Allianz Australia Insurance Limited v Blachura

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Blachura [2024] NSWPICMP 676
CLAIMANT:	Ludwick Blachura
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW PANEL
MEMBER:	Stephen Boyd-Boland
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	24 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment, physical injuries to cervical spine, sternum and ribs; Medical Assessor (MA) Berry found that the injuries to cervical spine, sternum and ribs were caused by the motor accident; MA Berry found that the injuries to sternum and ribs had resolved; MA Berry assessed whole person impairment (WPI) as follows: cervical spine 15%; Re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine, sternum and ribs were caused by the motor accident; Panel found that the injuries to sternum and ribs had resolved; Panel assessed WPI as follows: cervical spine 15%, finding a total 15% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 15%; Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.26 of the Motor Accident Injuries Act 2017 1. The Panel confirms the certificate of Medical Assessor Neil Berry dated 24 April 2023. 2. The following injuries caused by the motor accident give rise to a permanent impairment of 15% which is greater than 10%: · cervical spine 15%.

STATEMENT OF REASONS

INTRODUCTION

On 13 September 2020, Ludwick Blachura (the claimant) sustained injury in a motor vehicle accident (the accident).
Insurance Australia Ltd t/as NRMA Insurance (the insurer) is the relevant insurer.
In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Claims are initiated by lodgement of an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident against (the insurer). The legislation provides a scheme of statutory benefits (under Part 3) and lump sum damages (under Part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.
Damages for non-economic loss are regulated by the provisions in Part 4, Division 4.3 of the Motor Accident Injuries Act 2017 (MAI Act). Entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and the dispute must be referred to a Medical Assessor for determination.
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines) which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including “(a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage).”
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Personal Injury Commission (Commission) including provisions relevant to an original medical assessment, further medical assessments and the review of medical assessments by this Panel.
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAI Act.
A medical assessment was conducted by Medical Assessor Neil Berry who subsequently provided a certificate dated 24 April 2023 (the Initial Assessment).

The Medical Assessors Certificate

The following injuries were referred by the Commission to Medical Assessor Neil Berry for assessment:
(a)    cervical spine;
(b)    sternum, and
(c)    ribs.
The Medical Assessor found that the following injuries were caused by the motor accident:
(a)    cervical spine – c2 fracture type 3 dens;
(b)    sternum – fracture, and
(c)    ribs – fractures on the right and left hemithorax.
The Medical Assessor found that the following injuries caused by the motor accident had resolved:
(a) sternum – fracture, and
(b) ribs – fractures on the right and left hemithorax.
The Medical Assessor determined the degree of permanent impairment as follows:

Body part or System

Permanent

Yes/No

Current %WPI

%WPI from pre-existing or subsequent causes

%WPI due to motor accident

Cervical spine

AMA4

Chapter 3

Pages 103-105

DRE Category III

Yes

15%

0%

15%

The Medical Assessor determined the degree of permanent impairment as follows:

The Review

The insurer lodged an application for review of the assessment of Medical Assessor Neil Berry.
On 18 July 2023 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Commission then convened a panel to conduct the review.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a decision maker. A ‘new decision maker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after
1 March 2021, the new provisions apply.
The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 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 the proceedings and may determine the proceeding solely based on the written application.
The Review Panel was comprised of two specialist medical practitioners and a legal member. The Panel met on a number of occasions and provided directions to the parties.
The Review is a process involving the Panel seeking evidence, including additional material provided by the parties and further submissions, and potentially further medical examination, then meeting on a number of occasions to discuss the evidence before the Panel and to reach a view on the relevant issues and reduce that to written reasons.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
Both the claimant and the insurer are legal represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAI Act.
Whilst the review is by way of a new assessment of all matters with which the medical assessment is concerned this occurs in the context of the initial assessment and certificate, the application for review of the assessment and the determination to conduct a review.
The following injuries were referred by the Commission to the Panel for assessment:
(a)    cervical spine;
(b)    sternum, and
(c)    ribs.

The Review Panel

Directions were issued by the Review Panel and the claimant was re-examined by on behalf of the Review Panel on 28 May 2024.
The parties were asked to provide submissions for the purpose of the Review addressing various specific issues.
The parties provided documentation to the Review Panel.
The insurer provided;
(a) a bundle of documents “A1-2023.05.24 - PIC - Insurer's Application - Review of Certificate of Assessor Berry (R-M13195024.1)” being 20 pages;
(b) a bundle of documents “2024.03.06 - PIC - Insurer's Bundle of Documents - Medical Assessment - Review of Berry (R-M10576441/23)” being 34 pages.
The claimant provided a bundle of documents “24-03-28 Claimant's Index of Documents [With Attachments]” being 63 pages.
Pursuant to s 7.26(6A) the panel agreed that Medical Assessor Drew Dixon would conduct the medical re-examination of the claimant for the purposes of the review.
Re-examination of Ludwick Blachura by Medical Assessor Drew Dixon was arranged.
In Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 Justice Basten referred to Court of Appeal comments on the volume of material which is routinely provided to Medical Assessors. Justice Basten confirmed that in reasons accompanying a certificate there was not a need to refer to all the documentation to which he or she has had access, but rather to be discriminating as to that material.
The Panel does not intend to refer to each and every document in the substantial volume of material before it, but only those documents considered significant to the issues in dispute.

The insurer’s submission

The insurer did not take any issues with the conclusions of Medical Assessor Neil Berry that the following injuries were caused by the motor accident:
(a)    cervical spine;
(b)    sternum, and
(c)    ribs.
The insurer did not take any issues with the conclusions of Medical Assessor Medical Assessor Neil Berry that the degree of permanent impairment determined was incorrect in relation to following injuries:
(a) sternum, and
(b) ribs.
The insurer took issue with the degree of permanent impairment of the injured person that has resulted from the cervical spine.
Specifically, the insurer’s submissions relate to whether the cervical spine injury should be categorised as DRE category II or DRE category III.

The respondent’s claimant’s submissions

The claimant maintained that all of the injuries considered by to Medical Assessor Neil Berry were caused by the motor accident.
The claimant maintained that the degree of permanent impairment determined by Medical Assessor Neil Berry was correct.

Examination of the claimant

Pursuant to s 7.26(6A) the panel agreed that Medical Assessor Drew Dixon would conduct the medical re-examination of the claimant for the purposes of the review.
Ludwick Blachura attended the examination at Hornsby on 28 May 2024 was examined by Medical Assessor Drew Dixon.
This 80-year-old claimant was the driver of a small Nissan sedan involved in a motor vehicle accident on 13 September 2020 when he was travelling along Henry Lawson Drive and going through a green light at the intersection of Tower Rd at Bankstown when a refrigerated track attempted to turn into Tower Road, causing a major collision. The claimant was wearing his seat belt and was dazed by the accident but there was no head injury and no loss of consciousness. He had to be extricated from the vehicle and was taken by ambulance to Liverpool Hospital where X-rays showed a sternal fracture, multiple rib fractures on the right with a left haemo pneumothorax and a type 3 fracture of the dens process of the C2 vertebral body.
He was treated by Dr Simon McKechnie, consultant neurosurgeon, and was placed in an Aspen collar. He was in hospital for just over two weeks and then discharged in the brace to the care of his general practitioner.
He subsequently had outpatient follow up by Dr McKechnie and after removal of the collar, he had physiotherapy treatment. Dr McKechnie decided he would not do fusion for the fracture of the odontoid peg, even though progress CTs showed incomplete union.

Examination

On review on 28 May 2024 he presented in a straightforward manner and was accompanied by his son. There was stiffness of his cervical spine with flexion decreased by 1/2 as was neck extension and lateral rotation to the right decreased by 1/2 and that to the left by 1/3. Lateral flexion was decreased by 1/3 bilaterally. There was tenderness of the upper cervical facet joints. The lower spinous processes were non-tender and there was no tenderness of the trapezius muscles today and no neurological deficit or wasting of either upper extremity.
The claimant complained of residual pain and stiffness in his neck with difficulty looking to the side with marked morning stiffness. He reported his rib injuries had settled and that he had residual tenderness of his sternum. He reported no radicular complaint in the upper limbs.
His cervical foraminal compression test was negative as was his brachial plexus stretch test and his supraclavicular brachial plexuses were non-tender.

Radiology

CT on 9 November 2020 showed a fracture involving the posterior aspect of the C2 vertebral body orientated in an oblique longitudinal plane but there was no callus as yet visible across the fracture with the fracture line extending to involve the bilateral pedicles. C1 appeared intact and there was no apparent subluxation of the craniovertebral junction. No other vertebral fractures were present.
Progress CT scan on 4 January 2021 showed minimally displaced fracture of the posterior body of C2 showing extension on the right into the pedicle and on the left, into the pedicle and left transverse process again noted. There was no significant change in appearances, compared with previous studies. There were no features of radiographic union. There was multi-level degenerative change in the cervical spine again noted.
CT of the cervical spine on 25 February 2021 showed the previously demonstrated minimally displaced fracture of C2 with some healing with partial bony bridging across the fracture line in the central aspect, however, there was persisting cortical discontinuity and visibility of the fracture line laterally into the vertebral body and to the right pedicle. The bony alignment appeared stable. Multi-level degenerative changes were again noted.
CT of the cervical spine on 4 December 2021 showed a minimally displaced fracture of the posterior body of C2 with extension on the right into the pedicle and on the left into the pedicle and into the left transverse process. There were no features of radiographic union. No new fracture was detected. Spinal alignment was preserved. No disc prolapse was seen at any level. There were multi-level degenerative changes noted throughout the cervical spine, most marked at C6/7, where there was bilateral uncovertebral osteophyte formation and on the left, there was severe foraminal narrowing and multi-level facet arthropathy was noted. There was no cervical rib.

Summary

In summary this claimant sustained a displaced fracture of a C2 vertebral body and the fracture extends into the pedicles on the right and on the left and these, by definition, posterior element fractures. There is no complete healing of the fracture which has mild displacement, it is a disruption of the spinal canal and therefore is DRE category III from the AMA 4 Guides which equates to 15% WPI. There is however marked pre-existing cervical spondylosis with posterior disc osteophyte complexes at C2/3 and a focal disc protrusion extrusion C3/4 with mild canal narrowing and moderate right C4/5 and left C5/6 and severe bilateral C6/7 foraminal narrowing on the initial CT performed at the hospital on 13 September 2020, which showed the displaced fracture of the posterior C2 body with extension into the bilateral lateral masses, involving the superior articular facets with extension into the bilateral C1/2 facet joints into the transverse foramina.
There was a further mildly displaced right C7 transverse process fracture.
The assessment was made on the available CT scans of the type 3 dens fracture which was mildly displaced and healing is incomplete. The neck remains symptomatic and the claimant told me today he has stopped driving.
Although he felt his neck was asymptomatic before the subject motor vehicle accident, there is radiological evidence of pre-existing cervical spondylosis which is significant and material to this injury to the neck.
If one was to rely on the other injuries, the displaced right C7 transverse process fracture and the focal disc protrusion/extrusion at C3/4, it may well have been DRE category II but because the fractures involve the posterior elements with incomplete union. From Table 73, Page 110, AMA 4 Guides, it is DRE category III.
Dr Simon McKechnie arranged for flexion extension cervical X-rays when he saw the claimant on 6 January 2021 and felt there was no evidence of instability at the fracture site and recommended removal of the collar, having explained to the claimant there was a small risk of spinal cord injury if he had a further fall, noting that the CT on
4 January 2021 had shown no features of radiographic union.
The Panel accepted the examination report from Medical Assessor Drew Dixon, set out above.
The Panel accepted and adopted the findings and clinical opinions of Medical Assessor Drew Dixon, set out above.

Issues for the review

Schedule 2, cl 2(a) of the MAI Act, involves a determination of two issues:
(a) whether the injury (was) caused by the motor accident, and
(b) the degree of permanent impairment of the injured person that has resulted from the injury.
The Panel needed to determine causation - whether the following injuries were caused by the motor accident;
(a)    cervical spine;
(b)    sternum, and
(c)    ribs.
Permanent Impairment - the degree of permanent impairment that has resulted from the following injuries;
(a)    cervical spine;
(b)    sternum, and
(c)    ribs.
The real issue for the purposes of the review was in relation to the cervical spine and whether the cervical spine injury, C2 fracture type 3 dens should be considerd a DRE II or DRE III.

Causation

The Motor Accident Guidelines set out the relevant considerations in relation to causation in Part 6 specifically cls 6.5, 6.6 and 6.7.
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) his Honour Justice Wright stated at [35]:
“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…”
Briggs, Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. A finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible.
The question to be considered is whether the injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.

Whether the cervical spine injury (was) caused by the motor accident?

In his certificate dated 24 April 2023 Medical Assessor Neil Berry concluded that the cervical spine injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as “Cervical Spine C2 fracture type 3 dens”.
The insurer did not seek to dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically cervical spine C2 fracture type 3 dens, as a result of the motor accident.

The claimant did not seek to dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically cervical spine C2 fracture type 3 dens, as a result of the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed the various medical opinions provided.
Medical Assessor Drew Dixon made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the cervical spine injury.
We accepted the medical determination of Medical Assessor Drew Dixon that the alleged factor could have caused or contributed to the cervical spine injury.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, could have caused or contributed to the cervical spine injury.
The Panel accepted that the claimant sustained an injury to the cervical spine, specifically cervical spine C2 fracture type 3 dens.
Having considered the dynamics of the accident, the reported symptoms of cervical spine pain contemporaneously with the accident, the ongoing complaints in relation to the cervical spine and the consideration of these issues by the other medical professional we accepted that the cervical spine injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the cervical spine injury.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the cervical spine injury was satisfied.

Whether the sternum injury (was) caused by the motor accident?

In his certificate dated 24 April 2023 Medical Assessor Neil Berry concluded that the sternum injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as “Sternum fracture”.
The insurer did not dispute the conclusion that the claimant sustained an injury to the sternum, specifically a sternum fracture as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the sternum, specifically a sternum fracture as a result of the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed the various medical opinions provided.
Medical Assessor Drew Dixon made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the sternum injury.
We accepted the medical determination of Medical Assessor Drew Dixon that the alleged factor could have caused or contributed to the sternum injury.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, could have caused or contributed to the sternum injury.
Having considered the dynamics of the accident, the reported symptoms of sternum pain contemporaneously with the accident, the ongoing complaints in relation to the sternum and the consideration of these issues by the other medical professional we accepted that the sternum injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the sternum injury.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the sternum injury was satisfied.

Whether the rib injury (was) caused by the motor accident?

In his certificate dated 24 April 2023 Medical Assessor Neil Berry concluded that the rib injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as “fractured ribs on both the right and left”.
The insurer did not seek to dispute the conclusion that the claimant sustained an injury to the rib, specifically fractured ribs on both the right and left, as a result of the motor accident.
The claimant did not seek to dispute the conclusion that the claimant sustained an injury to the rib, specifically fractured ribs on both the right and left, as a result of the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed the various medical opinions provided.
Medical Assessor Drew Dixon made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the rib injury.
We accepted the medical determination of Medical Assessor Drew Dixon that the alleged factor could have caused or contributed to the rib injury.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, could have caused or contributed to the rib injury.
Having considered the dynamics of the accident, the reported symptoms of rib pain contemporaneously with the accident, the ongoing complaints in relation to the rib and the consideration of these issues by the other medical professional we accepted that the rib injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the rib injury.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the rib injury was satisfied.

Causation conclusions

The Review Panel found that the following injuries were caused by the motor accident:
(a)    cervical spine;
(b)    sternum, and
(c)    ribs.

Permanent impairment

As noted earlier, Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines) which are largely based on the AMA 4 Guides.

Assessment of the spine generally

Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions:
(a)    cervicothoracic;
(b)    thoracolumbar, and
(c)    lumbosacral.
If injury to the spine is alleged then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories and a number of indicia provided (see Table 7).
The first is DRE category I which is selected if there are symptoms which may include pain.
DRE category II requires:
(a)    pain with guarding; or
(b)    non-uniform range of motion – dysmetria; or
(c)    non-verifiable radicular complaints defined in Table 6.8 as;
i.symptoms (shooting pain, burning sensation, tingling); and which
ii.follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
DRE category III requires radiculopathy which is defined in cl 6.138 as:
(a)    “dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination…
(b)    loss or asymmetry of reflexes;
(c)     positive sciatic nerve root tension signs
(d)    muscle atrophy and/or decreased limb circumference
(e)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(f)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

The degree of permanent impairment of the injured person that has resulted from the cervical spine injury

Medical Assessor Berry noted:
“There are multiple radiology reports confirming that the claimant has bilateral fractured ribs and a type 3 cervical fracture of C2 at the dens.
Follow up CT scans show that there is incomplete healing but that the fracture is stable.
The claimant has suffered a type 3 dens fracture to C2, although clinically he has no evidence of radiculopathy I would consider this to be a structural inclusion and I have assessed him as DRE Category III which is a 15% Whole Person Impairment”
The insurer’s submissions relate to whether the cervical spine injury should be categorised as DRE category II or DRE category III.
The insurer’s asserts that Medical Assessor Berry’s determination that the claimant satisfied DRE Category III was predicated on the basis he accepted the type 3 dens fracture to C2 was a structural inclusion, which is required for both DRE category II and III.
The insurer’s asserts that DRE category II requires the compression of one vertebral body to be less than 25%. For DRE category III, the compression is to be within the range of 25% to 50% of the vertebral body.
The insurer’s asserts the certificate does not reference the percentage of compression of the vertebral body, thus providing a basis for his finding of DRE category III. The insurer notes the certificate is entirely absent any reasons as to why he determined claimant satisfied DRE category III, particularly in circumstances where it was open for him to determine the claimant satisfied DRE category II.
Medical Assessor Drew Dixon found that there is no complete healing of the fracture which has mild displacement.
The CT of the cervical spine dated 4 January 2021 shows a minimally displaced fracture of the body of C2, showing extension on the right into the pedicle and on the left into the pedicle and left transverse process and there are no features of radiographic union.
The commentary on the DRE categories above covers the more straight forward assessment. In some circumstances the assessment is more complicated, and the AMA 4 Guides provide for this.
Page 104, AMA 4 Guides (DRE category II) in paragraph 5 provides:
“Structural Inclusions: (1) 25% to 50% compression of one vertebral body; (2) posterior element fracture, but not fracture of transverse or spinous process; a mild displacement disrupts the spinal canal, but the fracture is healed without loss of structural integrity. Radiculopathy may or may not be present. Differentiation from congenital and developmental conditions may be accomplished by examining preinjury roentgenograms or bone scans performed after onset of the condition.”
Medical Assessor Drew Dixon found that there was a less than 25% compression of vertebral body height, as per Para 2, Page 104, AMA 4 Guides (DRE category II) but in paragraph 5, Page 104 (structural inclusions), there was a posterior element fracture with a mild displacement that disrupts the spinal canal and the fracture is not completely healed without loss of structural integrity.
Medical Assessor Drew Dixon found that this satisfies the requirements of DRE category III.
Medical Assessor Drew Dixon found that this was a disruption of the spinal canal and satisfied the criteria for DRE category III from the AMA 4 Guides which equates to 15% WPI.
Medical Assessor Drew Dixon concluded that because the fractures involve the posterior elements with incomplete union, from Table 73, Page 110, AMA 4 Guides , it is DRE category III.
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): '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 for 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.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
The capacity of an assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides page 10:
“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 for 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.”
There was evidence of marked pre-existing degenerative changes.
The Panel was not satisfied that there was sufficient objective medical evidence of a pre-existing symptomatic permanent impairment in the same region sufficient to determine that, at the time just prior to the motor accident on 13 September 2020, Ludwick Blachura had a pre-existing symptomatic permanent impairment which would attract a DRE cervicothoracic category impairment rating.
In these circumstances we made no deduction for any pre-existing permanent impairment.

The degree of permanent impairment of the injured person that has resulted from the sternum injury?

In his certificate dated 24 April 2023 Medical Assessor Neil Berry noted;
“He has no symptoms in relation to his chest and sternum” and “Mr Blachura was not tender across the sternum and the ribs. There was a normal range of inspiration and expiration with no respiratory difficulties.”
In his certificate dated 24 April 2023 Medical Assessor Neil Berry found that the sternum injury had resolved and that as a result there was no resulting permanent impairment.
The insurer did not dispute the conclusion of Medical Assessor Neil Berry that the sternum injury had resolved and that as a result there was no resulting permanent impairment.
The claimant did not dispute the conclusion of Medical Assessor Neil Berry that the sternum injury had resolved and that as a result there was no resulting permanent impairment.
The Panel found that the sternum injury had resolved and that as a result there was no resulting permanent impairment.

The degree of permanent impairment of the injured person that has resulted from the rib injury?

In his certificate dated 24 April 2023 Medical Assessor Neil Berry noted “He has no symptoms in relation to his chest and sternum” and “Mr Blachura was not tender across the sternum and the ribs. There was a normal range of inspiration and expiration with no respiratory difficulties”.
In his certificate dated 24 April 2023 Medical Assessor Neil Berry found that the rib injury had resolved and that as a result there was no resulting permanent impairment.
The insurer did not dispute the conclusion of Medical Assessor Neil Berry that the rib injury had resolved and that as a result there was no resulting permanent impairment.
The claimant did not dispute the conclusion of Medical Assessor Neil Berry that the rib injury had resolved and that as a result there was no resulting permanent impairment.
The panel found that the rib injury had resolved and that as a result there was no resulting permanent impairment.

Permanent impairment conclusions

The Panel determined the degree of permanent impairment as follows:

Body part or System

Permanent

Yes/No

Current %WPI

%WPI from pre-existing or subsequent causes

%WPI due to motor accident

Cervical spine

Para 5, Page 104

DRE Category III

Yes

15%

0%

15%

The Panel determined the degree of permanent impairment to be 15% WPI.

Conclusion

The Panel confirmed the certificate of Medical Assessor Neil Berry dated
24 April 2023.

[2024] NSWPICMP 676

24 September 2024