Allianz Australia Insurance Limited v Long
[2024] NSWPICMP 265
•1 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Long [2024] NSWPICMP 265 |
| CLAIMANT: | Michael Long |
| INSURER: | Allianz Insurance Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 1 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant injured when truck crashed into cycling group on 3 December 2016; insurer’s application for review of Medical Assessor (MA) Wijentunga’s whole person impairment (WPI) assessment dated 7 December 2021; claimant in several motor accidents before subject accident, which caused hemopneumothorax, fractured ribs and clavicle with restricted range of movement in pelvis; hemopneumothorax permanent impairment dispute subject to current review; ribs assessed at 0% WPI and pelvis and clavicle at 2% WPI each; insurer challenged MA’s failing to apply clause 1.72 of the Guidelines and deduct same range of movement in uninjured lower extremity for internal hip rotation, when MA assessed lower extremity impairment specific to the reduced range of movement in the claimant’s left hip flexion; MA Gorman re-examined claimant for Panel; Held – Panel relied on re-examination report and permanent impairment findings; Panel assessed same findings for pelvis because range of movement was reduced in respect of flexion not internal rotation; internal rotation range of movement in both limbs due to constitutional condition; clavicle range of movement reduced further due to claimant being less active due to subject accident; subject accident caused 6% WPI; MA Wijetunga’s certificate replaced. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent impairment 1. The Panel revokes the certificate dated 7 December 2021 and issues a new certificate. 2. The motor accident caused the following injuries, which are assessed as a combined permanent impairment of 6%, which IS NOT GREATER THAN 10%: (a) ribs – fractures to left 1 to 7 ribs; (b) clavicle – fracture to left distal clavicle, and (c) pelvis – sacroiliac contusion, restricted hip motion. |
REASONS
BACKGROUND
On 3 December 2016, the insured truck hit Mr Long who was riding in a group of cyclists.
An ambulance took Mr Long to St Vincent's Hospital for emergency medical services. The healthcare providers diagnosed fractured ribs 1 through 7 on the left side, a left-sided haemopneumothorax, a left-sided distal clavicle fracture and a left-sided flank and iliac crest haematoma.
Mr Long was injured in earlier road accidents:
(a) as a cyclist, 12 May 2008 he fell and injured his left side, that left him with chest pain and shortness of breath;
(b) as a cyclist, 2 December 2012 the collision resulted in cervical and thoracic fractures with a head injury, and
(c) on 8 April 2014, rear end collision with whiplash injury to the cervical spine, left arm and side of face.
There have been a series of disputes in this claim between this insurer, insurers for the past accidents and the claimant about the permanent impairment rating. The Personal Injury Commission (Commission) and the preceding entities have convened earlier medical assessments and review panels.
The claimant applied for Review under s 63 of the Motor Accidents Compensation Act 1999 (the MAC Act) to review Medical Assessor Christopher Grainge’s assessment dated
11 February 2022.
Responding to the insurer’s application the President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Nelukshi Wijetunga’s certificate dated 7 December 2021 (the Review) regarding permanent impairment.
This review deals with Medical Assessor Wijetunga’s assessment regarding the ribs, left clavicle and pelvis injuries, which are agreed occurred in the subject accident.
Medical Assessor Wijetunga assessed the permanent impairment arising from the claimant’s orthopaedic injuries at 4%.
The President’s delegate referred the medical assessment to the Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the application’s particulars.[1]
[1] Section 63(2B) of the MAC Act.
The Commission has arranged for this Panel to assess:
(a) ribs – fractures to left 1 to 7 ribs;
(b) clavicle – fracture to left distal clavicle, and
(c) pelvis – sacroiliac contusion, restricted hip motion.
STATUTORY PROVISIONS
The statutory and the Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Original Medical Assessor’s findings
These are set out in Appendix B
Matters considered and decided by the Review Panel
The Review Panel considered all aspects of the assessment under review.
The Panel met on 29 February 2024 to discuss how this review should proceed.
The Panel considered the parties’ submissions which are set out at Appendix C.
The Panel decided re-examining the claimant was required so Medical Assessor Gorman examined Mr Long on behalf of the Panel on 10 April 2024.
REVIEW PANEL FINDINGS
Documentation
The Panel considered the documentation set out in Appendix D.
Medical Examination
Mr Michael Long attended by himself on Medical Assessor Gorman at the Commission’s medical suites for the assessment on 10 April 2024.
HISTORY
Social and occupational history
Mr Long lives with his partner in Annandale.
Mr Long has two children, aged 40 and 31 years old and four grandchildren.
He does not smoke or drink alcohol.
He is right hand dominant.
His main hobbies involved bike riding, which he did 6 to 12 hours per week, averaging anywhere from 250 to 450km per week and he would compete in club races.
He did not have any significant medical illnesses. He is a non-smoker and does not drink alcohol.
Mr Long completed his secondary education and then commenced audio visual type work and has been in the events industry ever since.
He reports that prior to the accident, his job involved organising events and managing artists. Before the accident, he would undertake 40 to 60 hours or work a week.
After the accident, he was off work for four to six months. Although he managed a graduated return to work, he was unable to continue to manage the artists. He still continued to arrange events, but his business has diminished.
Previous accidents
He described a prior cycling accident in 2012 while riding with a group and going down a fast section. At that time a car was making a right hand turn on double yellow lines. He put the brakes on but went over his handlebars and into the car. As a result, he sustained C2 hangman’s fracture, fractured his C5, C6, C7, compression T2, subdural haematoma and fracture to the sternum. He was in a halo fixator for several months.
He returned to all his normal duties and reports that it took him about 18 months to return to cycling. Despite returning to cycling, he continued to experience neck and shoulder pain, which were initially constant. He went through a rehab and physiotherapy program. His residual symptoms at the time of the subject accident were mainly neck stiffness rather than pain - it did not stop him from doing normal activities.
In 2014 he was involved in a motor vehicle accident where his wife was driving — the vehicle was rear ended. At the time, he was mainly concerned about the status of his previous injuries. Following this accident, he experienced some numbness of the left hand, left side of the face and increasing neck pain. However, the symptoms resolved after a couple of weeks.
Mr Long also describes another cycling accident, which was considered minor in November 2015, where he was waiting on a footpath with his bike and then went down the gutter, resulting in him being thrown over the handlebars. He reports that he only sustained grazes.
In the one to two years before the subject accident, he was continuing to consult a physiotherapist, mainly for massage. He reports that at that time, he was cycling a lot and would undertake cycling for 6 to 12 hours per week. He reports that he did have some residual restricted range of movement of his neck from the 2012 accident.
History of the current accident
On 3 December 2016 he was travelling in a group of about 40 riders in the left lane of a three lane Southern Cross Drive. They were two abreast cycling. He was around second from the back. He recalls cycling about 6:00am in the morning, at which time he heard a screeching and a loud bang and then recalls that he was thrown straight up in the air and came down landing on his left-hand side. He felt his head on the ground sliding along and was still attached to the bike. He unclipped the bike, at which time he had landed just near a cement truck.
He had significant pain in the right chest, hip, and lower back. He reports that he was the only cyclist who was injured. He was later advised that a truck had rear ended the two last cyclists, which resulted in the cyclists colliding with his bike.
Police and ambulance attended, and an ambulance took him to St Vincent’s Hospital.
History of symptoms and treatment following the motor accident
He reports being an inpatient for two weeks at St Vincent’s Hospital, where he was initially observed for 24 hours and then placed in ICU. The initial concern was a hemopneumothorax, for which he underwent surgical drainage. He had fractured seven ribs. He also fractured his left clavicle and experienced left hip pain and lower back pain.
After being discharged, he remained initially housebound for about a month. He then was referred to physiotherapy after about four weeks and continued for about 12 months. This initially consisted of exercises.
Initially, most of the pain was in the chest and as the chest pain improved during the next four months, he started to become aware of worsening left hip and lower back pain.
He noticed an overall improvement after about four months, in that he became more mobile. He reports that during the first year, his fractured clavicle restricted his range of left shoulder movement, but the severe pain eventually resolved after six months.
After four months, his chest pain plateaued but his hip and lower back pain increased. He eventually consulted a physiotherapist in Brisbane, who specialises in the treatment of athletes. He was referred to a sports medicine doctor. He underwent three cortisone injections, one to the hip, sciatic nerve, and a spinal injection. This provided symptomatic relief for about four weeks. Prior to the injections, he experienced difficulty with mobilising or sitting.
After the injections (around the end of 2018) he improved to the point that the pain was manageable enough to commence strengthening exercises.
He reports recommencing cycling during COVID-19, around April 2020. At present, he cycles mainly indoors and does this for four to six hours per week, averaging 150km. He reports that he no longer cycles at the level he used to.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
Mr Long reports that his condition has remained relatively unchanged for the last two years.
His main pain is in the left hip region.
He reports that he is much more anxious than he used to be. Certain situations make him anxious and nervous – he was never like that before. He tries to put forward a strong front but often he lacks confidence. This has contributed to his problems with his business since the accident.
He has constant ringing in the ears since the accident.
Left clavicle
He does not describe any pain at the site of the left clavicle fracture but does have some left shoulder discomfort more generally with restriction in movement.
Chest
Mr Long continues to experience constant discomfort over the left chest anteriorly. This increases with activities such as sitting for longer periods or if he pushes himself with exercise.
Left hip and lower back
He describes constant pain over the greater trochanter and left loin and buttock. He experiences worse pain with prolonged sitting in a car or sleeping on the left side.
Current and proposed treatment
He currently takes paracetamol almost daily and ibuprofen about once a week.
He sees a physiotherapist occasionally when his hip or lower back pain is “unbearable”. He is not seeing a psychologist.
CLINICAL EXAMINATION
General presentation
His height was 179cm and his weight 72.8kg.
He was a well looking man who moved easily around the examination area without a limp – he stated that he can limp in the morning when getting out of bed.
Mr Long was able to stand and walk on his toes and heels and achieve a squatted position.
Chest
There are no abnormalities on examination of the chest. He had good air entry bilaterally and no added sounds.
Thoracic spine
There is normal spinal curvature of the thoracolumbar spine. There is no muscle spasm or guarding. There is no thoracic spine tenderness. Thoracic rotation is symmetrically performed to normal range. Flexion and extension motion is normal.
Lumbosacral spine
There is normal spinal curvature of the lumbar spine. There is no muscle spasm and guarding.
He demonstrated a two thirds normal range of movements of his lumbar spine in all planes. There is no dysmetria. The main area of discomfort limiting these movements was over the left pelvis and loin.
The neurological examination of the lower extremities was normal. There was no wasting.
Pelvis
He is mildly tender to palpation over the left pelvis and loin. There is no palpable haematoma.
Upper extremities
There was no muscle atrophy. He was mildly tender over the acromioclavicular joint on the left.
Impingement testing was negative bilaterally.
He had mild restriction in left shoulder movements as outlined below, measured by goniometer.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 160° |
| Extension | 50° | 40° |
| Adduction | 50° | 40° |
| Abduction | 180° | 130° |
| Internal Rotation | 90° | 60° |
| External Rotation | 90° | 80° |
Lower extremity
He had a normal gait. There was tenderness over the greater trochanter and left posterior buttock. He demonstrated minimal restriction in left hip movement as outlined below, measured by goniometer.
| Hip Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 110° | 90° |
| Extension | 10° | 10° |
| Adduction | 30° | 30° |
| Abduction | 50° | 50° |
| Internal Rotation | 20° | 20° |
| External Rotation | 50° | 50° |
Comments on consistency
He was cooperative and consistent.
DETERMINATION
Permanent impairment
Diagnosis, causation, and reasons
The mechanism of the accident is consistent with multi trauma resulting in fracture to ribs, left clavicle and soft tissue injury to the left pelvis and hip region.
The multiple left rib fractures have healed and resulted in some mild discomfort on activity.
He is tender over the greater trochanter – he has left trochanteric bursitis caused by the accident. There is mild restriction of hip motion due to his soft tissue pelvic injuries. There is no residual haematoma.
He also sustained a left distal clavicle fracture, which affects his active left shoulder range of movement.
Summary of referred injuries
The following injuries were caused by the motor accident:
(a) ribs – fractures to left 1-7 ribs;
(b) clavicle – fracture to left distal clavicle, and
(c) pelvis – sacroiliac contusion, left trochanteric bursitis, restricted hip motion.
Statement about permanent impairment
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA 4) and the SIRA Permanent Impairment Guidelines November 2021.
Permanency of Impairment
Permanent impairment is defined in the AMA 4 (p.315) as follows: 'Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.'
His condition has reached maximal medical improvement and is permanent – it has been stable for more than 12 months and unlikely to change over the next 12 months.
Left clavicle
There is restricted motion due to post-traumatic stiffness following recovery from the left clavicle fracture. Impairment of the left shoulder is determined using range of motion methods, using Figures 38, 41 and 44 AMA 4, pages 43, 44 and 45 respectively of AMA 4. The limitation in flexion gives a 1% upper extremity impairment (UEI), the limitation in extension a 1% UEI, the limitation in adduction a 0% UEI, the limitation in abduction a 2% UEI, the limitation in internal rotation a 2% UEI and the limitation in external rotation a 0% UEI.
The total UEI is therefore 6% giving a 4% whole person impairment (WPI) based on Table 3 on page 20 of AMA 4.
Pelvis
There is restricted left hip joint flexion using Table 40, AMA 4 Page 78, this attracts a 2% WPI rating.
There is left trochanteric bursitis but in the absence of a limp this does not result in a permanent impairment (see Table 64 on page 85 of AMA 4).
Chest
The impairment due to chest injuries/fractured ribs is 0% WPI (based on paragraph 6.229 on page 137 of NSW SIRA Guidelines 2020). He has some mild tenderness but no underlying restriction in lung function due to the rib fractures.
The WPI for the left haemo-pneumothorax is being determined by a separate Review Panel.
The total WPI is therefore 6%. There is no deduction for pre-existing injuries.
The Panel assessed the subject accident caused injuries that resulted in 6% permanent impairment.
The permanent impairment table is set out at Appendix E.
Panel deliberations
The Panel met again on 24 April 2024.
The Panel decided to adopt Medical Assessor Gorman’s examination report and his impairment assessment as evidence. This impairment assessment is set out at Appendix E.
There were no pre-existing impairments to deduct.
The Panel discussed whether the claimant was consistent in his presentation at the examination.
Medical Assessor Gorman confirmed that he was.
There were no other examples of inconsistencies. The claimant’s credit was not a relevant factor in this Panel’s findings.
The Panel considered why the left shoulder range of movement had deteriorated since Medical Assessor Wijetunga assessed that condition. It was noted that Mr Long, although he is motivated to achieve complete recovery has become less active in the last two years, which has led to his range of motion reducing. This has resulted in increased permanent impairment.
The Panel noted the insurer’s submission to the Presidential delegate in respect of the left hip and whether Medical Assessor Wijetunga had undertaken her assessment in accordance with Clause 1.72 of the Guidelines by not deducting the 2% WPI in the right hip.
The Panel considered both hips identical internal rotation restriction meant that it was likely those conditions were constitutional. The difference is in the claimant’s hip flexion — the uninjured hip shows 20° greater ROM than the injured left hip and hence the permanent impairment assessment of the left hip.
Panel decision
The Review Panel found that the motor accident caused the following injuries:
(a) ribs – fractures to left 1 to 7 ribs;
(b) clavicle – fracture to left distal clavicle, and
(c) pelvis – sacroiliac contusion, restricted hip motion.
The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
(a) ribs – fractures to left 1 to 7 ribs.
The Review Panel considered that the following injuries caused permanent impairment above 0%:
(a) left shoulder as clavicle – fracture to left distal clavicle 4%, and
(b) pelvis – sacroiliac contusion, restricted hip motion 2%.
Permanent impairment
The motor accident caused injuries with total percentage permanent impairment of 6%. The total WPI is not greater than 10%.
The Panel notes the accident also caused a haemopneumothorax injury, which is the subject of another permanent impairment review.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. A finding of 0% WPI indicates the motor accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The Review Panel’s permanent impairment findings about the injuries caused by the motor accident are different to Medical Assessor Wijetunga’s assessment certificate dated
7 December 2021.
Accordingly, the Review Panel will revoke that certificate and issue a new permanent impairment certificate.
Each Panel member has reviewed this decision and agreed with the findings.
Review Panel
Personal Injury Commission
APPENDICES
APPENDIX A
Statutory Provisions
Under s 63(3) of the MAC Act and Sch 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 Commission.
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.
Section 60 of the MAC Act provides either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary on 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:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] 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), ss 5D 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.”
In Briggs Wright J reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty.[2] His Honour stated at [70]-[72]:
[2] Briggs No. 2 [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC Act.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
APPENDIX B
Original Medical Assessor’s findings
Medical Assessor Wijetunga assessed 4% permanent impairment to the claimant's left shoulder and pelvis.
She assessed impairment related to the fracture to the ribs, left clavicle and pelvis haematoma and iliac crest.
As part of the pelvis examination, it was found that the originating area of pain was in the sacroiliac joint, which is a continuation of the iliac crest. This joint affects movements of the lower back and for this reason, she assessed impairment, as related to the lower back and referred to this area as lower back/pelvis.
The mechanism of the accident was consistent with multi trauma, resulting in fracture to ribs, left clavicle and pelvis, in the sacroiliac area.
The diagnosis was multiple left rib fractures, which have healed and resulted in some chronic pain and impact on more forced breathing.
Mr Long was tender over the greater trochanter. There are no other imaging to suggest otherwise. Medical Assessor Wijetunga agreed with Dr Barrett’s diagnosis the accident caused left trochanteric bursitis. There was mild restriction of hip motion due to his pelvic injuries.
He also sustained a left distal clavicle fracture, which effects his active left shoulder range of movement, although he has no pain.
He has also sustained an injury to the pelvis. There were no signs of haematoma, but this resulted in sacroiliac pain, which has impacted on the lower back. In the absence of Lumbosacral area imaging, his diagnosis was musculoligamentous injury.
The mechanism of the accident clinically correlated with the stated injuries.
APPENDIX C
Parties’ disputes and issues
Claimant’s submissions
Certificate of Medical Assessor Wijetunga
(a) The insurer has erroneously contended that the Wijetunga determination was materially incorrect in circumstances where a 2% WPI in the claimant’s right hip’s internal rotation was not correctly deducted against Dr Wijetunga’s findings in respect of the claimant’s left hip, in line with Clause 1.72 of the Guidelines.
(b) Dr Wijetunga has provided 2% WPI in respect of the claimant’s upper extremity impairment, which is not disputed by the insurer.
(c) Dr Wijetunga has otherwise provided a further 2% WPI in respect of the claimant’s lower extremity impairment specific to the reduced range of movement in the claimant’s left hip flexion, not its range of internal rotation. This is evidenced in the table at 20 of the Wijetunga determination.
Insurer’s submissions
The insurer’s original and review application submissions summarised the claimant’s medical and medicolegal history. They provided the following relevant points:
The insurer relied upon Professor Cameron’s and Dr Giles’ findings that the physical injuries sustained in the subject accident were limited to (A21 & A22):
(a) left sided rib fractures with a substantial haemopneumothorax;
(b) left clavicle fracture which had healed with some deformity;
(c) soft tissue injury to the left shoulder;
(d) probable bursitis adjacent to the left greater trochanter, and
(e) scarring.
Professor Cameron assessed the left clavicle fracture as giving rise to a 2% WPI and he assessed the left shoulder as giving rise to 1% WPI. He did not make any finding in relation to the left hip as, on examination, he found a full range of movement.
As noted above the insurer does not accept that the claimant sustained any injury to the thoracic spine in the subject accident and in support of its position relies upon the findings of Professor Cameron and Dr Barrett. Neither Professor Cameron nor Dr Barrett diagnosed a thoracic spine injury. Further the insurer submits that any impairment related to the thoracic spine is pre-existing having regard to the findings of MAS Assessor O’Neill (A5).
The insurer relies upon the findings of Professor Cameron and disputes that the claimant sustained any injury to the lumbar spine in the subject accident (A21). The insurer also relies upon the treating medical evidence addressed above which demonstrates that the claimant did not develop any lower back symptoms for many months following the subject accident.
Medical Assessor Wijetunga assessed the claimant’s left hip as giving rise to a 2% Whole Person Impairment based upon a reduced range of motion in the left hip. However, her examination findings also revealed some restriction in internal rotation of the right hip which is also equivalent to a 2% Whole Person Impairment.
In failing to deduct the 2% whole person impairment in the right hip, the insurer submits that Medical Assessor Wijetunga has not undertaken her assessment in accordance with Clause 1.72 of the Guidelines which provides:
“If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint, only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.”
The insurer submits that had Medical Assessor Wijetunga correctly applied cl 1.72 she would have found that the left hip injury gives rise to a 0% whole person impairment.
APPENDIX D
Documentation
The Review Panel considered the following documentation:
· Medical Assessor Wijetunga’s certificate issued on 7 December 2021;
· the insurer’s review application and attached documents;
· the claimant’s reply and attached documents, and
· all the documents which were provided to Medical Assessor Wijetunga before the assessment under review.
APPENDIX E
Permanent Impairment Table assessed by Medical Assessor Gorman
| 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 | Pelvis | AMA 4th Edition Chapter 3; Table 40 on page 78 AMA 4th Edition; Table 64 on page 85. | Yes | 2 | 0 | 2 |
| 2 | Left shoulder | Figures 38, 41 and 44 on pages 43, 44 and 45 of AMA 4th Edition | Yes | 4 | 0 | 4 |
| 3 | Chest – fractured ribs | Paragraph 6.229 on page 137 of NSW SIRA Guidelines 2020 | Yes | 0 | 0 | 0 |
* %WPI = percentage whole person impairment
0