Adams v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 309
•30 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Adams v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 309 |
| CLAIMANT: | Danny Adams |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Member Terence O'Riain |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 30 June 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about permanent impairment; assessment review under section 7.26; original Medical Assessor Rosenthal assessed 10% permanent impairment; no pre-existing injuries; re-examined; Held – claimant sustained soft tissue injuries to right elbow, lumbar spine, left wrist; whole person impairment (WPI) greater than 10%; previous impairment certificate revoked. |
| DETERMINATIONS MADE: | Review Panel Assessment of Degree of Permanent Impairment The Review Panel revokes the certificate dated 18 October 2022 and issues a new certificate determining that: The motor accident caused the following injuries which give rise to a permanent impairment which is 11% and IS GREATER THAN 10%: · lumbar spine‑aggravation of degenerative changes, possible L5/S1 disc injury; · left wrist-fracture of base 5th metacarpal, possible residual arthritis, and · right elbow laceration and soft tissue injury. |
REASONS
BACKGROUND
The claimant Mr Adams was injured in a motor accident in NSW on 29 August 2018.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Adams lodged an application for assessment of a permanent impairment dispute of physical injuries sustained as a result of the accident.
Mr Adams alleges the accident caused injuries to his cervical spine, lumbar spine, right shoulder and left wrist.
Medical Assessor Rosenthal examined Mr Adams and produced a certificate dated
18 October 2022 that assessed permanent impairment at 9%.The claimant applied to the Personal Injury Commission’s (Commission) President to review that certificate within 28 days after the Commission issued the original certificate to the parties.[1]
[1] Section 7.26(10) of the MAI Act.
The President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Rosenthal’s assessment (the Review).
On 18 December 2022, the President’s delegate referred the medical assessment to a Review Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
STATUTORY PROVISIONS & GUIDELINES
Part 5 of the Personal Injury Commission Act 2020 (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 Merit Reviewer or a Medical Assessor.[3]
[3] Section 41(2) of the PIC Act.
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.[4]
[4] Rule 128 of the PIC Rules.
Section 7.21 of the MAI Act provides that the assessment of permanent impairment under the MAI Act is undertaken in accordance with version 9.1 of the Motor Accidents Guidelines (Guidelines).[5] The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where AMA 4 and the Guidelines differ, the Guidelines prevail.[6]
[5] The Guidelines are issued pursuant to s 10.2 of the MAI Act. Section 10.1 of the MAI Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the Guidelines.
[6] Clause 6.2 of the Guidelines.
The Review
Assessment under Review
Medical Assessor Rosenthal certified the following:
“Permanent Impairment
The following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%:
· Lumbar spine – aggravation of degenerative changes, possible L5/S1 disc injury
· Left wrist – fracture of base 5th metacarpal, possible residual arthritis
· Right elbow – laceration and soft tissue injury
Pre-existing/subsequent impairment
· There was no pre-existing or subsequent impairment so further deduction is not required.
· Apportionment”
The net result of 10% - 5% resulted in 5% upper extremity impairment for the left wrist. 5% upper extremity impairment converts to 3% whole person impairment (WPI).
The right elbow was assessed under Figures 32 and 35. The left elbow had a full range of motion so no deduction was required. The right elbow movement of 10° extension and 130° extension results in 2% upper extremity impairment. 2% upper extremity impairment converts to 1% WPI.
Disputes and issues identified by the parties
The parties agreed on the injuries suffered in the accident and dispute the permanent impairment ratings.
The respondent disputes that the matter should have been referred to the Panel.
Documentation
The Review Panel considered the following documentation:
· Medical Assessor Rosenthal’s certificate dated 18 October 2022;
· Application for review and attached documents;
· Reply and attached documents;
· the Proper Officer’s reasons dated 19 December 2022 referring this matter to a Review Panel, and
· the documents provided to Medical Assessor Rosenthal before the assessment under review.
The insurer submitted additional evidence with Dr Keller’s supplementary report dated 27 January 2023 to the Panel.[7]
[7] AD1-ADAMS - Application to Admit Late Documents - WPI (Dr Keller) with annexures.
Matters considered and decided by the Review Panel
The Review Panel met on 13 April 2023.
The Review Panel considered afresh all aspects of the assessment under review.
The Panel noted Dr Keller’s supplementary report dated 27 January 2023 and considered it.
The Panel’s initial opinion was it was not necessary to re-examine the wrist and lumbar spine. This is because Medical Assessor Rosenthal’s permanent impairment finding for the left wrist based on his subtraction for the uninjured right wrist was incorrectly calculated.
The correct figure for 55 degrees flexion is 1% upper extremity impairment (UEI) and that for the 55 degrees extension is 1% UEI so that the total deduction for the left wrist is 3% UEI. This gives 10% UEI for the left wrist minus 3% UEI for the right wrist, which equals 7% UEI, giving 4% WPI.
The Panel agreed the lumbar spine impairment is DRE Category II, 5% WPI. The Panel also agreed at the conference with Medical Assessor Rosenthal’s right elbow assessment.
The Review Panel determined that it was necessary to re-examine the claimant to assess the scarring from the laceration on the elbow.
The parties were invited to make submissions regarding the Panel’s intention to limit re-examining to the elbow scarring. The claimant agreed to that path and the insurer did not reply.
Medical Assessor Assem re-examined Mr Adams on behalf of the Panel at his Parramatta rooms on NSW 19 May 2023 at 4pm. The Panel directed the claimant was to take all relevant imaging studies to the appointment.
The Panel reconvened on 29 May 2023 to consider the examination report.
REVIEW PANEL FINDINGS
Re-examination
On 19 May 2023Mr Adams attended the appointment at Medical Assessor Assem’s room unaccompanied as arranged.
Pre-accident medical history and relevant personal details
Mr Adams is a 67-year-old male, who denied any previous back injuries or complaints. He had a previous cartilage repair surgery on his left knee many years ago. Following the accident, he was prescribed Perindopril for hypertension.
He has previously worked as a boilermaker, storeman, train driver, security adviser in the oil and gas industries, and working for the NSW Police and Australian Federal Police. He is married, lives in Gunnedah, and has no children.
At the time of the accident, Mr Adams was working as a postal delivery officer, riding a motorbike to deliver mail in the Gunnedah region. He had been in this job for six months. After a 10-month absence from work, he returned with restrictions. He now walks to delivers mail, limited to 4km and lifting up to 10kg. After the accident he experiences difficulty with household tasks like mowing the lawn and vacuuming. He can walk up to 2km but struggles with steps. He no longer surfs or ride motorcycles due to back and wrist pain.
History of the motor accident
On 28 August 2018, while riding his motorbike for a delivery, a reversing tabletop utility truck struck Mr Adams as he crossed the road. He was wearing protective gear and helmet but may have lost consciousness. An ambulance took him to Gunnedah Hospital.
Injuries and initial treatment
Fractured 5th metacarpal in the left hand: Plaster applied for approximately six weeks, followed by physiotherapy.
Laceration to right elbow: Repaired with six stitches, no further treatment received.
Low back injury: Treated with analgesia and physiotherapy.
History of symptoms and treatment following the motor accident
Dr Levitt (company doctor), certified Mr Adams unfit for work for one week. On
4 September 2018, Dr Levitt certified him unfit for an additional two weeks. Eight weeks after the accident, Dr Levitt reviewed Mr Adams and recommended a trial of physiotherapy for the left hand and wrist, but it was too painful.A progress X-ray revealed the fracture had not yet healed, so a splint was applied for another three weeks and physiotherapy was discontinued. Mr Adams consulted his general practitioner, Dr M Chan in Gunnedah, who advised him to continue resting his left wrist. He received a fiberglass splint for an additional five weeks (including the three weeks in the earlier splint) and underwent two months of physiotherapy for the left wrist. He achieved reasonable range of movement but experienced ongoing weakness of grip.
He consulted Dr Ghabrial, orthopaedic surgeon, who arranged an MRI scan of the lumbar spine five weeks after the motor vehicle accident that did not show any lumbar disc herniation or protrusion. There were osteoarthritic changes present in the L5/S1 apophyseal joints. He also consulted Dr Damodaran, neurosurgeon, who recommended conservative management. He was referred to Dr Nazha, pain management specialist and was given several cortisone injections into his back.
Current symptoms
He experiences intermittent right elbow discomfort associated with a restriction in elbow motion. There is also intermittent discomfort and weakness of his left wrist and hand that is worse at night. He considered that his right wrist and left elbow are ‘normal'.
His main concern was intermittent lower back discomfort that is worse towards the end of the week. He currently rates the discomfort as 8/10 on a pain scale after driving 4.5 hours to attend the appointment today. He stated that he required three rest breaks as he was experiencing numbness radiating from his buttock radiating down the posterior aspect of his left thigh and dorsal aspect of his left foot.
Current and proposed treatment
He takes Panadol osteo when needed.
Clinical examination
He appeared well at the examination and was in no apparent distress. He was cooperative during the examination.
Medical Assessor Assem informed Mr Adams that during the examination he was not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury. His height was measured at 173cm and he weighed 81kg.
Lumbar spine (lumbosacral)
There was slight loss of lumbar lordosis. He reported tenderness on palpation but there was no muscle guarding or spasm. In forward flexion he was only able to reach the middle of his thigh. Extension was reduced by a quarter. Lateral flexion was reduced by ½ normal range on the left and ¼ normal range on the right. Rotation was symmetrical reduced by ½ normal range.
He was able to stand on his heels and toes. He did not have any difficulty climbing on or off the examination couch. Active straight leg raising in the supine position was 60° on the right and 50° on the left. Neurological examination of his lower extremities was normal with normal power and tone and sensation and reflexes.
Upper extremity
There was a small fine, healed scar at the lateral aspect of his right elbow as shown in the attached photograph. There was slight tenderness around the left forearm extensor muscles. Elbow range of motion was normal on the left and reduced on the right as follows:
[image unable to render]
| ELBOW | RIGHT° | NORMAL° | UEI% |
| FLEXION | 120 | 150 | 2 |
| EXTENSION | 10 | 0 | 1 |
| PRONATION | 80 | 80 | 0 |
| SUPINATION | 60 | 80 | 1 |
He reported tenderness on display on the joint compression of his right wrist. He considered his left wrist to be ‘normal’ even though there was a consistent restriction in wrist motion on repeated testing. Active range of motion was as follows:
| WRIST | RIGHT° | RUEI% | LEFT° | LUEI% |
| FLEXION | 50 | 2 | 30 | 5 |
| EXTENSION | 50 | 2 | 40 | 3 |
| RADIAL DEVIATION | 20 | 0 | 20 | 0 |
| ULNAR DEVIATION | 25 | 1 | 15 | 3 |
There were no significant inconsistencies in his presentation.
SUMMARY AND CONCLUSION
Mr Adams was involved in a motor vehicle accident on 28 August 2018 while riding his motorbike for a delivery. He suffered multiple injuries, including a fractured 5th metacarpal in his left hand, a laceration to his right elbow, and a low back injury. He received initial treatment, including the application of a plaster on his left wrist, stitches for the elbow laceration, and pain management for his back injury.
Over the course of his recovery, Mr Adams underwent physiotherapy for his hand and wrist, with the initial trial being too painful. His fractured metacarpal required additional splinting for three weeks. He continued resting his left wrist and underwent further physiotherapy for two months, which helped improve his range of movement but left him with ongoing weakness in grip strength.
IMPAIRMENT
Lumbar spine
He has a restriction in lumbar movements with asymmetry of motion, spinal dysmetria and non-verifiable radicular complaints. His condition is consistent with a DRE Lumbosacral Category II or 5% WPI (AMA4, Table 72, p 110).
Right elbow
He experiences intermittent discomfort and has a restriction in motion. According to the limitations observed, he has 4% RUEI (AMA4, Figure 32, p 40) or 2% WPI (AMA4, Table 4, 3/20).
Left wrist
There is a moderate restriction in left wrist motion (AMA4, Figure 26, p 36) giving 11% LUEI or 7% WPI (AMA4, Table 4, 3/20). Medical Assessor Assem compared the injured left wrist to the opposite wrist which was asymptomatic and what Mr Adams considered to feel ‘normal’ (MAA Guide, ver. 6, clause 6.51, p 97) that had a limitation in motion equivalent to 5% RUEI (AMA4, Figure 26, p 36) or 3% WPI to give a total WPI or 4%.
Scarring
There is minor scarring that does not give rise to a rateable impairment (TEMSKI).
Panel deliberations
The Panel adopts the examination report of Medical Assessor Assem and adds the following reasons.
Injuries examined:
· lumbar spine;
· left wrist, and
· right elbow.
The parties agreed that the motor accident caused all the referred injuries. The circumstances of the accident and the injuries found on initial examination clearly established the breadth of the referral was uncontroversial.
The Panel decided at the time of the initial meeting it would not have been necessary to re-examine the wrist and lumbar spine, because Medical Assessor Rosenthal’s permanent impairment finding for the left wrist based on his subtraction for the uninjured right wrist was incorrectly calculated.
The correct figure for 55 degrees flexion as Medical Assessor Rosenthal was corrected.
Medical Assessor Assem’s re-examination confirmed that Medical Assessor Rosenthal’s assessment of the lumbar spine impairment is DRE Category II, 5% WPI.
The Panel’s earliest impression was that it was only necessary to re-examine the claimant to assess any scarring because changes described in the reports indicated the scarring may rate with a permanent impairment.
Medical Assessor Assem’s re-examination found there was no assessable rating.
However, Medical Assessor Assem’s finding on re-examination of the right elbow when assessing the scarring found a higher RUEI than Medical Assessor Rosenthal.
Medical Assessor Assem found in that case it was appropriate to re-examine all of the referred body parts.
As can be appreciated, the range of motion can vary slightly over time for various reasons including progression of the underlying pathology. Medical Assessor Assem considered it to be a relatively accurate estimate of the underlying right elbow impairment in spite of the earlier finding.
The parties were invited and failed to make any submissions on whether it objected to the Panel re-examining all of the referred injured body parts. We note the claimant’s lawyers submitted that the Panel should restrict itself to the scarring.
The Panel decided that in the circumstances, where there were assessable changes in the right elbow it would prejudice the claimant if it acceded to that submission.
Apportionment for pre-existing or subsequent symptomatic impairment
Not applicable.
The Review Panel found that the motor accident caused the following injuries:
· lumbar spine;
· left wrist, and
· right elbow.
The Review Panel found that the motor accident did not cause the following injuries:
· not applicable.
The Review Panel found that the following injuries had resolved and give rise to no assessable impairment:
· elbow laceration.
The Review Panel considered that the following injuries give rise to a permanent impairment:
· lumbar spine;
· left wrist, and
· right elbow.
The degree of permanent impairment of the injuries the motor accident caused was calculated as follows:
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Lumbar spine | Chapter 3, page 102 (AMA4) | Yes | 5% | 0% | 5% |
| 2 | Right elbow | AMA4, Figure 32, p 40 | Yes | 2 | 0% | 2% |
| 3 | Left wrist | AMA4, Figure 26, p 36 | Yes | 4 | 0% | 4% |
* %WPI = percentage whole person impairment
Determination regarding the degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident
The motor accident caused injuries with a total percentage permanent impairment for assessed injuries at 11%. Therefore the total permanent impairment is greater than 10%.
Permanent impairment ratings take symptoms into account; however the percentage permanent impairment is not a direct measure of disability. A finding of 0% WPI indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI.
Permanent impairment
The Review Panel found the motor accident caused injuries, which has resulted in a degree of permanent impairment which is different to what Medical Assessor Rosenthal’s assessed in his Permanent Impairment certificate dated 18 October 2023. This was due to the correct calculation of the left wrist permanent impairment and Medical Assessor Assem’s findings in respect of the right elbow.
Medical Assessor Assem testing found a reduced ROM for the RUEI, which resulted in a greater permanent impairment in the right elbow than Medical Assessor Rosenthal certified.
Accordingly, the Review Panel will revoke Medical Assessor Rosenthal’s certificate and issue a new Permanent Impairment certificate.
Review Panel Certification
Medical Assessors Assem and Dixon with Member O’Riain have reviewed this certificate and confirm they agree with the findings.
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