Ahmad v AAI Limited t/as GIO
[2023] NSWPICMP 172
•17 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ahmad v AAI Limited t/as GIO [2023] NSWPICMP 172 |
| CLAIMANT: | Waqas Ahmad |
INSURER: | AAI Limited trading as GIO |
| REVIEW Panel | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 17 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Cameron dated 16 April 2022; the MA determined a 9% whole person impairment (WPI) with respect to scarring of the lower body, left lower extremity, right lower extremity and fractures to right femur, tibia, fibula, right ankle and lumbar spine; claimant injured while riding motorcycle on 28 October 2019; claimant underwent surgery for internal fixation; claimant has ongoing low back pain and right knee stiffness; claimant required to wear an orthotic; Held – claimant demonstrated dysmetria of lumbar spine but no radiculopathy and giving a diagnosis related estimates (DRE) II assessment; claimant also found to have moderate laxity of anterior cruciate ligament which had not previously been addressed by the parties; WPI assessed at total of 20%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Cameron dated 16 April 2022. 2. The Panel determines that the following injuries were caused by the motor accident: a) scarring - right hip, right knee, right ankle and right foot; b) anterior cruciate ligament- peripheral nerve damage; c) right lower extremity including but not limited to- fractures to right femur, tibia, fibula, right ankle - tibialis posterior tendinopathy, and d) lumbar spine - L2-L4 transverse process fracture. 3. There was no evidence of a specific injury to the left lower extremity. 4. The injuries caused by the motor accident have a total whole person impairment of 20%. |
STATEMENT OF REASONS
The review
This is a review of a medical assessment of Medical Assessor Ian Cameron (the Medical Assessor) dated 16 April 2022 pursuant to s 7.26 of the Motor Accident Injuries Act 2017 (the MAI Act).
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
a.scarring - right hip, right knee, right ankle and right foot;
b.left lower extremity;
c.right lower extremity including but not limited to- fractures to right femur, tibia, fibula, right ankle - tibialis posterior tendinopathy, and
d.lumbar spine - L2-L4 transverse process fracture.
The Medical Assessor found that the following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%:
a.scarring - right hip, right knee, right ankle and right foot;
b.right lower extremity – multiple fractures and tibialis posterior tendinopathy, and
c.lumbar spine - L2-L4 transverse process fractures.
The accident
The claimant was injured on 28 October 2019. He was riding a motorcycle when a car turned right, in front of him, causing a collision and throwing him to the ground.
He was taken by ambulance to Liverpool Hospital where he was admitted. There was a spiral fracture of the shaft of the right femur for which there was internal fixation. There was an open fracture of the right distal tibia and fibula. There was internal fixation of the tibial fracture. He was discharged on 7 November 2019.
Claimant’s submissions
The claimant says that the Medical Assessor was required to assess the claimant’s right lower leg based on American Medical Association Guides to Evaluation of Permanent Impairment, 4th edition (AMA 4) commencing page 75 to 78.
The claimant submits that the Medical Assessor has assessed the impairment by reference to table 40, 41 and 43. However, the claimant says that the Medical Assessor has not considered impairment for lower extremity due to muscle weakness in accordance with table 39. The claimant submits that the Medical Assessor did not consider impairments from lower extremity muscle weakness as a consequence of the right lower extremity injury.
The claimant submits that in addition, Dr Bodel assessed 1% whole person impairment (WPI) in accordance with table 68 on page 89 of the AMA 4 guides for impairment from nerve deficit. The claimant says that the Medical Assessor has not considered impairment from nerve deficits to the right lower extremity in his assessment.
The claimant says that the Medical Assessor commented on Dr Bodel’s report on page 5 as follows:
“The report of Dr Bodel dated 22 December 2020 is a medico-legal orthopaedic surgeons report. The findings at the time of his examination were different to those at the time of my examination. In addition, the percentage impairment for sensory loss on the leg is inappropriate, in my opinion.” The claimant says that the Medical Assessor provided no reasoning or opinion as to why it is inappropriate to provide an assessment for sensory loss on the leg in accordance with Table 68. The claimant submits that there was a failure to provide adequate reasons.”
The claimant submits that such errors could potentially increase the assessment of right lower leg extremity from 6% assessed by the Medical Assessor up to and more than 11% WPI.
In relation to the lumbar spine, the claimant submits that there is no dispute that the claimant had mildly displaced transverse process fractures at L2 to L4 (as outlined at the top of page 3 of the Medical Assessor’s report) and confirmed by the X-ray taken at Liverpool Hospital at the time of the accident which states as follows:
“there are acute mildly displaced fractures at the left L2-L4 transverse process.”
The claimant submits that the Medical Assessor has concluded the following in relation to those fractures:
“there are healed lumbar transverse process fractures. There is no evidence that these are currently displaced (noting that these fractures almost always heal without displacement – see section 6.149 page 31 of the Motor Accident Guidelines).”
The claimant refers to s 6.149 of the Motor Accident Guidelines (the Guidelines) which states the following:
“Fractures of transverse or spinous processes (one or more) with displacement within a spinal region as assessed as DRE category II because they do not disrupt the spinal canal…”
The claimant says that the Guidelines state as follows:
“6.150: one or more end plate fractures in a single spinal region without measurable
compression of the vertebral body is assessed as DRE Category II. 6.151: in the table 6.7 regarding multilevel structural compromise:
a. Multiple vertebral fractures without radiculopathy are classified as Category IV; and
b. Multiple vertebral fractures with radiculopathy are classified as Category V.”
The claimant refers to table 6.7 of the Guidelines on the assessment of spinal impairment –DRE Category, and says that this clearly states that a fracture of the transverse process with displacement of fragment, healed or stable is a DRE Category II impairment. The claimant says that the table goes on to state that multi-level structural compromise is a DRE Category IV assessment.
The claimant submits that there is no doubt that the claimant has suffered a multi-level fracture of the transverse process at L2-L4 because of the motor vehicle accident. The claimant submits that the Medical Assessor said that these are healed lumbar transverse process fractures however, the claimant says that there is no evidence that such fractures are healed. The claimant says that it is in any event irrelevant whether these fractures are currently displaced or not. The claimant says that the only evidence available to the Medical Assessor were the documents contained in the application and reply which confirmed that the claimant sustained acute mildly displaced fractures of the left L2-L4 transverse process.
The claimant says that at the very least this is a DRE Category II impairment or 5% WPI. The claimant submits that the Medical Assessor was in error by failing to assess the transverse process fractures as DRE Category II impairment.
The claimant submits that had Medical Assessor Cameron assessed the transverse process fractures at DRE Category II impairment and provided an assessment of 5% WPI, the claimant’s WPI would have been 11% or greater in accordance with the combined values chart.
Insurer’s submissions
The insurer has only provided submissions initially tendered in its reply to the claimant’s application for WPI.
The insurer noted that in December 2020, Dr James Bodel, orthopaedic surgeon provided an independent medico-legal examination report commissioned by the claimant’s solicitor. In his report, Dr Bodel provided a diagnosis of a fracture of the femur and fracture of the tibia and fibula and associated soft tissue injuries and scarring. Dr Bodel considered that the claimant’s WPI in accordance with the Motor Accident Authority Guidelines and the AMA 4 and attributed 7% for the right lower extremity, 3% for scarring and 1% for sensory loss, which led to a combined value of 11% WPI.
The insurer submits that Dr Bodel pre-empted that inserted metal rods should be removed by the end of 2020 which would have an effect on the impairment of the claimant’s lower limb.
The insurer submitted that the permanent impairment application should be deferred until such time there is evidence that treatment is not having a materially effect on impairment and the claimant’s injuries are agreed to be stabilised.
Medical reports
A repot of Dr Dave dated 13 November 2019 is a treating orthopaedic surgeon’s report. He said there was a very comminuted fractured mid-shaft right femur and distal third right tibia. He said there was internal fixation of the femur and tibia.
A subsequent consultation with Dr Dave on 16 January 2020 noted that the tibia fracture was very slow to unite, however he felt partial weight-bearing could commence. There were subsequent consultations. His report dated 16 April 2020 noted a valgus hind foot and there was to be further follow-up of that. His report dated 30 April 2020 stated that the right tibialis posterior tendon was stuck in scar tissue.
Dr Dave’s report dated 5 August 2020 said that Mr Ahmad had surgery on
25 July 2020 and that an “extensive release of the tibialis posterior tendon” was performed.
Dr Low provided a report on behalf of the claimant dated 21 January 2021. Dr Low is an occupational physician. He provided an evaluation of permanent impairment with total WPI at 14%. This was made up as follows;
“Right leg - using table 39, 5% WPI selected for grade 4 weakness in knee flexion – 5%.
Right ankle – using table 42, AMA 4 range of motion impairment for right ankle was considered mild giving a 3% WPI. Range of motion impairment for hindfoot was considered mild giving a 1% WPI and giving a total of 4% WPI. However, Dr Low said that using table 39 would give a 7% WPI due to grade 4 power of ankle plantar flexion. Dr Low therefore preferred to use table 39 at 7%.
Skin- using TEMSKI, table 18, motor accident permanent impairment guidelines effective 1 June 2018, Dr low selected 2% WPI based on location, size and appearance. WPI assessed at 2%.
Total WPI at 14%”
The findings of Dr Low at the time of his examination were different to those at the time of examination by the Medical Assessor.
Dr Bodel provided a report dated 22 December 2020. He reported some persisting deformity in the region of the right foot and further investigations including MRI scans and ultrasounds showed some tethering of the tibialis posterior muscle and tendon at the distal tibial fracture site. The claimant required a further surgical exploration to free that.
The claimant reported that he had gained 15kg in weight from 95kg to 110kg since the accident with his relative inactivity.
On examination there was no leg length inequality or spinal deformity and the claimant had no malalignment of the femur or the tibia. He had a good range of back movement and no impairment of straight-leg-raising. The right thigh was a ½ cm smaller than the left and the right calf was also a ½ cm smaller than the left. He had a good range of back movement. There was no measurable leg length inequality. There was no asymmetry of back movement. He had a full range of hip flexion and rotation but there was a restricted range of knee and ankle movement.
Dr Bodel gave a diagnosis of a fracture of the femur and the fracture of the tibia and fibula and associated soft tissue injuries and scarring.
He said that the claimant had a DRE Lumbosacral Category I level of assessable impairment in accordance with the description in table 72 on page 3/110 of AMA 4. There was no asymmetry of movement and guarding and no clinical sign of radiculopathy and a 0% WPI rating.
Dr Bodel said that the claimant had a rateable restriction of right knee movement and the -5° of knee extension attracted a 10% lower extremity impairment. He had a restricted range of ankle and subtalar movement and there was a 7% lower extremity impairment for the ankle and a 2% lower extremity impairment for the subtalar joint. These ratings were taken from table 41, table 42 and table 43 on Page 78 of AMA 4 for the knee, the ankle and the subtalar joint.
The total level of lower extremity impairment was assessed at 18% lower extremity impairment and that converted to a 7% WPI for the right lower extremity.
In addition to that there was said to be very significant scarring and there was also sensory loss over the dorsum of the right foot. The sensory loss was assessed using table 68 on page 89 of AMA 4 at 3% WPI because there was tethering of the scar, particularly over the posteromedial aspect of the distal part of the tibia and quite marked sensitivity and pigmentation in the scar associated with the compound wound and the surgical wounds.
The final assessment of WPI was determined by combining 7% for the right lower extremity, 3% for the scarring and 1% for the sensory loss to give an 11% WPI assessment. There was no deduction for pre-existing impairment.
No medical report has been obtained and relied upon by the insurer.
Medical examination
The claimant was examined on behalf of the Panel by Medical Assessors Moloney and Stubbs. Their report follows;
“Pre-accident history
Mr Ahmad stated that he lives with his brother and other friends. Prior to the accident was working as a financial advisor and doing some casual Uber driving
on weekends. He attended the gym and practiced mixed martial arts as well as social cricket.
He states he had had no previous injuries to those assessed today.
History of accident and subsequent treatment
Mr Ahmad was riding motorcycle on 28 October 2019 when a car failed to give way and hit him on the right side of his bike. This resulted in an open fracture of the lower leg and right femur associated with low back pain. The ambulance attended the scene and transported him to Liverpool Hospital where he was admitted for about 11 days. An orthopaedic surgeon, Dr Dave treated both fractures surgically with the internal fixation by rods and screws to the right femur and right tibia. The internal hardware is still in situ. After the surgery he was referred for physiotherapy and an exercise physiologist.
Due to persistent collapsing of his right foot, he was admitted on 25 July 2020 due to tibialis posterior tethering/adhesions. This was treated surgically on that day with slight improvement. Mr Ahmad states that he is right foot collapses if he doesn’t use an orthotic in the right shoe.
Mr Ahmad return to work about five months after this surgery on a part-time basis but ceased employment mainly due to psychological issues.
There have been no further injuries or accidents since the motor accident on 28 October 2019.
Current symptoms
Mr Ahmed states that he has recurrent low back pain on the left side and stiffness in the right knee. There is loss of sensation in the right lower leg below the knee. His right foot collapses particularly if he is not wearing an orthotic. He is unable to lie on his right side due to right upper leg pain.
Mr Ahmed drives locally and can walk for 10 to 12 minutes if he is uses the orthotic. He feels unsteady when walking without the orthotic. When walking stairs, he leads with the left leg ascending and the right leg when descending. He needs to sit when putting on his shoes or trousers.
Due to severe anxiety, he consults his psychologist on a regular basis. He is unemployed at present.
Present treatment
At present, Mr Ahmad takes Palexia 150 mg about four days per week, Panadeine forte with severe pain or Panadol on a regular basis. He takes Prazosin 1 mg one half a day and Paxtine 20 mg one half a day.
No manual therapy is being undertaken at present but he does his home exercise on a regular basis and consults his GP when necessary. He continues to follow- up with his psychologist and has an appointment with his psychiatrist in three months time.
Clinical examination
Mr Ahmed walked with a slight antalgic gait and was wearing a soft knee brace on the right leg. He considers that this brace helps in with walking. He states that he is right-handed and had a height of 180.5 cm and weight of 99 kg.
Cervical spine
There was a full range of movement in all planes with no guarding or spasm noted on palpation and a full range of movement of both shoulders. There were no neurological signs in the upper extremities.
Lumbar spine
Mr Ahmed was unsteady when attempting to walk on his heels and toes mainly due to the right leg. He was able to stand on his toes but not the right leg alone. He could squat to 50% of expected range which was reduced due to right knee pain.
On testing range of movement, there was a full range of flexion, but extension was reduced to 50% of expected range. Side bending was to the level of the knee joint bilaterally and rotation to the left side was normal but 75% when turning to the right. Thus, there was dysmetria of the lumbar spine. Straight leg raise was 80° bilaterally when seated or lying.
On examination of the lower limbs, reflexes were equal with root reinforcement with loss of sensation over the right lower leg related to the surgical procedures. Power was within normal limits except for weakness in ankle flexion. There was a decrease muscle tone in the right quadriceps muscle. Muscle wasting was
apparent with the lower thigh circumferences measured at 49 cm on the right and 51 cm on the left (10 cm above the superior patella pole) and at the maximum circumference of the calves 38 cm on the right and 39 cm on the left.
Hips
On palpation there was tenderness over the right greater trochanter with pain on abduction of the right hip. There was no rotational deformity of the hips.
| Hip Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 120° | 140° |
| Extension | 0° | 0° |
| Adduction | 20° | 20° |
| Abduction | 30° | 30° |
| Internal Rotation | 10° | 30° |
| External Rotation | 20° | 40° |
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
150°
Extension
0°
0°
On examination of the knees, no effusions were present with no crepitus on palpation. There was moderate anterior cruciate ligament laxity when tested on the right with a positive anterior draw sign. The left knee was stable. This anterior cruciate ligament laxity was verified by both medical examiners. Using table 64, moderate cruciate ligament laxity is 7% WPI.
| Ankle Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion | 0° = 3 % | 20° |
| Plantarflexion | 40° | 40° |
Hindfoot Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Inversion
10°= 1 %
30°
Eversion
25°
30°
Loss of dorsiflexion using table 42 is 3% WPI and decreased inversion is one percent WPI. This adds to 4% WPI for the right ankle range of movement.
There was no evidence on examination of any disability of the left lower extremity.
Scarring
The surgical scar around the right knee was 10 cm in length and there was a significant scar on the medial aspect above the right ankle. This scar was a result of the compound fracture with significant colour change and trophic changes.
Contour defect is visible. Mr Ahmad was self-conscious of the scars and was easily able to locate them. Suture marks were clearly visible, and the scars are associated with some surrounding numbness. The scars are clearly visible when wearing shorts or sandals. There was some adherence to the underlying structure. There was minor limitation in the performance of a few activities of daily living with sensitivity to exposure to temperature changes. The classification of best fit using the TEMSKI chart is 3% WPI.
Peripheral nerve damage
There was decreased sensation of the sural nerve in the right leg which is class 3 using table 20 of AMA 4 page 151 which give 60% impairment. The sensory loss using table 68 on page 89 is 1% WPI. Assessing 60% of one percent still rounds up to one percent WPI. There is also weakness of the right tibialis posterior muscle of 2/5.
Lumbar spine
This assessed using table 72 of AMA 4 . On testing range of movement, dysmetria was present with no guarding but no radiculopathy or non-verifiable radicular complaints. This is DRE ll which is 5 % WPI.
Right Knee
Moderate laxity of anterior cruciate ligament is 7 % WPI using table 64. Right ankle
With reduction in range of movement, loss of plantar flexion is 3 % WPI ( table 42) and loss of inversion is 1 % WPI ( table 43) . Total 4 % WPI for right ankle.
Peripheral nerve loss right leg.
Decreased sensation of sural nerve is class 3 (table 20 p.151) is 60 % of total nerve loss . Table 68 (p.89) gives 1 % WPI for the sural nerve x 60% gives 1 % WPI ( as best fit).
Scarring
Using the TEMSKI chart classification of best fit is 3 % WPI.
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | |
| 1 | Scarring – right hip, right knee, | Temski chart | Yes | 3% | 3% |
| right ankle and right foot. | |||||
| 2 | Anterior cruciate ligament- cruciate ligament damage | AMA table 64 | Yes | 7% | 7% |
| 3 | Lumbar spine - L2-L4 transverse process fractures | AMA table 72 | Yes | 5 % | 5% |
| 4 | Right lower extremity including fractures to right femur, tibia, fibula, right ankle- tibialis posterior tendinopathy | R ankle ROM table 42,43 Nerve deficit table 68 for sural nerve and table 20(p.151) class 3 | Yes Yes | 4% 1 % | 4% 1% |
Total WPI is calculated using the combination chart of AMA 4 . This is calculated as 7% + 5% = 12 %. Then 12% + 4% = 16%. Then 16% + 3%=19%. Then 19%
+1 % = 20 % WPI.
Pre-existing/subsequent impairment
Not applicable. Apportionment Not applicable.
Effects of treatment
Not applicable.
Conclusion – Permanent Impairment Degree of permanent caused by accident 20%”
The Panel adopts the report and findings of Medical Assessors Moloney and Stubbs.
The Panel notes that the Medical Assessor had not previously assessed the claimant’s cruciate ligament or made no comment about this. The Panel further notes that this is a hearing de novo and consequently, when a disability was noticed to the claimant’s anterior cruciate ligament, this was considered by the Panel to have arisen as a result of the accident, noting the other injuries to the claimant’s right lower extremity, and was assessed.
Causation
The Panel accepts that the accident involved an unexpected and sudden impact between the claimant who was riding a motorcycle and the insured car crossing in front of him. Consequently, the injuries suffered by the claimant are in the opinion of the Panel, reasonably likely to have arisen out of the accident and accordingly, are causally related.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Cameron dated 16 April 2022.
The Panel determines that the following injuries were caused by the motor accident:
(a)scarring - right hip, right knee, right ankle and right foot;
(b)anterior cruciate ligament- peripheral nerve damage;
(c)right lower extremity including but not limited to- fractures to right femur, tibia, fibula, right ankle - tibialis posterior tendinopathy, and
(d)lumbar spine - L2-L4 transverse process fracture.
There was no evidence of a specific injury to the left lower extremity.
The injuries caused by the motor accident have a total WPI of 20%.
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