Allianz Australia Insurance Limited v Alhamdani
[2024] NSWPICMP 763
•7 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Alhamdani [2024] NSWPICMP 763 |
CLAIMANT: | Mohammad Alhamdani |
INSURER: | Allianz |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 7 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute as to whole person impairment; the claimant was riding his motorcycle west along Kenyons Road, Merrylands when the insured vehicle, travelling in the opposite direction, made a right-hand turn over the double lines, coming into the path of the claimant’s motorcycle; claimant attempted to avoid a collision but struck the left rear side of the insured vehicle; claimant was propelled forward and landed on the roadway on his left side; claimant was wearing a helmet and full protective clothing; pre-existing lumbar injury from previous motor accident; causation; whether apportionment appropriate absent objective evidence of pre-existing impairment; Held – Medical Review Panel revokes the certificate issued on 13 December 2023 by Medical Assessor Drew Dixon and issues a new certificate determining that the claimant’s permanent impairment is 12% and is greater than 10%. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate issued on 13 December 2023 by Medical Assessor Drew Dixon and issues a new certificate detemining that: (a) the following injuries caused by the motor accident give rise to a permanent impairment of 12% and IS GREATER THAN 10%: · cervical spine – soft tissue injury; · right hand/wrist – scaphoid fracture; · left hand/wrist – fracture to left thumb; · left knee – puncture wound with peripheral nerve injury to saphenous nerve; · right knee – soft tissue injury; · right wrist – operative scarring, and · lumbar spine – soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
On 1 February 2021, Mohammad Alhamdani (the claimant) was riding his motorcycle west along Kenyons Road, Merrylands when the insured vehicle, travelling in the opposite direction, made a right-hand turn over the double lines, coming in to the path of the claimant’s motorcycle. The claimant attempted to avoid a collision but struck the left rear side of the insured vehicle. He was propelled forward and landed on the roadway on his left side. His motorcycle rolled to the other side of the road and came to a stop on the west bound lane.
The claimant was wearing a helmet and full protective clothing. He thinks he had a head injury with transient loss of consciousness. He sustained injuries to his left hand, right wrist, left knee, left foot, neck and lower back. He also aggravated a pre-existing injury to his right knee sustained in a previous accident. The claimant was taken by ambulance to Westmead Hospital where he was an in-patient for nine days. He underwent surgery.
NRMA (the insurer) indemnifies the owner and/or the driver of the vehicle at-fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The insurer admitted liability for payment of statutory benefits beyond 26 weeks subject to an allegation of 50% contributory negligence.
The issue in dispute is the degree of permanent impairment that the claimant has suffered as a result of injuries caused by the accident.
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act, the following injuries were referred to Medical Assessor Drew Dixon for assessment:
· cervical spine – soft tissue;
· left foot – multiple fractures;
· left hand – multiple fractures;
· right hand – soft tissue;
· left knee – nerve damage;
· right knee – soft tissue;
· lumbar spine – disc bulge and annular tear;
· bilateral shoulder – soft tissue;
· left wrist – soft tissue, and
· right wrist – fracture and scarring.
Medical Assessor Dixon certified on 13 December 2023 that the listed injuries caused by the motor accident give rise to a permanent impairment of 16% and is greater than 10%. Medical Assessor Dixon assessed 5% whole person impairment for the lumbar spine, 5% whole person impairment for the right thumb and right wrist, 4% whole person impairment for the left thumb and wrist, 1% whole person impairment for each knee. He made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects.
THE REVIEW
The insurer sought a review of Medical Assessor Dixon’s certificate on the grounds that the medical assessment is incorrect, within the meaning of s 7.26 of the MAI Act, in a number of material respects. The insurer relies on the particulars set out in the application and supporting documentation.
The insurer submitted that the Medical Assessor was incorrect in a material respect for the following reasons:
(a) the Medical Assessor failed to undertake a review and evaluation of all evidence as required by cl 6.17 of the Guidelines[TR1] .
(b) The Medical Assessor failed to identify inconsistency within the claimant’s history and the information obtained through the medical reports and provide the claimant the opportunity to respond to the inconsistent observations as required under clauses 6.40 and 6.41 of the Guidelines.
(c) The Medical Assessor failed to properly determine apportionment in respect of the pre-existing impairment and subsequent impairment to the same region.
(d) The certificate was inconsistent with the Medical Assessor’s findings.
The insurer referenced various diagnostic scans performed prior to the date of the motor accident.
The insurer’s application for review was opposed by the claimant who submitted that the insurer failed to establish that there was any error of a material kind that would alter the claimant’s whole person impairment [TR2] assessment of 16% to be under 10% threshold. The claimant responded in detail to each of the insurer’s particulars of alleged error. It is not necessary to summarise the claimant’s submissions in detail as they were not accepted.
The President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 27 March 2024 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that Medical Assessor Dixon’s assessment was incorrect in a material respect. The basis of that decision was stated to be that Medical Assessor Dixon did not address a substantial argument put by the insurer. The insurer referred to information that indicated the claimant had symptomatic impairment of the cervical and lumbar spine, as well as to a medical report prepared by Dr Thomas Rosenthal, in which he indicated that he believed the claimant’s right knee condition was entirely pre-existing. The President’s delegate was satisfied that Medical Assessor Dixon did not respond to a substantial argument put forward by the insurer. Accordingly, the insurer’s review application was accepted.
The Review Panel directed that it was to be provided with the following additional material:
(a) particulars and medical reports relating to a motor vehicle accident in 2016 in which the claimant was involved, and
(b) particulars and medical reports relating to an accident in April 2013 in which the claimant was driving a forklift.
In the result, none of that material was made available.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Review Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological 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 judgment.
6.7There 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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) claimant’s signed statement dated 6 October 2022.
(b) Report of Dr Thomas Rosenthal, occupational physician, to the claimant’s solicitors dated 17 August 2022.
Dr Rosenthal noted that the claimant injured his neck and back in a previous motor accident. He records that the claimant’s neck and back were worse since the subject motor accident. Dr Rosenthal notes that the claimant also suffered knee and shoulder injuries in the subject accident. Dr Rosenthal describes residual symptoms in the claimant’s right wrist, left hand, neck, shoulders, lower back and knees. The claimant conceded that he had pre-existing symptoms in his neck, back and right knee from the previous accident. He says those symptoms were aggravated by the subject accident. Dr Rosenthal saw no actual diagnostic films but was provided with reports. The claimant was wearing a lumbar brace which he removed for the physical examination. Dr Rosenthal describes his findings upon examination. Dr Rosenthal opines that the claimant has been significantly disabled by his injuries caused by the accident. Dr Rosenthal states that the claimant has significant restrictions in lumbar spinal movement and significant disability in both upper limbs. Dr Rosenthal states that the claimant has developed chronic pain and anxiety issues. He records there were multiple fractures in the claimant’s hands and left foot which could cause an arthritic process accelerating any degenerative processes. Dr Rosenthal concludes as follows:
“The injuries to his hands and left ankle were clearly caused by the accident. There was aggravation of his pre-exiting neck and back conditions. The back condition, particularly, is causing ongoing issues. The neck and shoulder conditions appear to have resolved. There is still concern with his left knee but the right knee condition appears to have been entirely pre-existing.”
In a supplementary report of the same date, Dr Rosenthal says there were no injuries not caused by the accident. In a separate Impairment Assessment of the same date, Dr Rosenthal notes as follows:
“The impairment is present in his lumbar spine. Under lumbosacral spine Table 72, page 110, he has asymmetry of motion which is DRE II and it gives him 5% whole person impairment.
There is impairment of the left knee with tenderness and patellar and retro patellar crepitus. Under Table 62, this results in 2% whole person impairment.
There is impairment in his upper extremities. The marginal loss of motion at the right thumb does not rate an impairment but his right wrist under Figures 26 and 29, 50° of extension gets 2% upper extremity impairment, 60° of flexion gets 0%, 20° of ulnar deviation gets 2% and 10° of radial deviation gets 2%. The total is 6% upper extremity impairment which converts to 4% whole person impairment.
At the left thumb, 0° of ankylosis at the IP joint rates 9% thumb impairment. Loss of 2 cm of opposition results in 3% thumb impairment, loss of 2 cm of adduction results in 1% thumb impairment and radial abduction of 50° does not rate an additional impairment. The total left thumb impairment is 13% which converts to 5% hand impairment which converts to 5% upper extremity impairment which converts to 3% whole person impairment.
His total whole person impairment thus is 14% (5% lumbosacral spine, 2% left lower extremity, 4% right upper extremity and 3% left upper extremity).
There was a pre-existing back injury but there is insufficient clinical information to determine the lumbar spine impairment that existed prior to the subject accident. Thus, no deduction can be made.
His total whole person impairment is 14% due to the subject accident.”
(c) Report dated 16 July 2021 by Dr Kadir, orthopaedic surgeon, to Dr Abdalla.
This report deals with treatment of the claimant’s chronic bilateral wrist pain.
(d) Report dated 29 July 2021 by Dr Rahme, orthopaedic surgeon, to Dr Abdalla.
This report mainly deals with treatment of injury to the claimant’s left knee which is Dr Rahme’s specialty. Dr Rahme describes surgical removal of a foreign body from the knee, as well as internal fixation surgery on his right wrist and closed redaction surgery on left foot fractures. Dr Rahme reports there were signs of a saphenous nerve injury near the site of his left knee function wound.
(e) There is a further report dated 23 August 2021 by Dr Kadir to Dr Abdalla. Dr Kadir records that the claimant had ongoing pain in both his wrists and hands. Dr Kadir recommended surgical removal of a scaphoid screw from the right wrist.
(f) Operation record of Dr Kadir.
(g) Report of Dr Kadir dated 28 October 2021 reporting improvement in the right wrist but continuing discomfort along the thumb and wrist. The left thumb continues to have pain and stiffness. Dr Kadir opines that the claimant may not have a good solution for his ongoing symptoms.
(h) MRI report of left ankle and mid-foot dated 26 June 2021.
(i) X-ray report of bilateral foot dated 26 June 2021.
(j) MRI report of left knee undated.
(k) X-ray report of right wrist dated 6 August 2021.
(l) CT scan report of right wrist dated 6 August 2021.
(m) MRI report of lumbosacral spine dated 9 August 2021.
(n) MRI report of left wrist dated 6 August 2021.
(o) Westmead Hospital clinical notes.
(p) Alpha-Cure Medical Centre clinical notes.
(q) Dr Rahme clinical notes.
(r) Dr Kadir clinical notes.
The insurer relied upon the following material which the Review Panel has considered:
(a) reports of Dr Rahme – various dates (previously summarised).
(b) Report dated 18 February 2020 by Dr Roger Pillemer, orthopaedic surgeon, to the claimant’s previous lawyers.
This report refers to a previous motor accident on 8 August 2016 in which the claimant suffered injuries to his cervical and lumbar spines and right knee. It references a number of previous reports which are not before the Review Panel. Dr Pillemer opined that the claimant had a mechanical problem in the lower lumbar region with physical signs in keeping with L5 nerve root involvement, as well as having dysmetria of his cervical spine, but no evidence of any neurological involvement. Dr Pillemer noted that the claimant was having ongoing problems with his right knee with marked restriction of movement. A partial lateral meniscectomy had been performed. Dr Pillemer gives a detailed description of the claimant’s complaints and of his findings upon examination. This included sight residual weakness of extension of the right big toe with some wasting of EDB [TR3] compared to the opposite side. There was hypoesthesia to pin prick over the dorsum of the right foot. Dr Pillemer thought these features were in keeping with L5 nerve root involvement (i.e. radiculopathy) most likely explained by a disc lesion in the lower lumbar region on the right side. There was evidence of some dysmetria in the cervical spine but no neurological involvement. Dr Pillemer assessed 5% whole person impairment for the cervical spine, 10% whole person impairment for the lumbar spine and 1% whole person impairment for the right lower extremity, all due to the 2016 motor accident.
(c) Report dated 2 November 2017 from Dr Abdalla to the claimant’s solicitors relating to treatment for neck, back and right knee pain, since the 2016 motor accident.
EXAMINATION REPORT
Medical examination report of Medical Assessor Oates as follows:
“Date of Accident: 01/02/2021
REASONS
Details of who attended the Assessment
Mr Alhamdani attended alone for assessment by Medical Assessor Oates on behalf of the Medical Review Panel at the PIC Medical Suites on 04/07/2024 as arranged. No interpreter was booked.
HISTORY
Pre-accident medical history and relevant personal details
Mr Alhamdani, hereafter referred to as the claimant, stated that in 2016 he was involved in a motor vehicle accident. His vehicle was stationary when it was rear-ended and pushed into a car in front. His car was subsequently written off.
He was taken to Liverpool Hospital by ambulance but was not seen, so his wife then drove him to Prince of Wales Hospital. He had hit his head on the steering wheel and had neck pain and left-sided chest pain. He was assessed and discharged. He also had injury to his low back, right knee and fractured ribs.
An MRI scan of the knee showed a tear of the lateral meniscus. He subsequently twisted his right knee at home and was referred to Dr Nahme, whom he saw in December 2018. He had an updated MRI scan which showed the lateral meniscal tear. On 04/03/2019, he had an arthroscopic partial lateral meniscectomy at Sydney Private Hospital, paid for by the CTP insurer. His knee was not settling post-operatively and he was referred to Dr Moses, sports physician.
He later had spontaneous onset of right elbow pain and swelling, and had a cortisone injection with benefit in November 2019.
The claimant had an IME with Dr Pillemer for this 2016 motor accident on 15/02/2020 when he was found to have weakness of the right EHL and decreased pin prick sensation in the lateral right foot, indicating L5 impingement, along with 1.5cm wasting of the right thigh, with right knee flexion to 90° and dysmetria of cervical spine. Dr Pillemer assessed the neck at 5% WPI, the back at 10% WPI on account of radiculopathy, and the right knee at 1% WPI, giving a combined 16% WPI. A claim was settled for the motor accident of 2016.
The claimant said he has had no other accidents or claims paid.
His general health had otherwise been good.
At the time of the subject accident of 01/02/2021, he and his wife and son were living in a unit. She is currently not working, as she is pregnant with their second child which is due any day now.
The claimant could not manage the stairs after the subject accident, so they moved to a rented home after the accident.
Before the subject accident, the claimant played soccer, rode a pushbike, played snooker and went to the gym. He had re-started these activities after recovering from the 2016 accident.
Since the subject accident, the claimant has not returned to soccer or bicycle riding and is now limited at the gym since the subject accident because of left foot and bilateral knee problems when he tries to lift weights.
The claimant emigrated from Iraq in March 2013 and then studied English and completed Year 11, but then had to go to work to help support the family. He was a delivery hand on a truck and then went into the aluminium industry, fabricating and installing aluminium framed doors and windows.
After the 2016 motor vehicle accident with injury to the right knee, he had surgery and was off work for five months, and then returned to aluminium work.
With the onset of COVID, this industry shut down and the claimant started an apprenticeship as a barber. He was just about to go onto wages when the subject accident occurred.
He ceased alcohol about nine months ago and smokes 25 cigarettes per day.
History of the motor accident
The claimant said on 1/02/2021 he was riding a 600cc motorcycle with no pillion passenger. He was wearing full protective clothing, including boots and gloves, and had a full-face helmet on, when he hit a car which stopped suddenly whilst turning into a driveway. He was thrown about 6m from the bike and had been travelling at about 40kph at the time of impact. He landed with his head beside one of the car tyres. He remembers lying on the ground and thereafter the next thing he remembers is being at the hospital. He was taken by ambulance to Westmead Hospital.
The claimant had injuries to the left hand including a fracture and a right wrist fracture, a puncture wound to the left knee, fracture of left foot, soft tissue injury to bilateral shoulders, neck and back, with worsening of his pre-existing neck, back and right knee conditions.
History of symptoms and treatment following the motor accident
The claimant was an inpatient for eight days. He was diagnosed with a 1st distal phalangeal fracture of the left hand, a 3rd proximal phalanx fracture, left 5th metacarpal fracture, right scaphoid fracture, and fracture of left 1st to 5th base of metatarsals.
On 05/02/2021 he had left scaphoid fixation and examination under anaesthesia of the right foot.
After discharge, he attended the hospital for follow-up and did exercises and had medications.
He had interferential from a physiotherapist to the back but it made the pain worse.
The claimant was referred to Dr Kadir regarding bilateral wrist injuries on 16/07/2021. He was also complaining of shoulder, neck, back and knees. He was also referred to Dr Rahme on 29/07/2021. He noted symptoms of injury in the left knee with numbness in the medial left knee, leg and foot in the peripheral nerve distribution. He diagnosed degenerative changes on the MRI scan of lumbar spine.
At review with Dr Kadir, doctor felt the right wrist pain was from the mal-positioning of the screw stabilising the scaphoid fracture and the screw was removed from the right wrist on 5/10/2021. This helped the right wrist pain. He had a cortisone injection to the IP joint of the left thumb but there was no benefit. Physiotherapy was then suggested.
The left knee was reviewed by Dr Rahme in February 2022. There was patellofemoral pain and effects of the penetrating wound. He was to continue physiotherapy and exercises to assist with the muscle imbalance which had developed around the left knee.
Details of any injuries or conditions sustained since the motor accident
On 20/04/2023, the claimant was driving a forklift which fell in a depression and he hit the left side of his head, causing soreness in the eye, headache and left-sided neck pain. The exacerbation of neck symptoms was temporary.
ADLs
The claimant and his wife and son have lived in a rented house since shortly after the date of accident. He has not returned to soccer or bike riding, and is limited at the gym because of pain in the left foot and both knees and right wrist when he tries to lift weights.
His wife does the housework. The insurer was providing someone to do the gardening and mowing but this has now ceased and his father-in-law pays someone to do it.
He can manage most personal care but requires help with long pants and shoes and socks from his wife.
He uses a shower chair and a hand-held shower.
Because the claimant needed income to support his family and was not being paid by the insurer, he had to return to work and started driving a truck, delivering buns for Hungry Jacks, at the end of 2022/ beginning of 2023. He had obtained a truck HR licence. He was then offered a better job truck driving for Austral Bricks, where the pallets of bricks are mechanically loaded and unloaded from the truck. He did this for four months and then had the accident referred to above, when he was driving a forklift at the depot and hit a pothole in April 2023. He was off work for about two months with sore head and neck.
The claimant then went to a different job in the aluminium industry in a supervisory role, where he manages a commercial worksite, and he did this up until 18/01/2024. He was then asked to climb 11 flights of stairs when the lift was not available and he was not able to do this because of his knees, so he was sacked. He has lived with his family’s support since then.
He has applied for aluminium industry jobs and truck driving jobs, but because he has to declare his history of injury, he never hears back from prospective employers.
The claimant said he was not eligible for Centrelink benefits.
Current symptoms
The claimant has numbness in the medial proximal aspect of the left leg adjacent to the puncture wound at the left knee. There is pain in the left patella and the knee gets stiff after prolonged sitting. His right knee is good.
He gets some stiffness in the sole of the left foot with sitting and prolonged walking. He can’t move his left thumb properly but can move the left wrist. There are pins and needles in the left thumb. He has soreness in the right wrist if he carries a weight in the right hand.
His neck is stiff. His back is very stiff when he wakes up at times and he notices a lump on the left side of the lower back. His body shakes at times and his legs shake by themselves.
He is limited with driving by his back discomfort. He has difficulty sleeping because of discomfort in the back.
Current and proposed treatment
The claimant sees Dr R Abdalla of Bankstown.
He takes Lyrica when required if he has more severe pain. He had been given Endone but stopped this after 3-4 doses, as he didn’t like the side-effects. He puts a medicated plaster on his back at times.
He is not seeing any other doctors now.
He had seen Dr Hassan at Auburn for a second opinion, who advised him to have injections in the back, but he did not proceed with this.
EXAMINATION
General presentation
The claimant stated he is right hand dominant.
He was of solid build with height 176cm and weight 100.5kg.
He stood erect and walked without a limp. He sat comfortably and could transfer freely out of a chair and on and off the couch.
Cervical spine (cervicothoracic)
There was symmetric loss of active range of motion. Flexion and extension were both two-thirds of normal range. Lateral flexion was two-thirds of normal range bilaterally. Rotation was three-quarters normal range bilaterally. There was no guarding. There was tenderness C3 to C4 centrally.
Reflexes, power and sensation in the upper limbs were normal.
Upper arm girth; right 35cm, left 34.5cm at 10cm above the elbow crease. Forearm girth; right equals left equals 32cm at 5cm below the elbow crease.
There was no evidence of cervical radiculopathy. There were no non-verifiable radicular complaints.
Lumbar spine (lumbosacral)
There was asymmetric loss of active range of motion. Flexion and extension were both one-half normal range. Lateral flexion to the right two-thirds and to the left one-half. Rotation at the thoracic spine was normal.
There was no guarding. There was tenderness left L5/S1 area. There was some prominence at the left sacroiliac joint.
Reflexes were present with reinforcement. Plantar responses were both flexor. Sensation was decreased in the medial left leg in the distribution of the saphenous nerve. Power right equals left.
Supine straight leg raising was 60° bilaterally with negative stretch test but complaint of low back pain.
Thigh girth; right 52.5cm, left 53.5cm at 10cm above the superior patellar pole. Leg girth; right equals left equals 41cm at 13cm below the inferior patellar pole.
There was no lumbar radiculopathy. There were no non-verifiable radicular complaints.
Upper extremity
There was full range of movement of right and left shoulders and right and left elbows.
Active range of movement measured with a goniometer.
Wrist Movements
Active ROM measured
RIGHT
Active ROM measured
LEFT
Flexion
70°
60°
Extension
50°-2%
50°-2%
Radial deviation
10°-2%
20°
Ulnar deviation
30°
30°
Full range of movement of right hand.
Full range of movement of left index, middle, ring and little finger. There is restricted movement of the left thumb with abduction 50°. 3cm opposition of left thumb. IP joint flexion of the thumb 50°, but extension was full. There was 10° ulnar deviation of the left little finger.
Lower extremities
Knee Movements
Active ROM measured
RIGHT
Active ROM measured
LEFT
Flexion
120°
120°
Extension
0°
0°
There was no patellofemoral crepitus in either knee on patellar compression. Both knee joints were stable in anteroposterior and mediolateral directions.
Full range of movement of right and left ankles and right and left feet.
Comments on consistency
The claimant presented in a consistent manner. There was no evidence of embellishment of his clinical presentation.
IMAGING
The following imaging was brought to the assessment:
·4/02/2022 – MRI left hand
·13/04/2022 – MRI left knee
DETERMINATIONS
Diagnosis, causation and reasons
The diagnosis is soft tissue injury to cervical spine and soft tissue injury to lumbar spine. There were radiating symptoms towards both shoulders but no evidence of discrete injury to either shoulder.
There were fractures to left foot, fracture to left thumb, fracture to right hand/wrist at the scaphoid, puncture wound to left knee with peripheral nerve injury to saphenous nerve, soft tissue injury to right knee, and operative scarring to right wrist.
Based on the evidence, the accident was a cause of these injuries. They are mentioned on the Personal Injury Claim Form signed on 22/02/2021 and hospital records refer to the fracture injuries affecting the left foot and both hands.
The pre-existing soft tissue injury to cervical spine, lumbar spine and right knee were exacerbated in the subject accident.
The Panel notes the history of probable transient loss of consciousness followed by a relatively brief period of post-traumatic amnesia, resulting from a head strike, fortunately the head being protected in a full-face helmet. This is not referred to in the Westmead Hospital discharge summary, where no doubt, his multiple limb fractures took precedence.
PERMANENT IMPAIRMENT
At the cervical spine, there was an injury determined to be related to the accident and this region remains symptomatic. The subsequent incident of 20 April 2023 resulted in a temporary exacerbation of symptoms but no permanent worsening (aggravation) of the cervical spine condition. There is symmetric uniform loss of active range of motion with no guarding. There are no non-verifiable radicular complaints and no evidence of cervical radiculopathy. There are clinical differentiators for DRE cervicothoracic category I which gives 0% whole person impairment.
At the lumbar spine, there is dysmetria. This is a clinical differentiator for DRE lumbosacral category II, which gives 5% whole person impairment. Panel notes the clinical findings of Dr Pillemer in his report dated 18 February 2020 when he assessed permanent impairment in the cervical and lumbar spines and right knee in relation to a previous motor vehicle accident on 8 August 2016. In relation to the lumbar spine, Dr Pillemer found right lateral flexion movement slightly more restricted than to the left (dysmetria), slight weakness of right hallux extension, some wasting of the EDB muscle in the right foot, hypoesthesia to pin prick on the dorsum of the right foot, supporting a diagnosis of lumbar radiculopathy, giving 10% whole person impairment.
However, at its re-examination on 4 July 2024, the Panel found that there was dysmetria of lateral flexion movement, more restricted to the left than the right and, similar to Dr Rosenthal’s findings of 17 August 2022, no loss or asymmetry of reflexes, no loss of power, and bilaterally negative nerve stretch tests. The only relevant finding was 1 centimetre right thigh atrophy. The sensory loss found was on the opposite (left) side to that involved in the prior motor accident and resulted from a peripheral nerve injury. Thus, the Panel re-examination did not reveal two or more findings to justify a diagnosis of radiculopathy in accordance with 6.138 of the Motor Accident Guidelines.
At first glance, there is evidence of a lumbar DRE Category II (5% WPI) on the basis of dysmetria prior to the subject motor accident. However, the asymmetry of movement is in the opposite direction, so it is not a permanent clinical finding. There is no evidence that the lumbar spine was symptomatic at the time of the accident. The claimant gave a history that he had recovered from the prior accident and returned to soccer, pushbike riding and the gym. The Panel declines to make a deduction because the dysmetria finding was not a fixed permanent finding as its direction differed after the two accidents.
There is full range of movement of the left foot, hence no assessable permanent impairment.
There was no assessable permanent impairment arising from left or right knees, or left and right shoulders. The Panel notes that Dr Rosenthal assessed 2% WPI for the left knee on the basis of tenderness and retro-patella crepitus. The Panel did not find crepitus in either knee which is consistent with the findings of Medical Assessor Dixon.
At the left hand and wrist:
the wrist shows 2% upper extremity impairment from loss of dorsiflexion.
The left thumb shows 13% loss of the thumb for 3cm opposition, 3% of the thumb for adduction 3cm, 1% of the thumb for MCP joint 50° flexion, 2% of the thumb for IP joint 50° flexion. Adding these gives 19% impairment of the thumb, equivalent to 8% impairment of the hand, equivalent to 7% upper extremity impairment.
Combining 7% by 2% gives 9% upper extremity impairment, equivalent to 5% whole person impairment.
At the right wrist:
The wrist shows 2% upper extremity impairment from loss of dorsiflexion and 2% upper extremity impairment from loss of radial deviation. These are added to give 4% upper extremity impairment. This is equivalent to 2% whole person impairment.
There is saphenous nerve damage at the left knee which is calculated on the basis of the femoral nerve. Grade 4 sensory deficit of 25% of the maximum is 25% by 2% lower extremity impairment, giving 0.5% rounded to 1% lower extremity impairment, which is equivalent to 0% whole person impairment.
Combining 5% WPI from left hand and wrist with 5% from the lumbar spine, with 2% from the right wrist, gives 12% WPI.
The operative scarring is well-healed and attracts no assessable whole person impairment.
The Panel notes the history of a head injury, involving a period of post-traumatic amnesia, however, this injury was not referred for assessment.
There is no indication for apportionment to pre-existing injuries.
Referring to SIRA Guidelines 6.31 to 6.33, there needs to be objective evidence a pre-existing symptomatic permanent impairment in the same region at the time of the accident. For example, in apportioning a spine impairment, first the current spine impairment would be estimated and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that of the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments. It would also require documented evidence that the impairment was symptomatic at the time of the subject accident.
References:
AMA4, Chapter 3, Figure 10, page 26; Figure 13, page 27; Tables 5 & 6, page 28; Table 7, page 29; Figure 26, page 36; Figure 29, page 38; ; Table 3, page 20 ; Table 11, page 48; Table 68, page 89; Table 72, page 110.
AALD
Clinical notes from Liverpool Hospital were received from the parties on 19/07/2024.
They referred to attendances for:
·A right ring finger fractured middle phalanx injury on 10/09/2015
·Acute back pain – lumbar attendances on 31/05/2016, 06/06/2016, 20/06/2016
·Ambulance NSW hospital record on 08/08/2016 – motor vehicle collision – epigastric pain and tenderness, left sided neck pain and tenderness. GCS 15/15 on two occasions. Triage notes indicate ‘hit head and chest on wheel, left neck pain on palpation, hand clenched anxious +++’- Did not wait for treatment.
·Acute back pain – lumbar – attendances on 29/06/2017, 23/09/2019, 23/10/2019, 3/12/2019
·Acute back pain – lumbar and chest clinic referral – 24/01/2020 – Chest Xray – comparing with previous radiograph dated 10 June 2018, no interval change is noted…no focal consolidation or atelectasis…no pleaural effusion…cardiomediastinal contours are within normal limits.
·Acute back pain – lumbar and chest clinic – 29/01/2020 – 24 year old Iraqui male. Off shore TBU. In Australia since 2013 (!!). No Hx. Current CXR is clear as it was in 2016. NFU. [No follow up].Previous history of TB : No.
·Acute back pain – lumbar – attendances on 11/02/2020, 13/03/2020. Discharge letter from the Chest Clinic sent to Mr Alhamdani.”
FINDINGS
The Review Panel respectfully notes the medico-legal report by Dr Roger Pillemer dated 18 February 2020 which is included in the insurer’s bundle. That report was commissioned by the solicitors who acted for the claimant in his previous claim arising from the 2016 motor accident. It apparently was extracted from the claims file of the insurer that was on risk for that claim. Dr Pillemer found radiculopathy consistent with L5 nerve root involvement of the right lower limb. He assessed 10% whole person impairment for the lumbar spine. The Review Panel has explained its reasons for making no deduction for pre-existing impairment of the lumbar spine.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Dixon on 13 December 2023 should be revoked. The new certificate appears at the commencement of these reasons.
[TR1]Write in full in first instance
[TR2]Has not been abbreviated when written multiple times above
[TR3]Write in full in first instance
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