AAI Limited t/as GIO v Ellis
[2024] NSWPICMP 159
•15 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Ellis [2024] NSWPICMP 159 |
| CLAIMANT: | Sean Ellis |
| INSURER: | GIO Insurance Ltd |
| REVIEW PANEL | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Chris Oates |
| DATE OF DECISION: | 15 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant was riding his bicycle on when a car pulled out from a driveway hitting his bicycle; he sustained fractures to his cervical spine and left wrist; Held – original medical certificate which found 12% whole person impairment (WPI) injuries caused by the motor accident to the claimant’s spine and wrist affirmed; on review, the Panel found that the injuries to the claimant’s cervical spine and left wrist were caused by the motor accident; claimant assessed at 5% WPI arising from injury to the cervical spine consistent with DRE cervicothoracic category II; claimant assessed at 7% WPI arising from injury to the left wrist; total permanent impairment assessed at 12% WPI; claimant had a significant past history of injury and disability following an assault in 2009 where he fell off a roof and injured his back. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Adam Rappaport dated 21 March 2023 regarding permanent impairment. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 26 October 2019 Sean Ellis (the claimant) was riding his bicycle on Great Western Hwy Kingswood when a car pulled out from a driveway hitting his bicycle. He was knocked off his bicycle and injured.
In his personal injury claim form Mr Ellis says that as a result of the accident he sustained injuries to his neck and left arm. He also says that the car ran over him as he hit the road. After the accident he was taken to Nepean Hospital.[1]
[1] Insurer’s bundle p 10.
In an application dated 1 December 2021 Mr Ellis has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).[2]
[2] Insurer’s bundle p 15
GIO Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Ellis under the MAI Act.
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%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Ellis 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.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
The dispute as to permanent impairment and assessment of treatment and care was referred to Medical Assessor Rappaport. He assessed Mr Ellis on 21 March 2023 and issued a certificate dated 21 March 2023.
Medical Assessor Rappaport assessed the degree of permanent impairment and found that the injuries caused by the motor accident resulted in permanent impairment of 12% which is greater than 10%.
The insurer has applied for a review of the certificate of Medical Assessor Rappaport.
REVIEW PROCEDURE
[3] Section 7.20 of the MAI Act.
An application for review of the medical assessment of Medical Assessor Rappaport was lodged within 28 days of the date on which the certificate of was made available to the parties.
On 6 June 2023, 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).
The grounds for review advanced by the insurer are that Medical Assessor Rapaport failed to provide proper reasons for his findings as to diagnosis (particularly in relation to the cervical spine); failed to provide proper reasons as to why he had assigned a DRE II category impairment for the cervical spine; and failed to bring inconsistencies between his clinical findings and information obtained through medical records to the claimant’s attention as required under clause 6.41 of the Motor Accident Guidelines (version 9)
The claimant lodged an Application to Admit Late Documents form dated 22 May 2023 with additional submissions attached. Those submissions were accepted in accordance with r 67(4)(a) of the Rules by a decision of a delegate of the President dated 22 May 2023. The Panel has considered those submissions.
RELEVANT LEGAL AUTHORITY
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).
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 (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
2. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
3. '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:
4.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
5.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
6. This, therefore, involves a medical decision and a non-medical informed judgement.
7. 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.”
In Norrington v QBE Insurance (Australia) Ltd[4] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[4] [2021] NSWSC 548, Norrington.
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[5] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
8.“…busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga[2004] NSWCA 34 at [35]).”
[5] [2012] NSWSC 650, Owen.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[6] where the Court stated at [64]:
9.“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[6] [2016] NSWCA 229, McGiffen.
Even more recently In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[7] 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.
ASSESSMENT UNDER REVIEW
[7] [2021] NSWSC 804, Kinchela.
The dispute was referred to Medical Assessor Rapaport who examined the claimant on 21 March 2023 and issued a certificate on 21 March 2023. He determined that the following injuries caused by the accident gave rise to a permanent impairment of 12% which was greater than 10%: fractured C4-C5 spinous process, partial tear to the anterior longitudinal ligament with possible C6 radiculopathy, and fractured distal radius requiring open reduction and internal fixation.
Medical Assessor Rapaport notes Mr Ellis’ past medical history of a traumatic injury to his thoraco-lumbar spine in 2016, after being set upon and thrown from a balcony and falling onto his back onto a concrete flower bed. He sustained serious injuries to his spinal column. Mr Ellis underwent surgery at the Princess Alexandra Hospital, Brisbane at which time an implantable titanium frame was placed between the injured and crushed spinal levels T11 to L3. He recovered slowly from his injuries and was able to work subsequently as a boilermaker in Western Australia.
Medical Assessor Rapaport concluded that Mr Ellis’ cervical spine injuries were diagnosed immediately following the accident and proven radiologically consistent with the accident. Also the observations of ambulance officers who attended the accident reported a fractured left forearm and radiological investigations following the accident demonstrated left forearm fractures that required operative fixation of the comminated and displaced left distal radius.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued Directions to the parties on 29 August 2023 requiring each party to file an indexed, paginated bundle of documents. The solicitors for the claimant and insurer both uploaded to the portal an index and a bundle of documents.
The solicitor for the claimant also made an application to admit late documents dated 22 May 2023 attaching written submissions which were admitted and considered by the Panel.
The claimant and insurer have filed with the Personal Injury Commission (Commission) over 300 pages of hospital notes, clinical doctors notes, rehabilitation notes and medico-legal reports. The Panel has carefully reviewed and taken these notes and medical records into account but has not attempted to summarise or detail all of the medical records in these reasons. As some of these records relate to medical conditions that are not relevant to the issues before this Medical Review Panel the Panel have not summarised those records in these reasons.
The Panel also notes that in Roger v De Gelder [2015] NSWCA 211, the Court of Appeal determined that the statutory obligation of a Medical Assessor is to review the evidentiary material placed before him/her in order to determine whether the degree of permanent impairment to the injured person caused by the motor accident is greater than 10%. The statutory duty does not go so far as to impose a precise obligation to consider and discuss every piece of evidence placed before the Medical Assessor.
Police and ambulance reports
The New South Wales ambulance report dated 26 October 2019 included the following record:
“…PT lying on the pavement , well perfused and alert .PT states he struck the car at a low speed and fell off his bike, the car then reversed and ran over his L arm….. PT has abrasion to R side of face and R upper arm. PT has obvious fracture to L forearm. Nil obvious chest/abdominal injuries/pain.”[8]
[8] Insurer’s bundle pp 27-39.
The ambulance notes describe that the claimant denied loss of consciousness and denied cervical spine pain. The PEARL measure was GCS 15.
There were no police reports.
Hospital reports
The emergency department (ED) notes from the Nepean Emergency Department dated 26 October 2019, note that the claimant’s had a CT scan of his cervical spine. This showed flexion teardrop fractures at the inferior endplates of C3 and C4. Small avulsion fractures are noted through the tip of the spinous processes of C4 and C5.[9] An X-ray of the left forearm showed a comminuted fracture of the distal left radius with dorsal angulation and displacement of the distal fractured segment.
[9] Insurer’s bundle pp 33-37.
Regarding the clinical summary of the cervical spine the hospital notes recorded in part:
“C4 flexion tear drop fracture, C4 and C5 spinous process fractures.
Xray: Flexion teardrop fractures through the inferior endplates of C3, C4 and C5.Avulsion fractures of the C4 and C5 spinous process.
MRI: Fracture of C3 and C4 with an associated prevertebral haematoma again noted. Subtly intermediate high signal intensity of the anterior longitudinal ligament at C3/C4 is suggestive of a partial tear. Fracture of the C4 and C5 spinous process with surrounding soft tissue oedema and interspinous ligamentous injury,
Pt to wear collar for minimal 3 monthsCollar management as per PT recommendation.”[10][10] Insurer’s bundle pp 66-67.
There is a clinical note about neurosurgery from Dr Scandrett dated 26 October 2019. She notes that the claimant was advised that he had a potentially unstable spinal injury. Dr Scandrett notes as follows. No radicular symptoms. Left arm in half cast. Decreased sensation to all fingers in left arm..... No pain in thoracic or lumbar spine.[11]
[11] Insurer’s bundle pp 89-90.
In the hospital records there is a letter dated 11 November 1984 addressed to a solicitor, John Cram, in Penrith which refers to clinical notes regarding Sean Ellis.[12] The letter notes that this patient was brought to the casualty section of this hospital by ambulance on 4 February 1984 at 3.05pm after being involved in a motor vehicle accident. There was no loss of consciousness and the patient was complaining of a painful lower back, lacerated right hip, right knee and right ankle. Mr Ellis return for a review on 8 February 1984 complaining of pain to his neck. Examination of his neck revealed a full normal range of movement with no local tenderness of his neck. The patient was treated with a soft cervical collar for muscular spasm and his lacerations were again cleaned and dressed.
[12] Insurer’s bundle p 195.
The report from St Vincent’s Hospital states that Mr Ellis attended St Vincent's Hospital on 3 November 2019.[13] Mr Ellis stated that he was assaulted at a train station last night whilst another man was trying to steal his telephone. He said the plaster cast on his arm had became battered and wet as a result of the assault so he said he removed the cast and dressing at the train station. Mr Ellis denied pain or discomfort to the left wrist joint or over the surgical site he reported intermittent paraesthesia over the left hand. Mr Ellis said he felt well since his discharge from Nepean Hospital. Examination of his left wrist at St Vincent’s Hospital showed all nerve sensation and motor functions intact and radial pulse strong. The hospital notes record that the dressing and plaster cast were reapplied to the claimant's left wrist.
[13] Insurer’s bundle p 205.
The St Vincent’s Hospital notes record that Mr Ellis attended St Vincent's Hospital on several occasions during late 2019 and 2020 seeking treatment for his left wrist and also complaining of back pain.
There are also medical clinical notes from the Crown Street medical Centre from 2020. The show that Mr Ellis was seeking treatment for hepatitis C and blood tests during 2020. The notes record that Mr Ellis had been homeless for some time. There is a record of a surgery consultation with Dr Martin Nguyen on 4 June 2021 when Mr Ellis sought treatment for depression and left-sided neck pain and tingling sensations in his left arm.
Pre-accident treatment medical evidence
The pre-accident medical evidence shows that Mr Ellis reported a previous history of injury and surgery to his back. The details of this history is referred to in other parts of these reasons.
Post-accident treating medical evidence
The claimant was taken by ambulance to Nepean Hospital shortly after the accident. The hospital notes show that he stayed in hospital for some days. At the hospital a CT scan of the cervical spine showed teardrop fractures at the inferior end plates of C3/C4 vertebra and small avulsion fracture to the spinous process of the C4 and 5 vertebra. The claimant was discharged later that day with his left arm immobilised in a temporary splint. Mr Ellis had a comminuted left wrist open fracture of the distal radius requiring open reduction and internal fixation. The claimant was advised to return to hospital after further imaging identified a fracture of the C3 and C4 in addition to a partial tear to the anterior longitudinal ligament. There was also a fracture of T4 spinous process with oedema.
Further details of the claimant’s treatment after the subject motor accident are also referred to in other parts of these reasons.
Medico-legal evidence
Dr Mohammed Assem, rehabilitation specialist
There is a medical report from Dr Assem dated 2 June 2021.[14]
[14] Insurer’s bundle p 270.
In the report Dr Assem notes that in 1984, the claimant was involved in a motor vehicle accident, sustaining an injury to his right foot. In 2009, he fell off a roof sustaining a fracture to the L3 vertebra. He was able to return to work as a boilermaker despite persistent low back discomfort until 2017 when he was physically assaulted causing an aggravation of his lower back discomfort. He required a lumbar fusion that was complicated by urinary incontinence. He was subsequently placed on a disability support pension but continued to complete odd jobs as a welder and boilermaker.
After the subject motor accident Dr Assem notes that the claimant was taken to Nepean Hospital where a CT scan of the cervical spine showed teardrop fractures at the inferior end plates of C3/C4 vertebra and small avulsion fracture to the spinous process of the C4 and 5 vertebra. He was discharged later that day with his left arm immobilised in a temporary splint. The claimant was again advised to return to hospital after further imaging identified a fracture of the C3 and C4 in addition to a partial tear to the anterior longitudinal ligament. There was also a fracture of T4 spinous process with oedema.
On examination of the claimant’s cervical spine Dr Assem found as follows:
16.“There was mild tenderness while palpating the spinous process of the cervical vertebra. There was no muscle guarding or spasm. He demonstrated a normal range of cervical movement in flexion, extension, lateral flexion and rotation with pain at the end of range.”
Dr Assem’s diagnosis is as follows. Cervical spine – fractured C4-C5 spinous process, partial tear to the anterior longitudinal ligament with possible left C6 radiculopathy. Thoracic spine – fractured T4 vertebra. Left wrist – open fracture distal radius requiring open reduction and internal fixation.
Professor Ian Cameron, rehabilitation physician
Professor Cameron examined the claimant on 22 July 2022 and wrote a report dated 27 July 2022.[15]
[15] Insurer’s bundle p 10.
In the report Professor Cameron went through in considerable detail Mr Ellis’s background and previous back injuries in 2009 caused by an assault and also further assault at a railway station referred to in a letter from St Vincent Hospital dated 3 November 2019.
Professor Cameron set out his diagnosis and prognosis stating the motor vehicle related incident on 26 October 2019 Mr Ellis sustained a comminuted left distal radial wrist fractures and bony and ligament injuries to his cervical spine.
Professor Cameron’s evaluation of Mr Ellis’ whole person impairment (WPI) is as follows: cervical spine – fractures and soft tissue injury has minor surgical fractures with less than 25% vertebral compression and therefore DRE category II, 5% WPI. Left wrist comminuted distal radial fractures. Using figure 26 and figure 29 these impairment values are added to give 4% upper extremity impairment which converts to 2% WPI in Table 3 page 20 AMA 4 Guides.
X-ray, CT Scan and MRI evidence
On 26 October 2019 here is an CT scan of the cervical spine reported by Dr Sharma. This CT scan showed: teardrop fractures through the inferior endplates of C3 and C4 anteriorly. Prevertebral haematoma is present. Given the location a ligamentous injury is highly suspicious, and further assessment with an MRI study is recommended. Avulsion fractures of the C4 and C5 spinous processes.
On 26 October 2019 there is a CT chest, abdomen and pelvis with contrast reported by Dr Sharma. This scan showed: no acute thoracic or abdominal soft tissue injury detected. T4 spinous fracture with irregular fracture line and sclerotic margin can represent acute injury in presence of relevant symptoms. Multiple cervical vertebral fractures noted on C-spine CT. Cervico-thoracic or whole spine MRI may be helpful for further assessment.
On 26 October 2019 there is an X-ray of the left forearm reported by Dr Mathews. This showed a comminuted fracture of the distal left radius with dorsal angulation and displacement of the distal fractured segment. The carpal bones have also been dislocated dorsally along with the distal radius fracture. Assessment is limited by overlapping artefact from dressings.
SUBMISSIONS
Insurer’s submissions
The insurer’s solicitor provided two written submissions dated 3 April 2023 and 22 November 2022.[16]
[16] Insurer’s bundle pp 1-7.
In the submissions dated 3 April 2023 the insurer submits that Medical Assessor Rapaport gave inadequate reasons and did not take into account all the relevant medical records provided.
The insurer submits that the Medical Assessor Rapaport has failed to provide proper reasons as to: (a) His findings as to diagnosis; (b) the criteria of DRE Category II which the claimant allegedly satisfies in relation to the claimant’s cervical spine, and (c) the claimant’s neck ‘tilt’, notwithstanding there being no medical evidence documenting such presentation.
The insurer also asserts that Medical Assessor Rapaport has erred in his assessment of permanent impairment as to the left upper limb, in that he has also failed to have regard to the post-accident assault, during which the claimant removed his left wrist cast.
The insurer contends that Medical Assessor Rapaport has failed to have proper regard to cls 6.40 and 6.41 of the Motor Accident Guidelines (the Guidelines).
The insurer submits that Medical Assessor Rapaport has failed to take into account the insurer’s submissions, as well as the clinical notes of St Vincent’s Hospital.
The insurer also submits that Medical Assessor Rapaport has referred to Table 6.7 of the Guidelines, but there is a complete absence of any comments as to the criteria of DRE category II for the cervical spine, which he says the claimant has satisfied.
The insurer also argues that Medical Assessor Rapaport did not engage with the medical evidence about the claimant’s head tilt. It notes that there is a complete absence of any medical evidence in which the claimant is recorded as presenting with a head ‘tilt’.
The insurer argues that Medical Assessor Rapaport has overlooked his obligations pursuant to cls 6.40 and 6.41 of the Guidelines. For completeness, the insurer confirms the clauses which requires him to use his clinical skill and judgement to assess whether or not the results of measurements are plausible and also to bring inconsistencies to the injured person’s attention.
The insurer refers to the decision of Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171 (Dominice), Simpson JA provided the following commentary at [61] in relation to the equivalent provision under the Act’s predecessor. That is to say, cl 6.41 of the Guidelines:
“…offers a guard against the drawing, unfairly, of conclusions about inconsistencies detected in a claimant’s presentation. It can also, as in the present case, act as a guard against conclusions that may be unfairly drawn in favour of a claimant, against the interests of an insurer, where the conclusions (as here) are unsupported by medical records or history”.
In accordance with the reasoning regarding the measurement of the left wrist movement the insurer submits that Medical Assessor Rapaport has assessed the claimant as presenting with a range of motion that was more restricted than that recorded in the balance of the available medical evidence. The insurer cites the reports of Dr Assem and Professor Cameron.
In the submissions dated 22 November 2022 the insurer submits that it relies upon the report of Professor Cameron dated 27 July 2022.
The insurer refers to the clinical notes of St Vincent’s and the CT scan of the thoracic and lumbar spine. Insurer also points to the clinical notes of Nepean Hospital and the report of Dr Assem. Accordingly, in light of this evidence, there would be no assessable WPI arising out of the alleged thoracic spine injury.
Claimant’s submissions
The claimant’s solicitors made detailed submissions dated 19 May 2023.[17] They submit that the application ought to be dismissed because the certificate was not incorrect in any material respects.
[17] Claimant’s bundle pp 1-2.
The claimant's submissions argue that Medical Assessor Rapaport did take into consideration the insurer’s submissions and all of the documents produced by St Vincent's Hospital.
Regarding the cervical spine the claimant’s submissions note that Medical Assessor Rapaport found 5% WPI arising from the injury to the claimant’s cervical spine consistent with DRE Cervicothoracic Category II. The insurer’s own independent expert, Professor Ian Cameron, came to the exact same conclusion. So did Dr Assem, the claimant’s independent expert. The claimant further argues that as all three independent experts come to the same material conclusions regarding diagnosis, causation and WPI rating in respect of the cervical spine injury, there cannot be “material errors”.
Regarding the left wrist the claimant submissions refer to the insurer’s submissions that the Medical Assessor’s clinical findings in respect of the claimant’s left wrist movements were more restricted than that recorded by Professor Cameron and Dr Assem. The claimant agrees that this is true, however, it does not constitute a “material error”. The claimant argues that all three experts who examined the claimant’s left wrist recorded slightly different ranges of movement; refer to the table at paragraph 21 of the insurer’s submissions, dated 3 April 2023. The claimant submits that there is nothing unusual about this. In fact, it is commonplace. It can represent a slight deterioration in the level of impairment, or some other benign reason. Professor Cameron’s clinical findings, which are relied upon by the insurer, are the outliers. The ranges of motion assessed by both Dr Assem and the Medical Assessor are materially consistent; there is only five degrees of variance with respect to flexion, extension and radial deviation. Ulnar deviation was recorded to be the exact same.
Regarding the surgical scar on the left forearm the claimant refers to page 8 of the certificate. Medical Assessor Rapaport notes the claimant’s surgical scar to the left volar wrist was caused by the operation performed to fix the comminuted left distal radius fracture that was undoubtedly caused by the subject accident. The claimant requests that this injury be assessed and ascribed a separate and appropriate WPI rating.
THE MEDICAL EXAMINATION
On 5 October 2023 Mr Ellis attended for an interview and examination which was carried out by Medical Assessor Dixon at Palmerston Road Hornsby rooms.
This 57-year-old claimant was riding his pushbike in the green bike lane on 26 October 2019 at Kingswood, NSW when he was hit by a driver coming out of a driveway and then run over by the vehicle. He reports he was run over again on the left wrist. He reports the vehicle did not stop. He sustained injuries to his neck and left wrist.
He has been referred to the Panel assessment for his left wrist and cervical spine.
After the subject motor vehicle accident the claimant was taken to Nepean Hospital where he was shown to have a fracture of the left wrist which required ORIF with plate and screws and injury to the cervical spine. He was discharged on 1 November 2019.
On examination on behalf of the Panel on 5 October 2023, he was 183cm tall and weighed 78kg. There was stiffness of his left wrist with dorsi flexion 40 degrees, palmar flexion 30 degrees, radial deviation 20 degrees and ulnar deviation 20 degrees. Pronation and supination were full. The active range of movement (ROM) was measured using a goniometer. There was a well healed volar scar of some 7cm which was non tender and non-adherent and well healed. There was flexion deformity at the PIP joints of the little fingers of both hands and he had a full ROM of his right wrist. His Tinel’s sign over the median nerve was equivocal as was his Phalen’s test. There was no wasting of either forearm, measuring 19cm bilaterally, 10cm above the wrist. His pinch test and key pinch test were grade 5 out of 5.
In the cervical spine there was stiffness of the cervical spine with flexion and extension decreased by one quarter as was lateral rotation to the left and lateral rotation to the right was decreased by one third There was no neurological deficit in his upper limbs nor wasting. He had mild persisting stiffness of his neck but no neurological deficit in his upper extremities nor wasting, that is no radiculopathy.
CT of the cervical spine on 26 October 2019 showed avulsion fractures of the C4 and C5 spinous processes with pre-vertebral haematoma shown on the MRI of 28 October 2019, where there was also flexion tear drop fractures through the C3 and C4 inferior endplates, being DRE II, 5% WPI. One or more endplate fractures in a single spinal region without measurable compression of the vertebral body are assessed as DRE category II. Clause 6.150 SIRA Guidelines.
An X-ray of his left wrist that he had on his mobile phone showed a volar plate with multiple screws holding the fracture of the distal radius in good position. The hardware remains in situ.
The Panel’s findings on the claimant’s impairment assessment is as follows.
At the left wrist there is measurable reproducible loss of active range of movement which forms the basis for assessing a permanent impairment. Dorsi flexion (extension) of 40 degrees of his left wrist is 4% upper extremity impairment (UEI), that for palmar flexion of 30 degrees is 5% UEI, that for the radial deviation of 20 degrees is 0% UEI and that for the ulnar deviation of 20 degrees is 2% UEI. Clause 6.54 of the SIRA Guidelines directs that the Medical Assessor must follow the instructions in figure 1 regarding adding or combining impairments. Figure 1 page 17 of the AMA 4 Guides indicates that for the wrist these impairments are to be added. Adding these impairments gives a total of 11% UEI which equates to 7% WPI.
That for the cervical spine is DRE Category II, 5% WPI, on the basis of dysmetria and structural inclusions (end-plate fractures without vertebral body compression).
This is similar to that found by Medical Assessor Rappaport in his MAC on 21 March 2023.
In its submissions in reply the claimant raises for the first time the issue of scarring. The claimant’s submissions do not further detail what the claimant’s argument is nor do the submissions point to any medical evidence or any submissions about what the percentage WPI should be. The insurer has not responded to the claimant’s application and has made no submissions on the scarring issue. The Panel also notes that scarring was not one of the injuries referred to the Panel and that Medical Assessor Rapaport has not assessed the scarring issue in his reasons.
The claimant is not conscious of the operative scarring following the ORIF of his left wrist, but is able to locate the scar on the undersurface of the wrist, and there was a good colour match with the surrounding skin and is barely distinguishable. There were no trophic changes and no staple marks and the anatomical location of the scar was not clearly visible with usual clothing and there was no contour defect, no effect on any activities of daily living (ADLs), no treatment required and no adherence, as per the TEMSKI Scale. The majority of the 10 criteria fall in the 0% WPI column of the TEMSKI table 6.18 SIRA Guidelines Version 9.1. This is the reason there was no assessable impairment for the skin scarring.
In the claimant’s case the Panel finds the scarring attributable to the left wrist and forearm surgery is minor and finds the appropriate WPI assessment to be 0% WPI. There is no assessable impairment for scarring.
There was no symptomatic pre-existing wrist condition.
The claimant has reached maximum medical improvement.
The Panel’s assessment of claimant’s WPI is:
Body Part or System AMA4 Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO) Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident 1 Cervical
SpineAMA 4 Guides 3/104
DRE Category II
Motor Accident Guidelines
Table 6.7 Page 60Yes 5% WPI NIL 5% WPI 2 Left Wrist AMA 4 Guides Figure 26, page 3/36 and Figure 29 page 3/38
Guidelines 6.48-6.60Yes 7% WPI NIL 7% WPI
The combined impairment is 7% + 5% giving 12% WPI = percentage WPI.
The degree of permanent impairment caused by the motor vehicle accident is 12% which is greater than 10%.
“Cervical spine:
Stable: yes
Reference: AMA Guide 4th edition
Relevant chapters and Table: ch 3, pge 104, Section 3.3h, Table 70, pge 108, Table 73, pge 110
Assessment : DRE Category II
Whole Person Impairment: 5 %
Reason for assessment: A 5% WPI has been assigned for the cervical spine has been the bony injury with the tear drop fractures of C3 and C4 vertebral body enplates in the cervical spine.Left wrist :
Stable: Yes
Reference: AMA 4TH EDITION
Relevant chapters and Table: for the left wrist the figures are Pie Charts 26, 29 from Pages 36-38 of the AMA IV Edition Guides.
Whole Person Impairment: 7 %WPI
Reason for assessment: A 7% WPI has been assigned because Dorsi flexion (extension) of 40 degrees of his left wrist is 4% UEI, that for palmar flexion of 30 degrees is 5% UEI, that for the radial deviation of 20 degrees is 0% UEI and that for the ulnar deviation of 20 degrees is 2% UEI. Adding these impairments gives a total of 11% UEI which equates to 7% WPI.”
SUMMARY OF PANELS OPINION AND CONCLUSIONS
The Panel’s opinion is that the accident caused an injury to the claimant’s cervical spine and injuries his left wrist.
The Panel accepts that Mr Ellis had sustained an injury to his cervical spine as a result of the accident. The Panel notes that at Nepean Hospital a CT scan of the cervical spine showed teardrop fractures at the inferior end plates of C3/C4 vertebra and small avulsion fracture to the spinous process of the C4 and 5 vertebra. The Panel notes that Medical Assessor Rapaport and Professor Cameron both assessed a 5% WPI arising from the injury to the claimant’s cervical spine consistent with DRE Cervicothoracic Category II. At the re-examination and medical assessment the Panel found asymmetry and dysmetria. The Panel did not find any muscle spasm or guarding in either the neck or back. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment for his cervical spine was DRE Cervicothoracic Category II, resulting in 5% WPI.
The Panel accepts that Mr Ellis had sustained an injury to his left wrist as a result of the accident. The Panel notes that at Nepean Hospital an X-ray of the left forearm confirmed a diagnosis of a comminuted fracture of the distal left radius with dorsal angulation and displacement of the distal fractured segment. The Panel also notes that Medical Assessor Rapaport and Professor Cameron respectively found a 5 % and 2% WPI attributable to the left wrist injury. The Panel also notes that the ranges of motion assessed by both Dr Assem and the Medical Assessor Rapaport are closely consistent. At the re-examination the Panel measured and found the dorsi flexion of 40 degrees of his left wrist is 4% UEI, that for palmar flexion of 30 degrees is 5% UEI, that for the radial deviation of 20 degrees is 0% UEI and that for the ulnar deviation of 20 degrees is 2% UEI. This gives a total of 11% UEI which equates to 7% WPI.
Regarding the skin scarring of the left wrist and forearm for the reasons given above the Panel assesses the scarring as 0% WPI.
In conclusion the Panel found that there was 5 % WPI of the cervical spine and 7% WPI for the left wrist which was caused by the accident due to post traumatic stiffness.
CONCLUSION AND CERTIFICATION
As a result of the above findings the Panel affirms the certificate of Medical Assessor Rappaport dated 21 March 2023 regarding permanent impairment.
The following injuries were caused by the motor accident and give rise to a permanent impairment of 12 % which is greater than 10%:
· cervical spine – teardrop fractures at the inferior end plates of C3/C4 vertebra and small avulsion fracture to the spinous process of the C4 and 5 vertebra, and
· left wrist injury – comminuted fracture of the distal left radius.
The certificate is attached at the commencement of these Reasons.
0
7
0