Allianz Australia Insurance Limited v Lounici
[2025] NSWPICMP 225
•1 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Lounici [2025] NSWPICMP 225 |
CLAIMANT: | Lamia Lounici |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 1 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment certificate; degree of permanent impairment; claimant suffered injury in a motor accident when she was struck as a pedestrian by the insured vehicle at speed; left hip-intertrochanteric fracture; left knee-medial patellofemoral ligament tear; onset of tinnitus and vertigo; admitted to hospital for 2-weeks including 8 days in intensive care; dispute about whether claimant sustained injuries to the cervical spine, lumbar spine, and shoulders; original assessment of permanent impairment of 21%; re-examination of the claimant; Held – original assessment of a degree of permanent impairment of 21% revoked and replacement certificate issued with a finding of a degree of permanent impairment of 23%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is 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%. Determination 1. The Review Panel revokes the certificate of Medical Assessor Phillip Truskett dated 2. The Review Panel issues a replacement certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment that is GREATER THAN 10% (23%): · left hip – intertrochanteric fracture; · left knee – soft tissue injury including medial patellofemoral ligament tear; · lumbar spine – soft tissue injury; · cervical spine – soft tissue injury; · left shoulder – soft tissue injury and referred pain (Nguyen principle), and · right shoulder – referred pain (Nguyen principle). |
STATEMENT OF REASONS
BACKGROUND
On 18 February 2021 the claimant, Lamia Lounici, was involved in a motor accident when she was hit by a vehicle (insured by Allianz) as she was crossing the road at a set of traffic lights at the intersection of Marsden St and George St, Parramatta.
The claimant claims that she sustained multiple physical injuries in the accident. The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of her claim for damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%. The insurer did not concede that the claimant’s physical injuries caused by the accident, had crossed that threshold.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
The nature of the claimant’s physical injuries that were referred to the Commission for assessment meant that three Medical Assessors were each required to assess some of the injuries according to their area of expertise.
The claimant’s referred injuries to the cervical spine, lumbar spine, left shoulder, right shoulder, left knee and left hip were assigned by the Commission to Medical Assessor Philip Truskett for assessment. The referred injury in the nature of tinnitus and vertigo was assigned to Medical Assessor Kenneth Howison for assessment and the referred injury to the skin (scarring) was assigned to Medical Assessor Michael McGlynn for assessment.
On 23 May 2024, Medical Assessor Truskett issued a certificate finding that the injuries assigned to him for assessment, gave rise to a permanent impairment of 21%.
On 12 June 2024, Medical Assessor Howison issued a certificate finding that the injury assigned to him for assessment, gave rise to a permanent impairment of 0%.
On 18 June 2024, Medical Assessor McGlynn issued a certificate finding that skin scarring gave rise to a permanent impairment of 2%.
A combined certificate was then issued by the Commission to the effect that the claimant’s referred physical injuries gave rise to a permanent impairment of 23%.
THE REVIEW APPLICATION
On 30 July 2024, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment of Medical Assessor Truskett to a review panel for review. The review application was made within the time prescribed by s 7.26(10) of the MAI Act.[1]
[1] The combined certificate was issued by the Commission to the parties on 3 July 2024.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Gorman, Medical Assessor Assem and Member Castagnet (the Panel).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[3]
[3] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[5]
[5] Section 7.26(6) of the MAI Act.
RELEVANT LEGISLATION AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[6]
[6] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.2.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[7]
[7] Clause 6.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[8]
[8] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[9]
MEDICAL ASSESSMENT UNDER REVIEW
[9] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Medical Assessor found that the claimant sustained the following injuries, caused by the accident:
· left hip – intertrochanteric fracture requiring internal fixation;
· left knee – soft tissue injury including medial patellofemoral ligament tear;
· left shoulder – soft tissue injury;
· right shoulder – soft tissue injury;
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
The Medical Assessor noted that the claimant was struck on the left side of her body by a motor vehicle travelling at speed. He considered that the mechanism of the injury was entirely in keeping with these injuries.
The Medical Assessor assessed the injury to the cervical spine as DRE Category II giving rise to a whole person impairment (WPI) of 5%. He assessed the lumbar spine injury as also consistent with DRE category II giving rise to a WPI of 5%.
The Medical Assessor assessed the left lower extremity (which includes the left knee and left hip injuries) as giving rise to a WPI of 6%.
The Medical Assessor assessed a WPI of 1% for the right shoulder injury and a WPI of 6% for the left shoulder injury.
Applying the Combined values chart, the Medical Assessor assessed the claimant’s injuries caused by the accident as giving rise to permanent impairment of 21%.
MATERIAL BEFORE THE PANEL
The claimant filed a paginated and indexed bundle of documents comprising 538 pages (the claimant’s bundle), and the insurer filed a paginated and indexed bundle of documents comprising 67 pages (the insurer’s bundle).
The Panel considered all the above material.
SUBMISSIONS
The insurer’s submissions
The insurer’s submissions may be summarised as follows:
(a) the Medical Assessor failed to have regard to the claimant’s pre-existing history;
(b) the Medical Assessor failed to have any regard to the contemporaneous complaints and onset of complaints thereafter and the nature of the treatment received, which was not consistent with many of the alleged injuries;
(c) the Medical Assessor failed to have regard to the insurer’s submission that alleged shoulder and arm injuries are not consistent with the claimant being discharged on crutches and using crutches for a considerable period thereafter, and
(d) the Medical Assessor failed to properly address causation in relation to the alleged injuries to the left and right shoulders, cervical and lumbar spine.
The claimant’s submissions
The claimant’s submissions may be summarised as follows:
(a) nowhere in the insurer's submissions is there a suggestion that the claimant had pre-accident complaints of symptoms in her shoulders, cervical spine or lumbar spine;
(b) trauma PAN CT was used to rule out any fracture to the cervical and lumbar spine;
(c) the evidence shows that the claimant was hit by a motor vehicle at a speed of or in excess of 50kmph;
(d) the ambulance report recorded left shoulder pain at the scene of the accident and the ambulance officers saw fit to immobilise the claimant’s spine at the scene of the accident, and
(e) the claimant accepts that, to a large extent the Medical Assessor has relied on history provided to him by the claimant in relation to the injuries to the shoulders, neck and lumbar spine. In circumstances where the Medical Assessor accepted that the claimant is credible and not prone to exaggeration, reliance on the claimant’s history was appropriate and reasonable, when deliberating on causation.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel may conveniently be summarised as follows.
Pre-accident medical records
In its submissions to the Medical Assessor, the insurer referred to pre-accident treating medical records of the general medical practice, Greenoaks Medical Centre (the GP records).[10]The insurer referred to a complaint of left side back pain on 11 May 2011, a complaint of right shoulder and neck pain in June 2016 and a complaint of low back pain on 21 August 2020.[11]However, the Panel could not find the evidence upon which these submissions were based, in the material before the Panel. The Panel is therefore unable to consider the extent or the nature of these complaints.
[10] Page 32 of the insurer’s bundle.
[11] Pages 32 -33 of the insurer’s bundle.
There was no available evidence before the Panel of any records of any treatment prior to the accident for any conditions or injuries relating to the injuries referred for assessment.
The ambulance records
The NSW Ambulance report recorded that the claimant was struck by a sedan travelling approximately 50kMph, “landing on bonnet and hitting windscreen before landing on road”.[12] The claimant complained of left hip pain, left shoulder pain, left thigh pain and nausea.[13] On examination, there was a small haematoma to the lateral mid-thigh and abrasions to the left ankle. There was no tenderness in the cervical spine or the abdomen. The claimant denied any head strike. The claimant’s spine and left leg were immobilised for urgent transportation to hospital.[14]
[12] Page 46 of the claimant’s bundle.
[13] Pages 46-47 of the claimant’s bundle.
[14] Page 46 of the claimant’s bundle.
Westmead Hospital
According to the Discharge Summary of Westmead Hospital, the claimant was admitted under the care of orthopaedic surgeon Dr John Fox, with a left proximal femur fracture. On 19 February 2021, she underwent a left femoral shaft intramedullary nail. [15]
[15] Page 50 of the claimant’s bundle.
It was noted that the claimant has had ongoing vertigo since the accident, mostly positional and when lying flat and there was associated nausea and vomiting in the first few days. Epley manoeuvre was performed and the vertigo and nausea were markedly improved.
Following a trauma pan scan CT, it was observed that there was no acute intracranial haemorrhage or skull fracture and no acute cervical, thoracic or lumbar spine fracture.
A left knee X-ray performed on 18 February 2021, revealed a high grade right medial patellofemoral ligament (MPFL) tear associated with a large soft tissue oedema extending to the vastus medialis myotendinous junction.[16]
[16] Page 53 of the claimant’s bundle.
The claimant was discharged two weeks later on 5 March 2021.
Claimant’s statement
In her application for personal injury benefits dated 26 March 2021, the claimant described her injuries in the following terms:
“Fracture of proximal end of the femur - Fracture of neck of femur, entire left leg - Left knee - BPPV -Vertigo and dizziness – Epley’s manoeuvre – PTSD”[17]
[17] Page 7 of the claimant’s bundle.
Dr John Fox
After her discharge from hospital, the claimant continued to be under the care of Dr John Fox for her left hip and left knee injuries. When she attended for a review on 1 April 2021, she was immobilised on two crutches. She was asked to stand and walk and was able to do so without crutches, but weakness was noted in the left leg.[18] The claimant reported that her left knee was feeling wobbly, and she could not get great control of it. On examination, Dr Fox felt that there was at least a component of posterior cruciate ligament laxity. It was also noted that she had a “funny lesion about 1.5 cm x 1.5cm over the left lateral malleolus.”[19] She was referred for physiotherapy.
[18] Page 510 of the claimant’s bundle.
[19] Page 510 of the claimant’s bundle.
The claimant was reviewed on 11 May 2021. On removing crutches, the claimant could walk reasonably well with “quite an obvious Trendelenburg (gait) component.” There was clear weakness on the abductions of the left hip.[20]The claimant was advised that she should get rid of the crutches and move about her home with a cane as this would be another method of physiotherapy. The claimant reported relative instability in the left knee with deep anterior pain.[21]
[20] Page 512 of the claimant’s bundle.
[21] Page 512 of the claimant’s bundle.
The claimant was reviewed on 8 June 2021, reporting that she had been using two crutches and went down to two canes and then down to one cane. She reported that she has pain in the lateral aspect of her left hip which is present all the time. It hurts when she presses on the area. She reported that her knee was still problematic with no improvement in her symptoms.[22]
[22] Page 514 of the claimant’s bundle.
On review on 29 June 2021, the claimant reported that she has used a single crutch for mobilising and on 12 August 2021 she reported that she was using a cane for long distance mobilising. [23]
[23] Page 518 of the claimant’s bundle.
On 18 August 2021, the claimant underwent a “very difficult removal” of the gamma nail with a small piece of broken screw removed. Bonfix was used to bone graft the large compression screw defects of the femoral neck. [24]
[24] Page 520 of the claimant’s bundle.
On review on 14 September 2021, the claimant reported ongoing left hip pain. Dr Fox noted that there was improvement in the range of movement of the hip. She was referred for further physiotherapy. [25]
[25] Page 522 of the claimant’s bundle.
On review on 6 September 2022, Dr Fox noted that the left greater trochanter was markedly painful on palpation. There was limitation of straight left leg raising due to hip pain. The left knee had marked patellofemoral crepitus on range of motion.[26]
[26] Page 523 of the claimant’s bundle.
Post-accident GP records
In a consultation on 28 September 2021 with GP, Dr Ebrahim, it was recorded that there was improvement in the left leg with improved range of movement and improved mobility. The claimant reported that she was having ongoing pain coming from the hip to the back.[27]
[27] Page 462 of the claimant’s bundle.
In a consultation with Dr Ebrahim the next day, the claimant complained of ongoing back pain. She reported that the physiotherapist was of the view that the pain is related to the use of the crutch because she is leaning to the right side as she is walking. She was advised to try and walk without the crutch.[28]
[28] Page 463 of the claimant’s bundle.
In a consultation with Dr Ebrahim on 22 June 2022 the claimant reported that she had experienced a sharp stabbing pain in the neck which was followed by ongoing pain. On examination, there was limited range of movement in the neck.[29]
[29] Page 471 of the claimant’s bundle
In a consultation with ear, nose and throat surgeon, Dr Nicholas Leith on 2 December 2022, the claimant reported that she had intermittent vertigo since the accident. On examination, the tympanic membrane and middle ears were normal, and the cranial nerves were normal. A Dix-Hallpike manoeuvre (a diagnostic test used to identify benign paroxysmal positional vertigo - BPPV) was positive and she was treated with an Epsley manoeuvre, which is a head repositioning procedure. The claimant was referred for physiotherapy.[30]
[30] Page 496 of the claimant’s bundle.
In a report to Dr Ibrahim dated 22 December 2022, physiotherapist, Meridith Cook noted that the claimant presented with positional vertigo and neck pain. Ms Cook indicated that considering that the vertigo has never fully recovered despite numerous Epley treatments, she believed that the claimant may also be experiencing cervicogenic dizziness and should be continued to be monitored for both BPPV and the cervical spine.[31]
[31] Page 494 of the claimant’s bundle.
In a consultation with Dr Ebrahim on 15 February 2023 the claimant complained of ongoing pain in the left knee, left hip and pain travelling across the whole of the left side of up to the left arm. She has been unable to sleep on her left side. She reported that she has been seeing her physiotherapist for dizziness. She reported that the physiotherapist was of the view that the dizziness could be cervicogenic in origin. She reported that she had severe headaches and burning pain in her neck for 10 days after therapy.[32]
[32] Pages 477-478 of the claimant’s bundle.
Medicolegal evidence
The claimant was assessed by orthopaedic surgeon, Dr James Bodel on 18 May 2023.
In his report of the same date, Dr Bodel was of the opinion that as a result of the accident, the claimant sustained a femoral fracture, a soft tissue injury to the neck, a rotator cuff injury to the left shoulder and a soft tissue injury to the lower part of the back. The femoral fracture has led to some restriction of hip and knee movement on the left-hand side, associated with the soft tissue injuries around the fracture site.[33]
[33] Page 32 of the claimant’s bundle.
Dr Bodel assessed the injury to the cervical spine as DRE Category II, giving rise to a WPI of 5%, the lumbar spine injury as DRE Category II, giving rise to a WPI of 5%, the left shoulder injury as a WPI of 6% and the left lower extremity (for the left hip and left knee injuries) a WPI of 6%. His assessments resulted in a permanent impairment of 21% when the Combined values chart was applied.[34]
[34] Page 33 of the claimant’s bundle. Dr Bodel also assessed a WPI of 1% for surgical scarring and that injury is not the subject of this review.
RE-EXAMINATION
On 5 February 2025, the claimant was re-examined by Medical Assessor Gorman at the medical suites of the Commission on behalf of the Panel. The claimant attended in person and was unaccompanied.
Medical Assessor Gorman’s report now follows.
Pre-accident medical history and relevant personal details
The claimant is a 38-year-old woman. She was born in Algeria where she completed high school. She then completed a bachelor’s degree in French, English and Arabic and later in accounting.
She is right-handed.
She does not smoke or drink alcohol.
She immigrated to Australia in November 2008. She did not work while she was married, but after her divorce, she commenced a diploma in interpreting at TAFE in 2016 for one year and then completed a master’s degree in interpreting at Western Sydney University in 2020.
Her first paid role as an interpreter was in July 2020.
She returned to part-time interpreting some nine months after the accident only doing approximately 10 hours per week.
She has remarried. She has three children from her first marriage, two daughters aged 16 and 14, and a son aged 12.
She has had no previous surgery or any injuries. She said that prior to the accident, she was “like a gazelle” – fit and healthy.
She has asthma in the winter months.
History of the motor accident
On 18 February 2021 at approximately 2.17pm, she was crossing the road at traffic lights on Marsden Street at the intersection of George Street, Parramatta. As she crossed, she was hit by a motor vehicle on her left side. She said that the vehicle was probably travelling at more than 50kmph.
She was thrown onto the bonnet and the windscreen and bounced across the full width of George Street to the other side. She believes she was not knocked out but was in severe pain. She was assisted by passers-by. An ambulance was called. She was taken to Westmead Hospital.
She was admitted on 18 February 2021 and discharged on 5 March 2021. She was placed under the care of orthopaedic surgeon, Dr John Fox. Dr Fox made the following diagnoses:
· moderately displaced left proximal femoral fracture which is intertrochanteric, and
· high-grade MPFL tear associated with a large tissue oedema of the left knee.
She underwent open reduction and internal fixation of the left femoral head on
19 February 2021 which was performed by Dr Fox. A Gamma nail and pin were used to fix the head of the femur with three lag screws proximally and two distal lag screws under II control.
She spent eight days in the intensive care ward and was noted to suffer from postural vertigo which persisted in the postoperative period.
She was assessed by a neurologist who demonstrated nystagmus via the Epley manoeuvre. This was thought due to inner ear disturbance after the trauma.
History of symptoms and treatment following the motor accident
Following discharge, she received a great deal of support from friends.
The gamma nail was removed by Dr Fox on 18 August 2021. She reported ongoing pain in the region when she saw Dr Fox on 14 September 2021.
Dr Fox suggested that she continues with physiotherapy.
She attended physiotherapy at Gerard Essey of Lidcombe for approximately six months, for three sessions per week.
She required the use of crutches with her ongoing left hip pain and as a result, she developed low back pain.
She was treated by ear nose and throat (ENT) surgeon, Professor Fagan. This was for her persistent vertigo, and he also referred her for physiotherapy at Balance Physiotherapy, Auburn.
She was also treated by ENT surgeon, Dr Nicholas Leith, psychologist, Rowena Berri and psychiatrist, Dr Raiz Ismail.
Her neck pain worsened on 4 July 2022, and she presented to Bankstown Hospital.
She is on the public hospital waiting list for left knee arthroscopic surgery.
Details of any relevant injuries or conditions sustained since the motor accident
Nil
Current symptoms
When asked to rate the severity of pain in regions she rated the left hip as the worst followed by the lumbar spine and left knee. The neck and both shoulders are less severe but still symptomatic.
In the left hip, she has pain which is present all the time. She has a feeling of stiffness. Pain radiates down the leg and up into her lumbar spine. Pain is brought on by activity or standing for long periods and will continue for some hours.
In the left knee, she has pain all the time. It is behind the kneecap at the back of the knee and both sides. This will occur while walking upstairs or on uneven ground. This pain will radiate down the back of her calf. Her knee will lock on occasions with sudden movement.
The lower lumbar pain is present all the time. It will radiate down the right leg to the back of her knee to her foot.
The neck always feels painful and stiff. Her neck tends to lock on occasions and can occur when she wakes. She will then need to go to bed and increase her medication intake. Pain radiates down the left arm to the outer side of her thumb. Neck pain is made worse with activity.
She has pain over the left scapula and top of her shoulder. It also affects the side of her arm. The pain is present all the time and will get worse with the neck pain. It is exacerbated by movement. She is unable to sleep on her left side.
The right shoulder is not as bad as the left. She experiences intermittent pain which will occur three times per week over the right shoulder which is worse with movement.
She has trouble walking hills and stairs and uses a handrail and usually one step at a time. She can do light housework. She is unable to vacuum or change a bed. This is done by her family. She goes shopping with the family.
She can cook but does so on a stool. She is usually helped by her daughter. She can perform all acts of daily living and but showers with a stool.
Current and proposed treatment
She stated that she will start hydrotherapy again.
She is doing a home exercise program. She reported that she had a long period of physiotherapy.
She takes the following medications:
• Pregabalin 150 mg one twice a day for more than a year (pain and anxiety);
• Meloxicam 15 mg one daily for more than a year (non-steroidal anti-inflammatory);
• Tramadol 100 mg SR (narcotic analgesic) – now 1-2 at night;
• Panadol Osteo - (simple analgesic) – now as required only;
• Betahistine 16 mg for three years for dizziness;
• Sertraline 50 mg one daily for six months (antidepressant);
• Somac one daily (proton pump inhibitor), and
• Coloxyl two daily (laxative).
She has taken Targin 50 mg (narcotic analgesic) at night for pain. She has also taken Escitalopram 10 mg one daily for six months (antidepressant/pain modulator).
Clinical examination
General presentation
She was a cooperative woman who wore a Hijab.
She walked with a limp favouring her left leg.
She is 169cm tall and weighs 91.1kg which provides her with a body mass index of 31.8 (obese).
Cervical spine
On examining her neck, there was muscle guarding as well as dysmetria. Neck flexion was ½ normal, extension was ¼ normal. This also caused dizziness. Lateral flexion to the left was 2/3 normal, to the right was less at 1/2 normal. Rotation to the left was 1/3 normal, to the right was better at 1/2 normal.
Biceps, triceps, and supinator jerks were present. Power and tone were normal. There was no wasting of the muscles of the lower limb.
Upper extremities
She reported limited shoulder movements because of the neck pain.
The movements were recorded by goniometer and were reproducible and consistent.
Shoulder movements
Right (degrees)
Left (degrees)
Flexion
150
100
Extension
50
40
Abduction
150
110
Adduction
50
40
Internal rotation
80
60
External rotation
70
80
Lumbar spine
There was no muscle guarding. There was dysmetria. Back flexion was only possible to one third. Extension was minimal. Lateral flexion left and right was half normal. Rotation left and right was half normal. She could stand on her toes and on her heels.
Power, tone, and sensation were normal. Knee jerk and ankle jerks were present but equally reduced. Straight leg raising was possible to 90 degrees bilaterally. There was no wasting of the muscles of the lower limbs.
Lower extremities
In the hips, there was restriction in left hip range of motion as outlined below.
Hip movements
Right (degrees)
Left (degrees)
Flexion
110
90
Extension
20
20
Adduction
20
10
Abduction
30
15
Internal rotation
30
15
External rotation
40
15
The left knee had limitation in flexion compared to the right.
There was no swelling.
There was no ligamentous instability.
There was no crepitus.
Knee movements
Right (degrees)
Left (degrees)
Flexion
130
105
Extension
0
0
Summary of relevant radiological and medical imaging and other investigations
The following radiological and medical imaging reports were noted in the assessment:
X-ray left femur on 1 April 2021, there is a subtrochanteric fracture of the left femur which has been fixed by an intramedullary nail, alignment appears satisfactory. No complication.
X-ray of the left leg on 9 June 2021, the intermedullary nail is again demonstrated in good position.
CT of the left femur on 13 August 2021, Conclusion:
•bony union of the proximal femoral fracture, and
• no osteolysis at the margins of the interlocking nail, distal screws or proximal femoral neck.
MRI of the left hip on 17 June 2021, nodular scarring at the site of the lateral fibres of the gluteus medius insertion onto the lateral facet indicating likely chronic tear. Assessment is difficult due to field distortion.
X-ray of the left femur on 14 September 2021, the interlocking nail removed. There was residual cortical dehiscence in the proximal femur with bony union.
MRI of the left knee on 9 February 2022, the left knee showed partial thickness chondral fissuring on the medial facet of the patella. The ligaments were intact.
Permanency of 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 Part 6 of The Motor Accident Guidelines.
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. This is based on history, physical examination, review of documentation.”
It is now more than four years since her accident. She is not having specific treatment. Her symptoms and signs have been relatively stable for 12 months and will not change significantly over the next 12 months. Any impairments are permanent.
DIAGNOSIS, CAUSATION AND REASONS
The Panel adopts the examination findings of Medical Assessor Gorman in relation to the injuries to the left hip, left knee, cervical spine, lumbar spine, left shoulder and right shoulder.
The claimant was thrown onto her left side in the accident and as a result, she suffered the following injuries:
Left hip – a displaced trochanteric fracture of her left femur requiring intermedullary nail fixation. The fracture occurred at the time of the accident. The Panel accepts that the injury was caused by the accident.
Left knee – soft tissue injury including medial patellofemoral ligament tear. This injury occurred at the time of the accident and the Panel accepts that it was caused by the accident.
Lumbar spine – soft tissue injury. At the time of the accident, there were major injuries in the left lower limb. The Panel believes that there were forces sufficient to cause a soft tissue injury to the lumbar spine and this continued with the abnormal gait due to the left knee and hip injuries. The Panel accepts that the injury was then aggravated by the use of crutches. Although the claimant is not now using crutches, the Panel believes that the ongoing antalgic gait will continue to aggravate the lumbar soft tissue injury.
Cervical spine – soft tissue injury. The Panel notes that there is no evidence of prior problems with the claimant’s cervical spine. The Medical Assessors of the Panel believe that presence of dizziness treated by the Epley manoeuvre suggests a whiplash injury involving flexion/extension of the cervical spine occurred at the time of the accident. Pain and stiffness of the neck have continued and become more prominent in circumstances where other more severe injuries have settled to a degree and the claimant’s use of pain medication has reduced. The Panel accepts that the claimant’s cervical spine condition was caused by the accident.
Left shoulder – soft tissue injury. The Panel notes that there was reported bruising of the left shoulder after the accident. There is no evidence of prior injury to the left shoulder. The Medical Assessors of the Panel believe that the only plausible explanation for the ongoing pain and restriction of movement is the motor accident. While the claimant made no further complaint for some time after the accident, the Panel accepts on balance of probabilities, that the soft tissue injury to the left shoulder was caused by the accident considering the following:
(a)the claimant had more severe injuries requiring surgical treatment and was most probably preoccupied with these;
(b)her use of pain medication is less now than during and subsequent to her hospital admission;
(c)the prolonged use of crutches is likely to have exacerbated her symptoms, and
(d)the left shoulder pain gets worse with neck pain and noting the principle in Nguyen v Motor Accident Authority of New South Wales and Anor,[35] (the Nguyen principle) this would likely be related to the cervical spine injury.
[35] [2011] NSWSC 351.
Right shoulder – there was no reported injury to the right shoulder. The Medical Assessors of the Panel consider that the restriction in movement in the right shoulder is likely related to cervical spine pain and applying the Nguyen principle, caused by the accident.
PERMANENT IMPAIRMENT
Left lower limb – left hip and left knee
Left hip: Reference is made to AMA-IV table 40, page 78 as instructed by the Motor Accident Guides. The limitation in flexion gives a mild impairment (5% lower extremity impairment) but the limitation in external and internal rotation each give 10% LEI. The NSW SIRA Guidelines instructs that the greatest is to be taken so that the hip impairment is 10% LEI.
Left knee: She has loss of flexion to less than 110 degrees which equates to 10% lower limb impairment.
Left lower extremity: When 10% for the left hip and 10% for the left knee are combined, this equates to 19% impairment of the left lower limb. This is then multiplied by 0.4 as outlined in paragraph 3.2 which equates to 8% whole person impairment (rounded up).
Lumbar spine: Assessment is DRE category II whole person impairment, 5% based on Table 72 on page 110 of AMA 4th Edition. She has dysmetria.
Cervical spine: Assessment is DRE category II whole person impairment 5% based on Table 73 on page 110 AMA 4th edition. She has dysmetria and non-verifiable radicular symptoms in the left upper extremity.
Left shoulder: Using figure 38, page 43, figure 41, page 44, figure 44, page 45 and table 3 page 20 the limitation in flexion gives 5% upper extremity impairment (UEI), the limitation in extension 1% UEI, limitation in adduction 0% UEI, limitation in abduction 3% UEI, limitation in external rotation a 0% UEI and limitation in internal rotation a 2% UEI. The impairment is both due to the cervical spinal pain (Nguyen principle) and likely direct trauma at the time of the accident. The total UEI is therefore 11% giving a WPI of 7% based on table 3 on page 20.
Right shoulder: Using figure 38, page 43, figure 41, page 44, figure 44, page 45 and table 3 page 20 the limitation in flexion gives 2% upper extremity impairment (UEI), the limitation in extension 0% UEI, limitation in adduction 0% UEI, limitation in abduction 1% UEI, limitation in external rotation a 0% UEI and limitation in internal rotation a 1% UEI. The impairment is consistent with the Nguyen principle. The total UEI is therefore 4% giving a WPI of 2% based on table 3 on page 20.
Total WPI:
When 8% plus 7% plus 5% plus 5% plus 2% combines according to the combined value chart, page 322, this equates to a whole person impairment of 23%.
The whole person impairment is therefore 23%.
Permanent impairment table
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
Left lower extremity
Table 40 page 78; Table 78 Page 41
Yes
8%
0%
8%
Right shoulder
Chapter 3 – Figure 38, 41, 44 and Table 3 on page 20 of AMA 4
Yes
2%
0%
2%
Left shoulder
Chapter 3 – Figure 38, 41, 44 and Table 3 on page 20 of AMA 4
Yes
7%
0%
7%
Cervical spine
Table 73 on page 110 of AMA 4
Yes
5%
0%
5%
Lumbar spine
Table 72 on page 110 of AMA 4
Yes
5%
0%
5%
* % WPI = percentage whole person impairment
CONCLUSION
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
The Panel has reached a higher assessment of permanent impairment based on different reasons and different conclusions. The Panel therefore revokes the certificate of the single Medical Assessor and issues a new certificate. The replacement certificate of the Panel is attached at the commencement of these reasons.
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4
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