Allianz Australia Insurance Limited v Mercer
[2023] NSWPICMP 244
•2 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Mercer [2023] NSWPICMP 244 |
| CLAIMANT: | Elizabeth Mercer |
INSURER: | Allianz Australia Insurance Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Wing Chan |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 2 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 31 October 2017 when as a pedestrian, she was struck by the insured; the dispute related to the assessment of permanent impairment of the lumbar only as the parties had agreed that the other body parts were assessed at 7%; Wood v Insurance Australia Group Ltd applied; claimant re-examined by both Medical Assessors who found dysmetria assessed at 5%; finding consistent with various other medical examinations; motor accident contributed to condition based on the absence of pre-existing lumbar spine complaints in the period proximate to the accident; contemporaneous complaint of back symptoms; significant impact, effect of increased weight on the claimant’s back condition caused by the other injuries and consistent lumbar spine complaints since the motor accident; Held – original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF permanent impairment OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: The Review Panel confirms the certificate of Medical Assessor Home dated 26 April 2022. |
REASONS
BACKGROUND
Ms Elizabeth Mercer (the claimant) suffered injury on 1 November 2017. The claimant was a pedestrian crossing the road when she was struck by the insured vehicle.[1]
[1] Claimant’s bundle, p 24.
Allianz Insurance Australia Ltd (the insurer) is liable for the driver of the other motor vehicle for liability to pay to Ms Mercer any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Home dated 26 April 2022 (the medical assessment). Medical Assessor Home assessed the permanent impairment at 12%.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
CONDUCT OF THE REVIEW
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the Act.
The parties provided bundles of documents for our consideration in response to the initial Direction.
On 1 May 2023 the Panel forwarded a further Direction to the parties as follows:
“The Panel directs the parties to advise whether they accept the assessments of the Medical Assessor for the left lower extremity, scarring and right wrist (combined at 7%).
We understand that any agreement would leave the lumbar spine as the only body part for determination (both causation and assessment).”
In response to this direction the parties advised the Panel that they accepted the assessment of 7% impairment of the left lower extremity, scarring and right wrist.
MEDICAL ASSESSMENT UNDER REVIEW
The Medical Assessor’s findings on the left ankle/foot were:[9]
[9] Insurer’s bundle, p 885.
“Range of motion:
There is restricted active motion of the left ankle and hindfoot. Left ankle motion is assessed using Table 42, AMA4, Page 78 as follows for restricted extension of 10 degrees, there is a 3% WPI rating.
Hindfoot motion is assessed using Table 43, AMA4, Page 78 for restricted eversion of the hindfoot, there is a 1% WPI rating. Toe impairment is assessed using Table 45 for restricted extension at the MP joint and flexion of the IP joint, there is a 1% WPI rating.
The impairments are not added in the AMA4. The maximum, most severe impairment is chosen.
The Combined Whole Person Impairment rating for restricted motion is 5% WPI.
Neurological
There is a further impairment due to reduced sensibility in the dorsum of the foot arising from the surgical procedure. The area of reduced sensibility conforms primarily to the territory of the superficial peroneal nerve distal to the midfoot maximum impairment for this nerve deficit for reduced sensibility is 5% LEI or 2% WPI using Table 68.
I have rated the impairment as a Grade 2 impairment using Table 11 to grade the sensory deficit, attracting a 25% sensory deficit, in accordance with Table 11, AMA 4, Page 48. Therefore, 25% of 2% equals 0.5% which is rounded up to 1% WPI.
For reduced sensibility of the dorsum, there is a further 1% WPI rating.”The Medical Assessor assessed the scar at 1% and loss of range of motion of the right wrist at 0%. The assessment of the lumbar spine was 5% based on spinal dysmetria.
SUBMISSIONS
Claimant’s submissions dated 11 April 2022[10]
[10] Claimant’s bundle, p 2.
The claimant noted the certificate of capacity dated 7 November 2017 included a diagnosis of “low back pain”. The circumstances of the accident when the claimant was a pedestrian who was struck by a vehicle support an injury to the low back.
The claimant noted that both Dr Breit and Dr Bodel assessed the claimant as DRE Category II for the lumbar spine. These doctors assessed the claimant pursuant to AMA 5 although Dr Bodel provided a supplementary report dated 19 May 2021 assessing pursuant to AMA 4.
Claimant’s submissions dated 22 September 2022[11]
[11] Claimant’s bundle, p 6.
These submissions were filed opposing the application to review the certificate noting that there were no submissions in relation to the left ankle/foot and scarring.
The claimant noted that the Medical Assessor was aware of the pre-existing lumbar spine condition.
In respect of causation the ambulance report referred to right lumbar and left thoracic pain in the context of motor vehicle versus pedestrian impact.
The physiotherapy records commencing 7 December 2017 refer to complaints of back and spinal pain.
The diagnosis of DRE Category II was based on dysmetria. There was no evidence that the claimant’s back condition prior to the motor accident was DRE Category II.
The claimant submitted that the clinical records of Dr Know are difficult to follow due to a lack of dates. However, it was submitted that the clinical records do not show back complaint after December 2013.
Further, the Medical Assessor was correct in not making any deduction for pre-existing back condition as there was no objective evidence of a pre-existing symptomatic permanent impairment in the same region.
The claimant noted that the 2010 MRI scan was taken more than seven years prior to the motor accident and no further scan was undertaken during that period.
The claimant noted that in his first report dated 7 June 2021, Dr Horsley did not refer to complaints of low back pain prior to the motor accident. In his second report dated 24 March 2022, Dr Horsley stated that the claimant was symptomatic at the time of the motor accident but did not refer to any evidence to support tis contention except the physiotherapy undertaken five years prior to his examination.
The claimant noted that Dr Horsley did not assess the lower back and did not provide an opinion on the pre-existing condition. It submitted that there was no evidence of pre-existing impairment of the lumbar spine.
Insurer’s submissions dated 13 September 2021[12]
[12] Insurer’s bundle, p 1.
The insurer referred to pre-accident symptoms affecting the lower back, right wrist and psychiatric condition.
In respect of the pre-accident symptoms of the lower back, the insurer referred to:
(a) clinical records of Dr Knox referring to low back pain since 2010;
(b) MRI scan dated 13 August 2010;
(c) claimant undergoing physiotherapy in 2013, and
(d) certificates of capacity confirming prior back pain.
The insurer referred to the CT scan of the lower back taken on the day of the accident which showed no fracture of dislocation and no abnormalities and submitted that the “there is likely no ongoing causal link between the subject accident and any continuing impairment to the lumbar spine, given the pre-accident and contemporaneous medical records.”
The insurer noted the 2015 X-ray to the right foot which showed degenerative changes in the midfoot and this should be considered “where ongoing degenerative [sic] is found to be causative of ongoing impairment”.
The insurer noted that the claimant complained of right wrist pain in 2015 and an ultrasound confirmed a small effusion of the radiocarpal joint.
The insurer submitted that the “only likely rateable impairment” would be of the claimant’s left foot and ankle.[13] It conceded that here has been “fluctuations in the level of progress” with the ankle and toes although an X-ray dated 29 September 2020 showed solid fusion.
[13] Insurer’s bundle, p 3.
The insurer submitted that Dr Bodel’s examination findings were “plainly inconsistent with the available medical evidence” and noted the error with respect to the application of AMA 5.
Insurer’s submissions dated 8 April 2022[14]
[14] Insurer’s bundle, p 850.
These submissions followed the inclusion of the report of Dr Breit dated 30 December 2021 and the request for leave to include the toes of the left foot and scarring as part of the assessment. The insurer objected but otherwise provided a supplementary report of Dr Horsley and further submissions.
The insurer submitted that the differences in assessment between Dr Horsley and Dr Bodel in June 2021 was only explicable by “inconsistencies in presentation”.
The insurer referenced the consistent assessment of nil impairment made by Dr Breit and Dr Horsley for the right wrist and referred to the photograph taken by Dr Breit.
The insurer referenced the prior complaints of pain for the right wrist and lumbar spine and asserted that there was objective evidence of pre-existing symptomatic permanent impairment. The insurer relied on the prior imaging which showed degenerative changes and noted that the claimant’s experts with both reporting nil pre-accident symptoms.
The insurer relied on Dr Horsley’s opinion on causation of the lumbar spine that there was no exacerbation by the motor accident.
Th insurer noted that both Dr Breit and Dr Bodel assessed impairment under AMA 5.
The insurer highlighted the inconsistent findings between Dr Bodel, Dr Breit and Dr Horsley. It otherwise noted that Dr Horsley found full passive range of movement of the toes and noted no cause was found for the loss of active movement.
Insurer’s submissions dated 6 July 2022
These submissions were filed seeking to review the Medical Assessment.
The insurer submitted that there was a failure by the Medical Assessor to explain how he arrived at a conclusion regarding “the diagnosis of the alleged lumbar injury”. It submitted that inadequate reasons were provided “in light of the availability of DRE Lumbosacral Category I” presumably a reference to the Medical Assessor’s statement that there was “complaints or symptoms”.
It was submitted that the Medical Assessor failed to mention the relevant history of low back complaints and a failure “to provide a line of reasoning between the acknowledgement of pre-existing conditions and the conclusion the they [sic] had no impact on the symptomatology and injury to the lumbar spine”.
The insurer submitted that there was “accurate objective evidence of the pre-existing impairment” which appeared to be based on:
(a) clinical records of Dr Knox from 2010 to 2016 showing low back pain and referral to a physiotherapist one year prior to the motor accident;
(b) MRI scan dated 13 August 2010, and
(c) certificates of capacity confirming prior low back pain.
The insurer referred to the opinion of Dr Horsley dated 24 March 2022 and submitted that in light of the pre-existing complaints, the suggestion that the condition would have deteriorated of their own accord even if the subject accident had not occurred.
EVIDENCE
Pre-existing conditions
The MRI scan of the lumbar spine dated 13 August 2010 noted a history of numbness in the left leg.[15] The scan showed disc degeneration and dessication at L2 and L4.
[15] Claimant’s bundle, p 179.
Prior to 26 March 2013 the claimant sprained her left ankle and underwent a plain X-ray.[16]
[16] Insurer’s bundle, pp 404-405.
In 2014 the claimant had pain in the second toe of the right foot. The MRI scan showed degenerative change in the plantar plate at the second MTP joint with fibrosis extending into the second webspace[17] and scarring near the interdigital nerve.[18] Complaints of right foot pain continued in October to December 2015.[19] In December 2015 Dr Lam, orthopaedic surgeon, noted a six-month history of right 2nd MP joint pain. The doctor recommended use of orthotics with metatarsal domes noting that a referral had been made to a podiatrist.[20]
[17] Insurer’s bundle, p 48.
[18] Insurer’s bundle, p 53.
[19] Insurer’s bundle, p 919, p 932, p 940.
[20] Insurer’s bundle, p 1496.
The general practitioner (GP) notes are only occasionally dated and commence prior to 2 August 2011.[21] There are infrequent references to back pain such as:
(a) two-week history of back pain[22] and had physiotherapy which helped;[23]
(b) hurt back again in the context of an MRI “3-4 years ago” which was improving with physiotherapy;[24]
(c) back pain and having physiotherapy with medical certificate for one week in December 2013,[25] and
(d) the following note that the claimant had a back injury “6 years ago” and had physiotherapy for “past 6 months”.[26]
[21] Insurer’s bundle, pp 387 – 473. The fourth note in the series is dated 2 August 2011.
[22] Insurer’s bundle, p 410.
[23] Insurer’s bundle, p 411.
[24] Insurer’s bundle, p 413.
[25] Insurer’s bundle, p 413.
[26] Insurer’s bundle, p 414.
There was an absence of reference to back pain in the clinical notes after the above references.[27]
[27] Insurer’s bundle, pp 415-478.
Contemporaneous medical evidence
The ambulance report referred to the claimant being struck by the insured vehicle “causing pt to fall onto bonnet, then ?thrown small distance, landing heavily on back and L side”.[28] The officer recorded pain on chest wall, left and right lumbar region, left thoracic region and right wrist .
[28] Claimant’s bundle, p 181.
The claimant attended hospital following the motor accident. The discharge note referred to the claimant being struck by a car, thrown several metres and landing on the road.[29] Scans were taken for the brain, chest, pelvis and left ankle.
[29] Claimant’s bundle, p 370.
Then initial GP note after the motor accident recorded:[30]
“hit by car as pedestrian 1/11/17
no LOC
seen at RNSH
- trauma series - undisplaced # L 9th rib only
now low back very sore
tender R wrist
taking Panadeine Forte 2 tds , Nurofen 2 bdEndone made her vomit”[30] Insurer’s bundle, p 479.
The certificate of capacity dated 7 November 2017 referred to 9th rib fracture, soft tissue bruising and low back pain.[31] The further certificate dated 23 November 2017 referred to the fractured rib low back pain and muscle spasm, sprained left ankle, right wrist and psychological distress.[32]
[31] Claimant’s bundle, p 247.
[32] Claimant’s bundle, p 251.
Subsequent certificates repeat the diagnoses of injuries caused by the motor accident.
A clinical note, probably by the psychologist on 11 November 2017 noted lower back pain which was “severe pain when hit the ground”.[33]
[33] Insurer’s bundle, p 612.
The claim form dated 29 August 2019 states that the claimant suffered injuries to the 9th rib, low back, left ankle and right wrist.[34] The certificate dated 30 August 2019 diagnoses injuries as fracture 9th rib, soft tissue bruising back and chest, low back pain, sprained left ankle and soft tissue injury to the right wrist.[35]
[34] Claimant’s bundle, p 25.
[35] Claimant’s bundle, p 29.
Hospital admission on 8 November 2021 noted sudden onset of severe left hip/groin pain when the claimant sat down the previous night.[36] Ultrasound showed partial tear of the tensor fascia lata.
Qualified evidence
[36] Claimant’s bundle, p 218.
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 18 December 2020.[37] The doctor assessed the lumbar spine as DRE Category II based on asymmetry of movement and otherwise assessed the left ankle and right wrist.
[37] Claimant’s bundle, p 42.
No deduction was made for any pre-existing condition.
Dr Bodel confirmed these assessments in a further report dated 27 December 2022.[38]
[38] Claimant’s bundle, p 60.
Dr Horsley
Dr Mark Horsley, orthopaedic surgeon was qualified by the insurer and provided a series of reports. In the first report dated 7 June 2021[39] the doctor accepted that the motor accident caused the pre-existing degenerative changes in the left midfoot to become symptomatic and lead to surgery. Examination of the right wrist showed full and symmetric range of movement.
[39] Claimant’s bundle, p 205.
The doctor noted an increase in weight of 25 kg which may be related to the psychological condition. He otherwise did not refer to the back condition otherwise in the context of a previous history.
In a further report dated 24 March 2022[40] Dr Horsley referred to a pre-existing back condition which included an MRI scan in 2010 and physiotherapy five years prior to the motor accident. The doctor opined that whilst the claimant had “ongoing low back pain, my assessment was that this had not necessarily been exacerbated by the subject motor accident”.[41]
[40] Claimant’s bundle, p 214.
[41] Claimant’s bundle, p 214.
The doctor noted that examination of the wrists showed equal range of motion. That conclusion was consistent with Dr Breit’s opinion which was supported by a photograph showing symmetric extension of both wrists.
Dr Horsley agreed that there was numbness on the dorsum of the foot consistent with damage to the superficial branch of the peroneal nerve most likely directly related to the surgical approach used during the fusion procedure.
Dr Horsley noted that the subtalar movement was consistent with the other side and did not estimate any impairment. With respect to the toes, the doctor noted full passive range of movement with no cause found for the loss of active range of movement.
In a further report dated 15 March 2023[42] Dr Horsley opined that the left hip symptoms do not relate to the motor accident referring to the hospital emergency records dated
8 November 2021 of sudden left hip pain. Dr Horsley noted that “an altered gait may be the cause of intermittent muscular pain around another joint”, it could not be the cause of sudden severe pain. Subsequent MRI scan showed a subacute tear of the tensor fascia lata (TFL) which is extremely rare and cannot be related to the motor accident.[42] Insurer’s late documents.
Dr Horsley accepted that the motor accident exacerbated the pre-existing lumbar spine condition with no radicular component. The increase in body weight would, more than likely, exacerbate the low back pain.
Dr Breit
Dr Breit was qualified by the workers compensation insurer and provided a report dated
30 December 2021.[43] The doctor noted that being hit by a car and falling was “more than enough reason to sustain a back Injury”.[43] Insurer’s bundle, p 860.
Dr Breit noted that the claimant had regained full range of movement of the right wrist although that did not mean that “there is not distal radioulnar joint damage from the fall”.
Dr Breit assessed non-symmetrical loss of movement which is assessed under DRE Category II and made an allowance of 2% for activities of daily living (ADL). The assessment of ADL is only provided by AMA 5 although the assessment for non-symmetrical loss of movement is the same under AMA 4 and AMA 5 and both are assessed at 5%.
Other evidence
The police report confirms that the insured vehicle collided with the claimant on the front nearside of the vehicle causing injury.[44]
[44] Claimant’s bundle, p 17.
Statement
Ms Mercer provided a statement dated 23 July 2020.[45] She stated that the motor accident caused a 9th rib fracture, low back injury and injuries to the left ankle and right wrist. The statement otherwise explains the delay in pursuing a claim under the motor accidents legislation.
[45] Claimant’s bundle, p 30.
A further statement by Ms Mercer dated 2 August 2022[46] states she was in good health prior to the motor accident. Ms Mercer stated that she had physiotherapy in 2013 or 2014 and had “five sessions or so” and a single session in 2016. She never saw a specialist or underwent injections for her low back prior to the motor accident.
[46] Claimant’s bundle, p 32.
After the motor accident the claimant was off work for approximately six weeks. The claimant set out her extensive treatment, particularly to her left foot which caused a loss of mobility and psychological issues. Since the motor accident, Ms Mercer has gained approximately
25 kg.
RE-EXAMINATION
Ms Mercer was examined by both Medical Assessors on 23 May 2023. The examination report is as follows:
“Causation – Lumbar spine
The Panel noted that Ms Mercer did have a history of back pain with MRI scan of the lumbar spine as far back as 2010 and on 3/12/ 2013 she “hurt her back at work, twisting, ran downstairs , felt her back go ‘pop’”, [insurer bundle p413], and had physiotherapy treatment for her back. There was no documentary evidence that Ms Mercer had back complaints in the 12 months prior to the subject accident in Dr Knox’s clinical records.
After the accident Ms Mercer was examined at the RNSH where she had a trauma series CT scan, and she saw her GP after her discharge from the RNSH. The CT scan trauma series report [Insurer bundle p597] stated “No pelvic fracture identified, Whole spine ,no fracture or dislocation is identified within the whole spine, Alignment is maintained, no prevertebral soft tissue swelling is appreciated” The medical records of her GP stated “hit by car as pedestrian 1/11/17, no LOC, seen at RNSH, -trauma series – undisplaced # (fracture) 9th rib only, now low back very sore”.
The Panel is of the opinion that whilst she had a history of low back pain/strain in 2010 and 2013, there was no documented evidence that she had low back complaint in the 12 months prior to the subject accident. Hence, she was asymptomatic with regard to her lumbar spine.
After the accident, there were contemporaneous medical evidence that she had pain in her lower back – RNSH clinical records and her GP, Dr Knox’s clinical record.
The CT trauma series performed at the RNSH on the day after the accident reported no evidence of fracture in her whole spine, except an undisplaced fracture of the 9th rib.
As such, the Panel is of the opinion that she had sustained soft tissue injury to her lumbar spine causally related to the subject accident.
Re-Examination
Medical Assessor Couch and Chan examined Ms Mercer in PIC examination suite, Sydney CBD on the 23 May 2023. She attended the examination with her husband, Neil.
On the day of the accident, Ms Mercer was standing at right hand side of the horizontal part of a ‘T’ junction, facing a small road, the vertical part of the ‘T’ junction. Ms Mercer said that the car driving at the vertical part of the ‘T’ junction indicated that he was about to turn left into the horizontal part of the ‘T’ junction, being on the right side of the ‘T’ junction, she felt safe and crossed the road. The car suddenly turned right into and hit her face-on. She said the impact sent her airborne and she landed on her left shoulder, back and left hip. She experienced excruciating pain. Bystanders came and helped her. The ambulance officer gave her some morphine which reduced the pain. She was transported by ambulance to the Royal North Shore Hospital.
Ms Mercer had x-rays of her left foot, CT Trauma series which showed that she had fractured her left 9th rib. The hospital staff had offered to hospitalize her. She said she declined and was discharged home with analgesics. She said she regretted this decision as a few hours after she was discharged to her home, the analgesic wore off and she was in a great deal of pain in her left thoracolumbar part of her spine and her left foot. She said she could hardly get out of the bed by herself, with pain in her chest and the lower back.
She was followed -up by her GP who referred her to have physiotherapy. She said the physiotherapist could not provide any treatment for her back as the pain in the fractured rib was aggravated by any movement. So the physiotherapist ‘worked’ on her left foot.
She was quite incapacitated by the pain in her fractured rib and the left foot. Fortunately, her mother came to her house to look after her. She was not able to work for four and a half weeks after the accident.
At the time of the accident, she was working as one of the receptionists in an ENT surgeons’ practice. As a receptionist, her job involved the sterilising of the equipment the ENT surgeons used in the practice. She said the sterilizing task is physically demanding in that she had to clean the used surgical equipment, carry the equipment and load them into the sterilizer. She had to stand for long duration doing this.On returning to work after the accident, she initially worked reduced hours, 22 hours instead of 34 hours per week. The rehabilitation consultant encouraged her to return back to her work. She said her left foot and back pain got worse after a few hours of work. She said she should had have rested a few more weeks to give her foot more time to recover before returning to work. Fortunately, it was close to Christmas, and she was able to have some rest over the Christmas holiday whilst the ENT practice was closed.
She had physiotherapy treatment for her ankle and her lower back. She said one year after the accident, her back did not improve very much. She did not have any injection to her back.
Current symptoms
She has pain across the lumbar area, worse on the left side. She pointed to the left side of her thoraco- lumbar area. The pain would radiate to the buttocks but not to her legs. She lives in a split level house with the laundry in a different level, requiring her to negotiate some steps. The low back pain is aggravated when she places the dishes and cups into the dishwasher. Bending and twisting of her spine as in vacuuming exacerbated her back pain. She is not able to keep her house to the same degree of cleanliness as she would, like before the accident. Her back pain would be exacerbated if her car hit a bump on the road.Medication
She takes Panadol 2-3 times a week for pain relief. She could not take Nurofen class of medication as she has polycystic kidney disease. She could not take opioid containing analgesic, as she could not tolerate them.
Examination
She walked with a normal gait into the consulting room. Her height is 157 cm and her weight being 93 kg, which placed her in the overweight category. She had put on 3 kg since she saw Assessor Home, whence she weighed 90kg. She could stand on her toes with her right foot, but not with her left foot as she had fusion of her left mid foot. She could not extend the left hallux at the MTP joint.She had the normal lumbar lordosis. On palpation, she was tender in the left paravertebral area from T9 to L4 level and tender at left sacro-iliac joint. There was no muscle spasm and no muscle guarding in the paravertebral muscles of the lumbar spine. She had full active flexion in her lumbar spine. Active extension of her lumbar spine was two thirds of the normal range of flexion. Active lateral flexion to her right side was three quarter of the normal range and to her left side was two third the normal range. Hence, there was dysmetria in the range of movement of her lumbar spine.
Power and tendon reflexes were present, normal and equal in both lower limbs. With regard to the touch sensation, this was present, normal and equal in both lower limbs except on the dorsum of her left foot where there was reduced sensibility from the surgical procedure. Assessor Home taken this into consideration when he assessed the permanent impairment of her left lower limb. She has no non-verifiable radicular complaint. The girth of her right and left thigh measured at 10 cm from the top of the patella was 56 cm. The girth of the right and left calf measured at the same distance from the lower pole of the patella was 40 cm. Hence, there was no muscle wasting when comparing the left lower limb to the right lower limb. The sciatic stretch test was negative in both lower limbs. Hence, there were no physical signs in the examination of her lower limbs that met the criteria for radiculopathy of the lumbar spine in accordance with “Part 6 of the Motor Accident Guidelines: Permanent impairment.’(MAPIG)
The findings in the examination of her lumbar spine were tenderness in the lumbar spine, dysmetria, no non-verifiable radicular complaints and no radiculopathy of the lumbar spine. These findings were consistent with the Lumbosacral spine DRE ll of Table 7, MAPIG, Table 72 p110 of AMA., which equates to 5% WPI.”
FINDINGS
The review is a new assessment of all 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: Insurance Australia Group Ltd v Keen[47] and Insurance Australia Ltd v Marsh.[48]
[47] [2021] NSWCA 287 at [40], [41] and [45].
[48] [2022] NSWCA 31 at [11], [21] and [64].
Lumbar spine
The claimant immediately complained of lumbar spine pain to the ambulance officer. The symptoms are recorded in a certificate six days later. There is a consistency of complaint of lumbar spine problems in the intervening period since the motor accident.
The claimant was struck by a motor vehicle and fell to the ground. As is self-evident from both a lay and medical perspective and commented upon by Dr Breit, this was “more than enough reason to sustain a back injury”.
The insurer’s submissions on causation are wrong at law and ignore the correct legal test of establishing impairment resulting for injury and conveniently ignore contemporaneous complaints of back pain such as to the ambulance officer, the GP on 7 November and the psychologist on 11 November.
The assessment by Dr Breit and Dr Bodel may have been undertaken under AMA 5. However, both doctors still found dysmetria which is a basis for a finding of DRE category 2 under AMA 4 and the Guidelines.
The insurer’s submission that these assessments are irrelevant is illogical given that their conclusions were consistent with both the original Medical Assessor and the assessment undertaken by both Medical Assessors on behalf of the Panel.
We otherwise do not understand and find the insurer’s submission contrary to law that the assessment should be DRE Category 1 because of symptoms where the claimant had otherwise satisfied DRE Category 2 for dysmetria.
There was a suggestion of inconsistency by the insurer although that submission appeared to rate to differences of assessments for range of movement. In respect of the lumbar spine, there has been findings of dysmetria by five separate doctors including Dr Bodel, Dr Breit, the original Medical Assessor and the two Medical Assessors undertaking the assessment on behalf of the Panel. Far from being inconsistent, the various medical examinations of the lumbar spine have consistently shown dysmetria.
The insurer relied on the opinion of Dr Horsley. However, his opinion in his final report was equivocal at best and otherwise provided support for the causative link between the claimant’s condition and the motor accident, that is, the increase in weight arising from the serious injury to the leg and the resulting loss of exercising.
The claimant is required to establish that there was a material contribution between the injury and the permanent impairment. The motor accident involved a serious impact to the claimant with an obvious back injury. The resultant injuries led to increase of weight which is likely to cause further stress on a degenerative back.
The claimant suffered for a pre-existing back condition although the clinical notes in the pre-accident period proximate to the motor accident did not include back problems. The absence of complaint is supportive of the claimant’s history that she was asymptomatic at the time of the motor accident.
We accept that the motor accident materially contributed to the claimant’s lumbar spine condition for the following reasons:
- The absence of pre-existing lumbar spine complaints in the period proximate to the accident;
- The contemporaneous complaint of back symptoms;
- The significant impact in the motor accident;
- The effect of increased weight on the claimant’s back condition caused by the other injuries; and
- The consistent lumbar spine complaints since the motor accident.
We note that the insurer otherwise submitted that the claimant would have been in the same condition even if the motor accident had not occurred. It is unclear on what factual basis it made that submission. The submission is rejected. We have explained for the above reasons why the impairment is caused by the motor accident.
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
Pre-existing or subsequent injuries causing impairment
Clause 1.31 of the Guidelines requires a deduction for “pre-existing impairment”. There is no basis to make any deduction for any pre-existing condition[49] as there is no evidence of “objective evidence of a pre-existing symptomatic permanent impairment” in the shoulders.
[49] Clauses 1.31 of the Guidelines.
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[50] concerning the issue of onus in establishing a deduction for any pre-existing condition.
[50] [2022] NSWPICMP 66 at [118]-[120].
The claimant had previously complained of back problems. Relevantly there is an absence of clinical notes after March 2014 of back problems. The insurer has referenced symptoms of previous back complaints but has not addressed any signs that would satisfy a finding of DRE Category II at or prior to the motor accident.
There is no basis to make a deduction for any pre-existing impairment under cl 1.31.
Other body parts
The parties have expressly agreed in their responses to our direction that the assessment by Medical Assessor Home for the other body parts are accepted. That agreement is accepted and otherwise binding on the Panel.[51]
[51] Wood v Insurance Australia Group Ltd [2022] NSWSC 1290 at [65].
CONCLUSION
The certificate issued by Medical Assessor Home is confirmed.
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