Allianz Australia Insurance Limited v Herrera
[2024] NSWPICMP 267
•2 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Herrera [2024] NSWPICMP 267 |
| CLAIMANT: | Omar Herrera |
| INSURER: | Allianz Insurance Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 2 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) Woo determined whole person impairment (WPI) in respect of the injuries referred and caused by the motor accident was not greater than 10%; the MA diagnosed that the injuries to the chest, left elbow, left knee, right knee, left wrist and right wrist gave rise to a WPI of 5%; the Medical Review Panel examined the claimant and found permanent impairment to the left wrist and left knee which equated to a total WPI of 5%; Held – the certificate of the MA 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 5%. 2. The Medical Review Panel accordingly confirms the certificate of Medical Assessor Woo, dated 14 July 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 to make a U-turn in the opposite direction. Mr Herrera alleges that he was injured as a result of the resulting collision.
Allianz Australia Insurance Limited (the insurer) is the insurer liable to pay any damages to Mr Hererra 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 whether the claimant had sustained WPI greater than 10%. Mr Herrera filed an application with the Personal Injury Commission (the 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 permanent dispute was referred to Medical Assessor Woo.
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 Motor Accident 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 Woo.
On 16 January 2023, 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, the Review Panel agreed a medical examination was required.
CERTIFICATE UNDER REVIEW
Medical Assessor Woo issued a certificate dated 14 July 2023.
The following injuries were referred for assessment by Medical Assessor Woo:
(a) chest – soft tissue injury;
(b) left elbow – soft tissue injury; aggravation and acceleration of degenerative changes;
(c) left knee – meniscus tear and PCL (posterior cruciate ligament) tear, aggravation and acceleration of degenerative changes;
(d) right knee – soft tissue injury, aggravation and acceleration of degenerative changes;
(e) left wrist – distal radial fracture, soft tissue injury, aggravation and acceleration of degenerative changes, and
(f) the right wrist – soft tissue injury, aggravation and acceleration of degenerative changes.
Medical Assessor Woo determined that the following injuries gave rise to a permanent impairment of 5%:
(a) chest – soft tissue injury;
(b) left elbow – soft tissue injury;
(c) left knee – lateral meniscal tear and medial collateral ligament (MCL) tear;
(d) right knee – soft tissue injury;
(e) left wrist – distal radial fracture, and
(f) the right wrist – soft tissue injury.
Submissions to the Medical Assessor
Medical Assessor Woo summarised the submissions at [3]- [4]:
“[3] The applicant submits that the claimant has greater than 10% WPI in respect of the injuries caused by the motor vehicle accident on 6 April 2021.
[4] The insurer affirms the decision to not concede the degree of permanent impairment that has resulted from the injury caused by the motor accident is greater than 10%.”
Documents considered
Medical Assessor Woo considered the documents provided in the application and reply. No additional document being provided.
Medical Assessor Woo 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 Woo 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]-[16]:
“14. General presentation
Mr Herrera is right hand dominant. He is 173cm in height and weighs 73kg. He has a normal gait.
Chest
There was no tenderness over the sternum and rib cage on both sides. Breathing movement was normal and pain-free.
15. Upper Extremity
Left elbow
There was no tenderness and no deformity in the left elbow. Range of movement was measured with a goniometer.
Elbow Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion 140° 140° Extension 0° 0° Pronation 80° 80° Supination 80° 80° Wrists
In the left wrist, there was tenderness over the radial styloid. In the right wrist, there was mild tenderness over the carpal bones on the dorsal side. Range of movement was measured with a goniometer.
Wrist Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion 60° 60° Extension 70° 70° Pronation 30° 30° Supination 40° 25° Upper arm and forearm circumferences were equal on both sides.
16. Lower extremity
There was no effusion in both knees. In the left knee, there were well-healed scars consistent with ACL reconstruction. There was no irritation and Mr Herrera has no concern. There was no ACL or MCL instability in both knees. Clinical signs of meniscal injury were negative. Range of movement was measured with a goniometer.
Knee Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion 140° 110° Extension 0° 0° Thigh circumference and calf circumferences were equal on both sides. Muscle tone was normal.”
Review of documentation
Medical Assessor Woo referred to the report of Dr John Korber, radiologist, to the insurer, of 1 October 2021, and compared the MRI scans of 10 March 2021 and 13 April 2021. He said:
“Comparing both examinations, aligning the knee in three planes and viewing the imaging simultaneously shows that after the second injury there was an undisplaced complex tear of the lateral meniscus that was not previously present. The ACL injury appears unaltered. In the second study there is a strain of the PCL which in retrospect appears to have been previously present.
Also new, there is an extension of the tear of the previously injured medial collateral ligament that was not previously present, associate with a medial patellofemoral retinacular tear. The tear of the deep fibres of the MCL is new. There us additional marrow oedema in the proximal tibia on its lateral aspect and posterior aspect. The sulcal marrow oedema in the lateral femoral condyle has extended. Additionally, there is a haematoma in the soft tissues antero/pre-patellar bursa to the knee that was not present at prior examination.
It would appear that on the second occasion that there was a medial distraction injury with a posterolateral compression injury, as evidenced by the MCL and retinacular injury and the marrow oedema laterally as well as a crush to the lateral meniscus.”
Medical Assessor Woo gave his own interpretation at [18] in the following terms:
“The following injuries to the left knee are caused by the motor accident on 6 April 2021:
(a)MCL tear and,
(b)lateral meniscal tear
The ACL tear and PCL tear are pre-existing.”
Medical Assessor’s determination
Medical Assessor Woo set out his diagnosis and reasons at [20], determining that Mr Herrera had the following injuries as a result of the accident:
(a) chest – soft tissue injury;
(b) left elbow – soft tissue injury;
(c) left knee – lateral meniscal tear and MCL tear;
(d) right knee – soft tissue injury;
(e) left wrist – distal radial fracture, and
(f) the right wrist – soft tissue injury
Medical Assessor Woo then concluded that a review of the MRI scan findings before and after the motor accident of 6 April 2021 by Dr Korber indicated that the lateral meniscal tear and MCL tear were caused by the accident. The anterior cruciate ligament (ACL) and PCL injuries were present prior to the accident.
AT [21] Medical Assessor Woo determined the following injuries were caused by the motor accident.
(a) chest – soft tissue injury;
(b) left elbow – soft tissue injury;
(c) left knee – lateral meniscal tear and MCL tear;
(d) right knee – soft tissue injury;
(e) left wrist – distal radial fracture, and
(f) the right wrist – soft tissue injury.
On the question of resultant WPI, Medical Assessor Woo concluded at [24], that Mr Herrera’s current condition, in particular, the left knee, was similar to that reported by Dr Carmody on 22 August 2022. He had greater range of motion in the left knee in August 2022. However, the difference in the degree of impairment based on his current range of motion assessment would not be greater than 3% WPI in difference.
Medical Assessor Woo then set out his findings on permanent impairment at [25]:
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
Chest
No assessable impairment
Yes
0%
0%
0%
2
Left elbow
Chapter 3
Yes
0%
0%
0%
3
Left knee
Chapter 3, page 85 Table 64
Yes
4%
0%
4%
4
Right knee
Chapter 3
Yes
0%
0%
0%
5
Left wrist
Chapter 3, page 38 Figure 29
Yes
1%
0%
1%
6
Right wrist
Chapter 3
Yes
0%
0%
0%
* %WPI = percentage whole person impairment
Method of Calculation
Chest – 0% WPI
There is no assessable impairment.
Left elbow – 0% WPI
Normal range of motion, no assessable impairment.
Left knee – 4% WPI 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)
Right knee – 0% WPI
Normal range of motion, no assessable impairment
Left wrist loss of motion– 1% WPI
Ulnar deviation 25o – 2% upper extremity impairment
Converted to 1% WPI (AMA5 page 20, Table 3)
Right wrist – 0% WPI
Normal range of motion, no assessable impairment.
And concluded that total WPI was 5%.
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 provided images of his injuries as a result of the subject accident, which the Panel reviewed.
Medical evidence and treating practitioners
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:
“Limb injuries:
Possible left scaphoid fracture – snuff box tenderness ++
Thumb Spica insitu
For repeat Xray in 1 weeks’ time
Patient’s right hand reviewed
Painful swelling on dorsum of the hand
full ROM in wrist
and neurovascularly intact
but tender across the carpal bones and base of 4th/ 5th metacarpals
Xray reviewed – small avulsion fracture of the hamate
Discussed with hands – stable fracture – would recommend cast if not for the bilateral hand injuries suggest double layer tubigrip and minimal movement/ no work/ loading.
Elbow X-rays – no injuries identified
Chest x-ray: no injuries identified
Pelvis – no acute hip or pelvis fractures identified
no acute sternal fracture
Patient was due for elective left ACL repair tomorrow
Discussed with Dr Carmody – Orthopaedic Surgeon –
in context of head injury, multiple open wounds on the face and the lip laceration
along with possible other orthopaedic injuries
suggest deferral of elective procedure tomorrow
He agrees and requests patient contacts his rooms in the next week or so to rebook procedure.”
MRI left knee
The MRI report of the left knee, dated 10 March 2021 confirmed:
“Evidence of a pivot shift injury
Complete ACL rupture
Significant posterolateral comer injury with ligamentous/ supporting structure disruption.
There is also a posteromedial corner injury”
The MRI report of the left knee dated 13 April 2021 noted that:
“1. Mid segment ACL rupture with moderate ligament sag. Osteochondral impaction injuries lateral femoral sulcus and posterolateral corner of the tibia without fracture.
2. Subchondral bone marrow oedema consistent with contusion weight-bearing medial femoral condyle and posteromedial rim of the tibia, without fracture.
3. Torn deep fibres of the MCL at the femoral attachment with tear propagation into the anterior superficial fibres, the tear focally full thickness but intact middle and posterior third fibres of the superficial MCL. No displacement. Sprain of the MPFL (medial patellofemoral ligament) at the confluence with the MCL.
4. Low-grade sprain distal PCL without tear. Intact lateral supporting structures.
5. Undisplaced mildly complex tear posterior horn and body lateral meniscus. Intact medial meniscus.
6. Joint effusion. Post traumatic prepatellar bursitis.”
MRI left wrist, 23 April 2021
The MRI report of 23 April 2021 concluded that:
“1. Recent undisplaced distal radial fracture, with moderately extensive bone marrow oedema.
2. NO scaphoid fracture.
3. Bone marrow oedema distal, medial margin of the triquetrum, without discernible fracture. Moderate bone marrow oedema base 4th metacarpal, without discernible fracture.
4. Mild bone marrow oedema at the distal aspect of the hamate (carpal bone on the lower edge of the hand) and capitate, without discernible fracture.
5. Minor oedema long radiolunate ligament. It is not entirely clear whether this reflects recent strain injury or preexisting myxoid change. NO fibre discontinuity.
6. Intact scapholunate ligament.
7. Longstanding presumed posttraumatic ossicle derived from an old ulnar styloid fracture.
8. Borderline positive ulnar variance, with mild thickening of the central portion articular disc of the TFC but NO frank perforation.”
MRI right wrist, 17 May 2021
The MRI report of 17 May 2021 noted that:
“Multiple fractures most of which reflect microtrabecular injuries without defined fracture lines. There are visible fracture lines at the base of the trapezial ridge and also at the dorsal aspect of the hamate with no significant displacement.”
Clinical reports of Dr Carmody, orthopaedic surgeon
In his report dated 23 March 2021, Dr Carmody reported that:
“When I examine Omar he is not in a great deal of pain anymore and there is only mild swelling of his knee but he holds the knee flexed and I cannot get it fully straight today. His collateral ligament are intact and there is no sign of any posterior capsular disruption or any significant posterolateral instability today. If anything, his knee is very stiff with flexion limited to just past 90° as well.”
On 20 April 2021, Dr Carmody reviewed Mr Herrera and noted:
“A repeat MRI scan as shown the ACL rupture, along with significant bone bruising and an MCL strain but on clinical review the MCL is intact.
Omar’s knee is quite swollen and stiff from the recent trauma, so he is not yet quite ready for the ACL surgery that we had previously planned”.
On 11 May 2021, Dr Carmody examined Mr Herrera and noted:
“Omar had his left ACL reconstruction with hamstring graft at the Mater on 30 April. He had a lateral meniscal debridement. He had a large 9mm graft and it all went smoothly… As expected, Omar’s main issue is getting his extension back in these early days. He has been seeing Andra for physio to work on that and he is slowly improving”.
General practitioner notes from My health Medical Centre Chatswood Chase
On 9 March 2021, Dr Brendan Mu examined Mr Herrera and noted:
“History:
Fall off scooter Sunday, went to ED
ED letter shown to me - normal X-ray, but concerns for ligament or meniscus injury, for MRI Taking penediene forte PRN, - pain well controlled, has crutches
Examination:
Left knee: Obviously swollen medial aspect of knee, tender to touch, unable to demonstrate ROM secondary to pain
Diagnosis:
Left knee injury ?MCLtear ?Meniscus tear
Reason for visit:
Left knee injury
Plan:
1. RICE
2. MRI Left knee - call back for results
3. Ibuprofen add on for pain relief”
Dr John Korber, radiologist
On 1 October 2021, Dr Korber noted:
“…after the first injury the claimant had a left knee ACL disruption requiring repair on 8 April 2021. The surgery was unable to go ahead as the claimant had an intervening second motor vehicle injury. Following discharge from Royal North Shore Hospital, the diagnosis was torn deep fibres of the MCL and tear propagation of the anterior superficial fibres. After the first accident, the clinical notes queried a left knee injury, ?MCL tear, ?meniscal tear. You have asked my opinion on the difference between the two MRI examinations.
Comparing both examinations, aligning the knee in three planes and viewing the imaging simultaneously (Figures 1 and 2) shows that after the second injury there was an undisplaced complex tear of the posterior horn of the lateral meniscus that was not previously present. The ACL injury appears unaltered.
In the second study there is a strain of the PCL which in retrospect appears to have been previously present. Also new, there is an extension of the tear of the previously injured medial collateral ligament that was not previously present, associated with a medial patellofemoral retinacular tear. The tear of the deep fibres of the MCL is new. There is additional marrow oedema in the proximal tibia on its lateral aspect and posterior aspect. The sulcal marrow oedema in the lateral femoral condyle has extended. Additionally, there is a haematoma in the soft tissues anterior/pre-patellar bursa to the knee that was not present at the prior examination.
It would appear that on the second occasion that there was a medial distraction injury with a posterolateral compression injury, as evidenced by the MCL and retinacular injury and the marrow oedema laterally as well as a crush to the lateral meniscus. The posterolateral corner structures have not altered.”
Physiotherapy notes, Bernard Chau
On 28 October 2021, Mr Chau noted the following:
“Omar has been attending physiotherapy for management of L) leg ACL rupture and meniscal tear following motor vehicle accident sustained 07/03/2021. Subsequently, Omar had ACL reconstructive surgery on 30/04/2021 by Dr Carmody. It is now 6 months post ACL surgery and last review letter by Dr Carmody was for 05/10/2021.
Omar attempted to return to work on 02/10/2021 as a electrical tradesman and noted a flare up of symptoms. Omar noted an extended period of time kneeling and hold in end-of-range knee flexion for extended periods of time whilst working which caused an increase in pain. Omar stated he worked from 02/10/2021 - 06/10/2021 but has since stopped working and quit due to sustained positioning in kneeling, fear and ongoing pain in knee. He stated he will return to work when he feels comfortable with kneeling. Omar is currently working out at a local gym along with regular running without any pain. “
Referral to Dr Anthony Beard, hand surgeon, dated 14 August 2023
Dr Marian Roberts reported the “x-ray fingers of right hand, x-ray wrist left, x-ray wrist right” to Dr Beard:
“Findings:
There has been previous internal fixation of the right distal radius. Separate ossicle is noted related to the ulnar styloid on this side. No acute injury is seen. There is hyperextension of the DIP joint of the little finger on the right but no fracture identified.
There is a separate ossicle for the ulnar styloid process on the left. This appears long- standing. No definite acute fracture identified.”
SUBMISSIONS
Insurer’s submissions, dated 7 November 2023
The insurer submitted that the certificate was incorrect in a material respect for the following reason:
(a) the certificate issued by the Medical Assessor was inconsistent with his reasons.
The insurer submitted:
“[15] At paragraph 16 of his reasons, the Medical Assessor set out his findings on examination in respect of the lower extremity. He observed:
‘There was no effusion in both knees. In the left knee, there were well healed scars consistent with ACL reconstruction. There was no irritation and Mr Herrera has no concern. There was no ACL or MCL instability in both knees. Clinical signs of meniscal injury were negative. Range of motion was measured with a goniometer.’
[16] At paragraph 25 of the certificate, the Medical Assessor based his assessment upon: ‘MCL Laxity.’”
The insurer submitted that a diagnosis of MCL Laxity is inconsistent with the Medical Assessor’s findings on examination.
Claimant’s submissions, dated 6 December 2023
Mr Herrera submitted that the Medical Assessor was correct in his assessment, and the finding of MCL laxity was open to the Medical Assessor in light of the evidence before him.
Mr Herrera submitted that Medical Assessor Woo made reference to the clinical records and radiological imaging before him in his certificate and came to his conclusion as to WPI of the left knee in conjunction with his assessment of the claimant.
The Medical Assessor accepted the injuries sustained in the accident at paragraph 20 of his certificate as follows:
“Based on the history of the motor accident, mechanism of injury, clinical and medical imaging findings, Mr Herrera has the following injuries:
…
· left knee – lateral meniscal tear and MCL tear”.
Having accepted that the claimant suffered the above injuries, it was submitted that the Medical Assessor had correctly found that Mr Herrera suffered MCL laxity.
Examination by the Medical Review Panel
The Medical Review Panel examined Mr Herrera 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
The Medical Assessors took the following pre-accident history.
Mr Herrera was born in Columbia 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 10 March 21, 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 had a loss of 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 of the accident, 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 he stated that after walking 10 to 15 minutes, the left knee would become swollen and painful. The right knee was asymptomatic.
The right wrist was asymptomatic except for pain in the PIP (proximal interphalangeal) joint of the little finger which was sensitive to touch.
There was persistent weakness in the left wrist flexion, and he now wears a splint when out of the house or in bed. There was pain in the upper back over the scapula region and low back pain which fluctuated but increased with any lifting.
Since the accident, Mr Herrera had been unemployed and, as his wife works full-time in childcare, he helps looking after his baby son. Mr Herrera said that he now attends a private college.
Present treatment
Mr Herrera informed the Medical Assessors that his current medication was Ibuprofen 200mg two twice a day, occasional Voltaren tablets and cream and physio cream which he applies to the left wrist, left knee and back.
With severe pain, he said he took a stronger analgesic tablet but could not remember the name.
He continued to attend a phobia clinic every fortnight.
His last consultation with Dr Beard was five months before when a repeat MRI of the left wrist was undertaken, and he was told that no surgery was planned. He consulted Dr Carmody about three months before as he was worried about the surgical screw protruding from the upper tibia, but removal of this screw was not approved by the insurance company. No further consultations had been booked with either of these specialists.
Clinical examination
Mr Herrera sat comfortably during the interview and stated that he was right-handed. His height was measured at 171cm and weight 67.9kg.
Chest
There was no tenderness over the rib cage with normal breathing and no pain in this region at the time of examination.
Left elbow
On palpation there was no tenderness over the left elbow and on measuring range of movement with a goniometer, a normal pain free range was noted.
Elbow Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 140° 140° Extension 0° 0° Pronation 80° 80° Supination 80° 80°
Wrists
On palpation of the right wrist there was tenderness over the ulnar – metacarpal joint but no crepitus was noted, and no effusions were present. Active measurements were made using a goniometer and repeated. The upper arm and forearm circumferences were equal bilaterally.
Wrist Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 70° 50°= 2% UEI Extension 70° 50° = 2% UEI Radial Deviation 30° 15° = 1% UEI Ulnar Deviation 30° 20° = 2% UEI
Knees
On inspection of the knees, no effusions were noted but there was a click on flexion of the left knee. No ligament laxity was noted on testing. On palpation, there was a prominent surgical screw over the suture line at the upper medial tibia. Arthroscopic portals were also evident. Active measurements were recorded using a goniometer.
Knee Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 150° 110° Extension 0° 0°
On measurement of the circumferences of the lower thighs, the right was 42cm and the left 41.5cm (10cm above the superior patella border) and at the maximum circumference of the calves, 33cm in the right and 32.5cm in the left.
Lumbar spine
Mr Herrera walked with a normal gait and could walk on his heels and toes. On testing range of movement, flexion/extension and side bending were 80% of expected range with no asymmetry. The straight leg raise when lying was 80° bilaterally, with some tightness in the left hamstring. On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes noted.
There was a full pain free range of movement of both shoulders with some tightness in the left supraspinatus muscle.
No inconsistencies were noted during the examination and interview.
Permanent impairment
The left wrist had been assessed using range of movement with figures 26 and 29 of AMA 4 Guides. Flexion and extension of both 2% upper extremity impairment (UEI) which were added to give 4% UEI. Radial and ulnar deviation add to 3% UEI. This gave a total of 7% UEI for the left wrist which converted to 4% WPI using Table 3.
The left knee was assessed using Tables 41 and 64. There was 0% WPI for range of movement and there was a partial meniscectomy of the lateral meniscus the left knee which gave 1% WPI.
The degree of permanent impairment of the injuries caused by the motor accident was calculated as follows:
Body Part or System AMA Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident 1 Chest No 0% 0% 0% 2 Left elbow AMA 4 Chapter 3 Yes 0% 0% 0% 3 Left knee AMA Table 64, 41 Yes 1% 0% 1% 4 Right knee AMA Table 41 Yes 0% 0% 0% 5 Right wrist AMA Table 26, 29 Yes 0% 0% 0% 6 Left wrist AMA Table 26, 29 Yes 4% 0% 4% * %WPI = percentage whole person impairment
The total impairment, in respect of the injuries referred for assessment, was 5% WPI. Scarring will be assessed by a separate Review Panel by a Medical Assessor who has specialised in plastic surgery.
The Panel’s consideration of submissions
The Review Panel resolved that in order to address the parties’ submissions, it would be necessary to conduct an examination of Mr Herrera.
Left knee
The insurer submitted on 7 November 2023, that Medical Assessor Woo’s certificate was inconsistent with his reasons, in that he found MCL laxity in the left knee.
The claimant submitted that the Medical Assessor was correct in his assessment, and finding MCL laxity was open to the Medical Assessor in light of the evidence before him.
The Review Panel took into consideration the history of the accident, the history of symptoms following the accident, the clinical records of Mr Herrera’s treating practitioners, and all the radiological imaging provided which was relevant to the injury to the left knee.
On examination of the knees, the Review Panel found 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]. There was a partial meniscectomy of the lateral meniscus in the left knee which gave rise to 1% WPI.
Left wrist
On 15 December 2022, the insurer submitted that no information was provided by the claimant which would suggest any permanent impairment as a result of an injury to the left wrist.
On examination by the Review Panel, taking into consideration the relevant MRI’s and clinical records, the left wrist was assessed using range of movement with figures 26 and 29 of AMA 4 Guides. Flexion and extension of both 2% UEI were added to give 4% UEI, and radial and ulnar deviation added to 3% UEI. This gave a total of 7% UEI for the left wrist which converted to 4% WPI.
Determination
The Medical Review Panel determines that the total permanent impairment arising from the injuries assessed and caused by the motor vehicle accident, gave rise to a WPI of 5%.
Conclusion
The Medical Review Panel confirms the certificate of Medical Assessor Woo, dated 14 July 2023.
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