Allianz Australia Insurance Limited v Davies
[2024] NSWPICMP 109
•26 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Davies [2024] NSWPICMP 109 |
| CLAIMANT: | Scot Anthony Davies |
INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Shane Maloney |
MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 26 February 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury in motor accident on 20 September 2021; vehicle ran over the claimant’s legs causing multiple fractures; assessment of permanent impairment of both lower extremities and surgical scarring; examination showed ankylosis in valgus position greater than 10 degrees resulting in loss of medical arch assessed under Table 57 of AMA4; injury to common peroneal nerve in right leg and sural nerve in left leg assessed under Tables 20 and 68 of AMA4; surgical scars are significant and had trophic changes, adherence, staple marks and need for treatment assessed at 3% under best fit; right toe not claimed; assessed due to ankylosis; not included in assessment; claimant’s impairment permanent under clauses 6.19 and 6.20 of the Guidelines due to sufficient time since previous surgery; clinical examination did not require surgery in foreseeable future; Held – claimant assessed at 22% permanent impairment due to physical injuries; medical assessment confirmed as over 10% threshold. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: The Panel revokes the medical assessment certificate dated 25 July 2023 and certifies that the following injuries caused by the motor accident give rise to a permanent impairment greater than 10%: · left distal tibia and tibial plafond fracture; · left Weber C fibula fracture · right medial malleolus fracture; · right lateral malleolus fracture; · right calcaneus fracture; · right listranc ligament rupture; · right multiple small fracture fragments; · bilateral non osseous talocalcaneal coalition; · injury to right common peroneal nerve, and · injury to left sural nerve. |
REASONS
BACKGROUND
On 20 September 2021 Mr Scott Davies (the claimant) suffered injuries when the insured vehicle drove over him causing multiple fractures to both lower extremities.[1]
[1] Claimant’s bundle, p 36.
Allianz Australia Insurance Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Davies any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Mr Davies’ “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Kenna and dated 25 July 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration. Further documents were filed by the insurer.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] [2021] NSWSC 13 (Raina) at [65].
Clauses 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused multiple fractures to both lower extremities. The claimant underwent multiple operations including the removal of the left tibial plate in May 2023.
The Medical Assessor noted an improvement in the condition since the recent operation with only a slight antalgic gait.
The Medical Assessor assessed impairment in respect of the left ankle at 3%, the left hindfoot at 1%, the right hindfoot at 1%, the right foot deformity at 4% and the right peripheral nerve at 2%. This resulted in a combined impairment of 11%.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration. The parties filed further late application.
Pre-existing conditions
A certificate of capacity dated 22 October 2021 referred to a fracture at 19 years of age from which he had fully recovered. Other records referred to drug use and bipolar condition which were noted by the insurer in its submissions but are unrelated to the present assessment of permanent impairment.[11]
[11] Insurer’s bundle, p 72.
The records of the general practitioner (GP) commencing in March 2013 do not refer to any issues with respect to the previous left ankle fracture.[12]
[12] Insurer’s bundle, pp 90-97.
Medical records post-accident
The ambulance record included the following history:[13]
“50yo male Pt laying R lateral one roadside of rural road. P road worker who has been run over by a truck today unwitnessed. Pt states didn’t see a truck driving approx. 5 km/h which dragged him under the tyre while standing on the roadside, lower legs had a rotation around/under the wheel arch and the tyre came crashing down on to bilateral lower legs before he dragged himself off to the side to avoid further impact…. Obvious deformity noted to L ankle and R foot.”
[13] Insurer’s bundle, p 19.
The claimant was admitted to hospital and discharged on 6 October 2021.[14]
[14] Claimant’s bundle, p 48.
The discharge summary from the orthopaedic fracture clinic noted left distal tibia and tibial plafond fracture and left Weber C fibula fracture and multiple fractures on the right foot including medial malleolus and lateral malleolus fractures.[15] The presenting history was that the claimant was brought in by ambulance after his feet were crushed by a truck.
[15] Claimant’s bundle, p 48.
A certificate of capacity dated 13 October 2021 noted the motor accident caused multiple injuries to both lower limbs, left distal tibia and tibial plafond fracture, left Weber C fibula fracture, right medial malleolus fracture, lateral malleolus fracture, calcaneus fracture, Lisfranc tear, multiple small fracture fragments and bilateral non osseous talocalcaneal coalition. The certificate referred to a left ankle fracture at 19 years old which “fully recovered”.[16]
[16] Insurer’s bundle, p 41.
The claim form dated 22 October 2021 described the motor accident causing injuries to both lower extremities.[17]
[17] Claimant’s bundle, p 36.
Dr Gawel Kulisiewicz, orthopaedic surgeon, provided a report dated 27 October 2021.[18] The doctor noted that the claimant underwent two sets of surgery to each leg following the motor accident. Dr Kulisiewicz noted altered sensation in both feet with a decision at that time when the claimant would commence weight-bearing.
[18] Claimant’s bundle, p 111.
Review in the orthopaedic outpatient clinic on 23 November 2021 noted that the claimant was non-weightbearing on the right leg.[19]
[19] Claimant’s bundle, p 153.
The X-ray of the left ankle dated 28 March 2022 noted the fractures have been internally fixed in a satisfactory position and the fracture of the distal tibia had not fully healed.[20]
[20] Insurer’s bundle, p 111.
A CT scan of the left leg dated 4 April 2022 showed partial healing of the comminuted distal tibial fracture with loosening of the syndesmosis screw within the fibula.[21]
[21] Claimant’s bundle, p 188.
Review at the orthopaedic outpatient clinic on 10 May 2022 noted slow progression towards union of the left tibial plafond. The doctor noted problems associated with the plate which would require removal in due course. With respect to the right foot, the claimant remained in a cam boot although was expected to commence weight-bearing. Recent X-rays showed moderate arthritic changes in the mid-foot.[22]
[22] Claimant’s bundle, p 189.
A CT scan dated 5 July 2022 showed internal fixation of the distal tibial fracture with evidence of bony union and bony defects anteriorly and medially. Small persistent defects were noted in the distal tibial articular surface.[23]
[23] Claimant’s bundle, p 302.
On 7 July 2022 Dr Kulisiewicz noted the claimant was still limping whilst walking but without the aid of crutches or boots.[24]
[24] Claimant’s bundle, p 303.
Dr Kulisiewicz provided a further report dated 16 December 2022.[25] The doctor noted ongoing improvement and recommended removal of hardware.
[25] Claimant’s bundle, p 261.
The CT scan of the left leg dated 20 April 2023 showed mild diffuse osteopenic change, the plate and screws and lucent fracture lines through the distal tibia. There was partial ankylosis of the anterior-inferior and inferior-lateral cortices with satisfactory alignment.[26]
Dr Kulisiewicz noted ongoing medial plate irritation and recommended its removal despite “defect within the bone”.[27][26] Claimant’s bundle, p 394.
[27] Claimant’s bundle, p 395.
An Allied Health recovery request dated 28 April 2023[28] noted reduced ankle range of motion, reduced strength and reduced ankle dexterity and sensation. The services were requested for the provision of a strengthening program following the proposed operation.
[28] Insurer’s further bundle, p 4.
On 8 May 2023 the claimant underwent removal of the left tibial plate and debridement.[29]
[29] Claimant’s bundle, p 284.
On 25 May 2023 Dr Kulisiewicz recommended avoidance of heavy activities but that the claimant could gradually increase his walking.[30] The doctor described the fracture as showing “fairly reasonable union” with cultures showing “heavy growth of staph”.
[30] Claimant’s bundle, p 399.
Mr Lachlan Powrie, physiotherapist, provided a report dated 9 June 2023.[31] Based on X-rays and clinical examination, Mr Powrie assessed:
· left Weber C fibula fracture;
· right medial malleolus fracture;
· right lateral malleolus fracture;
· right calcaneus fracture;
· right listranc ligament rupture;
· right multiple small fracture fragments, and
· bilateral non osseous talocalcaneal coalition.
[31] Claimant’s bundle, p 401.
Mr Powrie noted loss of quadriceps and hamstring muscle bulk in the left leg due to sustained non-weightbearing periods visible loss in gastrocnemius muscle bulk and talocrural joint swelling with reduced sensation in the dorsal forefoot. The physiotherapist opined that the claimant had not reached maximum medical improvement and still required ongoing strength training and further rehabilitation following the plate removal in the left leg.
An MRI scan of the left leg dated 27 June 2023 noted the previous fixation of the distal tibia with “findings not strongly suggestive of infection and osteomyelitis and favour granulation tissue.”[32]
[32] Claimant’s bundle, p 405.
An Allied Health recovery request dated 6 October 2023[33] noted reduced range of motion, strength, dexterity and sensation. The purpose of the treatment was expected to end in November 2023 and designed to strengthen the lower leg.
[33] Insurer’s further bundle, p 10.
An X-ray of the left leg dated 25 October 2023 showed various plates and screws in situ and cortical lunacy in the distal left tibial medial cortex. Alignment was described as satisfactory.[34]
[34] Insurer’s further bundle, p 14.
Dr Kulisiewicz provided an updated report dated 2 November 2023 following the hardware removal.[35] The doctor noted the claimant was doing well, and the wounds were clean and dry. The claimant felt a lot better compared to several months previously. Recent X-rays showed the distal tibial fracture continued to heal. The doctor opined that the leg did not look infected and suggested an MRI scan to ensure no residual oedema to suggest ongoing osteomyelitis.
[35] Insurer’s further bundle, p 15.
Qualified opinions
Dr Eugene Gehr, orthopaedic surgeon, was qualified by the claimant and provided a report dated 1 December 2022.[36] After a detailed summary of the medical evidence, Dr Gehr noted surgical scars which he assessed at 2% permanent impairment in accordance with the TEMSKI scale.
[36] Claimant’s bundle, p 239.
Dr Gehr assessed loss of range of motion of the left knee, ankle and foot, and loss of range of the right ankle and hindfoot. The doctors also assessed peripheral nerve injuries involving the right foot. The overall assessment was 39%.
SUBMISSIONS
Claimant’s submissions
These submissions opposed the review of the medical assessment.
The claimant referred to cl 1.95 [sic] of the Guidelines which provided that it was possible to combine impairments from table 64 for diagnosis based estimates with other injuries and submitted that this had been correctly undertaken in this case.
With respect to stabilisation, the claimant referred to cl 1.21 [sic] of the Guidelines and submitted that the mere fact that the claimant required ongoing treatment did not mean that the condition was not medically stable and that the original Medical Assessor had made a determination that this had occurred.
Insurer’s submissions dated 2 December 2022[37]
[37] Insurer’s bundle, p 2.
The insurer submitted that the accident related injuries had not stabilised.
The insurer summarised the treatment noting that the claimant underwent open reduction and internal fixation of the left fibula and right midfoot fracture at hospital. A certificate of capacity dated 22 October 2021 noted the claimant had a left ankle fracture at 19 years of age from which he had fully recovered.
The insurer referred to a workplace assessment report dated 19 November 2021 which noted that full functional mobility would take up to two years.
The claimant underwent removal of wires from the right foot in November 2021. He remained non-weightbearing on the left foot at that time.
The insurer accepted that the claimant had sustained multiple fractures to the right foot and left leg in the motor accident but submitted the injuries had not stabilised and it was premature to undertake an assessment of whole person impairment.
Insurer’s submissions dated 10 January 2023[38]
[38] Insurer’s bundle, p 10.
These submissions were filed in response to the report of Dr Gehr.
The insurer submitted that Dr Gehr had not provided an opinion that the claimant’s injuries have stabilised and noted the claimant could require surgery to the left ankle and right midfoot.
The insurer noted that the application did not seek assessment of scarring although Dr Gehr assessed it at 2%. It submitted that it was highly unlikely the scarring would have any impact upon the claimant’s capacity for activities of daily living and the best fit was 1%.
The insurer disputed that the claimant suffered an injury to the left knee and noted that
Dr Gehr made no diagnosis of the nature of that injury.The submitted that Dr Gehr had made assessments of the left ankle, left foot and right midfoot contrary to table 6.5 of the Guidelines which did not permit combination of various impairments.
The insurer submitted that the assessment by Dr Gehr of loss of sensory function to various nerves was inconsistent with paragraph 3.2k of AMA 4.
Insurer’s submissions dated 11 August 2023[39]
[39] Insurer’s bundle, p 14.
These submissions were filed seeking to review the medical assessment certificate.
The insurer submitted that the original Medical Assessor incorrectly applied Table 6.5 of the Guidelines and the assessment does not accord with cl 6.19 of the Guidelines.
The insurer submitted that the assessment of range of motion of the right hind foot cannot be combined with the diagnosis-based estimate (DBE) for the foot. It appeared to submit that the reduced range of motion assessed by the original Medical Assessor related to the right hind foot and not the right ankle and, accordingly, was impermissible pursuant to Table 6.5.
The insurer referred to cl 6.19 of the Guidelines and submitted that the claimant’s condition had not stabilised noting the removal of the left tibial plate several weeks earlier. It referred to the opinion of Dr Kulisiewicz of the need for ongoing physiotherapy, hydrotherapy and orthotics and that the claimant would continue to improve with regards to mobility. It also noted that there had been improvements reported by the claimant in the period since the surgery and submitted the condition had not stabilised.
Insurer’s submissions dated 11 September 2023[40]
[40] Further insurer bundle, p 18.
The insurer submitted that the scarring has not stabilised due to the surgery on 8 May 2023. It denied Dr Gehr’s assessment of 2% for scarring as that doctor did not refer to the impact on ADLs. The insurer submitted that the scarring should be assessed at 1%.
Insurer’s letter dated 15 December 2023[41]
[41] Further insurer bundle, p 3.
The insurer forwarded updated medical evidence to the Panel. This evidence, where relevant, has been summarised in these Reasons.
RE-EXAMINATION
Mr Davies was examined by both Medical Assessors on 14 February 2024. The examination report is as follows.
“Review of scans
Canberra Hospital emergency Department 20 September 2021 – plain x-ray of the left foot showing a healed fracture involving the first metatarsophalangeal joint with a vaulted fragments securely united on both the proximal phalanx and the lateral side of the first metatarsal. Lateral view of the same x-ray shows some clawing of the toes, but the overall position of the toes seems generally satisfactory. A slightly oblique view confirms a fracture involving the metatarsophalangeal joints and shows that the lesser toes are in a fixed extended position relation the metatarsals. Second AP view shows loss of joint space of the metatarsophalangeal joint with marginal osteophytes small a revulsion fracture in the medial side with metatarsal. The accompanying PDF confirms the first metatarsal phalangeal post-traumatic osteoarthritis.
AP plain x-ray left lower limb 20 September 2021 shows transverse crush fracture proximal to the ankle would extension the fracture distally, a probable fracture of the distal malleolus on the lateral side and the separated fragment proximately. Accompanying AP x-ray of the right foot shows a Lisfranc fracture involving the medial cuneiform bone.
History and examination
Mr Davies is now 53 years old. At the time of the accident, he worked as a general labourer in road construction. He did this work for the past five years. He is in a long-term de facto relationship but was living as a boarder in his partners two-bedroom government house. The house has three steps. He had a Harley-Davidson motorcycle and he usually use this for transport. He played indoor social sport at the Canberra sports centre including cricket soccer and volleyball. He also enjoyed magnet fishing. This involves standing on the bridge dropping a magnet for a rope over the bridge to see what debris comes up. He is a smoker. He had no injuries in recent years and took no regular medications. He does report a fracture of the ankle when he stumbled on steps 18 years previously but recovered fully. He had a rough and ready childhood mostly involving outdoor activities. Has limited formal education.
His motor accident occurred late on a September morning. He was at roadworks doing double shifts. This particular job was to use a super sucker for clearing out potholes of water and loose debris. It is mounted on 20-ton truck. He was working at Dog Track Road near Yass for a firm called Capital Lines and Signs. The super sucker is mounted on a water tank as a side attachment. The operation uses the sucker on a boom to dry potholes prior to road mending. There was a new driver who put the truck into gear and started to move forward whilst Mr Davies was standing beside the truck. He was pulled to the ground and as a consequence the rear wheels of the truck passed over both distal lower limbs including both feet. He was taken by ambulance to the Canberra Hospital and admitted under the supervision of the on-call orthopaedic surgeon, Dr Gawel Kulisiewicz. He underwent a series of operations. He convalesced in a medi-motel in Gungahlin adapted for disabled people including ramps and wheelchair accessibility. There was an issue with multiple resistant staphylococcus on the ward.
Since then, he has been back to the John James Hospital due to the development of a deep tissue infection in the left tibia just above the ankle. Some of the internal fixation device has been removed. He is living independently and now boards with his sister and not his partner. He has a year 10 education and whilst has had contact with rehabilitation providers he has not yet returned to work. His only prior work experience is as a manual labourer. His sister drove him to the present examination of the PIC rooms. He cannot drive a manual vehicle himself but can drive an automatic vehicle for short distance. He has a Subaru Forester. Is not able to ride his motorcycle. There is a persistent area of ulceration under his right foot, and he is aware that both feet and ankles are very stiff. This means he has to climb stairs one at a time in a crab wise fashion using handrails as he cannot effectively move his ankles. He takes tramadol and paracetamol for pain. He is under the routine care of a general practitioner in Dickson and sees his specialists from time to time. Particular noteworthy was the development of osteomyelitis in one of the wounds which required six months of broad-spectrum antibiotics and removal of parts of the implant and left a defect in the bone. There is talk about a future bone graft. The bright side of this serious injury is that the gastro inflectional effects of long-term antibiotics resulted in 36 kg loss of weight about which is very pleased.
He consulted Dr Kulisiewicz in the Peter Yorke building at the John James Private Hospital. No active rehabilitation has been undertaken and he is more or less in limbo about future work prospects giving his limited educational background. He can walk about without walking aids on the flat and exercises his sisters’ small dogs a regular basis. He can drive locally.
Physical examination is a lightly framed man 169 cm tall and 68 kg in weight. There is a stiff flat-footed gait and cannot walk on tiptoes or on his heels with his toes off the ground. He cannot hop. Knee flexion squatting is limited by the stiffness of both ankles. There are large scars on both legs, 18 cm medial scar on the left lower leg, a 5 cm medial scar due to the surgery for the osteomyelitis and a 6 cm lateral scar which is pigmented shiny and somewhat stable. On the right foot there is scar on the dorsum of the foot, a 7 cm scar medial to the posterior malleolus and what appears to be a right sided Lisfranc fracture which was temporarily fixed by number of transcutaneous pins since removed. He uses vitamin E cream on the scars.
Leg length is equal between the two sides. Girth is nearly equal between the thighs, 37 cm on the right 36 cm on the left and calves 30 one centimetres each side. Both ankles have bony thickening, 22 cm of the right and 23 cm on the left but given the overall limitations on movement there is muscle wasting but it is difficult to estimate the degree given the effects on both legs.
Sensory examination shows the presence of an area of numbness extends over the dorsum of the right foot on the lateral side and much of the sole of the right foot on the lateral side. On the left side there is an area of numbness confined to the heel part of the ankle.
Both ankles are very stiff, the ankles are in neutral dorsi flexion and have at most only a few degrees of plantarflexion. These are functionally better assessed as an ankle ankylosis given the degree of stiffness. Both ankles are in mild valgus together with a loss of the medial arch of the foot on both sides. The subtalar joints are stiff, and the mid tarsal joints are very stiff. The first metatarsophalangeal joint and the right foot is stiff but more mobile on the left. The metatarsophalangeal joints were held in mild dorsi flexion but will reach neutral position in walking. The interphalangeal joints are very stiff.
An assessment of both ankles and the first metatarsophalangeal joint of the right foot are stiff to the point of ankylosis. The mid tarsal joints are stiff and both ankles are in mild valgus in the hind foot. There is incomplete sensory loss involving the deep perineal nerve in its distal portion from a crush injury to the soft tissues in the right foot and the similar but less extensive injury involving medial calcaneal and plantar branches of the sural nerve component of the posterior tibial nerve in the left foot.
The stiffness of the ankles is best covered by table 57 page 81 of AMA4 for ankylosis of the ankle in mild valgus, 10% whole person impairment for each ankle 25% lower extremity impairment. Ankylosis of the big toe of the right foot for a further 4%, 9% lower extremity impairment whole person impairment. Sensory loss is covered by table 68 page 89 AMA4 peroneal nerve results in a 2% whole person impairment for sensory loss. There are no motor branches. Sensory loss in the left foot severe, 1% WPI. There are no motor branches.
There was loss of hindfoot movement on both sides measured at 15% on inversion, 1%WPI on both sides.
The surgical scars are extensive but well coloured though spread and somewhat depressed. Using the TEMSKI scale there is an additional 3% WPI for the scars.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[42]
[42] Section 7.26(6) of the Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[43] and Insurance Australia Ltd v Marsh.[44]
[43] [2021] NSWCA 287 at [40], [41] and [45].
[44] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by the Medical Assessors supplemented by the following further reasons.
In relation to the scars applying Table 6.18 of the Guidelines, the Medical Assessors observed:
· the claimant was conscious of the scars (range of 1 % - 9%);
· the scars are easily identifiable with colour contrast to surrounding skin (3-4%);
· the claimant was easily able to locate the scars (3-9%);
· there were trophic changes evident to touch (3-4%);
· staple marks are clearly visible (3-4%);
· there was contour defect visible – dip in the front of the left ankle (2%);
· minor limitation on activities of daily living because the scars should avoid sunlight with complications arising if they are burnt (3-4%);
· there was a need for intermittent treatment - Vitamin E cream applied regularly to soften the scar, and
· some adherence was seen (3 % upwards).
The Panel must assess the total effect of the scar as an organ and multiple scars are not assessed individually (cl 6.263 of the Guidelines).
The parties were on notice that we would assess the scars noting that this had been claimed in the report by Dr Gehr although not listed as a part to be assessed. The insurer did not object provided it filed further material which ultimately led to the filing of a supplementary Application of 253 pages. The relevance to the assessment of the skin from this bundle was unclear although its submissions were that the skin impairment should be assessed at 1%. It provided no reasoning for that concession other than to dispute Dr Gehr’s opinion that there was no effect on ADLs.
We assess the impairment of the skin on a best fit basis of (at least) 3% permanent impairment. These scars are significant and described above. They are due to the original injury and the subsequent operative procedures for the serious fractures. There has been sufficient time for the recent surgical scar to stabilise following the May 2023 surgery.
The Medical Assessors found ankylosis in the valgus position for both ankles (Table 57 AMA4). This is because the claimant is flat footed (loss of medial arch) from the combined effect of the ankle/tarsal and calcaneus fractures. The claimant was measured by the Medical Assessors at 12 degrees valgus deformity position on both ankles.
The insurer referred to Table 6.5 of the Guidelines. However, that table allows for the combination of ankylosis with peripheral nerve injuries.
The ankle impairment of each lower extremity from ankylosis in the valgus position is 25% lower extremity impairment (Table 57 of AMA4).
The Medical Assessors also found ankylosis of the big toe of the right foot. The claimant could not move the great toe due to joint injury and this was in the functional position. This is assessed at 9% lower extremity impairment (Table 61 of AMA4).
There was no claim for the impairment of the big toe. Accordingly, we note that this impairment was caused by the motor accident but is not included in the final calculation.
The claimant had injury to the common peroneal nerve of the right leg (Table 68 of AMA4). This was a sensory loss only because the position of the damage to the common peroneal nerve did not affect motor loss.
The insurer submitted that the assessment by Dr Gehr of loss of sensory function to various nerves was inconsistent with paragraph 3.2k of AMA 4. We have considered the relevant portion of paragraph 3.2k concerning assessment of sensory deficits and dysesthesias noting two Medical Assessors undertook the assessment and they agree.
The lower extremity impairment of the sensory loss of the common peroneal nerve of the right leg is 5% (Table 68 of AMA4). Applying Table 20 of AMA 4 this is assessed at the top end of the range of Class 4 because the nerve injury prevents activity as the claimant has a numb sole of the foot which effects an ability to weight bear and walk properly. Applying 80% of 5% lower extremity impairment, the claimant had a 4% lower extremity impairment due to sensory loss of the common peroneal nerve.
The assessment of the right lower extremity (assessed as lower extremity impairments) is ankylosis of the ankle (25%), hindfoot (2%) and sensory loss (4%). This is combined as 29% lower extremity impairment which is 12% whole person impairment (Table 6.4 of Guidelines).
We have not included the impairment of the right big toe due to ankylosis (9% lower extremity impairment) as part of this assessment.
The assessment of the injury to the left sural nerve is 2% lower extremity impairment. We assess this as 50% (Table 20 of AMA 4) which is 1% lower extremity impairment based on decreased sensation interfering with some activity.
The assessment of the left lower extremity (applying lower extremity assessments) is ankylosis of the ankle (25% lower extremity impairment), hindfoot (2% lower extremity impairment) and sural nerve sensory loss (1% lower extremity impairment). This is combined and totals 28% lower extremity impairment which is 11% permanent impairment.
The claimant’s overall permanent impairment is 12% (right lower extremity) combined with 11% (left lower extremity) totalling 22% combined with 3% (scarring) which totals 24% permanent impairment.
Permanent
We are satisfied that the impairment is permanent within the meaning of cls 6.19 and 6.20 of the Guidelines because:
· a sufficient time has occurred since the last surgery in May 2023 for recovery;
· the claimant has undergone physiotherapy treatment in October and November 2023 as evidenced by the updated material filed by the insured;
· the claimant does not require surgery in the foreseeable future, and
· the Medical Assessors’ clinical examination of the claimant is that there is unlikely to be a change greater than 3% impairment over the next year.
The claimant suffered significant and serious injuries to the lower extremities resulting in gross disability. The seriousness of the fractures means, as Dr Ghabrial opined, that there will be a gradual deterioration in the claimant’s condition over the years. This observation does not negate our conclusion that the impairment is permanent as defined in the Guidelines but indicates our opinion that the claimant’s condition will not functionally improve with further treatment.
The assessment is significantly greater than that undertaken by Medical Assessor Kenna. We rely on the clinical experience and precise findings of the Medical Assessors which found the impairment due to the significant fractures in the lower extremities. The principal increase was the assessment of the extent of the ankylosis of both ankles made by the Medical Assessors which reflects a deterioration in the extent of the valgus deformity. We otherwise observe that it is unlikely the ankylosis can deteriorate any further as it is a fixed deformity meaning that the condition has stabilised.
The insurer disputed that the left knee was injured. There has been no assessment of that part.
Pre-existing impairment
There is evidence of a previous left ankle injury. The records of the GP commencing in March 2013 do not refer to any issues with respect to the previous left ankle fracture which suggests there were no ongoing problems from the old injury consistent with the claimant’s evidence. Further, there is no objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident within the meaning of cl 6.31 of the Guidelines. Accordingly, no deduction is made.
CONCLUSION
We have concluded that that impairment caused by the motor accident is greater than 10%. The medical assessment certificate is revoked, and a new medical assessment certificate is issued.
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