Allianz Australia Insurance Limited v Herrera

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Herrera [2024] NSWPICMP 315
CLAIMANT:	Omar Herrera
INSURER:	Allianz Australia Insurance Limited ABN 15 000122850 t/a Allianz
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Michael McGlynn OAM
DATE OF DECISION:	17 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 6 April 2021; Medical Assessor (MA) Curtin determined that the injuries to the skin (facial scarring), and the scarring to the left knee gave rise to a whole person impairment (WPI) of 3%; the Medical Review Panel considered the issue of causation according to section 6.6 of the Guidelines and determined permanent impairment of the face scarring and left knee scarring equated to a total WPI of 3%; Held – the Certificate of the MA Curtin was affirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Medical Review Panel determines that the total permanent impairment arising from the injuries referred to it and caused by the motor vehicle accident, gave rise to a whole person impairment of 3%. 2. The Medical Review Panel accordingly confirms the certificate of Medical Assessor Curtin, dated 31 October 2023.

STATEMENT OF REASONS

INTRODUCTION

On 6 April 2021, Omar Herrera (the claimant) was riding his motorbike when a parked car, on his left side, pulled out in front of him, in the process of attempting a U-turn in the opposite direction. Mr Herrera alleges that he was injured as a result of the collision.
Allianz Australia Insurance Limited (the insurer) is liable to pay any damages to Mr Herrera under the Motor Accident injuries Act 2017 (the MAI Act).
Under the MAI Act there is only an entitlement to recover damages for non-economic loss if the claimant sustained whole person impairment (WPI) greater than 10%.
A dispute arose as to whether the claimant had sustained WPI greater than 10%. Mr Herrera filed an application with the Personal Injury Commission (Commission) seeking medical assessment to resolve the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, 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), and...”
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The scarring aspect of the permanent impairment dispute was referred to Medical Assessor Paul Curtin.
The insurer sought a review.

DOCUMENTS CONSIDERED BY THE REVIEW PANEL

On 15 November 2023 the insurer uploaded to the portal an indexed bundle of documents paginated from page 1 to 76 (insurer’s documents). On 18 January 2024, the claimant uploaded to the portal an indexed bundle of documents paginated from page 1 to 107 (claimant’s documents).

STAUTORY PROVISIONS

Permanent impairment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic 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 judgement.
6.7 There 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.”

REVIEW PROCEDURE

The insurer lodged an application for review of the assessment of Medical Assessor Curtin.
On 9 January 2024, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 12 March 2024 at the first Medical Review Panel meeting, Medical Assessor McGlynn confirmed he did not require an examination as the main issue under review was causation.

CERTIFICATE UNDER REVIEW

Medical Assessor Curtin issued a certificate dated 31 October 2023.
The following injuries were referred for assessment by Medical Assessor Curtin:
(a) skin- facial scarring, and
(b) scarring to the left knee.
Medical Assessor Curtin determined that the following injuries gave rise to a permanent impairment of 3%:
(a) skin- facial scarring, and
(b) scarring to the left knee.

Submissions to the Medical Assessor

Medical Assessor Curtin summarised the submissions at [3]- [4]:
“[3] The claimant submits that impairment exceeds the 10% threshold.
[4] The respondent submits that impairment does not exceed the 10% threshold.”

Documents considered

Medical Assessor Curtin considered the documents provided in the application and reply, no additional document being provided.
Medical Assessor Curtin took a history at [8] and a history of the accident at [9]. Nothing turns on the accuracy of the history taken.

History of symptoms and treatment

Medical Assessor Curtin took a history at [10] and again, nothing turns on the particular terms of the history of symptoms and treatment following the motor vehicle accident.
The current symptoms were listed by Medical Assessor Woo at [12], and the current and proposed treatment at [13].
Medical Assessor Woo’s clinical examination is set out at [14]:
“General presentation. Mr Herrera was a fit looking Caucasian man of 35 years. He had a fair complexion, dark hair and a BMI of 23.7 (71 kg and 173 cm). He had a reasonable command of English, but the interpreter was there to assist via the phone from time to time.
On the upper part of the forehead on the left side, there was a fine line, slightly depressed scar passing transversely for 3 cm. There were no obvious suture marks and the scar was a good colour match with the surrounding skin.
Immediately adjacent to the outer canthus of the left eye there was a fine line scar extending for 1 cm. This scar was quite difficult to see, being a fine line with no suture marks. There was also a flat pale scar extending for 1 cm across the vermilion border of the lower lip on the left side. The scar itself was difficult to see, but was associated with very slight swelling of the lip vermilion.
The deep abrasion of the left cheek had resulted in a very faint hypopigmented area of otherwise normal skin extending for 2 cm². There was no evidence of any similar area on his chin.
On the medial aspect of the left knee there was an area of faint pale scarring extending for 2.5 x 2 cm. The scarring was slightly paler than the surrounding skin and part of the scar was depressed. Immediately below there was a fine line, pale vertical scar extending for 2.5 cm. Immediately beneath this there was a palpable sharp prominence, consistent with a screw or similar hardware. On the anterior surface of the knee there were a number of hypopigmented spots consistent with scarring from abrasions.
None of these scars were adherent or associated with any significant sensory loss.”

Review of documentation

Medical Assessor Curtin noted the documentation did not include any reports with regard to scarring sustained as a result of the motor vehicle accident.
He considered at [17] the summary of relevant radiological and medical imaging and other investigations:
“CT brain and facial bones 06/04/2021: no acute intracranial haemorrhage. Soft tissue contusion over the left lateral orbit and zygoma with a 10 x 14 mm cheek haematoma. Fracture of the anterior nasal spur, of uncertain acuity.”

Medical Assessor’s determination

Medical Assessor Curtin set out his diagnosis and reasons at [18], determining that

Mr Herrera had permanent scarring of the face and left knee.
Medical Assessor Curtin set out causation and reasons at [19]:
“The referred injuries could have been caused by the motor vehicle accident as described. The history given by Mr Herrera together with the documents supplied indicate that the motor vehicle accident did cause the referred injuries.”
At [20] Medical Assessor Curtin determined the following injuries were caused by the motor accident:
(a) face scarring, and
(b) skin-scarring left knee.
In the statement about permanent impairment, Medical Assessor Curtin concluded:
“There is 3% permanent impairment which is unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
Medical Assessor Curtin reached his determination in accordance with the Guidelines and AMA 4 Guides:
“The Motor Accident Guidelines direct that facial scarring and disfigurement are assessed separately to scarring elsewhere on the body, and that assessment using AMA 4 could either be undertaken using Chapter 13 which deals with the skin generally, or section 9.2 which refers to facial deformity. It has been decided to make an assessment of facial scarring using chapter 13, Table 2 p280, and the TEMSKI chart which Guidelines direct (para 6 .264) is an extension of that table. Because there are no limitations in the activities of daily living, the facial scarring falls into the Class 1 category of Table2, and the Guidelines require that impairments in this class are assessed in accordance with the TEMSKI criteria.
Following referral to the TEMSKI chart, the scarring on the chin falls into the 1% WPI category because the claimant is conscious of the scarring and is able to easily locate it. The location of the scarring is in an area which is usually visible with usual clothing, and there is a minor contour defect. However, there is generally a good colour match of the scars with the surrounding skin, no visible suture marks, no adherence and no treatment is required.
The Guidelines also indicate that that Table2 p280 AMA4 provides a method for assessing impairment due to the scarring of the left knee. The Guidelines also require that multiple scars should not be assessed individually but the assessment should consider the total effect of the scarring on the skin as a separate organ. The scarring in this instance clearly falls into the Class 1 category (0%-9% WPI) of Table 2 because skin disorder signs and symptoms are present, the skin disorder requires either no or intermittent treatment and there is limitation of few activities of daily living. Following referral to the TEMSKI chart, the claimant is conscious of the scars and is able to easily locate them. Some parts of the scarring are hypopigmented in contrast to the surrounding skin, there is a minor contour defect, no visible suture marks, no adherence and no treatment is required. However, the scars are located in an area which is usually visible with usual clothing, and he is unable to kneel on his left knee because of some sensitivity. Because of this, the scarring most closely fits the 2% WPI category. Total impairment is therefore 3% WPI.”
The Medical Assessor summarised permanent impairment in the table at [23]:

Body Part or System	AMA4 Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1	Face-scarring	AMA 4 Ch13 p 279-282, para 13.2-13.5 and 13.7and table 2 Guidelines 9.1 para 6.189-6.191 p117	Yes	1%	0%	1%
2	Skin-scarring left knee	AMA 4 Ch13 p 279-282, para 13.2-13.5 and 13.7and table 2 Guidelines para 6.258-6.266 p130-1	Yes	2%	0%	2%

EVIDENCE BEFORE THE REVIEW PANEL

Application for personal injury benefits

In the Application for personal injury benefits dated 27 May 2020 Mr Herrera described the accident on 24 May 2020 as follows:
“I was travelling on a scooter on Northwood Road when the driver at fault cut across my path, causing a T-bone collision.”
Mr Herrera outlined the injuries he suffered as a result of the subject accident:
(a)    head, loss of consciousness;
(b)    face, lips;
(c)    chest;
(d)    left elbow;
(e)    left wrist (fracture), right wrist;
(f)    left ribs;
(g)    left knee, right knee, and
(h)    left toes.
Mr Herrera told the Panel that he was suffering an illness or injury affecting the same or similar parts of his body at the time of the accident:
“LEFT KNEE BUT IT WAS ASYMPTOMATIC AT THE TIME OF THE ACCIDENT”

Photographs

Mr Herrera provided photographs of his injuries as a result of the subject accident, which the Panel reviewed.
These revealed deep abrasions on the left cheek and also on the chin. The photographs also revealed a small laceration on the right knee, but this was not mentioned in the hospital record.

Ambulance report, dated 6 April 2021

An ambulance attended the scene of the accident and the report documented:
“AS PER WITNESS O/S SCOOTER HIT R) SIDE OF CAR PULLING OUT OF DRIVEWAY AT APPROX 50KM/H. PT EJECTED OFF SCOOTER AND HELMET FLUNG OFF. ?NOT TIED PROPERLY. NIL LOC AS PER PT. 7LANDING ON L) SIDE. PT DID NOT AMBULANT AFTER EVENT. O/A PT LYING SUPINE, (A) VPU, APPEARED WELL PERFUSED, BREATHING ADEQAUTELY, COLOUR-NORMAL, SPEECH- FULL SENTENCES. BYSTANDER HAEMORAGE CONTROL TO HEADD. O/E 4CM DEEP LACERATION AND HAEMTOMA TO L) SIDE FOREHEAD. LACERATION AND HAEMATOMA TO LOWER LIP. MULTIPLE ABRASIONS TO FACE, SHINS AND CENTRAL STERNUM. DEFORIMTY TO L) WRIST. CHEST SOUNDSCLEAR AND EQUAL AIR ENTRY BILATERALLY, ABDO- S &NT, PELVIS- NIL OBVIOUS INJURY. DENIES CHEST PAIN, DENIES ABDO PAIN. DENIES SOB, DENIES DIZZINESS, DENIES VISUAL DISTURBANCE.”

Clinical notes from Royal North Shore Hospital

Mr Herrera was discharged from hospital, two days following the motor vehicle accident. The discharge summary dated 7 April 2021 recorded:
“in context of head injury, multiple open wounds on the face and the lip laceration”
The Review Panel noted that there was no mention of a laceration to the right knee in hospital discharge summary.

CT of the brain and facial bones, dated 6 April 2021

The report of 6 April 2021 stated: “no acute intracranial haemorrhage. Soft tissue contusion over the left lateral orbit and zygoma with a 10 x 14 mm cheek haematoma. Fracture of the anterior nasal spur, of uncertain acuity.”

Consultant dermatologist, Dr Anisha Bhullar

Dr Bhullar reviewed Mr Herrera on 16 December 2021 and noted:
“He was concerned about the scars on his face. He has been using Strataderm regularly. He is also satisfied with the appearance at the moment. He is using sunscreen as it was explained to him in the past. 1 have referred him on to Dr Shreya Andric, a cosmetic dermatologist to consider having pulsed dye lasers to help reduce the redness of the scars.”

General practitioner notes, Dr Phillip Roumanos

Dr Phillip Roumanos, reviewed Mr Herrera on 13 March 2021 and reported:
“Last weekend sudden break on motor scooter lost balance of scooter jumped off scooter landed awkwardly on Left leg and knee twisted.”
Mr Herrera visited the general practitioner (GP) on 16 April 2021, who provided a report:
“Accident on Uber bike 6/4/21
crashed into car, both in motion
Hospitalised for 2 days, RNSH
- sutures Left forehead, removal today
9x Sutures removed
Uber form completed
Left knee Surgery next Monday
PLAN: topical antiseptic to wound 2/7
Omar to submit form to Uber
Knee surgery Monday
Injuries:
bilateral wrist fractures
Left forehead laceration with sutures
Left eye haematoma
Left face lacerations/bruises Left knee deterioration (MR115/4/21)”

Physiotherapy notes

In the Allied Health Recovery Request No.1 for physiotherapy treatment dated 6 May 2021, the physio diagnosed Mr Herrera with:
“ACL rupture, exacerbation of Subchondral bone marrow oedema, PCL sprain, lateral meniscus tear. Facial lacerations ?Scaphoid fracture, right hamate avulsion fracture.”

SUBMISSIONS

Insurer’s submissions, dated 7 November 2023

The insured submitted that the certificate of Medical Assessor Curtin was incorrect in a material respect for the following reasons:
(a)    the Medical Assessor failed to undertake a review and evaluation of all available evidence as required by cl 6.17 of the Guidelines;
(b)    the Medical Assessor failed to identify inconsistency within the claimant’s history and the information obtained through medical records and provide the injured person the opportunity to respond to the inconsistent observations as required under cls 6.40 and 6.41 of the Guidelines, and
(c)    the Medical Assessor failed to properly determine apportionment in respect of pre-existing impairment and subsequent impairment to the same region.
At paragraph 10 of the certificate and reasons the Medical Assessor referred to photographs taken of the claimant both at the accident scene and at hospital. Those photographs may be found at pages 85 and 86 of the claimant’s original bundle. Whilst they appear to identify a recent injury to the claimant’s right leg, the Medical Assessor failed to make any comment or finding in respect of the scar on the left knee, and in particular, whether it was as a result of the subject accident or the one which had occurred the previous month.
The insurer submitted that the Medical Assessor had available to him the clinical records from the claimant’s GP which outlined the prior left knee injury together with the clinical records of Dr Carmody which also provided clear evidence as to the nature of the previous injury and proposed surgery. There was also available to the Medical Assessor photographs taken of the claimant’s left knee. It was submitted that a determination ought to have been made as to whether the scarring referred to on the left knee was related to the motor vehicle accident or pre-existing.

Claimant’s submissions in reply, dated 6 December 2023

Mr Herrera submitted that Medical Assessor Curtin had clearly addressed causation, finding that the scarring related to the subject motor vehicle accident and referring to the material provided to him. The Medical Assessor had no evidence before him to indicate that there was any left knee scarring present prior to the subject accident, and no evidence before him to indicate that there was a subsequent incident that caused it.

Mr Herrera submitted that the entry from My Health Medical Centre Chatswood on

13 March 2021 did not indicate that the claimant’s left knee sustained any scar, and in fact indicated that the mechanism of the prior left knee injury was one which did not involve the claimant’s knee making contact with the ground — or any other surface — at all.
The history of a left knee injury does not, in this case, equate to there being a history of scarring, which is the injury that Medical Assessor Curtin was limited to assessing.
Mr Herrera referred to cl 6.31 of the Guidelines which state: “If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.” Medical Assessor Curtin, having found no objective evidence of a pre-existing or subsequent impairment unrelated to the relevant motor accident as required by the Guidelines, was correct in the approach followed in his assessment.

THE REVIEW

The Review Panel refers back to the history taken in the recent examination of Mr Herrera by the Review Panel in the related matter (R-M10549566/22-02-1).
The examination was conducted on 17 April 2024, in the presence of an interpreter with National Accreditation Authority for Translators and Interpreters Ltd (NAATI) accreditation who was present for the entire interview and examination.

Pre-accident history

Medical Assessor Drew Dixon and Medical Assessor Shane Moloney, who assessed the physical injuries, took the following pre-accident history.
Mr Herrera was born in Colombia and was on a student visa in Australia. He states that he had been in good health prior to the accident.
On 7 March 2021, Mr Herrera was driving a motor scooter when he braked suddenly as a pedestrian walked in front of him and caused him to fall off the scooter and injured his left knee.
An X-ray at that time was negative but an MRI on 10 March 2021 diagnosed a tear of the ACL in the left knee.
Mr Herrera was referred to Dr Carmody, an orthopaedic surgeon whom he consulted on 23 March 2021 and had been booked to have a surgical repair on 8 April 2021, which was postponed due to the accident.
Prior to this injury, he had been working delivering Uber Eats and was enrolled in a diploma in Information Technology (IT).

History of the motor accident

Mr Herrera was driving a motor scooter, again working for Uber Eats. A car suddenly did a U-turn in front of him causing him to collide with the driver side. He was thrown off his motor scooter and told the examiners that he had lost consciousness for about one minute. At that time, he was bleeding from a laceration to the left side of his forehead and had pain in both wrists, both knees and a fractured nose.
Police and ambulance attended the scene, and he was taken to Royal North Shore Hospital.

History of symptoms and treatment following the motor accident

At Royal North Shore Hospital, he stated that a plastic surgeon inserted 12 sutures into his forehead and another six into his lip region. At that time, he stated that he had pain in the chest, upper back, both wrists, left elbow and both knees. An X-ray of the right wrist reported a small avulsion fracture of the hamate bone. The cast was placed on the left wrist, and he was discharged after two days.
There was a follow-up by Dr Beard, hand surgeon, and the cast remained on the left wrist for three months initially with a bandage on the right wrist. He was also followed up by his treating orthopaedic surgeon Dr Carmody who performed the left ACL reconstruction with hamstring graft and a partial lateral meniscectomy.
There was follow-up physiotherapy and hydrotherapy. He was also referred to a psychologist.
Since the accident, there had been no further injuries to those assessed.

Current symptoms

Mr Herrera told the Medical Assessors that he felt that his left knee was stiff causing difficulty with kneeling due to constant pain and that after walking 10 to 15 minutes, the left knee would become swollen and painful. The right knee was asymptomatic.

Medical Review Panels Reasons

At the first meeting of the Panel, Medical Assessor McGlynn (plastic surgeon) was of the view that it would not be necessary to re-examine Mr Herrera.
The Review Panel noted that Medical Assessor Curtin assigned 1% WPI to facial scarring and 2% WPI to left knee (surgical) scarring.
The issue of causation for surgery of the left knee was in question as an injury from an accident in March 2021 caused left knee ACL rupture and surgical treatment had been recommended.
Medical Assessor Woo, orthopaedic surgeon on 14 July 2023 found that the injuries to the claimant’s chest, left elbow, both knees and both wrists gave rise to a permanent impairment of 5% WPI.
Medical Assessor Woo accepted that the claimant had suffered a lateral meniscal tear and MCL tear to the left knee as a result of the accident. He noted ACL and PCL injuries were present prior to the accident. Medical Assessor Woo assessed 4% whole person impairment for the left knee.
Medical Assessor Woo noted this included:
“MCL laxity – 7% lower extremity impairment
Lateral partial meniscectomy – 2% lower extremity impairment
Total left lower extremity impairment – 9%
Converted to 4% WPI (MA Guides Table 6.4).”
The Review Panel notes that on 30 April 2021, Dr Carmody performed left ACL reconstruction with hamstring graft and partial lateral meniscectomy (radial tear). This resulted in skin scarring.
At the first Panel meeting on 12 March 2024, including; Terence Stern, Shane Maloney and Michael McGlynn, the Panel was of the view that Medical Assessor Curtin’s assessment of face scarring at 1% was correct.
The Panel made a provisional assessment of the skin scarring of 2%, which would be dependent on the determination of the Review Panel in respect of the certificate of Medical Assessor Woo (R-M10549566/22-02-1), regarding causation of the left knee injury.
In determining that there was no need for a re-examination, the Review Panel noted:
(a)    Medical Assessor Curtin reported Mr Herrera sustained lacerations to the left forehead and lip which were cleaned and sutured in Royal North Shore Hospital emergency department on the day of injury. He also sustained deep abrasions on the left cheek and chin;
(b)    Medical Assessor Curtin noted photographs taken of injuries which showed a small laceration of right knee that was not mentioned in Royal North Shore Hospital clinical notes;
(c)    MRI reported left knee ACL rupture. This was repaired on 20 April 2021;
(d)    Medical Assessor Curtin provided detailed description of face (left forehead, outer canthus of left eye, left lower lip, left cheek) and left knee;
(e)    Medical Assessor Curtin found face and left knee skin scarring were caused by the accident, and
(f)    Medical Assessor Curtin determined permanent impairment of face and skin scarring using appropriate Guidelines and AMA4 Guides. He used the TEMSKI for both assessments of face and skin. He described all TEMSKI criteria and gives adequate reasons for assigning 1% WPI to face (scarring) and 2% WPI to skin (scarring).

Panel’s consideration of the submissions

Causation

Neither the claimant nor insurer had disputed Medical Assessor Curtin’s determination of 1% WPI for face scarring.
The insurer has disputed causation of left knee scarring stating the injury occurred prior to the motor vehicle accident.
The insurer submitted:
(a)    the Medical Assessor failed to undertake a review and evaluation of all available evidence as required by cl 6.17 of the Guidelines;
(b)    the Medical Assessor failed to provide the injured person the opportunity to respond to the inconsistent observations as required under cls 6.40 and 6.41 of the Guidelines, and
(c)    the Medical Assessor failed to properly determine apportionment in respect of pre-existing impairment and subsequent impairment to the same region.
The claimant submitted that Medical Assessor Curtin made no error and that the claimant’s history, and the documents provided, indicate the subject accident caused the referred injuries. Notably, the referred injuries included “skin scarring – left knee”.
The Review Panel considered the matter of causation as per s 6.6 of the Guidelines by taking into consideration the pre-accident history, the history of the accident, the history of symptoms following the accident, the clinical records of Mr Herrera’s treating practitioners, and any radiological imaging provided which was relevant to the injury to the left knee.
The Review Panel noted a point of contention in whether all or part of left knee scarring impairment should be attributed to the motor vehicle accident or to a pre-existing injury.
The Review Panel concluded that causation of the knee injury and the need for knee surgery would be determined by the Review Panel for Medical Assessor Woo’s MAC. Whether all, part, or none of the 2% WPI for skin scarring assigned by Medical Assessor Curtin was caused by the motor vehicle accident, was dependent on the decision of the Review Panel in the related matter (R-M10549566/22-02-1).
The Review Panel for the MAC of Medical Assessor Woo (R-M10549566/22-02-1) found on examination of the knees, no effusions were noted, although there was a click on flexion of the left knee. No ligament laxity was noted on testing and active measurements were recorded using a goniometer, as reported in [82].
The Review Panel for the MAC of Medical Assessor Woo (R-M10549566/22-02-1) assessed the left knee using Tables 41 and 64 of AMA 4 Guides. The Review Panel therefore determined, with consideration to the history of the accident, the claimant’s symptoms, the medical records of treating practitioners and the relevant radiological imaging, that the injury to the left knee was caused by the subject accident.
The Review Panel took into account the history provided by the claimant at [63] that:
“he was thrown off his motor scooter and told the examiners that he had lost consciousness for about one minute. At that time, he was bleeding from a laceration to the left side of his forehead and had pain in both wrists, both knees and a fractured nose.”
The history of the subject incident and the subsequent causation of injury to the left knee was confirmed in the report of Dr Carmody, treating practitioner of Mr Herrera who reported on

20 April 2021:
“Omar was going to have his surgery, but unfortunately was hit by a car again on his motorbike and had to be seen at North Shore. He was put in plaster on his left wrist, had stitches in his lip and he has re-injured the knee.”
The Review Panel also took into account the report of GP, Dr Phillip Roumanos on

13 March 2021 which noted:
“Last weekend sudden break on motor scooter lost balance of scooter jumped off scooter landed awkwardly on Left leg and knee twisted.”
and that Dr Roumanos further documented on 16 April 2021, after reviewing Mr Herrera:
“Left face lacerations/bruises Left knee deterioration.”
In light of all of the evidence that there was an injury to the left knee in the subject motor accident, the Review Panel concluded that on the balance of probabilities, Mr Herrera had impacted his left knee in the accident, and that the injury resulted in the need for surgery and the consequential scarring was caused, or materially contributed to, by the subject accident.

Conclusion

Taking all of the above into consideration, the Medical Review Panel determines that the total permanent impairment arising from the injuries referred to it and caused by the motor vehicle accident, gave rise to a whole person impairment of 3%.
The Medical Review Panel accordingly confirms the certificate of Medical Assessor Curtin, dated 31 October 2023.

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Citations

Allianz Australia Insurance Limited v Herrera [2024] NSWPICMP 315

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[2024] NSWPICMP 315

17 May 2024