 2016, the claimant reported vertigo symptoms for two days. Dr Voutos prescribed Serc.[23]

    [23] AD5 p 501.

  3. On 24 July 2017 Dr Voutos reported the claimant had been in a rear end motor vehicle accident.[24] He went to hospital and underwent X-rays. He reported ongoing neck pain across his shoulders and lower back pain. The claimant was reportedly tender over the neck, lower back and trapezius with reduced range of motion in the neck and lower back. He was referred for a bone scan and he was also prescribed Endone and Valium.

    [24] AD5 p 505.

  4. On 21 August 2017 and on 20 December 2017 Dr Voutos again prescribed Serc although his clinical notes make no mention or vertigo.[25]

    [25] AD5 p 505.

  5. On 16 May 2018, Dr Voutos treated the claimant in a house call for severe vertigo.[26] His clinical record states: “House call this am 7 severe vertigo BP 132/80 given Stemetil 12 mg IMI CNs NAD”. Dr Voutos issued a medical certificate reporting the claimant was unfit to attend court because he had severe vertigo.

    [26] AD5 p 506.

  6. On 31 July 2018 Dr Voutos reported:[27]

    “On 26/7 front passenger in MVA hit head on windscreen fractured nose bleeding went to Bankstown Hospital overnight. Had X-rays nose looks fractured lacerations upper inner lip neck aching arms acing. Examination: bruising resolving across abdomen. Left inner arm bruised entire spine in pain stiffness and spasms shoulders aching tender spinal muscles upper teeth pushed in in shock feeling terrified getting into a car front seat reduced ROM in neck and lower back. No upper or lower neuro signs. Nasal bridge swollen deviated upper part of nose BP 140/80”.

    [27] AD5 p 506.

  7. On 7 August 2018 Dr Voutos reported:[28]

    “Surgery consultation

    poor sleep headaches entire body in pain

    dizzy for cont meds add serc”.

    [28] AD5 p 511.

  8. On 28 August 2018 Dr Voutos reported:[29]

    “Surgery consultation.

    Right side face tingling. Headaches. Dizzy BP 125/80 Need CT facial bones”.

    [29] AD5 p 507.

  9. On 30 August 2018 Dr Voutos reported:[30]

    “Surgery consultation

    Add notes from 28/8 he fell last Friday at the back of the yard onto an and hit

    [30] AD5 p 508.

    Right side face onto object and now periorbital bruising called pt to go to hospital stat due to orbital fracture”. [sic]

  10. Dr Voutos provided a report dated 14 November 2019.[31] He stated inter alia:

    “On review on 28 August 2019 due to ongoing headaches and numbness over the right side of his face as well as having fallen 4 days prior as a result of his loss of balance and hitting the right side of his face Mr Amos was referred to have another CT of the facial bones.

    The CT scan showed right orbital floor and medial wall fractures. He was admitted to RPAH Camperdown on the 4/9/2018 where he had a reconstruction of the right orbital floor”.

    [31] AD5 p 267.

  11. Dr Voutos provided a report dated 16 May 2022 in which he stated:[32]

    “Since 2014 he has suffered from an anxiety disorder. He was initially prescribed Valium 5 mg on the 06/06/2016 for his anxiety disorder. His ability to engage in employment prior to the motor vehicle accident on 26th July 2018 was not impaired.

    Prior to the motor vehicle accident on the 26th July 2018 Jesse Amos had recovered from his previous injuries. He has not required any prescriptions for analgesics for 11 months prior to the accident on the 26thJuly 2018.

    There is no record of any visual disturbances prior to the accident on the 26thJuly 2018.”

Medico-legal evidence

Dr Andrew Keller, occupational physician

[32] AD7 p 214.

  1. Dr Keller assessed the claimant on 16 October 2019 and provided a report dated 5 November 2019.[33] Mr Amos reported he was in and out of consciousness at the scene of the accident and unable to stand or walk. He was conveyed by ambulance to hospital where he underwent investigations and was treated with analgesia.

    [33] AD5 p 257.

  2. Mr Amos reported some months after the accident he suffered a fall at home resulting in a fractured right zygoma and eye socket that was surgically treated.

  3. Dr Keller also reported the fall where the Mr Amos suffered a fractured right zygoma was not related to the accident, although it does not appear he obtained a history as to the cause of that fall.

Dr Evan Dryson, occupational physician

  1. Dr Dryson assessed the claimant at the request of his lawyers and provided a report dated 21 October 2019.[34]

    [34] AD5 p 750.

  2. In relation to the fall following the accident he recorded the following history:

    “After the accident Mr Amos was experiencing dizziness on getting up. He describes this as a spinning sensation, i.e. vertigo. About three weeks after the accident he went outside to feed his cat and because of vertigo, fell onto his face onto the corner of a brick wall”.

  3. Dr Dryson did not obtain any history of the claimant’s pre-accident complaints of vertigo, although he reported at the time of the accident the claimant worked with Sydney Wide Tree Cutting which required him to cut trees, to use a chainsaw, to climb and to lift heavy portions of tree trunk. Mr Amos said at the time he was “bulked up” and was 120 kilograms.

  4. Dr Dryson reported:

    “… Mr Amos fractured his right orbit when he felt secondary to a dizzy spell. Since the dizziness is a consequence of the motor vehicle accident on 26 July 2018, the fractured right or bridge would therefore be considered to be a flow on effect of the accident.”

  5. Where Mr Amos was reporting vertigo from the accident Dr Dryson suggested he had suffered disruption of one or more otoliths in the inner ear as a result of the accident. Consequently, he concluded the fractured right orbit would be considered a flow-on effect of the accident. He also concluded Mr Amos is no longer fit to work at heights because of his vertigo.

Dr Doron Samuell, psychiatrist

  1. Mr Amos was assessed by Dr Samuell who provided a report dated 18 December 2019.[35] He concluded Mr Amos suffered from a post-traumatic stress disorder as a result of the accident.

    [35] AD5 p 286.

Dr Stephen Allnutt, psychiatrist

  1. Following his assessment of Mr Amos on 19 December 2019 Dr Allnutt provided a report dated 2 January 2020.[36]

    [36] AD 7 P 53.

  2. Dr Allnutt concluded the claimant since the accident Mr Amos had sustained an aggravation of post-traumatic stress symptoms with associated decline in functioning, consistent with an aggravation of a possible pre-existing anxiety disorder. He concluded the claimant’s capacity for work had been impaired since the accident.

Report of Matthew Buxton, vocational assessor

  1. The claimant was assessed at the request of his lawyers on 14 August 2020. Mr Buxton provided a report dated 25 August 2020.[37]

    [37] AD7 p 66.

  2. Mr Buxton reported:

    “Mr Amos stated approximately 4 weeks post accident he experienced an episode of vertigo, fell over and struck his head which resulted in him sustained fractured eye socket.”

Reports of Dr Baron Levi, psychologist

  1. The insurer relies upon reports of Dr Levi dated 18 September 2020, 22 September 2020, 29 October 2020.[38] Dr Levi opined the claimant was deliberately exaggerating his symptoms and presentation. He also described the claimant as a poor historian and evasive. However, he also concluded the claimant had become negatively over focused on his symptoms since the accident and had become entrenched in a sick role.

    [38] AD5 pp 319, 330 and 332.

  2. Dr Levi initially opined there was evidence that Mr Amos presented with symptoms of post-traumatic stress disorder and anxiety before the accident and that those symptoms were exacerbated by the accident although he subsequently resiled from that opinion having regard to the records of the NSW Police and Bankstown Local Court.

  3. Dr Levi provided a further reported dated 23 May 2022 after reviewing the claimant’s criminal history.[39] Dr Levi concluded having sighted the claimant’s premorbid and post-accident criminal activity in addition to his own assessment as well as reports of other assessors that Mr Amos presented with an antisocial personality disorder which predated the accident. He concluded Mr Amos continued to manipulate and exaggerate his symptoms for personal gain.

    [39] AD5 p 1,210.

SUBMISSIONS

Insurer’s submissions

  1. The insurer provided submissions dated 22 March 2022.[40] The insurer denies there was any concession that the subsequent fall was related to the accident and notes Medical Assessor Steiner did not address the issue of causation, particularly the claimant’s dizziness and vertigo which allegedly caused his fall.

    [40] AD5 p 1.

  2. The insurer notes the records of Dr Voutos confirm a pre-accident complaint of severe vertigo. Dr Voutos issued a medical certificate on 16 May 2018, two months pre-accident reporting the claimant was unfit to attend court because he had “severe vertigo for the period of 16 May 2018”.

  3. The insurer notes the admission Summary of Bankstown-Lidcombe Hospital does not report dizziness or vertigo, simply that the claimant “was feeding his cats when he fell forward and hit his face on the ground”.

  4. The insurer notes the admissions summary of Royal Prince Alfred Hospital states “was walking out to feed the cats when fell down and sustained injury”. Again, the insurer notes there is no report of dizziness although the insurer does concede on 30 August 2019 an ophthalmologist reported dizziness after the accident.

  5. The insurer also suggests the Centrelink records impugn the veracity of the claimant’s self-reporting where he continues to receive the carers payment for care provided to his mother but on the other hand asserts that he is incapacitated for employment.

  6. The insurer also submits that the claimant’s extensive criminal history is relevant where there are issues of credibility and consistency at play.

  7. The insurer also suggests Medical Assessor Steiner was not qualified to address the claimant’s vertigo and dizziness symptoms and notes that Medical Assessor Scoppa, who is so qualified concluded the dizziness and vertigo were not caused by the accident.

  8. The insurer submits if the vertigo and dizziness were not caused by the accident then the subsequent fall cannot be causally related to the accident where the claimant asserts it occurred because of dizziness. Therefore, whilst the claimant may have a 26% WPI to his right eye, it is not attributable to the accident.

Claimant’s submissions

  1. The claimant provided submissions which are undated in response to the application for review filed by the insurer.[41]

    [41] AD6 p 1.

  2. The claimant submits that the Guidelines incorporate the common law principles of causation and that it is well-established at common law that for there to be a cause or link between a consequence and a cause, it is not necessary that the consequence be a direct consequence of the course as long as it is reasonably foreseeable. This principle is illustrated by Mahony v J. Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 552:185 HCA 37). and more recently in Hunter v Insurance AustraliaLtd [2021] NSWSC 623 where the Court noted that:

    “A Review Panel was obliged to apply the Guidelines which incorporated “common law principles of causation” … it was sufficient that “an indirect, but foreseeable consequence, was sufficient to establish causation”.

  3. The claimant notes Dr Voutos recorded on 26 July 2018 that the claimant suffered multiple injuries to his head with a fractured nose, lost consciousness, and was admitted to hospital after suffering concussion. He also suffered broken teeth, cuts to his mouth, gums, injured his neck, both shoulders and had bruised hips. The claimant submits photographs of the accident show the extent of damage to the vehicle.

  4. The claimant relies upon the opinions of Dr Voutos and Dr Dryson as to causation of the fall. The claimant submits the collision was at speed, the claimant’s head cracked the windscreen, he had lacerations to his lips and the accident caused concussion, dizziness, confusion which resulted in the fall causing injury to the right orbit. It is submitted there was a temporal relationship and the fall was foreseeable.

  5. The claimant relies upon the following entry in the progress notes of Royal Prince Alfred Hospital on 30 August 2018 at page 7:

    “PT. reports no diplopia in natural gaze and on most eye movement, but variable diplopia on end-gaze, also reports some intermittent photopsia’s R eye since fall (one or two per day), MVA 4 weeks ago, report subsequent facial numbness over nose, right cheek and superior gingiva, subsequent dizziness, patient reports fall with LOC whilst feeding his cat on Thursday (one week ago), GP sent for CT brain and facial bones show sizeable right orbital floor and medial wall fracture with herniation inferior rectus”.

  6. The claimant relies upon the following paragraph which appears in the report of Dr Voutos dated 14 November 2019:

    “On review on 28 August 2019 due to ongoing headaches and numbness over the right side of his face as well as having fallen four days prior as a result of his loss of balance and hitting the right side of his face Mr Amos was referred to having another CT with a facial bones.[sic]”

  7. The claimant notes that Medical Assessor Scoppa was unable to find a vestibular disease due to the “lack of objective testing of vestibular functioning” at the time of the fall. The claimant argues that he did not have vestibular disease, but he suffered a fall as a result of experiencing dizziness after suffering traumatic injuries to the head and face and a whiplash injury.

  8. The claimant submits the opinion of Medical Assessor Scoppa is limited by his expertise as an ear, nose and throat specialist and he is not qualified to comment on whether the concussion, the whiplash, the vision changes and the confusion experienced by the claimant at the time of the fall was causally related to the accident.

MEDICAL EXAMINATION BY MEDICAL ASSESSOR O’NEILL

  1. Medical Assessor O’Neill saw Mr Amos, now aged 36 at his rooms on 19 October 2022.

Background information

  1. Mr Amos said he worked as a tree lopper until the accident on 26 July 2018.

  2. Prior to the accident he was living with his parents. Dr Voutos submitted a mental health plan on 25 July 2016 with the clinical diagnosis being “chronic anxiety. Panic disorder”.

  3. There was a history of drug abuse and Mr Amos was admitted to Bankstown Hospital from 1 to 3 January 2018 with aggression and acute renal impairment following cocaine ingestion. The creatinine was 275. The CK muscle enzyme was 1027.

  4. Mr Amos saw Dr Voutos for “vertigo” on 9 August 2016. Mr Amos currently has no recollection of this. Mr Amos had no recollection of recurrent vertigo around that time.

  5. Dr Voutos apparently made a house call for “severe vertigo” on 16 May 2018. Stemetil was prescribed. Mr Amos currently had no recollection of this nor for the duration of symptoms. He was also unable to say whether he continued to take Stemetil.

  6. There was an assessment at Bankstown Hospital on 17 July 2018 for neck pain and headaches following a motor vehicle accident earlier that evening.

History of events on and after 26 July 2018.

  1. The ambulance report stated Mr Amos was “restrained passenger of a car travelling 60kms/hr colliding with the rear of a stationary bus”. On arrival of the ambulance Mr Amos was sitting on the grass with “epistaxis”. There was “generalised neck and back pain”. “Patient’s nose looks fractured with blood around nostrils”.

  1. The Glasgow Coma Score was 15 on the two occasions it was assessed at the scene.

  2. Mr Amos was seen at Bankstown Hospital where it was stated “he does not remember the event”.

  3. A CT scan of the brain was normal.

  4. A CT scan of the facial bones reported a comminuted fracture of the nasal bones including a fracture and displacement of the nasal septum with extensive soft tissue swelling in the nasal cavity. Despite reviewing Bankstown Hospital records, I could not find a list of medications that Mr Amos was taking at that time of that admission.

  5. Dr Voutos provided a medico-legal report dated 14 November 2019.

    “At initial consultation by me on 31 July 2018, Mr Amos complained of neck, lower back, shoulder, chest and abdominal pain. His front upper teeth were pushed back, the left inner arm was bruised, there was tenderness and muscle spasm along the entire spine and the nasal bridge was very swollen and bruised. Mr Amos returned the following day because he was experiencing severe headaches. He was prescribed Endone to take when required”.

  6. A medical entry by Dr Voutos on 7 August 2018 stating “vomiting. Dizzy. For continuing medications. Add Serc”.

  7. On 28 August 2018 by Dr Voutos recorded “right side face tingles. Fallen four days prior. Headaches, dizzy”.

  8. Mr Amos attended Royal Prince Alfred Hospital on 30 August 2018. In triage it was stated “self presents: had dizzy spell on Thursday and fell onto right side of face”.

  9. There was an entry by Dr Givorshner (ophthalmology registrar) stating “MVA four weeks ago. Subsequent dizziness. Patient reports fall with loss of consciousness while feeding his cat on Thursday (one week ago)”.

  10. The admission summary stated “on Friday was walking out to feed the cats when fell down and sustained injury around right eye. Unsure what happened. Lost consciousness and next thing he remembers is having his parents around him”.

  11. Neither Dr Givorshner nor the admission summary made any reference to dizziness. The only reference to dizziness was in the triage entry.

  12. Dr Voutos then arranged a CT scan of the facial bones which showed fractures of the right orbital floor and medial wall.

  13. Mr Amos was admitted to Royal Prince Alfred Hospital from 4 to 5 September 2018 when he underwent surgical reconstruction of the right orbital floor.

  14. The Panel did not find any comment about dizziness or vertigo at the time of the assessments at Royal Prince Alfred Hospital on 4 to 5 September 2018 or from 11 to 12 September 2018 or on 24 October 2018.

  15. In his report of 14 November 2019 Dr Voutos, stated “the problems for Mr Amos have been ongoing headaches, insomnia, neck pain, lower back pain, dizziness and symptoms of post-traumatic stress. Management has consisted of analgesics (Endone and Tramadol), Imovane when required for sleep and Valium to help with his anxiety”.

  16. Mr Amos was seen by Medical Assessor Scoppa (ENT surgeon). In his certificate dated 28 January 2022, Medical Assessor Scoppa stated

    “he reported onset of recurrent dizziness and vertigo after the accident that have persisted. There was a history of pre-existing vertigo that started about five years ago that occurred after going to the gym. He had several episodes lasting twenty to thirty minutes and he reported his vertigo to Dr Voutos who treated him with Serc. This medication provided rapid relief and he remained free of vertigo until after the MVA".

  17. At the time of assessment, Medical Assessor Scoppa stated that clinical tests of vestibular function were normal.

The fall on or about 24 August 2018

  1. Mr Amos said he was walking past the back door of his parent’s house when he heard the two cats meowing and he thought he had better feed them. He obtained cat food from the kitchen. He walked out the back door and started to descend two to three steps to the yard. He said he “remembers feeling dizzy” and his next awareness was of being on the ground. He ascertained that in the fall he must have hit the right side of his face on stepped ornamental bricks below a window near the back steps.

  2. From that time Mr Amos has been aware of altered sensation in the region of his right upper lip, the right side of his nose and the medial right lower right cheek.

Continuing symptoms

  1. Mr Amos said his life had been completely changed by the accident on 26 July 2018. He said: “I can't work or train or play footy or socialise”. He said his weight had dropped from 120 to 85kgs. He said he was “embarrassed to be seen”.

  2. He said he rarely left the room in his parents’ home.

  3. Mr Amos said he had pain everywhere and took a minimum of two Endone tablets each day. He said he would also use Advil and/or Panadol for pain.

  4. He said he had anxiety especially when getting into a car and he would take between two and six tablets (5mgs) of Valium per day.

  5. He said he took four Somac tablets per day because of reflux. Other medications were used intermittently, Serc and Maxolon. He used these for dizziness or vertigo.

  6. Mr Amos differentiated dizziness and vertigo. By dizziness he meant a sensation of light-headedness. He said this was frequent and could occur a few times per week. He could not identify any aggravating factor. When this occurred, he would take both Serc and Maxolon. He said the symptom would disappear within about half-an-hour of taking the medication.

  7. By vertigo Mr Amos meant an internal feeling (in the head) like the room was spinning. There was no actual spinning of the environment. This would be much less frequent than the dizziness, but he thought it might occur every couple of weeks. For this he would take Serc and Maxolon and symptoms would settle within about half-an-hour.

  8. When either the dizziness or vertigo was more intense, he said he would prefer to sit or lie down.

  9. He had never fallen as a consequence of these symptoms.

  10. He did not report any deafness but occasionally was aware of a ringing sound in both ears.

Examination

  1. Mr Amos was a poor historian and appeared to be quite depressed.

  2. Gait was normal and Romberg's negative.

  3. There was no anosmia. Visual acuity was 6/9 on the right and 6/6 on the left. The fields were full to confrontation. The fundi were normal. The pupils were equal and normally reactive to light. External ocular movements were full without nystagmus. There was a subjective reduction to light touch in the territory of the right infraorbital nerve, the same territory as sensory symptoms on his face. Hearing was clinically normal. There was no dizziness or vertigo when he was asked to move up and down on the couch for the purpose of examination. VOR (vestibulo-ocular reflex) was negative. All deep tendon reflexes were symmetrical and normal. Blood pressure was 150/110 in the left arm sitting.

Conclusion following assessment by Medical Assessor O’Neill

  1. If Mr Amos has a vestibular disorder, then it began prior to the accident on 26 July 2018. Clinical assessments of vestibular function by both Medical Assessor Scoppa and Medical Assessor O’Neill were normal. It is unfortunate that Dr Voutos never referred Mr Amos for vestibular function testing.

  2. It is not clear when Mr Amos was first given medication for vestibular symptoms. It would appear he was given Stemetil on 16 May 2018. Dr Voutos reported complaints of non-specific dizziness on 9 August 2016. He prescribed Serc on 21 August 2017 and again on 20 December 2017 and on 16 May 2018, some 10 weeks pre-accident, he made a house call on Mr Amos, diagnosed “severe vertigo” and issued a certificate to excuse his attendance from court.

  3. Serc is supposed to be taken regularly as a preventative agent for symptoms. Inappropriately, Mr Amos only takes it whenever he feels the onset of his dizziness or vertigo.

  4. Mr Amos’s symptoms of dizziness and vertigo are non-specific. They occurred more frequently in the aftermath of the accident on 26 July 2018 but at that time there was an aggravation of pre-existing anxiety and there were widespread unexplained pain complaints. The Panel specifically notes that Mr Amos’ complaints of dizziness and vertigo had never previously caused him to lose balance and fall.

  5. The available reports from Dr Voutos did not mention dizziness at the actual time of the fall. The triage statement at Royal Prince Alfred Hospital on 30 August 2018 stated there was a dizzy spell preceding the fall. A dizzy spell was not mentioned by Dr Givorshner or in the admission summary of that date.

  6. The Panel notes that Mr Amos sustained a closed head injury sufficient to cause him to suffer a fractured nose but not significant enough to cause him to suffer any damage to the brain. The Panel accepts the possibility that a closed head injury such as that sustained by Mr Amos could be sufficient to cause post-traumatic paroxysmal positional vertigo.

  7. However, when post-traumatic paroxysmal positional vertigo occurs, there is a sensation of the room spinning and immediately the person suffering the condition will reach out for support and close the eyes. Mr Amos described a spinning sensation in his head but did not specifically describe the environment around him spinning such that he found it necessary to reach out for support. In the Panel’s experience the symptoms of positional vertigo are very specific whilst the symptoms described by Mr Amos were non-specific. Indeed, the Panel is satisfied if the claimant’s fall had occurred as a result of positional vertigo Mr Amos would have said so, and it would have triggered further investigations.

  8. The Panel finds it significant that at no time did any medical practitioner feel it necessary to refer Mr Amos for vestibular functioning testing, which suggests his complaints were of non-specific dizziness but not indicative of paroxysmal positional vertigo.

  9. The Panel finds there is no evidence the accident caused disruption to one or more otoliths in the inner ear as suggested by Dr Dryson where there was no complaint of positional vertigo at the time of his hospital attendance following the accident, in the records of Dr Voutos and in the history provided to Medical Assessor O’Neill.

  10. Mr Amos had a history of complaint of non-specific dizziness

  11. The Panel concludes that the fall on or about 24 August 2018 was either accidental or related to the pre-existing non-specific dizziness of which Mr Amos had complained from time to time before the accident of 26 July 2018.

  12. The Panel finds the fall which occurred at home on or about 24 August 2018 was not caused or contributed to by the accident on 26 July 2018.

  13. Whilst the Panel has found the fall was not causally related to the accident, Medical Assessor O’Neill undertook an assessment of impairment in the territory of the right infraorbital nerve using AMA4, Table 9, page 145. Mr Amos has mild numbness in the territory of the right fifth (trigeminal) cranial nerve and for the whole nerve this would give rise to a maximum 14% whole person impairment. The right infraorbital nerve is in the second division of the right trigeminal nerve and attracts a maximum 30% impairment compared with the whole of the right trigeminal nerve in accordance with clause 6.173 of the Guidelines. The assessment is calculated at 30% of 14% which equates to 4% WPI rounded up.

  14. Hence, if the right infraorbital nerve lesion was casually related to the accident, and the Panel finds it was not, then there would be 4% WPI for that nerve injury.

MEDICAL EXAMINATION BY MEDICAL ASSESSOR WECHSLER

  1. Medical Assessor Wechsler saw Mr Amos at his rooms on 25 October 2020. Medical Assessor Wechsler assessed WPI from the ophthalmic complications arising from the fall at home on 24 August 2018.

The accident on 26 July 2018

  1. Mr Amos said he was a passenger on the front left hand side of the car which was travelling about 60kms per hour when a bus pulled in front of it and the car collided in the back of the bus. Mr Amos said his face hit the windscreen the windscreen broke, and he was knocked unconscious. Despite extensive injuries there was no direct trauma to either eye or either orbit

The fall on 24 August 2018

  1. Mr Amos said he was feeding his cats and walking down the back steps holding the cat food. There were three or four steps. He remembers feeling dizzy and then found himself on the ground with significant trauma to his right orbit and right upper lid. There was a cut above the right eyebrow with blood spurting out. In retrospect Mr Amos felt that when he fell his right side of the face and right orbital area hit a jutting out ornamental brick part of the verandah which caused direct blunt concussive injury to the right eye.

  2. He was taken Royal Prince Alfred Hospital where a blowout fracture of the right orbit was diagnosed. There was air in the orbit and he did have symptoms of double vision.

  3. Mr Amos had prompt surgery at Royal Prince Alfred. It was noted the right inferior rectus was entrapped and was released and a titanium plate was inserted in the floor of the orbit to reduce the fracture.

  4. Mr Amos’s symptoms of double vision did improve as a result of the surgery, but he has had persistent diplopia since the accident. Mr Amos describes the diplopia as intermittent, and he is usually able to control the double vision by blinking. The double vision is particularly noticeable when he watches TV.

  5. Since the accident Mr Amos has noticed loss of sensation in the right side of his cheek and the right side of his upper lip.

  6. Mr Amos said that his vision in the right eye is not as strong and he requires an increase strength in his glasses.

Pre-existing medical conditions

  1. Mr Amos has required myopic glasses or alternatively contact lenses since the age of 12.

Examination findings

  1. Mr Amos’s distance vision without correction was count fingers for the right eye and count fingers for the left eye.

  2. With his current myopic correction Mr Amos’s vision corrected to 6/9 in the right eye and 6/6 in the left eye. With a further increase in his myopic correction in the right eye his right vision corrects to 6/6.

  3. Mr Amos’s near vision without correction was <J20 for the right eye and J18 for the left eye. With a suitable near vision correction Mr Amos’s near vision was J1 for the right eye and J1 for the left eye.

  4. On testing the pupils they were equal and central and responded normally to direct and consensual light stimulae and accommodation stimulae.

  5. The extraocular movements were full and cover test failed to reveal any evidence of latent or manifest strabismus.

  6. Mr Amos remarked that he did experience double vision in different directions of gaze.

  7. On testing with a tangent screen as a diplopia chart using a 10mm white target one metre away from Mr Amos he experienced double vision within 10º to 12º of fixation in all the eight meridians of gaze.

  8. Examination of the adnexae showed no significant scars. There was very slight and questionable right enophthalmos which was not cosmetically noticeable. There was evidence of right infero orbital nerve anaesthesia which is a legacy of the blowout fracture of the right orbit.

  9. The conjunctival and corneal examination was normal.

  10. The anterior chamber was quiet with no evidence of uveitis.

  11. The media examination was normal. The retinal examination was normal.

  12. The ocular pressures were normal being 14mm/Hg in both eyes.

  13. The visual fields to confrontation were normal.

  14. The colour vision was normal.

  15. The computerised visual fields (Humphreys 30-2) were unreliable.

  16. An ocular coherent tomogram showed normal macular, optic disc and ganglion cell morphology.

Opinion and diagnosis

  1. As a result of the fall down the stairs on 24 August 2018 Mr Amos sustained a blunt concussive injury to the right eye and peri-orbital area resulting in a minor laceration of the right eyebrow and a blowout fracture of the right floor of orbit. The blowout fracture of the right floor of orbit caused entrapment of the right inferior rectus and despite prompt surgery and release of the right inferior rectus there was ongoing evidence of right infero rectus dysfunction causing intermittent double vision.

  2. The extraocular movements seemed full on clinical examination but Mr Amos definitely experienced diplopia in the eight meridians of gaze when testing with a diplopia chart.

  3. The double vision was a direct result of right inferior rectus dysfunction caused by the blowout fracture of the right orbit from the fall on 24 August 2018.

  4. The blowout fracture of the floor of the right orbit caused trauma to the right infero orbital nerve which resulted in anaesthesia of his right cheek and the right side of his upper lid.

Consistency of presentation and conclusion

  1. Despite being a relatively vague historian, Mr Amos’s clinical presentation was consistent with all the information in the documents reviewed. The Panel finds Mr Amos has ongoing intermittent but significant double vision as a result of right inferior rectus dysfunction caused by the blowout fracture of the right orbit from the fall on 24 August 2018. This blowout fracture of the right orbit also caused right infero orbital nerve anaesthesia. The blowout fracture of the orbit has resulted in very subtle and questionable right enophthalmos which is not cosmetically noticeable and certainly not cosmetically significant.

Stability of the injury

  1. Mr Amos’s ophthalmic condition is stable and has reached maximal medical improvement.

Assessment of permanent impairment of vision

  1. The cause of Mr Amos’s impairment is related to the fall on 24 August 2018.

  2. Notwithstanding the Panel’s conclusion as to causation an assessment was undertaken of the WPI of Mr Amos’s visual status.

  3. As Mr Amos has worn glasses since the age of 12 Mr Amos’s corrected near and distance vision is normal. His visual fields to confrontation are normal.

  4. Mr Amos’s minimal and questionable right enophthalmos is not significant cosmetically and does not qualify for an assessment of permanent impairment for the appearance of the right orbit.

  5. Mr Amos experienced the presence of diplopia when assessed with a diplopia chart. The diplopia was in all eight meridians of gaze and was experienced within the 20º of fixation.

  6. As noted in example 1 on page 8/217, AMA4 Guides, diplopia within the central 20º is estimated to be 100% impairment of ocular motility which is equivalent to total loss of vision in one eye which is estimated to be 25% impairment of the visual system and therefore 24% WPI.

  7. If causation was established the Panel is satisfied Mr Amos would have sustained a 24% WPI impairment for his double vision.

  8. Mr Amos’s right infero orbital nerve anaesthesia was assessed by Medical Assessor O’Neill to be 4%.

  9. Hence, if the loss of vision due to diplopia and the right infraorbital nerve lesion was casually related to the accident, and the Panel finds it was not, using the combined value charts (p 322, AMA4 Guides) the 24% WPI for loss of vision due to the diplopia combines with a 4% WPI for right infero orbital nerve anaesthesia to result in 27% WPI.

PANEL DETERMINATION

  1. The Panel finds the injury, namely eyes – fractured right orbit was not caused by the motor accident and does not give rise to permanent impairment.


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Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804
Hunter v Insurance Australia Ltd [2021] NSWSC 623
Hunter v Insurance Australia Ltd [2021] NSWSC 623