Allianz Australia Insurance Limited v O'Brien
[2023] NSWPICMP 195
•8 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v O'Brien [2023] NSWPICMP 195 |
| CLAIMANT: | Christopher O’Brien |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | Josephine Bamber |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Tai-Tak Wan |
| DATE OF DECISION: | 8 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; Medical Review Panel matter; insurer’s application for review in relation to assessment of permanent impairment of multiple body parts; Held – the Panel revoked the certificate of the Medical Assessor and the Combined Certificate and issued a fresh certificate finding the injuries caused by the motor accident give rise to a whole person impairment which is, in total, greater than 10%. |
| DETERMINATIONS MADE: | Review Panel Certificate THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: The Panel revokes the certificate of Medical Assessor Cameron dated 25 April 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is 7% whole person impairment (WPI): · head- closed head injury, no significant brain injury; · cervical spine – soft tissue injury; · lumbar spine – soft tissue injury; · left shoulder – fracture left scapula; · pelvis – multiple fractures; · right knee – soft tissue injury, fracture fibula, posterior cruciate ligament injury; · right hip – infected haematoma, and · right ankle – soft tissue injury. The Panel revokes the Combined Certificate of Medical Assessor Haber dated 23 August 2021 and issues a new Combined Certificate set out at the end of these reasons finding the combined permanent impairment is greater than 10% WPI. |
INTRODUCTION
This is an Application for Review by the insurer in relation to the Certificate of Medical Assessor Cameron who assessed permanent impairment for the injuries listed above. The insurer agreed to confine the review to assessment of the head-mild brain injury, left shoulder and right knee. However, Mr O’Brien’s solicitors did not agree with this approach so the Review Panel (the Panel) has assessed all injuries.
BACKGROUND
Mr Christopher O’Brien alleges he suffered personal injuries on 13 January 2016 when he was riding his bicycle at Hornsby when a motor vehicle collided with him (the subject accident).
Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Mr O’Brien any damages to which he may be entitled under the Motor Accidents Compensation 1999 (the MAC Act).
It is relevant to note that Mr O’Brien was involved in a second motor accident on
22 March 2019 when he was riding his bicycle to work in Port Melbourne, Victoria, when a motor vehicle reversed into his path. He sustained a fracture to his right shoulder and aggravated his neck, which he alleges had been injured in the accident on 13 January 2016.[1] He also had a short period of concussion. He states he did not sustain any injury to his left shoulder in this bicycle accident.[1] AD8 p 575.
In these proceedings the parties are in dispute as to whether the degree of permanent impairment as a result of the injuries caused by the motor accident on 13 January 2016 is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See s 58(1)(d) of the MAC Act.
The degree of permanent impairment is determined by making an assessment pursuant to Motor Accident Permanent Impairment Guidelines - Version 1, effective from 1 June 2018 (the Guidelines).[3] The Guidelines are based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4). However, where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[4]
[3] Issued pursuant to s 44(1)(c) of the MAC Act and see s 133 of the MAC Act.
[4] Clause 1.2 of the Guidelines.
On 6 December 2019 Mr O’Brien’s solicitors filed his Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service (MAS Application). He sought assessment of injuries to his head involving a closed head injury, brain-concussion with two weeks post-traumatic amnesia (PTA), facial lacerations, scarring to his chin, back, right hip, right leg and left leg, jaw involving damage to his temporomandibular joints, neck, lower back, left leg lacerations, left shoulder, pelvis, right ankle, right hip, right knee, right leg and thigh and chipped teeth.
On 20 January 2020 the insurer filed its reply to the MAS Application.
On 1 March 2021 the Personal Injury Commission (Commission) commenced and now has jurisdiction in relation to Mr O’Brien’s Application.
Medical Assessor Cameron in his certificate dated 25 April 2021 assessed the degree of permanent impairment suffered by Mr O’Brien caused by the motor accident on
13 January 2016. He found:“The following injuries caused by the motor accident give rise to a permanent impairment of 8% and IS NOT GREATER THAN 10%:
Head - mild traumatic brain injury
Left shoulder: fracture of the scapula and soft tissue injury
Lumbar spine - soft tissue injury
Cervical spine - soft tissue injury
Pelvis - multiple fractures
Right knee - soft tissue injuries and fracture fibula
Right ankle - soft tissue injuryRight hip - infected haematoma”
On 23 August 2021 Medical Assessor Haber issued a Combined Certificate certifying that the combined degree of permanent impairment was 12%, and therefore greater than 10%.
On 31 August 2021 the insurer filed an application for review in relation to Medical Assessor Cameron’s assessment and certificate pursuant to s 63 of the MAC Act.
On 20 October 2021 the President’s delegate determined that the matter would be referred to a review panel.
THE REVIEW PROCESS
Pursuant to s 63(3) of the MAC 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 Commission.
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.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Pt 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.[6]
[6] Rule 128 of the PIC Rules.
The Panel issued a Direction to the parties dated 22 December 2021 requiring them to each file an indexed, paginated bundle of documents that they wished to rely upon in relation to the review, including the relevant documents relied upon before the original Medical Assessor. The insurer filed its bundle which is in the portal as AD-2 (308 pages).
Mr O’Brien’s solicitors filed his bundle which is AD-8 (653 pages).The Panel conducted a preliminary review of the matter by way of a telephone conference between all of the Panel members. Subsequently, further documents were filed and the Panel sent a direction to the parties dated 12 October 2022, the substantive part of the Direction is set out below:
“Background
1. The review application was filed by the insurer in relation to the assessment by Medical Assessor Cameron in his certificate dated 25 April 2021 and the combined certificate issued by Medical Assessor Haber dated 23 August 2021 in relation to injuries sustained by Mr O’Brien in the motor vehicle accident on 13 January 2016. Mr O’Brien was involved in a subsequent motor vehicle accident on 22 March 2019 in Victoria[7]. Both accidents occurred when he was riding his bicycle and motor vehicles collided with him.
[7]At [7] of his statement Mr O’Brien refers to 22 March 2019 which is the date referred to in The Alfred Hospital records, but at [8] he refers to the accident being on 29 March 2019 which the Panel infers is a typographical error.
2. In response to a request by the Panel, the parties each filed an indexed paginated bundle of documents it relies on for the review comprised of AD8 by the claimant and AD2 for the insurer.
Review Application
3. The insurer had made submissions dated 20 January 2020 in response to the original MAS application and submissions in support of their Review Application dated 31 August 2021. In the Review submissions they made submissions focused on the assessment of whole person impairment (WPI) of the left shoulder, referring to a failure to subtract the impairment arising from the contralateral shoulder. They also referred to an alleged failure of the Medical Assessor Camron to consider the entirety of their documents and submissions.
Additional documents and submissions
4. In the claimant’s bundle of documents filed at the Panel’s request for the review they included documents that were not before Medical Assessor Cameron, being Mr O’Brien’s statement dated 18 January 2022, clinical notes from Lakeside Sports Medicine and clinical notes from Dr Nottle, Mill Street Clinic. In letter dated 28 January 2022 to the insurer’s solicitors Mr O’Brien’s solicitors advised that this material was not previously available to them, the documents would assist the Panel’s determination and they provide relevant information in relation to injury to Mr O’Brien’s right shoulder sustained in the subsequent March 2019 accident.
5. In letter dated 31 January 2022 to the “Proper Officer” Mr O’Brien’s solicitor forwarded these documents and submitted that Medical Assessor Cameron did not fail to subtract the impairment arising from the contralateral “uninjured” right shoulder joint from the assessment of the injured left shoulder because he was not required to[8]. It was argued that because Mr O’Brien fractured his right shoulder on 22 March 2019, the shoulder was not ‘uninjured’ for the purposes of Medical Assessor Cameron’s assessment. It was submitted that the additional material should be provided to the Review Panel for the following reasons:
[8] AD3.
‘[1]The evidence previously lodged before the PIC does not detail the extent of the claimant’s right shoulder injury. That injury was only briefly referred to in the report of Dr Zeman dated 17 September 2019, the insurer’s Submissions dated 10 January 2020 and claimant’s Submissions dated 20 September 2021.
[2] The further material outlines the extent of the claimant’s right shoulder injury. There is otherwise paucity of evidence which describes the right shoulder injury.
[3] The further material will assist the Panel in evaluating the extent of the right shoulder injury in order to determine if Assessor Cameron’s failure to subtract the impairment of the “uninjured” right shoulder joint from the assessment of the injured left shoulder, was required by Clause 1.51 of the Motor Accident Permanent Impairment Guidelines. If the right shoulder had been injured before the assessment (which was the case here) then that clause does not apply, and Assessor Cameron was indeed correct in not using it to determine the left shoulder impairment.
[4] The President’s Delegate referred the matter to the Panel on the basis that the Submissions lodged on behalf of the claimant dated 20 September 2021 inadvertently included that he “presumably” sustained an injury to his right shoulder. The further material supports the assertion that he did in fact sustain that injury. More importantly, the material demonstrates that Assessor Cameron did not err in not deducting an impairment for the contralateral ‘uninjured’ right shoulder in assessing the left shoulder impairment.
[5] The further evidence is directly relevant to the issue in dispute.
[6]The further material does not repeat the evidence already before the Commission.
[7]The inclusion of the further material will assist the Panel in making a determination in relation to the claimant’s degree of Whole Person Impairment.
[8] The further material arises out of the determinations made by Assessor Cameron and particularly the insurer’s Application for Review and therefore could not reasonably have been previously in the possession of the Claimant.
In light of the enclosed further material, the claimant submits that Assessor Cameron, in his certificate and reasons dated 25 April 2021, was not required to deduct the impairment for the contralateral ‘uninjured’ shoulder joint, as would otherwise be required by Clause 1.51 of the Motor Accident Permanent Impairment Guidelines on the basis that the claimant had sustained a previous injury in March 2019 (fracture to his right scapula). The claimant submits that, Assessor Cameron was indeed correct in not using the right shoulder as a baseline when determining the degree of impairment of his left shoulder (sustained in the subject accident).’
6. On 8 February 2022 the insurer wrote to the Panel and referred to the additional documents filed by Mr O’Brien’s solicitors[9]. The following matters were noted:
[9] AD13.
a.In his statement Mr O’Brien refers to the injury on 29 March 2019 [sic, 22 March 2019] in Victoria as involving a fracture to his right shoulder/scapula, laceration to his face, aggravation of his neck condition and concussion symptoms. It is also noted that Mr O’Brien refers to physiotherapy treatment he had for his right shoulder between 13 April 2019 and October 2019. In addition the insurer refers to Mr O’Brien’s statement that his left shoulder injury has gradually worsened, and he has been diagnosed with a frozen shoulder and from mid-2021 has sought treatment from Lakeside Sports Medicine.
b.The Lakeside Sports Medicine Clinic, Victoria, records have entries on 13 April 2019, 5 October 2019 and 17 July 2021 referring to the 22 March 2019 accident when Mr O’Brien was riding his bicycle when hit by a car and he went over the handlebars striking his head, sustaining concussion, impacting his shoulder on the ground and fracturing his scapula and suffering neck, shoulder, biceps and lateral upper arm symptoms and that his knee also hit the ground. The reference in 2021 was to exacerbation of left shoulder with onset coinciding the indoor rowing and noting pain and restriction of movement and a query relating to capsulitis and referral for an MRI.
c.The records of Dr Nottle, Victoria, contain some references to concussion, PTSD, Reduced cognitive ability, fractured right scapular, neck pain.
d.The insurer submitted that there was no reference to the 29 March 2019 [sic, 22 March 2019] accident in eight medical reports it lists, and that Medical Assessor Cameron recorded there were nil relevant injuries since the subject motor vehicle accident.
e.The insurer submits that at the time of the examination by Medical Assessor Cameron, and at the time they lodged their Review Application, the records of Dr Nottle were available to Mr O’Brien’s solicitors as they were printed on 12 January 2021 and that Mr O’Brien was aware of the issues he canvasses in his statement and contained in the Lakeside Sports Medicine Clinic records.
f.The insurer states it was not aware of this information and sets out it seven requests from 9 April 2021 to obtain particulars about subsequent injuries and treatment. The insurer submits it should be permitted to provide evidence and submissions in response to Mr O’Brien’s additional material.
g.The insurer also submits the Panel will need to consider afresh all of the injuries determined by Medical Assessor Cameron and the Panel should examine Mr O’Brien and ask him about injuries, disabilities and impairments arising from the accident on 29 March 2019 [sic, 22 March 2019], his sporting and recreational activities including cycling and rowing during 2021.
h.The insurer indicates is obtaining the complete records from The Alfred Hospital, Melbourne, Dr Nottle, Ms Newburn, Transport Accident Commission and other treatment providers.
7. On 1 March 2022 Mr O’Brien’s solicitors wrote to the Proper Officer of the PIC enclosing copies of the helmet worn and pushbike ridden by Mr O’Brien in the accident and a photograph of him in Royal North Shore Hospital.[10] It is submitted this further additional material should be provided to the Panel to show the severity of the accident. Mr O’Brien’s solicitor also refers to the insurers submissions dated 8 February 2022. He states the insurer asserted Mr O’Brien suffered a brain injury in the accident of 22 March 2019. The solicitor then refers to a CT Brain scan dated 22 March 2019 wherein Dr Jarema found no abnormality.
[10] AD20.
8. Mr O’Brien’s solicitor submits that the insurer in its letter dated 8 February 2022 essentially concedes that Mr O’Brien sustained an injury to his right shoulder in the accident on 22 March 2019 and it seeks for the Application for Review to be dismissed.
9. On 2 March 2022 the insurer’s solicitors wrote to the Commission.[11] They list the opportunities Mr O’Brien’s solicitors had to serve the additional material. They reiterate the first knowledge that the insurer had that Mr O’Brien had a subsequent accident and injuries was on 28 Janaury 2022 and it had not been disclosed in four medico-legal assessments and four Commission assessments. The insurer advises it has requested but not received records from The Alfred Hospital, Dr Nottle and it was waiting for Mr O’Brien to execute an authority to obtain the records from the Transport Accident Commission (TAC) in Victoria
[11] AD21.
PANEL’S DIRECTIONS
10. The Panel advises the parties it has not been referred any further correspondence or documents.
11. The Panel considers that the additional documents filed by Mr O’Brien in its bundle of documents and in the correspondence dated 1 March 2022 should be admitted for consideration by the Panel.
12. The Panel advises that it finds it is in the interests of justice and procedural fairness for the insurer to be given the opportunity to put on relevant evidence in reply and then for both parties to make final submissions concerning the evidence before the Panel. And that this should take place before re-examination is conducted by the Panel’s Medical Assessors.
13. In their letter dated 8 February 2022 the insurer submitted that “the Panel will need to consider afresh all of the injuries”. However, the Panel observes that Medical Assessor Cameron found 0% WPI in relation to the lumbar spine, cervical spine, pelvis, right ankle, and right hip. The insurer has not made submissions in relation to the assessment of these body parts. In the case of Wood v Insurance Australia Group Limited trading as NRMA Insurance[12] Justice Wright stated at [48]:
[12] [2022] NSWSC 1290, Wood.
‘If, therefore, a claimant and an insurer agreed about the whole or part of a medical assessment matter, there is in that regard no matter or no issue to which Pt 3.4 would apply. This is confirmed by the terms of ss 60, 61 and 63 of the MAC Act. Section 60 established that it was not the medical assessment matter which was referred for medical assessment but the ‘medical dispute’.’
14. The Panel acknowledges the situation with which the Judge in Wood was determining is different to that now faced by the Panel. However, bearing in mind the discussion in Wood, and in an effort to deal with what is really in dispute between the parties, the Panel directs the insurer and Mr O’Brien’s solicitors to advise if it agrees that the only body parts that the Panel needs to determine are confined to the “head- mild traumatic brain injury”, left shoulder and right knee.
15. The Panel makes the following directions:
a)On or before 17 October 2022 the insurer is to advise the Panel in writing if Mr O’Brien’s solicitors and it have agreed that the Panel need only to determine the permanent impairment of the “head- mild brain injury”, left shoulder injury and right knee injury caused by the accident on 13 January 2016.
b) On or before 12 November 2022 the insurer is to file and serve one indexed, paginated bundle of additional documents it seeks to rely upon attached to the Commission’s Application to Admit Late Documents form (the attachments are not to be uploaded to the portal separately but in one bundle). Submissions should also be included in this Application to Admit Late Documents and drafted to be comprehensive submissions incorporating, if relevant, any earlier submissions in the one document and any evidence which is referred to should be identified by its bundle and page number.
c)On or before 26 November 2022 the claimant is to file and serve a paginated Application to Admit Late Documents attaching submissions in response to that of the insurer and those submissions should be drafted to be comprehensive submissions incorporating, if relevant, any earlier submissions in the one document and any evidence which is referred to should be identified by its bundle and page number.
d) After the Panel receives the advice requested in (a) above it will notify the parties of the medical examination which will take place after 26 November 2022.”
On 18 October 2022 the insurer’s solicitor sent a message to the Panel via the Commission’s portal advising the parties did not agree to the Panel only assessing “head- mild brain injury”, left shoulder injury and right knee injury.
On 11 November 2022 the insurer filed submissions with annexed documents (585 pages).[13] They included all the documents that they had already included in AD-2 and additional documents, including a report from Dr Reutens dated 27 August 2022, additional records from Pymble Family Doctors, records from The Alfred Hospital dated 22 March 2019, records from Mill St Clinic, records from Lakeside Sports Medical Centre and the correspondence they sent to the Commission dated 8 February 2022 and 2 March 2022.
[13] AD-22.
On 25 November 2022 Mr O’Brien’s solicitors filed AD-23 (46 pages) including submissions dated 25 November 2022 and documents additional to those they had filed in AD-8. The additional documents include a report from Dr Jungfer dated 16 August 2022, their letters to the Commission dated 1 March 2022 and 31 January 2022 and submissions dated
20 September 2021.On 21 February 2023 the insurer filed an Application to Admit Late Documents (AD-24) attaching report of Dr Zeman dated 7 December 2022 and correspondence with Mr O’Brien’s solicitor dated 16 and 21 December 2022. In the Application to Admit Late Documents form the insurer sets out why the material should be admitted, late, including submissions that Dr Zeman had examined Mr O’Brien twice and the report was served on Mr O’Brien’s solicitors on 16 December 2022.
On 2 March 2023 Mr O’Brien’s solicitor filed submissions (AD-25) in response to the insurer’s Application to Admit Late Documents, objecting to the report of Dr Zeman dated 7 December 2022 being considered by the Panel.
It is argued in these submissions that the report of Dr Zeman dated 7 December 2022 will not assist the Panel in relation to determining whether Medical Assessor Cameron’s alleged failure to subtract any impairment arising from the contralateral uninjured right shoulder from the assessment of the injured left shoulder because Dr Zeman’s opinion in the report dated 7 December 2022 remains the same as in his September 2019 report and his report dated 23 June 2017.
The Panel has considered these submissions and advises that the task of a review panel is not confined to identifying error with the original medical assessment. The Panel assessment of permanent impairment in the left shoulder is a fresh assessment.
The Panel has considered Dr Zeman’s report dated 7 December 2022 because Mr O’Brien’s solicitors have not pointed to any prejudice. However, the Panel agrees the report does not carry any particular weight because Dr Zeman states his diagnosis and prior recommendations remain unchanged and he did not re-assess permanent impairment because he states he was not asked to do so.[14]
SUBMISSIONS
[14] AD-24 p 7.
Insurer’s submissions
The insurer made submissions dated 10 January 2020 in response to the original MAS application.[15] It also made submissions in support of its Application for Review dated
31 August 2021[16] and 11 November 2022.[17] The insurer stated that it applies for a review of the Certificate and Reasons of Medical Assessor Cameron (and the Combined Certificate), for two reasons:“(a) Assessor Cameron failed to engage properly, or at all, with the documents listed in and attached to the Insurer’s MAS Form 2R lodged/served on 20 January 2020 – this constitutes a breach of procedural fairness and jurisdictional error;
(b) Assessor Cameron failed to subtract the impairment arising from the contralateral uninjured (right) shoulder joint from the injured (left) shoulder joint and if he had done so then his subject accident related assessment would decrease to 5% WPI and the Combined Certificate would decrease to 9% WPI – this constitutes a material error.”
[15] AD2 pp12- 24.
[16] AD2 p 80-84.
[17] AD-22 p1.
In support of its first complaint the insurer set out the documents it asserts that Medical Assessor Cameron failed to consider, and it submitted that there is reasonable cause to suspect that Medical Assessor Cameron failed to properly consider Allianz’s submissions and the reports by Dr Noll and Dr Zeman and it submitted that this may be characterised as a denial of procedural fairness to the insurer, or as a failure to take relevant material into account.
The insurer made the following submissions to support its argument that Medical Assessor Cameron failed to deduct impairment for contralateral un-injured shoulder joint:
“[16] Prof Cameron was tasked with assessing an injury to the claimant’s left shoulder in the form of a fracture of the scapula.
[17] Assessor Cameron documented the following examination findings on page 5 of his Reasons:
‘At the right shoulder range of movement was abduction to 140 degrees, adduction 40 degrees, flexion 140 degrees, extension 40 degrees, external rotation 80 degrees, internal rotation 80 degrees. At the left shoulder range of movement was abduction to 130 degrees, adduction 40 degrees, flexion 130 degrees, extension 40 degrees, external rotation 60 degrees, internal rotation 80 degrees’.
[18] Applying Figures 38, 41 and 44 of the AMAIV Guides, the examination findings by Assessor Cameron in relation to the right shoulder would give rise to 6% upper extremity impairment (4% WPI), set out as follows:
(a) Abduction to 140 degrees – 2% upper extremity impairment;
(b) Adduction 40 degrees – 0% upper extremity impairment;
(c) Flexion 140 degrees – 3% upper extremity impairment;
(d) Extension 40 degrees – 1% upper extremity impairment;
(e) External rotation 80 degrees – 0% upper extremity impairment;
(f) Internal rotation 80 degrees – 0% upper extremity impairment.[19] Applying Figures 38, 41 and 44 of the AMAIV Guides, the examination findings by Assessor Cameron in relation to the left shoulder would also give rise to 6% upper extremity impairment (4% WPI), set out as follows:
(a) Abduction to 130 degrees – 2% upper extremity impairment;
(b) Adduction 40 degrees – 0% upper extremity impairment;
(c) Flexion 130 degrees – 3% upper extremity impairment;
(d) Extension 40 degrees – 1% upper extremity impairment;
(e) External rotation 60 degrees – 0% upper extremity impairment;
(f) Internal rotation 80 degrees – 0% upper extremity impairment.[20] Assessor Cameron made the following remarks on page 9 of his Reasons:
‘Left shoulder: fracture of the scapula and soft tissue injury
At the left shoulder range of movement was abduction to 130 degrees, adduction 40 degrees, flexion 130 degrees, extension 40 degrees, external rotation 60 degrees, internal rotation 80 degrees. Using Figures 38, 41 and 44 (pages 42 to 44 AMA4 Guides) these movements are equivalent to 2%, 0%, 3%, 0%, 0% and 0% upper extremity impairment respectively. These are added to give 5% upper extremity impairment which converts to 3% whole person impairment using Table 3, page 20 AMA4 Guides. It is not appropriate to use the right shoulder as a comparator as there may have been longstanding restriction of movement of this joint’.[21] The examination findings by Assessor Cameron in relation to the injured left shoulder would actually give rise to 4% WPI (not 3% WPI as stated by Assessor Cameron), noting paragraph 19 above – the error made by Assessor Cameron is in respect of extension, with the finding of 40 degrees giving rise to 1% (not 0%) upper extremity impairment.
[22] Clause 1.51 of the Motor Accident Permanent Impairment Guidelines states:
‘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.’
[23] The justification by Assessor Cameron not to use the uninjured right shoulder as a baseline and subtract same from the injured left shoulder because ‘there may have been longstanding restriction movement of this [right shoulder] joint’ was speculative, not explained and incorrect:
(a)There was no reference to the right shoulder in the treating medical evidence dating back to 9 September 2002 (a period of over thirteen years, noting that the subject accident occurred on 13 January 2016), so the restriction of movement of the right shoulder was not ‘longstanding’.
(b) There was reference to the left shoulder after a motor vehicle accident on 31 March 2015, but not thereafter until the subject accident occurred on 13 January 2016 (and is no doubt the reason why Assessor Cameron did not apply a deduction for pre-existing impairment of the left shoulder);
(c) In light of paragraphs 23(a) and 23(b) above, it is ‘reasonable’ to expect that the range of movement in the uninjured right shoulder was ‘similar’ to the range of movement in the injured left shoulder ‘before the injury’, that is, at the time of the subject accident;
(d) The left shoulder joint was injured in the subject accident and gives rise to 6% upper extremity impairment, based on the examination findings by Assessor Cameron. The right shoulder joint was not injured in the subject accident and it also gives rise to 6% upper extremity impairment, based on the examination findings by Assessor Cameron. That being the case, it is reasonable to expect that the range of movement in both shoulders was the same before the subject accident and/or that the subject accident has not resulted in any additional impairment to the left shoulder.
[24] Assessor Cameron erred in failing to deduct the impairment arising from the contralateral uninjured (right) shoulder joint (4% WPI) from the injured (left) shoulder joint (4% WPI, not 3% WPI).
[25] If Assessor Cameron has correctly applied the Motor Accident Permanent Impairment Guidelines and subtracted the impairment arising from the contralateral uninjured (right) shoulder joint from the impairment arising from the injured (left) shoulder joint, his subject accident-related assessment in respect to the left shoulder would decrease from 4% WPI to 0% WPI and his overall subject accident related assessment would decrease from 8% WPI to 5% WPI.
[26] When the subject accident-related assessment for the injuries assessed by Assessor Cameron (5% WPI, for the reasons set out above) is combined with the assessments for the injuries assessed by Assessor Curtin (4% WPI) and Assessor Haber (0% WPI), the overall assessment as set out in the Combined Certificate would be 9% WPI (not 12% WPI).”
In its final submissions the insurer, despite advising on 18 October 2022 the parties did not agree to the Panel restricting its review to only the head-brain injury, left shoulder and right knee, the insurer now submits these are the only injuries to be re-assessed. It submits that these are the injuries affected by the subsequent motor vehicle accident on 22 March 2029.[18]
[18] AD-22 at [11].
The insurer accepts the assessment of all the body parts found by Medical Assessor Cameron of 0% whole person impairment (WPI) and at [12] of their submissions they list all of the medico-legal specialists who also found 0% WPI for the cervical spine, lumbar spine, pelvis and right ankle.
The insurer makes submissions about Mr O’Brien’s subsequent motor accident on
22 March 2019 in which he suffered a right shoulder fracture and he had brief loss of consciousness. It references various parts of the treating hospital medical records and submits that those injuries and evidence ought to be considered in respect of the Panel assessing WPI in relation to the subject accident.In relation to the head injury/ brain injury the insurer submitted that the Panel ought to query whether any traumatic brain injury as a result of the accident gives rise to any impairment. It relied on the opinions of Associate Professor Batchelor in report dated 16 July 2021[19] and Dr Zeman’s reports[20] as well as records from the Royal North Shore Hospital in relation to the Glasgow Coma Score and radiological investigations.
[19] AD-22 p 110.
[20] AD-22 pp 58 -82.
The insurer also submitted that the Panel needed to consider the contents of the records from The Alfred Hospital and the effects of the subsequent accident which involved mild concussion.
In relation to the left shoulder, the insurer argues that Dr Noll[21] finds the fracture to the left scapula has resolved and does not involve permanent impairment. The insurer pointed to the difference between the findings of Dr Noll and Medical Assessor Cameron. It also submitted that Mr O’Brien had not disclosed to either examiner the injuries in the March 2019 accident, which included a fractured right scapula. The insurer submits a re-examination of both shoulders is required. Finally, it submitted that both Dr Noll and Dr Zeman found the range of movement in the shoulders were within normal limits.
[21] AD-22 pp 36-57.
In relation to the right knee, the insurer made a brief submission that the right knee required re-examination by the Panel to establish the precise cause of the impairment because it had been injured in the 2019 accident.
At [47(c)] of the submissions the insurer asked for the Panel to defer re-examination of
Mr O’Brien until the insurer obtained the further report from Dr Zeman. The insurer filed the report of Dr Zeman dated 7 December 2022 in AD-24 but did not include any further submissions. The Panel has noted above that Dr Zeman in this report states he was not asked to do an impairment assessment.[22][22] AD-22 p 7.
Mr O’Brien’s submissions
Mr O’Brien’s solicitors made submissions on his behalf dated 20 September 2021 in reply to the insurer’s application for review.[23] The crux of these submissions was the argument that Medical Assessor Cameron was correct not to use the right shoulder as a baseline because it had been injured. At [18] of these submissions it is stated that “this is based on the position that the Claimant’s right shoulder had presumably been injured in an earlier accident”. However, in the accident in 2015 there is no suggestion of a right shoulder injury. It was the subsequent accident in 2019 where the right scapula was fractured.
[23] AD-8 p 570.
The submissions refer to cl 1.51 of the Guidelines:
“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.”
In the further submissions by Mr O’Brien’s solicitors dated 25 November 2022 they state at [16] that they do not agree to the review being confined to the injuries head-mild brain injury, left shoulder and right knee.[24] They canvass the medical reports relating to the assessment of permanent impairment relating to the lumbar and cervical spines, pelvis, right ankle and right hip. The Panel has considered all of this evidence and sets out below its findings on re-examination. Attention is drawn to cl 1.21 of the Guidelines that the evaluation should only consider the impairment as it is at the time of the assessment.
[24] AD-23 p 3.
Mr O’Brien’s solicitor has provided detailed submissions to rebut the insurer’s argument that the Panel needs to take into account in its assessment the injuries sustained by Mr O’Brien in the subsequent accident in 2019. The Panel has not summarised these submissions further because its assessment of permanent impairment below deals in detail with the matters relevant to the assessment of the degree of permanent impairment in relation to the accident on 13 January 2016.
RE-EXAMINATION
As noted in the Direction to the parties, the Panel formed the view that a re-examination of Mr O’Brien was necessary to determine causation of all of the alleged injuries and the permanent impairment of those injuries that the Panel determines were caused by the motor accident. Accordingly, on 13 March 2023 between 14:00 to 16:00 Medical Assessor Wan conducted the re-examination at his Fairfield rooms. The re-examination report is set out below and all of the Panel have agreed with and adopted the same.
The claimant is 62 years old. He attended the assessment with his wife, Lynda. The assessment, including history taking, cognitive functions assessment and physical examination, lasted for two hours.
Date of accident: 13 January 2016 (seven years ago).
The following injuries were referred by the Commission for assessment:
· brain - concussion with two weeks PTA, closed head injury, mild traumatic brain injury;
· left shoulder: fracture of the scapula;
· lumbar spine - lower back: soft tissue injury;
· cervical spine - neck: soft tissue injury, whiplash;
· pelvis: multiple fractures including right pubic fractures, comminuted fracture of the supero-lateral pubic ramus, interior public ramus fractures and fracture of the super-lateral acetabulum posteriorly;
· right ankle: lateral ligament injury;
· right hip: infected haematoma;
· right knee: fracture of the anterior fibula, MCL haematoma, microfracture, and
· right knee: Baker’s cyst, knee effusion, posterior cruciate ligament tear with fractures of the tibial plateaus, complex tear of the posterior horn of the medial meniscus, high-grade partial thickness popliteus tendon tear, haematoma overlying the med.
History as given by Mr O’Brien
Pre-accident medical history and relevant personal details
Mr Christopher O’Brien is 62 years old, and self employed as a consultant (working 20 hours per week in three days). He said 60% of his work is working from home. He said at time of the subject motor vehicle accident (MVA) he was the ‘executive director’ of ‘Freight and Strategy Division’ of Transport NSW. He stopped working in Transport NSW in November 2016. He then worked for the United Nations for one year, doing a peace keeping logistic job overseas. He lived in Melbourne in 2019-2020 and worked in Melbourne Port – Strategy (full time, 38 hours per week), which involving a lot of cognitive activities and problem solving problems. He reported no problem in that. He returned Sydney in April 2022. He started his current consultancy job in October 2022.
Past health
Mr O’Brien initially denied any other history of accidents, injuries or other relevant conditions sustained prior to the subject MVA.
However, when asked specifically about the bicycle accident in 2015, he admitted that he had a bicycle accident in 2015 or 2016. A car door was opened into his path, and his bicycle collided with the door, and he sustained injury and a big haematoma in his right hip. The haematoma was infected and required drainage. He could not remember whether he sustained any brain injury in that accident. He said although there is still a mark in the right hip, he has regained normal functions and activity, including cycling.
There is information about this pre-existing injury in the notes of Royal North Shore Hospital, contained in the documents of AD1, which is discussed below where the Panel reviews the supporting documentation.
He said his past medical history was otherwise good.
There is no known history of allergy.
Social history
Mr O’Brien was born in NSW, Australia.
He said he has a Bachelor degree in Arts, and a post graduate Diploma in Shipping and Port Management. He said his academic performance in school was above average, with geography as his best subject, and physics as his worst subject. After university, he joined the army for 15 years, then he worked for a logistic company for 15 years. Then he joined Transport NSW for four years.
He lives with his wife, a teacher aged 60, in a two storey house with 23 steps. He complained that sometimes he has pain in the hip and knees when he walks up and down stairs.
He has two daughters (aged 31, 33) who live separately.
He is a non-smoker and drinks alcohol three times a week.
He drives an automatic car.
He sometimes goes to the gym. He does exercises at home, including using an exercise bike.
He likes fishing with friends, usually twice a year. He visits his friends, as usual, after the accident. He still rides a bicycle.
History of the motor accident (from Mr O’Brien)
Mr O’Brien said on 13 January 2016, at about 6:30pm, was riding his bicycle (for fitness purposes). He was wearing his usual helmet, cycling clothes and shorts. While he was travelling on the Edgeworth David Avenue, Hornsby, at the speed around 20 kmph, he was hit by a vehicle. He said he could not remember the details of the accident, as he was unconscious for an undefined period. The last thing he could remember before he lost consciousness, was that he saw a green traffic light as he went through an intersection. The next thing he could remember, when he regained consciousness, was that he was lying on the ground with some bystanders around him. Later the Ambulance officers and police came and talked to him. That suggested that the retrograde amnesia was brief, in terms of seconds, and anterograde was also brief, in terms of minutes. He said his helmet was badly damaged and he had pain all over the body. He was taken to Royal North Shore Hospital and stayed there for 16 days.
History of symptoms and treatment following the motor accident
Mr O’Brien said he sustained the following injuries from the accident:
· soft tissue injury to face, and teeth injury;
· head injury;
· neck pain;
· degloving injury to right shin, which required skin graft;
· fracture left scapula, which was treated conservatively;
· fracture pelvis, which was treated conservatively, and
· right knee (cruciate ligament) injury – treated conservatively.
He remembered doing some memory tests in the Emergency Department but could not recall seeing any brain injury specialist.
He could not recall seeing a neuropsychologist for treatment purposes. He recalled he was once referred by the insurer to see a neuropsychologist in 2019 for a medicolegal report.
However, he complained he had some memory problems after the accident, and lost confidence to perform his senior role job. Therefore, he quit the job with Transport NSW.
He was referred to physiotherapy two weeks later. He said he had “full time physio”, but has stopped, is waiting to see a pain specialist.
He was also seen by a psychologist, Debra, after the subject MVA, initially weekly but now monthly.
He saw a pain specialist, Dr Ho, in 2022 at Royal Prince Alfred Medical Clinic, but only twice. He stopped it because he got COVID-19 at the time, and then the specialist became sick. He has booked to see another specialist on 28 February 2023.
He could not recall seeing any brain injury specialist, neurologist or neuropsychologist while he was in the hospital or as an outpatient. He could not recall testing of his memory or PTA while he was in the hospital.
He said he has seen an occupational therapist for return to work before her COVID-19. He said he once tried to return to work briefly but stopped because he “had too much pain”.
Details of any relevant injuries or conditions sustained since the motor accident
Mr O’Brien denied any history of significant accidents, injuries or other relevant conditions sustained since the subject MVA. However, later he admitted that he had a bicycle accident in 2019 while he was in Melbourne, causing fractured right scapula. He could not give further details.
Current symptoms
His current complaints are as follows:
· low back pain, 7/10 in visual analogue scale (VAS). It is an intermittent sharp pain. It is aggravated by prolong sitting or standing;
· left shoulder pain, mainly at the back. It is 7/10 in VAS. It is a “deep ache”, intermittent pain. It is aggravated by any physical activities and reduced by stretching and massage;
· neck pain, 7/10 in VAS. It is an intermittent sharp pain, more on the left side. It may radiate to the left shoulder. It is worse if he sleeps on the left side;
· pain in the right knee. It is 4/10 in VAS. It is an intermittent dull ache but can be a sharp pain at times. It is mainly over the patella and popliteal region. He said he once slipped over on the stairs because of the pain. He said he has difficulty walking on slopes;
· sometimes he may also have left knee pain;
· headache, mainly on the right, 4/10 in VAS. It is an intermittent ache, “just like tension in the right eye”;
· he complained of ‘flyers’ in the eyes. He said he once consulted an eye specialist in 2021, but no specific treatment was suggested;
· he also complained that his hearing has deteriorated recently. But he has never seen an ENT or other specialist for that matter;
· he complained that his memory is not good since the accident but is getting worse recently. He said he must write notes to assist his memory. He said he has to modify his routine to a ‘structured way’ so that he won’t forget. He said he has implemented ‘strategies’ to work around the memory problems. He drives a car but has never lost his way.
When asked about any change in his mood or personality, he said now does not meet people and may be depressed. He is seeing a psychologist regularly, and
· sleep is not good, mainly due to back pain and late sleeping.
He reported no problem in the bowel and bladder functions.
He said at most he can sit for 30 minutes, stand for 15 minutes and walk for 30 minutes. He can drive for two hours.
He is independent in personal hygiene care and most activities of daily living (ADL). He said his wife and daughter do most of the housework, he sometimes helps with the housework. He does not go to gym frequently but does exercise at home.
Current and proposed treatment
Mr O’Brien stated that he has been taking the following medication:
· Ativan 0.5 mg prn;
· Panadeine forte one to two tablets when necessary (he took two tablets yesterday);
· NSAID - Voltaren two to three tablets a day, and
· Topical physio cream or Voltaren cream
He said he once received physiotherapy but has ceased it now.
He could not recall seeing an occupational therapist, although he said he once saw a lady referred by the insurer for return to work. Apparently there was a home visit.
Clinical examination
Examination on 13 March 2023 showed that Mr O’Brien was orientated and alert. He said he is 182 cm tall, and weighs 85 kg, which gave a BMI of 25.7, in the ‘overweight’ range. Significant pain behaviours were observed during the interview. He walked independently without a walking aid in a normal symmetrical gait. He could walk on tip-toes, on heels, and in tandem (heel-toes) way. However, he refused to squat, complaining pain in the hips and the knees. He could dress and undress independently. He could get on the examination couch independently.
He is right hand dominant.
Examination of the head showed no conspicuous scars, swellings, or deformities. Smell sensation was normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus or diplopia found. Pupils were equal and reactive. Visual acuity was grossly normal. There was no gross hearing loss. There were no other motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. There were no cerebellar signs found. Romberg test was normal.
Mental state screening
He scored 29/30 in the Folstein Mini Mental test (MMSE). He lost one point in the short term verbal memory test. He scored 5/5 in both the serial 7 test and reverse spelling test. He had no problem in copying figures including 3-dimensional cubes. He had no problem in alternating sequences. He drew a clock showing the current time, quick and well. Regarding written arithmetic tests, he got the correct answer for addition and subtraction, but refused to try multiplication and division, saying that he won’t be able to do it. He gave a good answer when asked to explain some common proverbs. He gave quick and good answers when asked to give three differences and three similarities between apple and orange.
In summary, no evidence of cognitive impairment was detected clinically in the mental state screening tests. The slight difficulty in short term verbal memory was within normal limits. The arithmetic test results are most likely due to inadequate effort but could also reflect his usual ability (physics was his worst subject in school), work experience, and the fact he has not worked for a long time. Abstract thinking and executive function were within normal limits. Clinically no evidence of cognitive impairment was found from the subject MVA. However, it is well known mental screening may not detect subtle change in mild traumatic brain injury, and a comprehensive neuropsychological evaluation may clarify the situation. Is this really necessary to state, given the evidence listed in the next paragraph?
The facial laceration and minor tooth injuries suggested that there was closed head injury sustained in the subject accident. However, with the current evidence available, considering brief retrograde amnesia and anterograde amnesia, reported but unwitnessed brief loss of consciousness (LOC), normal GCS (Glasgow coma scale) score recorded by ambulance officer, and normal Abbreviated Westmead Post Traumatic Amnesia Scale (AWPTAS) score (done on 13 January 2023), and no documented abnormal brain scan finding, it is unlikely that Mr O’Brien has sustained any brain injury in the subject MVA. In the Montreal cognitive assessment (MOCA) done on 25 January 2016 (12 days after the accident), the claimant scored 29/30, which was normal, and this result also supports the finding of no brain injury.
The interpretation of the PTA assessment is interesting. Technically the claimant only scored 12/12 for 3 consecutive days since 23 January 2016, and, therefore, some doctors said the claimant was out of PTA on 23 January 2016. However, scrutiny of the PTA score sheet showed that he scored 7/7 initially (on 14 January 2016), 12/12 for two days, and then he suddenly dropped to 10/12 on 17 January 2016, but picked up to 12/12 for the next two days. This data suggests that Mr O’Brien was not in PTA or out of PTA on 14 January 2016, but the scores were affected by surgery (under general anaesthetic) and pain killers. In theory, there was no need to do further PTA assessment if AWPTAS had a full score (18/18).
Cervical spine (cervicothoracic)
Examination of the neck showed mild tenderness over the left trapezius area but no muscle spasm or guarding. There was no evidence of non-verifiable radicular complaints, and there were no features of radiculopathy. There were mild restrictions in active movements of the neck but no evidence of dysmetria (asymmetrical loss of motion).
All the measurements are those of active movements. All the active ranges of movements (ROM) of the spine were measured using a goniometer:
Cervical spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
normal
normal
4/5 normal
4/5 normal
3/5 normal
3/5 normal
Thoracic spine (thoracolumbar)
Examination of the upper back showed mild tenderness over left scapula region but no muscle spasm or guarding. Active movements of the thoracic spine were symmetrical and within normal limits. There was no evidence of any non-verifiable radicular complaints nor radiculopathy:
Thoracic spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
Normal
Normal
Normal
Normal
Normal
Normal
Lumbar spine (lumbosacral)
Examination of the lower back showed very mild tenderness in the lumber region, but no muscle spasm or guarding. There were mild restrictions in active movements of the lumbar spine, but there was no evidence of dysmetria. There was no evidence of radiculopathy nor non-verifiable radicular complaints:
Lumbar spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
4/5 normal
4/5 normal
Normal
Normal
4/5 normal
4/5 normal
Straight leg raising was 70° on both sides in the supine position, but 90° on both sides in the sitting position.
Upper extremity
Examination of the upper limbs showed no gross muscle wasting. Measurements of mid-arm circumference showed that the right side was 0.5 cm larger than the left side, which was within the normal limits, given that he is right hand dominant. Measurement of mid-forearm circumferences were equal on both sides. Muscle power was normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. Sensation was normal in both upper limbs.
Examination of the shoulders showed tenderness in the left trapezius muscle region. No crepitation was found on moving the shoulders. Active movements of the left shoulder were severely restricted initially in the formal examination, which were different from those reported by other examiners, and were also not consistent with the observations when not in formal examination, such as undressing. Mr O’Brien was presented with the inconsistency, he replied that there was pain in moving the left shoulder today. He was asked to give his best efforts and the measurements were repeated. There was some improvement in the consistency. There were also restrictions in moving the right shoulder. All the measurements are those of active movements. All the active ranges of movements (ROM) of the limbs were measured using a goniometer:
Shoulder
Flexion
Extension
Abduction
Adduction
Internal Rotation
External rotation
Right /°
90, 140,150
30,40,45
90,120,140
20,30,40
80,80,80
80,80,80
Left /°
90,130,
140
20,30,40
90,120,130
20,30,40
80,80,80
80,80,80
Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.
Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.
Lower extremity
Examination of the lower limbs showed no gross muscle wasting. There was an old scar about 5 cm long in right hip, which was related to old injury. There was a donor site area in the right thigh. There was a skin graft area, about 5 cm x 16 cm in the right shin. Since scarring is not in the list of injuries reviewed by the Panel, further details of the scar are not given. Measurement of mid-thigh circumference showed that the right side was 0.5 cm larger than the right side, which was within normal limits. Measurement of mid-calf circumference were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was no sensation over skin graft area, and otherwise sensation was normal in the lower limbs.
Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was reduced on both sides. Active movements of the hips were mildly restricted bilaterally:
Hip
Flexion
Extension
Abduction
Adduction
Internal Rotation
External rotation
Right /°
100
25
30
40
40
20
Left /°
100
25
30
40
40
20
Examination of the knees showed no deformity, swelling or effusion. There was no crepitation on moving the knees. Examination of ligaments and menisci of the right knee was difficult because of the pain. There was probably mild posterior cruciate ligament laxity. McMurray’s test of right knee was refused by the claimant. There was no excessive antero-posterior or medio-lateral laxity of the left knee suggesting the cruciate and collateral ligaments were intact. McMurray’s test was normal on left knee, suggesting the menisci were intact. There was mild restriction in flexion of the right knee. Active movements of left knees were within normal limits.
Knee
Flexion
Extension
Right /°
120
0
Left /°
135
0
Examination of the ankles showed no deformity or swelling. Active movements of the ankles and feet were symmetrical and largely within normal limits.
Examination of the chest showed that there was some tenderness over the sternum. However, there was no crepitation found on breathing, with no significant ‘steps’ or mass of the sternum or ribs to suggest nonhealing. Air entry was normal and symmetrical.
Examination of the abdomen was unremarkable.
Consistency of presentation
Inconsistency in the shoulder examinations has been mentioned above. However, considering the history of fracture left scapula, it is reasonable to use the best ROM measurements, which are close to the findings of Assessor Cameron, to calculate the WPI.
Review of documentation
Relevant imaging studies and other investigations
The claimant did not bring any X-ray films or reports to the assessment, because “He forgot”.
The Panel Members have reviewed the reports of the following investigations enclosed in the supporting documentation:
· trauma series done at Royal North Shore Hospital on 13 January 2016;
· pelvic X-ray, reported by Dr Shayne Wilson – which showed a mildly comminuted and displaced fracture through the right superior pubic ramus, with linear fractures through the right inferior pubic ramus and right acetabulum postero-laterally. Cortical discontinuity within the left sacral ala at D3 was suggestive of a further undisplaced fracture. No hip fracture was identified;
· X-ray chest, reported by Dr Drew Sullivan – which showed a comminuted fracture within the left scapula superomedially with extension of the fracture into the glenoid process. No extension into the glenohumeral joint was detected;
· CT brain, chest, abdomen, pelvis, whole spine, and shoulder, reported by
Dr Drew Sullivan – which showed no acute intracranial haemorrhage, extra-axial collection, acute transcortical infarct or mass effect. A couple of small densities were seen adjacent to the left mandibular body, suspected of foreign bodies. No fracture is seen;· CT cervical spine – which showed no acute fracture or dislocation. C2-3 vertebral body and posterior element congenital fusion was noted;
· CT chest – which showed a comminuted and mildly displaced fracture of the superior aspect of the left scapula body extending inferiorly to the medial aspect of the spine of scapula. No acute thoracic spine or rib fracture was seen;
· CT pelvis/abdomen – which showed multiple right pubic fracture. There was a comminuted fracture of the lateral superior pubic ramus without disruption of the acetabular articular service. Two minimally-displaced fractures of the inferior pubic ramus and an undisplaced fracture of the superolateral acetabulum were seen, and
· MRI right knee of 28 January 2016, taken at Royal North Shore Hospital, reported by Dr Anna McNaught – which showed mid substance posterior cruciate ligament tear with associated anterior microtrabecular fractures of the tibial plateaus, lateral greater than medial. It also showed an undisplaced hairline fracture of the anterior fibular, high grade partial thickness popliteus tendon tear, and haematoma overlying the medial collateral ligament and low grade medial collateral ligament injury. There was extensive complex tear of the medial meniscus involving posterior horn and body. There was large knee joint effusion with layering blood products in a large Baker’s cyst.
Summary of relevant documentation provided for the initial assessment
The ambulance report showed that the subject MVA occurred on 13 January 2016. It was stated that,
“… 54 yr old male cyclist presumably travelling at med to high speed collided with a sedan striking bonnet and penetrating windshield with his helmeted head. Pt had an LOC of unknown duration sustained facial injuries as well as moderate to severe lacerations to both lower legs, left shoulder and hip pain. Pt chipped a front tooth and was c/o some cervical neck pain and paraesthesia at left thumb. Pt GCS 15 O/A… and remained same throughout Tx… C/O 6/10 pain mostly at left shoulder reduced to 4/10 and tolerable post 5 mg morphine IV enroute…” [25]
[25] AD-22 p 163.
GCS score was 15 on two observations.
There were hospital notes and radiological report of a pre-existing injury (of April 2015) in the hospital record of Royal North Shore Hospital, mixed with the clinical notes of the subject accident, which could be confusing:
a. Montreal Cognitive Assessment done on 2 April 2015 with a score 27/30;[26]
[26] AD-22 p 173.
b. PTA assessment sheet, started 1 April 2015, but with PTA score for 2 days (7/7, 12/12) and the assessment was stopped, as ‘per team decision’;
c. CT Brain Scan of 31 March 2015, taken at Royal North Shore Hospital, reported by Dr Mei Ming Chan – which showed:
“… a trace amount of high density material in a sulcal space of the interolateral right frontal lobe, which may represent subarachnoid/subdural haematoma, however beam hardening artefact could give this appearance. No mass effect, midline shift or hydrocephalus is identified. No skull or facial fracture …”[27]
[27] AD-22 P 165.
The Panel observes that Medical Assessor Cameron seems to have erroneously thought this scan was after subject accident, because on page 5 of his certificate he stated, “… There had been a small traumatic subarachnoid haemorrhage… “, and later on Page 7 of his certificate, “… CT of the brain on 31 March 2015 is reported as showing ‘possible trace amount of subarachnoid/subdural haemorrhage versus beam hardening artefact overlying right frontal lobe…”;
d. discharge referral dated 1 April 2015 stated,
“…54 year old gentleman who presented to Royal North Shore hospital’s Emergency Department due to a low speed bicycle accident. He was going at roughly 10 kph when he collied with car door. He was propelled over the car door and struck his head with damage evident on the posterior portion of the helmet. There was associated loss of consciousness which lasted less than a minute. He was confused on waking and remained immobilised at the scene. The patient was subsequently taken over by the Neurosurgical team under the care of Dr. Little… GCS of 15… some repetitive questioning during the examination (?short term amnesia)… no cervical spine tenderness but was initially managed with a collar due to mechanism of injury… complained of some left shoulder/thigh/rib pain… The patient scored 12/12 on PTA on 02/04/2015 and was deemed for discharge by the neurosurgical team on 02/04/2015 ...”[28];
[28] AD-22 p 165.
e. X-ray left shoulder, left elbow and forearm, cervical spine, left femur and thoracic and lumbar spine of 31 March 2015, reported by Dr Ana McNaught – which showed a large sub acromial spur but no acute fracture, dislocation or bony malalignment;
f. X-ray left elbow and forearm showed no fracture or dislocation. There was a large amount of soft tissue swelling of the dorsal aspect of the forearm;
g. X-ray cervical spine showed incidental C2/3 congenital function. There was degenerative changes but no fracture or dislocation;
h. X-ray thoracic and lumbar spine showed “… a step in the superior cortex of the T5 without any substantial vertebral body height loss, suggestive of the minimally depressed compression fracture. Further evaluation with CT might be worthwhile”;
i. the Panel observes that Medical Assessor Cameron appears to have mixed up this with X-ray after subject accident in page 7 of his certificate;
j. there were clinical notes of Royal North Shore Hospital dated 31 March 2015,
1 April 2015 or 2 April 2015 which obviously related to the pre-existing accident;k. in a discharge referral, dated 27 January 2016, it was stated that the claimant was admitted to Royal North Shore Hospital on 13 January 2016 and discharged on 27 January 2016, after a cycling accident and multi-trauma. It was stated that,
“…Mr O’Brien presented to ED with multiple traumatic injuries after crashing into a car while cycling on 13/1/16. The car was travelling at approx. 60km/hr when he collided with it. The patient went over the bonnet of the car and his head went through the windscreen. He was briefly unconscious approx. 2 mins and was amnestic to events… The patient complained of pain to left shoulder and hip. He sustained lacerations to bilateral lower limbs and face… Face graze chin, 2 cm laceration R forehead, tooth chip 21, 1cm tongue laceration… facial bones/skull non tender … log/roll T/L spine non tender, mod tender L scapula… arms mild tender MCP J thumbs bilat rest N…. R femur milder, R knee tender… 15 cm gaping lac R pretibial muscle belly on show, L shin 5 cm lac muscle belly on show… Pelvis – R sup/inf public rami #...R calf DVT…”;[29]
[29] AD-22 p191.
l. operation report 1, 14 January 2016 - exploration, debridement and repair of bilateral lower limbs laceration;
m. operation report 2, 16 April 2016 – Debridement + skin graft +vac right leg (GA+IV Abs);
n. the Emergency Department notes showed that CGS was 15, no cervical tenderness, full range of motion, cleared. There was tenderness over the lower sternum, but no rib tenderness bilaterally, “… tender over L knee, small abrasion, bruised and swollen over tibial tuberosity, nil patella tenderness, nil joint line tenderness…”;
o. the Royal North Shore Hospital medical records showed that the claimant attended ‘Burns Unit, Dressing Clinic” on 5 February 2016 and 12 February 2016. He was also reviewed by the physiotherapist;
p. In a medicolegal report dated 23 June 2017 Dr Brian Zeman, a rehabilitation physician, stated that he assessed the claimant on 13 June 2017 at the request of the insurer;[30]
[30] AD-22 p58.
q. in a medicolegal report dated 17 September 2019[31] Dr Brian Zeman reported that active movements of neck, back, shoulders and mental status examination were all essentially normal. There was right PCL laxity. He assessed 2% WPI for the scars,4% WPI for right knee injuries. In his report dated 7 December 2022 he stated his diagnosis and recommendations in his earlier report remained unchanged and he did not re-assess permanent impairment;
[31] AD-22 p 69.
r. in a neuropsychological summary dated 9 October 2017, Dr Hana Hepner, a clinical neuropsychologist, did not do a medicolegal assessment. Instead, the report is apparently addressed to the Claimant and advised strategies to tackle issues with attention, memory, planning and problem solving. It seems that his attention can be variable, memory is alright unless distracted, and he has some difficulty in generating new ideas under time pressure but there are sound problem solving skills if more time is given;
s. in a confidential report to the general practitioner, Dr Nixon, Dr Hepner stated that he assessed the claimant on 9 October 2017 (approximately 1 ½ years post-accident). He did not give the details of the tests he has done. He assessed the premorbid intelligence was high average to superior range. He also did not comment on whether maximum effort was given during the assessment. He stated,
“… I am pleased to say that he performs at an expected high level in areas of verbal intellectual function, naming, memory for meaningful spoken information and in several aspect of frontal executive function (e.g. verbal and non-verbal reasoning, planning, organization). Further testing reveals mild attentional dysfunction and slowed speed of information processing. Relative to his High Average to superior premorbid estimate, deficits are also apparent in his performance on some higher level tasks (e.g. speed and flexibility of thinking, concept acquisition, verbal generativity and memory and learning of complex spoken information)…
Mr O’Brien presents with significantly elevated symptoms of psychological distress, characterised by depressed mood and features suggestive of a post-traumatic stress disorder. It is highly likely that these untreated psychological symptoms are impacting on his cognitive function with some contribution also likely from the effects of pain.
I strongly recommend that Mr O’Brian engages in therapy with a suitably experienced Clinical Psychologist to address his psychological symptoms and help him implement pain management strategies…
Neuropsychological review is recommended in 12 months time for monitoring purpose and to help determine whether there are any residual effects arising from the history of cumulative head injury…”;[32]
t. in a report dated 22 April 2016, approximately three months after the subject accident, Dr Justin Tan, Rehabilitation Registrar of Royal North Shore Hospital Brain Injury Clinic, stated he saw Mr O’Brien on that date. He opined that,
“… although he reported a PTA of 15 days it is likely that he passed abbreviated PTA. CT brain and trauma [scan] did not demonstrate and [any] acute abnormality. Past medical history includes another cycling accident where he as a cyclist struck a car door and 2015 imaging suggests a possible right frontal SDH or SAH… He has been referred for a neuropsychology assessment in August 2016… however in an ACE-III assessment today he scored very favourably 97/100, losing gain three points in verbal fluency. Other areas were largely intact… Given his overall performance and successful return to work, a neuropsychology assessment is not warranted for the cost and high likelihood he will improve by August 2016…
He experiences intermittent headache of the occipital and neck region and sometimes behind the right eye. His right knee also causes him some discomfort… He is noting fatigue with his return to work... An MRI brain has been requested …”;[33]
u. in a report dated 17 June 2016 Dr Tan stated that the MRI brain showed no acute pathology.[34] However, the claimant still had ongoing symptoms of fatigue, and his reading, concentration and numeracy were subjectively slower. Sleep was improving;
v. in a Royal North Shore Hospital discharge referral dated 9 June 2016, it was stated that the claimant was admitted on 8 June 2016 for an elective excision of a trochanteric seroma capsule;[35]
w. in a report dated 6 July 2017, Dr Brian Noll stated he examined Mr O’Brien on that day as requested by the insurer. He found that active movements of the shoulders were normal. Movements of the right knee was 0-130° and left knee was 0-140°, with mild crepitus bilaterally. There was mild laxity of the right posterior cruciate ligament. He assessed 3% WPI for the right knee posterior cruciate laxity, 2% WPI for the right knee crepitus;[36]
x. in a report dated 23 October 2019, Dr Noll stated that he saw Mr O’Brien again on that day. He assessed 7% WPI for moderate right knee posterior cruciate laxity, 2% WPI for the crepitus,[37] and
y. in a report dated 18 August 2019, Dr Michael McGlynn, a plastic surgeon, stated that he examined Mr O’Brien on 16 August 2017, at the request of Mr O’Brien’s solicitor.[38]
[32] AD-22 p 109.
[33] AD-22 p 211.
[34] AD-22 p 213.
[35] AD-8 p 50.
[36] AD-22 p 36.
[37] AD-22 p 46.
[38] AD-8 p 84.
Summary of other relevant documentation
In the clinical notes of Dr Sophie, Nottle Mill Street Clinic in an entry dated 16 April 2019, it was stated,
“… moved from Mali in Jan, was working with the UN, was there 1 year. MVA 3 weeks ago, was cycling to work, car reversed into him, sustained right scapular fracture, minor concussion, cuts and abrasions; has a sling to wear 6 weeks, has fracture clinic f/u. concentration returned to premorbid level from what he can tell… MVA in 2016-concussion-reduced cognitive ability, failed TTA before d/c…”[39]
[39] AD-8 p 599.
Then in the next entry dated 28 May 2019, Dr Nottle stated,
“… MSAC physio for neck not really helping, does theraband, trigger points. Neck pain, intermittent, with rotation or abrupt turning of head, wakes him sometimes, shoots across from back of neck to bh eye. Sternum fracture better…” But then later Dr Nottle stated, “… Wasn’t sternum fracture, was scap…”[40]
[40] AD-8 p 601.
In the next entry dated 2 July 2019, Dr Nottle stated,
“… fracture scapula all healed now… celebrex 3-4 nights per week for neck… better range of rotation to right now, still restricted to left, not getting pain bh ee now not shooting down arms except when physio works hard on C2 area gets pins and needles hand…”[41]
[41] AD-8 p 602.
Enclosed in the general practitioner’s notes, there was an “Emergency Medical Discharge Summary”, apparently was issued by The Alfred Hospital of Melbourne on 22 March 2019.[42] It was stated that the claimant presented to the Emergency Department because of ‘cyclist versus car at 20 kmph’. It was stated that,
“...car reversed out and clipped cyclist – fall, onto right shoulder, head, facial laceration. C/o shoulder / scapula pain, L hand pain, brief LOC, disorientated... ?TBI. ? R shoulder/scapula #...” Discharge Plan was, “… Regular simple analgesia… Tramadol for breakthrough… follow up in fracture clinic in 1 week with repeat XR … Follow up with GP in 5 days for removal of sutures …”
[42] AD-8 p 616.
There was a copy the CT right shoulder report dated 22 March 2019, but the scanned copy was somewhat blurry. The conclusion was “Right scapular fracture”.[43]
[43] AD-8 p 618.
There was a copy of the CT brain, face and cervical spine report dated 22 March 2019, but the scanned copy again was blurry. The conclusion was “No intracranial haemorrhage. No facial bone fracture. No CT evidence of acute cervical spine fracture”.[44]
[44] AD-8 p 620.
There was a copy of the CT chest, abdomen, pelvis and thoracic and lumbar spine report dated 22 March 2019, but the scanned copy again was blurry. The conclusion was probably no acute fracture in thoracic and lumbar spine, pelvis, sternum and ribs. There was an “Essentially undisplaced oblique fracture of right scapula extending from the axillary border to medial border…”[45]
[45] AD-8 p 622.
There was a copy of the X-ray left hand report dated 22 March 2019, but the scanned copy again was somewhat blurry. The conclusion was “No fractures or displacement of the carpal, metacarpal, phalanges or distal radius/ulna bones”.[46]
[46] AD-8 p 624.
The claimant was referred to see a psychologist for post-traumatic stress disorder.
In the Medical Assessment Certificate dated 18 April 2021, Medical Assessor Curtin stated he assessed the permanent impairment for Mr O’Brien’s face and chin injury and scarring, right hip, both legs and back scarring, and jaw and dental injury, is 4%.
In the Medical Assessment Certificate dated 1 July 2021, Medical Assessor Richard Haber stated that he assessed Mr O’Brien on 7 April 2021. He assessed 0% WPI for the venous thrombosis in the right leg.
Report of Dr Jungfer dated 16 August 2022 has been read by the Panel. She made a diagnosis of persistent depressive disorder with comorbid anxious distress and recurrent episodes of major depression with comorbid anxious distress.[47]
[47] AD-23 p 29.
The photographs from pages 32 to 38 of AD-23 are noted but do not assist the Panel in its assessment of permanent impairment.
CONCLUSIONS
Diagnosis and causation
Head injury/brain injury
There is no evidence of a significant head injury: there is no documented observed loss of consciousness, no documented abnormal GCS scores, and no evidence of brain imaging abnormalities. The abbreviated PTA score was normal. Although technically the PTA duration was 10 days, careful scrutiny of PTA scores suggested that Mr O’Brien was probably out of PTA on day one of the PTA testing, that is the next day after the subject accident (see discussion above). The drop in PTA on 17 January 2016 was most likely related to the surgery, general anaesthetic and painkillers used. There was brief retrograde amnesia and brief anterograde amnesia. The Montreal Cognitive Assessment done soon after the accident was normal. The latest mental status screening tests do not show objective signs of cognitive impairment, memory impairment or executive function impairment.
Medical Assessor Cameron has made a mistake confusing the SAH in CT scan of a pre-existing bicycle accident as the scan after the subject accident.
Dr Tan of the Brain Injury Clinic apparently also had doubts about the ‘15 days PTA’.
Mr O’Brien was seen by a neuropsychologist in October 2017, who found that apart from slower speed, Mr O’Brien performed well in tests, and Dr Hepner found “significantly elevated symptoms of psychological distress… depressed mood… PTSD…”, and recommended referral to a clinical psychologist. He opined that the psychological symptoms and pain affect the cognitive function.
Therefore, there is no evidence of significant organic brain injury.
Furthermore, the pre-requisite criteria of assessment of mental status impairment and emotional and behavioural impairment have not been satisfied: as there is no medically verified abnormalities such as abnormal initial post-injury Glasgow Coma Scale score, or PTA, or brain imaging abnormality.
However, even if the Panel assessed the brain injury, for the benefit of Mr O’Brien, using the CDR method (Table 9, p39 of the Guidelines), the WPI due to brain injury sustained in the accident would be 0% WPI, as follows:
a. memory score (M) will be questionable, as although the claimant complains of memory problem, it is not confirmed by mental status assessment, M=0.5;
b. orientation score (O) is none, as he is fully orientated, O=0;
c. judgement and problem solving score (JPS) is 0, as shown from the mental status screening and neuropsychological assessment, JPS =0;
d. community affairs score (CA) is none, as he functions independently in job, shopping and social groups, CA=0;
e. home and hobbies score (HH) is none, as the life at home, and intellectual interests were well maintained, HH=0, and
f. personal care score (PC) is none, as he is fully capable of self-care, and other secondary scores are also 0, PC=0.
Since all secondary categories are scored less than M score (primary category), therefore the CDR score = secondary scores =0.
According to Table 10 p 40 of the Guidelines, CDR=0 would be assessed as 0% WPI.
Mr O’Brien has depressive features and PTSD features. However, since the prerequisite criteria has not been satisfied, according to the paragraph 1.164 of the Guidelines, the emotional and behavioural impairment cannot be assessed.
However, even if the Panel assessed the Emotional and behavioural impairment, using Table 3, p.142, AMA4, it will be assessed as mild limitation, corresponding to 0% WPI, as there is no evidence of organic brain injury to explain the depression and PTSD. The Panel notes Mr O’Brien was assessed by Medical Assessor Parmegiani who in certificate dated 29 November 2021 assessed the degree of permanent impairment at 6% WPI for injuries posttraumatic stress disorder and secondary depression.[48]
[48] AD-22 p 152.
Left shoulder injury
There was left scapula fracture, so the Panel accepted that there was left shoulder injury. The best method to use is ROM method. Although there was some inconsistency in the ROM measurement, the Panel decided that it is reasonable to use the best measurement for the WPI assessment:
| Left Shoulder | Flexion | Extension | Abduction | Adduction | Int. Rotation | Ext rotation | |
| Angle° | 140 | 40 | 130 | 40 | 80 | 80 | |
| UEI % | 3 | 1 | 2 | 0 | 0 | 0 | |
| AMA4 figure, page | Fig.38, p.43 | Fig.41, p.44 | Fig.44, p.45 | ||||
The shoulder impairments are then added together (3%+1%+ 2%) = 6% UEI.
Since Mr O’Brien had a right shoulder fracture in the subsequent injury in 2019, affecting the movement of right shoulder, it is not appropriate to do contralateral joint deduction.
Using Table 3, p.20, AMA4, the UEI are then converted to WPI. Six per cent UEI corresponds to 4 % WPI.
Lumbar spine injury
There is no evidence of lumbar radiculopathy, using the criteria of radiculopathy listed in paragraph 1.138, of the Guidelines: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There is also no evidence non-verifiable radicular complaint.
However, considering the history and complaint, it is possible there was soft tissue injury to lumbar spine, but it is not relevant in WPI assessment.
Therefore, the Panel assessed the lumbar spine injury as DRE I (0%).
Cervical spine injury
There is no evidence cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 1.138 of the Guidelines: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
There is also no evidence non-verifiable radicular complaint.
There is no muscle spasm, guarding or wasting.
Although there were mild restrictions in active movements of cervical spine, clinically there was no asymmetrical restriction (dysmetria).
However, considering the history and complaint, it is possible there was soft tissue injury to cervical spine. However clinically there is no evidence of nerve impingement, disc injuries or musculoskeletal injuries.
Therefore, the Panel assessed the cervical spine is DRE I, corresponding to 0% WPI.
Pelvis injury
There were multiple fractures in pelvis. However clinically they have healed satisfactorily. There was no sacroiliac joint fracture or ischial bursitis. According to Table 64, p.85, AMA4, there is no assessable WPI.
Right hip – infected haematoma.
The haematoma has healed clinically. Although there is residual scarring, it was assessed by another assessor, and not in the list of injuries for the Panel.
There were slight symmetrical restrictions in active movements of the hips. However according to Table 40, p.78, AMA4, there is no assessable WPI, and the WPI of the right hip is 0% WPI.
Right knee injury
Fracture fibula has healed satisfactorily.
There is mild restriction in active movements of the right knee. However according to Table 41, p.78, AMA4, a flexion of 120° is not qualified of WPI. Therefore, the right knee ROM impairment is 0% WPI.
However, there is mild posterior cruciate ligament laxity. According to Table 64, p.85, AMA4, it corresponds to 3% WPI or 7% LEI. The possible menisci injury does not qualify for WPI as it is not meniscectomy.
The panel could not demonstrate any muscle atrophy in lower limbs nor any crepitus.
Right ankle- soft tissue injury
The movement of the right ankle is normal, therefore using ROM method, Table 42-44, P.78, AMA4, the WPI is 0%.
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Head / brain injury | Paragraphs 1.160- 1.170, Guidelines | yes | 0 | 0 | 0 |
| 2 | Left shoulder (scapula fracture) | Fig 38-44, p.43-45, AMA 4 | Yes | 4 | 0 | 4 |
| 3 | Pelvis | Table 64, p.85, AMA4 | Yes | 0 | 0 | 0 |
| 4 | Cervical spine | Table 73, page 110, AMA4 | Yes | 0 | 0 | 0 |
| 5 | Lumbar spine | Table 72, page 110, AMA4 | Yes | 0 | 0 | 0 |
| 6 | Right knee | Table 64, page 85, AMA4 | Yes | 3 | 0 | 3 |
| 7 | Right ankle – STI | Table 42-44, P.78, AMA4 | Yes | 0 | 0 | 0 |
Combining 3% and 4% will give a Total WPI = 7%
Summary of injuries listed by the parties and caused by the accident
The following injuries WERE caused by the motor accident:
· head- closed head injury, no significant brain injury;
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· left shoulder – fracture left scapula;
· pelvis – multiple fractures;
· right knee – soft tissue injury, fracture fibula, posterior cruciate ligament injury;
· right hip – infected haematoma, and
· right ankle – soft tissue injury.
Pre-existing / subsequent impairment
The claimant has a subsequent accident in 2019, leading to fracture right scapula. Therefore, there is no need for contralateral joint deduction for left shoulder impairment.
Apportionment
N/a”
Combined certificate
This is to certify that Mr O’Brien was assessed by the following Medical Assessors appointed by the Commission to assess permanent impairment disputes.
Details of the assessments and full reasons are given in the following certificates:
Certificate of Medical Assessor Haber dated 7 April 2021
The permanent impairment in relation to the following injury is 0% WPI:
· venous thrombosis of the right leg.
Certificate of Medical Assessor Curtin dated 21 April 2021
The permanent impairment in relation to the following injuries is 4% WPI:
· face and chin: injury and scarring;
· right hip, both legs and back: scarring, and
· jaw and dental injury.
Certificate of Medical Review Panel dated 5 May 2023
The permanent impairment in relation to the following injuries is 7% WPI:
· head- closed head injury, no significant brain injury;
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· left shoulder – fracture left scapula;
· pelvis – multiple fractures;
· right knee – soft tissue injury, fracture fibula, posterior cruciate ligament injury;
· right hip – infected haematoma, and
· right ankle – soft tissue injury.
Using the Combined Values Chart at page 322 of AMA4, the combined permanent impairment is 11% WPI.
0
1
0