Allianz Australia Insurance Limited v Olumee
[2024] NSWPICMP 813
•2 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Olumee [2024] NSWPICMP 813 |
| CLAIMANT: | Hoshang Olumee |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Shane Maloney |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 2 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Panel Review of medical assessment regarding assessment of whole person impairment; claimant a pedestrian knocked to the ground; issues of causation, including whether a left ankle injury related to the motor accident due to overuse injury arising from acute right lower extremity injury; Held – Panel found the claimant suffered an overuse injury to the left ankle, but the osteochondral lesion is pre-existing and not related to the accident; left ankle injury resolved as well as injuries to chest wall and left shoulder; lumbar spine injury not caused by the motor accident; whole person impairment assessed at 9% (right lower extremity 5% and scarring 4%). |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Menogue dated 29 April 2024 and issues a new certificate as follows: 2. The following injuries caused by the motor accident give rise to a whole person impairment of 9% and IS NOT GREATER THAN 10%: · Right lower extremity · Scarring 3. The following injuries caused by the motor accident are now resolved and do not give rise to permanent impairment: · Chest wall · Left upper extremity (shoulder) · Left lower extremity 4. The following injury was not caused by the motor accident: · Lumbar spine |
STATEMENT OF REASONS
BACKGROUND
Mr Hoshang Olumee (the claimant) suffered injury on 21 January 2021 in a motor vehicle accident. The claimant was a pedestrian on a roadway when a car approached and he was hit and fell to the ground.
A claim was lodged upon Allianz Australia Insurance Limited (the insurer) who is the insurer of the bus involved in the motor accident. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The subject issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Nigel Menogue dated 29 April 2024. The Medical Assessor certified that injuries caused by the accident gave rise to a permanent impairment of 8%.
THE REVIEW
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.[3]
[3] Section 7.26(10) of the MAI Act.
In a determination dated 25 June 2024, the President’s delegate 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.[4]
[4] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (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 Merit Reviewer or a Medical Assessor.[5]
11.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.[6]
[5] Section 41(2) of the PIC Act.
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
Interim directions were issued by the Panel requiring the parties to lodge bundles of all documents relied upon. Those bundles were received in compliance with the direction.
The Panel convened via preliminary conference on 27 August 2024 and determined that a re-examination of the claimant was required. This occurred on 2 October 2024 with Medical Assessor Maloney. A further Panel preliminary conference occurred on 21 October 2024.
The Panel requested further submissions from the parties in respect of the body parts to be assessed by the Panel.
The claimant in a document dated 13 September 2024 the following body parts to be assessed by the Panel:
(a) Right lower extremity (knee, ankle, sensory loss, scarring)
(b) Left lower extremity (ankle)
(c) Cervical spine
(d) Left upper extremity (shoulder)
(e) Lumbar spine.
In a response dated 23 September 2024 the insurer objected to the claimant’s request that the lumbar spine form part of the Panel’s assessment noting that the claimant’s reply to the whole person dispute did not include an injury to the lumbar spine. The insurer submits that given that it was not included as a part of the whole person dispute, it should not be included in the assessment conducted by the review Panel. The insurer refers to the Court of Appeal’s decision in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.
The Panel notes that Medical Assessor Menogue confirms the injuries that were referred to him on page two of his reasons/certificate. That list of injuries does not include an injury to the lumbar spine. The certificate does not refer to an injury to the lumbar spine. Medical Assessor Menogue does set out clinical examination findings in respect of the lumbar spine and on page 14 of his reasons makes comment that he does not consider there to be a causal relationship between the subject accident and any injury to the lumbar spine.
Moreover, both parties have addressed the lumbar spine injury and Medical Assessor Menogue’s findings in their initial review submissions.
Accordingly, the Panel has included the lumbar spine as part of its assessment.
Permanent impairment assessment
Permanent impairment is assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[8] which are largely based on the American Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[8] Section 7.21 of the MAI Act
Guidelines
Causation of injury is addressed from cl 1.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury[9]. Clause 1.6 & 1.7 provides:
“1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
[9] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act)[10].
[10] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
ASSESSMENT UNDER REVIEW
Medical Assessor Menogue assessed an 8% whole person impairment (WPI) arising from injuries caused by the motor accident, namely, soft tissue injury to the right ankle; labial fracture with associated peripheral nerve sensory loss to the right leg; and scarring to the right lower extremity. He determined that an injury to the chest wall caused by the motor accident had resolved. Whilst not specifically referred to in the certificate, the Medical Assessor’s reasons demonstrate that he determined that the alleged that the following injuries referred for assessment, were not caused by the motor accident:
(a) Left ankle/foot injury
(b) Shoulder – left shoulder musculoligamentous injury
(c) Pelvis – soft tissue injury
(d) Ankle – right ankle talar dome osteochondral lesion
(e) Cervical spine injury
Medical Assessor Menogue records the claimant having no symptoms to the chest wall, cervical spine or left shoulder. In respect of the pelvis the claimant is recorded as complaining of a low lumbar ache localised and occurs with prolonged sitting and recurrent bending.
Right knee pain is recorded as occurring when kneeling on right knee in addition to stiffness with recurrent movement. There were no symptoms at the right tibia fracture site. Right ankle pain was noted when walking or standing, with difficulty with stairs.
In respect of the left ankle, it was noted that the claimant had similar symptoms to the right, however, the pain can be more severe. A left ankle arthroscopy was noted to be due in mid 2024.
In his concluding reasons, Medical Assessor Menogue stated that there was no evidence in the documents to support a causal relationship between the subject accident and the cervical spine, left shoulder or left ankle. The Medical Assessor noted that the claimant’s statement which refers to the claimant noticing pain in his left ankle after the right ankle surgery in July 2023, was two and a half years post accident. He noted there was no reference made in any document relating to left ankle symptoms.
Medical Assessor Menogue also stated that there was no causal relationship between the lower back and the motor accident.
SUBMISSIONS
Claimant’s submissions dated 22 December 2023
These submissions were in support of the claimant’s original medical dispute application.
The claimant relies upon the opinion of Dr Bodel as set out in a report of 18 July 2023.
Dr Bodel found a 15% WPI, on a tentative basis noting that the right ankle arthroscopy was yet to take place.
It is submitted that the claimant has been experiencing left ankle symptoms due to overcompensation.
Insurer’s submissions dated 5 December 2023
The insurer relies upon the opinion of Dr Breit as set out in his report of 29 March 2023. Dr Breit assessed an 8% WPI.
The insurer notes an absence of complaint in respect of an injury to the neck and left shoulder in relation to the accident. The insurer also disputes the issue of causation in respect of the alleged chest wall injury and disputes it gives rise to a whole person impairment.
Claimant’s review submissions dated 7 May 2024
The claimant submits that the Medical Assessor erred in failing to address a clearly articulated argument in respect of the left ankle. In addition, he failed to provide a path of reasoning and failed to correctly apply the test for causation.
It is argued that the Medical Assessor failed to consider the claim that the left ankle symptoms arose after the accident due to an over reliance as a result of the right ankle injury.
It is further noted that the Medical Assessor’s statement that there was no mention in the documentation as to left ankle symptoms is at odds with Dr Sutherson in a report dated
18 August 2022 recorded some left ankle symptoms. In addition, Dr Bodel also recorded left ankle symptoms.
The submissions note that the Medical Assessor mentioned a low back injury, however, he failed to provide reasons as to why he found there to be no causal relationship between the subject accident and any injury to the lumbar spine.
It is submitted that the Medical Assessor incorrectly applied the test of causation in relation to the left ankle, lumbar spine, left and shoulder and cervical spine. It is submitted that the Medical Assessor did not consider whether the accident could have caused or contributed to the impairment in more than a negligible way.
Insurer’s review submissions dated 7 June 2024
The insurer refutes the suggestion the Medical Assessor failed to provide reasons in finding the left ankle injury as unrelated. In this regard, it is noted that it was found that the MRI findings of osteochondral lesions is generally accepted as developmental. The insurer argues that it is therefore self-evident that the Medical Assessor found the left ankle unrelated due to the developmental changes rather than on the basis of a delay in symptoms.
In relation to the lumbar spine injury the insurer submits that it is self evident that the Medical Assessor had regard to the pre-accident medical history, the history provided at examination and other evidence in concluding that the lumbar spine injury was not caused by the accident.
The insurer submits that the Medical Assessor did not fail to apply the relevant test as to causation in respect of each body part. This includes the finding of no symptoms in the left shoulder. The insurer notes that Dr Bodel, qualified on the claimant’s behalf, did not record complaints in respect of the left shoulder.
In respect of the left ankle findings, the insurer submits that the Medical Assessor was entitled to come to his own opinion. The insurer states: “…the Assessor highlighted there was no evidence of a primary or isolated injury to the left ankle, and yet there were osteochondral lesions present. He noted that osteochondral lesions are considered constitutional and thus, unrelated to the accident.”
It is submitted that it is clear that the Medical Assessor did not consider the accident to have caused a more than negligible contribution to the claimant’s left ankle injury.
In respect of the cervical spine, the insurer notes the claimant did not report any post accident symptoms to the neck and when reporting current symptoms the Medical Assessor noted there to be none in the cervical spine.
DOCUMENTS
The Panel has considered all documents provided by the parties in their respective bundles lodged in compliance with the interim directions issued. The Panel has also considered a supplementary report of Dr Breit that was included in the insurer’s application to admit late documents. The report was considered by the Panel to ensure that Dr Breit’s opinion could be considered in full, noting that his original report was already before the Panel, and was therefore in the interests of justice that the Panel have the doctor’s full opinion.
Claimant’s statements
In an initial statement dated 27 March 2021 the claimant provides details as to the circumstances of the accident.
In a further statement dated 21 December 2023, the claimant provides a list of injuries he alleges as a result of the accident. This includes injuries to the right lower limb, left elbow, scarring, psychological injury and left ankle injury. It is noted there is no specific mention of the back or neck.
The claimant describes suffering nerve issues down the right side of his right leg and intense pain and pressure in both of his feet, mostly at night, after the accident. He goes on to state that following his right ankle surgery in July 2023 he became more aware of the pain in his left ankle and he has discussed the possibility of undergoing an arthroscopy on the left ankle as well.
NSW Ambulance report
The claimant was found by officers in the middle of the road after being struck by a vehicle. He had a full recollection of events and denied cervical spine tenderness. He was noted to have severe pain in the right lower leg with abrasions to the face, arms and legs.
Certificates of Capacity/Fitness
An initial certificate dated 27 January 2021 completed by a GP at Hills Family General Practice includes a note of a fractured right tibia and a note of “multiple [ineligible]”.
A subsequent certificate of 17 February 2021, noted the fracture, along with “PTSD” and bruising. The remaining certificates included in the claimant’s bundle include the same list of injuries.
Hills Family General Practice
A consultation of 1 February 2021 includes a record of the claimant presenting for wound review. Pain was said to be improving.
On 15 February 2021 the claimant consulted via telephone and is recorded to complain of foot pain. The foot was numb with it becoming a burning sensation. Similar complaints are recorded on 17 February 2021.
On 10 March 2021 pain and swelling is noted at the end of the day to the right lower extremity.
By 21 April 2021 the claimant presented with additional complaints including headaches for a period of two weeks, and new glasses are said to have improved the situation. The leg was said to be improving, however, with ongoing symptoms.
On 6 May 2021 the claimant is recorded to have ran a small distance to catch a train and his right leg became numb as a result. When he got home and laid down both legs were numb. Slight back pain is also noted.
On 7 May 2021 there is note of the claimant’s ongoing right leg symptoms with a record of his slipping and hitting his ankle. Pain is said to have increased since last review. There is also a note that the left leg felt weaker than usual, but not as weak as the left. The claimant is further noted to have had back pain in recent times which is attributed to the gym.
The claimant continues to regularly attend on the practice with notes of ongoing symptoms in the right leg. There is also note of back pain (aching/stabbing) which is worse immediately after exercise (12 July 2021).
Medial epicondylitis is noted on 17 November 2021. On 22 December 2022 the claimant is noted to “still getting foot cramps occasionally” mainly to the right foot. On
4 September 2023 it is noted that the left leg, particularly the calf, gives out whilst walking.
Radiology
An X-ray of the tibia and fibula right dated 20 January 2021 noted a slightly displace fracture in the distal shaft of the tibia, no other fracture.
A CT of the brain and cervical spine dated 20 January 2021 reportedly were essentially normal. A ligamentous injury to the cervical spine was not excluded.
An MRI report of the lumbar spine dated 23 July 2021 noted a history of a sacral fracture two years prior in addition to the motor accident. A mild L5/S1 facet joint arthropathy was noted bilaterally. The report was otherwise essentially normal.
An MRI report of the left and right ankle dated 1 June 2022 notes an osteochondral injury to the dome of the talus left ankle measuring 1.1 x 0.4cm and no unstable defect.
The previous right distal tibial surgery with removal of hardware is noted. A minor osteochondral injury to the right talus measuring 0.4 x 0.4 cm is noted with no unstable defect.
Dr Suthersan
Dr Suthersan is the claimant’s treating orthopaedic specialist, of the foot and ankle. In a report dated 18 August 2022, the doctor noted the claimant’s surgical history in respect of the right lower limb following the accident. He noted the claimant to present with pain primarily involving the right ankle and to some extent the left ankle. The doctor noted the sites of pain in respect of the right ankle to involve the anteromedial corner of the ankle joint, overlying the medial talar dome and in addition the navicular footprint of the tibialis posterior tendon. In respect of the left side minor pain involving the medial aspect of the hindfoot was noted.
Dr Sutherson performed a right ankle arthroscopy and in a report of 4 August 2023 the claimant was noted to be asymptomatic since the procedure two weeks prior. On
15 September 2023 the claimant was noted to have progressed exceptionally well from the right ankle arthroscopy. He further reported that the claimant “…now notices that the left ankle which also had an osteochondral injury has become symptomatic compared to the much improved right side.” He recommended the same procedure to the left side.
Dr Lorentzos
In a report dated 1 July 2022 the doctor noted the claimant presenting that day with discomfort in ankles bilaterally. The symptoms were more present on the right, and it is impeding his return to soccer. The doctor noted the MRI showing bilateral talus osteochondral defects. He stated that these were largely medial and most likely chronic in nature. A referral to a neurologist was given for nerve conduction studies.
In an earlier report of 8 April 2022, it was noted the claimant was four months post removal of the tibial nail and hardware of the right leg. Symptoms in the left side are not mentioned.
Associate Professor Nimeshan Geevasinga, neurologist
A history of discomfort in the lower limbs is noted, and the operative history is noted. A history of altered sensation from the knee to the toes is recorded which was more prominent after the claimant had the tibial rod removed after the third operation.
Associate Professor Geevasinga stated that he needed to clarify whether there is any underlying nerve pathology to further evaluate the symptoms. He recommended MRI scan of the lumbosacral spine, plexus, sciatic and common peroneal nerves to clarify if there was any structural pathology.
Spinal & Sports Care
Rose Siciliano, physiotherapist, in a report dated 24 June 2022 noted the claimant had been complaining of ongoing bilateral plantar fascial and heel pain, persistent welling.
Medico-legal reports
The claimant’s representatives obtained a report of Dr Bodel dated 8 November 2022. Dr Bodel summarised the injury as to the neck, left shoulder, chest wall, pelvis and right lower extremity.
Following clinical examination and consideration of the material Dr Bodel concluded that the claimant had suffered a fracture of the tibia, right ankle injury including the talar dome lesion, a compartment syndrome, and musculoligamentous injury to the shoulder and back over time.
He provided an assessment of whole person impairment of 15% (8% the right leg, 5% lumbar spine and 2% for scarring).
The insurer relies on the report of Dr Breit dated 29 March 2023. The doctor records the claimant complaining of symptoms in the right leg. Pain in both ankles was noted. Ankle movements on the left were normal.
Dr Breit described the injuries caused by the accident as:
“right tibial fracture with associated scarring and some cutaneous nerve damage with is ill-defined, although recovering. There is evidence of sensory loss in the distribution of the femoral nerve in the thigh, the lateral sural cutaneous nerve in the calf as well as both the deep and superficial peroneal nerves.”
He stated his opinion that the bilateral osteochondritis at the talus was not caused by the accident.
Dr Breit assessed an 8% WPI (6% right leg and 2% scarring).
RE-EXAMINATION
Mr Olumee attended the medical suites at the Commission on 2 October 2024. He was unaccompanied.
Pre-accident history
Mr Olumee was born in Australia of Afghan origin. At the time of the accident he was starting a bachelor of science degree at university. He was living with his parents at their home.
He states that there had been no other injuries to those assessed today except for a stress fracture of the lower lumbar spine about three years ago sustained whilst playing soccer. He states that he had no active treatment for this injury and it settled spontaneously.
History of motor accident
Mr Olumee was a pedestrian on 20 January 2021 when he was hit by a car. He noticed the car approaching from the left and turned to walk away from the car but was hit on the right side knocking him to the ground. He states there was no loss of consciousness and initially not much pain.
The ambulance officer transported him to Westmead Hospital where investigations showed a fracture of the right tibia and was initially treated with the cast. He states that there were abrasions to the right side of his face, left elbow and left shoulder.
History of symptoms and treatment following the motor accident
The day after the accident, Mr Olumee was treated by an orthopaedic surgery, Dr Lorentzos with an intramedullary nail and interlocking screws. At that time, there was a risk of him developing a compartment syndrome on the right lower leg so the surgeon undertook a fasciotomy over the lateral aspect of the right shin with possible nerve damage to the right peroneal nerve. Mr Olumee was discharged from hospital on 22 January 2022 with non-weightbearing managed by crutches. He states that he is a crutches for six weeks.
His surgeon, Dr Lorentzos removed the interlocking screws in August 2021 and the intramedullary nail was removed in December 2021. After each procedure he was using crutches for two to three weeks and having physiotherapy.
Mr Olumee states that he developed left ankle pain in January 2022 and later the right ankle. An MRI of the ankles identified and osteochondral lesion bilaterally. Dr Sutherson, another orthopaedic surgeon, undertook an arthroscopy of the right angle on 18 July 2023. Mr Olumee stated that this was beneficial. The orthopaedic surgeon wanted to do both ankles in May 2024 there was an arthroscopic procedure to the left ankle which are self-funded and again beneficial.
Mr Olumee states that he had lumbar pain soon after the accident and was eventually treated by the physiotherapist and investigated with an MRI on 23 July 2021. This was unremarkable apart from some mild facet joint arthropathy. He states that he also developed right knee pain after the nail was removed from the right tibia which was investigated on
30 July 2021. This reported a tear of the anterior horn of the medial meniscus which were subsequently treated by a right knee arthroscopy and a partial medial meniscectomy.
Current symptoms
His right knee is symptomatic with a feeling of stiffness and occasional swelling and he states that he catches in certain positions. There is a feeling of numbness over the right knee anteriorly and he avoids kneeling. He also gets pain down the lateral right calf and dorsum of the foot including the big toe, second toe and medial half of the third toe. Anterior right shin pain develops with any jogging or other exercise. The right ankle feels stiff with occasional swelling anteromedially and anterior joint pain. The left ankle also feels stiff with medial swelling but he feels a right ankle is more symptomatic.
There is occasional low back pain centrally which increases with any lifting.
His cervical spine is now asymptomatic with full pain free range of movement of the shoulders and upper limbs.
He is able to walk and has limited jogging ability and no problem driving the car.
Since the accident he has completed his bachelor of science and is now a physiotherapy student full-time.
Current treatment
Mr Olumee takes Voltaren 25 mg, one to two per week and occasional Panadol. He has been able to get some physiotherapy treatment at clinics where he undertakes practical training. There have been no specialist follow-ups arranged.
No radiological studies were available for inspection.
Clinical examination
Mr Olumee walked into the medical suite with a normal gait and sat comfortably during the interview. He states that he is right-handed and height was 180 cm with a weight of 72 kg.
Cervical spine
On inspection of the cervical spine was a normal contour and on testing range of movement, there was a full range of flexion/extension, side bending and rotation with no guarding or spasm noted in the cervical musculature. On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 30 cm bilaterally (10 cm above the olecranon process and in the upper forearms 25 cm bilaterally (5 cm below the olecranon process).
Shoulders
There was a full pain free range of movement of both shoulders and on passive movement no crepitus was detected. Both elbows had a full pain free range of movement.
Lumbar spine
Mr Olumee walked with a normal gait and was able to walk on his heels and toes and squat normally. There was a full pain free range of movement in flexion/extension side bending and rotation. Straight leg raise was 70° bilaterally with negative sciatic nerve stretch test. He had a full pain free range of movement of the hips and no tenderness on palpation of the pelvic structure.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes noted except related to the previous surgery. No muscle wasting was noted with the circumference of the lower thighs 38 cm bilaterally (10 cm above the superior patella pole and at the maximum circumference of the calves 33 cm bilaterally.
Knees
On testing range of movement, both knees had an active flexion of 130° and 0° extension when measured using a goniometer. On passive movement no crepitus was detected with no effusion and no tenderness on palpation of the patella. No ligament laxity was noted.
Ankles
On palpation there was some tenderness over the anteromedial aspect of the right ankle. No ligament laxity was noted.
| Ankle Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion | 20° | 20° |
| Plantarflexion | 30° | 40° |
| Hindfoot Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Inversion | 10° | 20° |
| Eversion | 10° | 15° |
Scars
There was decreased sensation over the right shin, lateral to the tibia with sensory loss over the dorsum of the right foot and right first and second toe. There was normal sensation in the sole of the foot immediately. No sensory changes were noted in the left lower limb.
There was also decreased sensation over the anterior right knee in a patch of about 4 cm in diameter above the patella.
The main scar was over the lateral aspect of the right lower leg of 23 cm in length. Mr Olumee was conscious of all these scars and easily able to locate them. There were trophic changes evident to touch but no sutured marks were apparent. These scars would be usually visible wearing shorts. A contour defect was easily visible and significant adherence was noted about 7 cm above the right ankle on dorsiflexion of the right ankle.
There was a surgical scar above the right patella and a right medial ankle scar which is painful and tender to touch. Another surgical scar was that the lower aspect of the right thigh with pigmentary changes in some separation.
FINDINGS
Causation
Mr Olumee sustained a fracture to his right tibia at the time of the accident on 20 January 2021. It is reasonable to include the joint above and below this fracture in the assessment that is his right knee and right ankle. The Panel accepts this as significant force caused the fracture of the right tibia which has a direct impact on the joints as each end of the tibia i.e. the knee and ankle joints. The surgical scars of his right lower limb are directly related to the treatment of the fracture. The surgical procedures have also resulted in some peripheral nerve damage with resultant impairment.
Mr Olumee gave a history of a soft tissue injury to his left shoulder and chest wall at the time of the accident and on his admission to the hospital a CT scan was taken of his cervical spine and chest X-ray. The Emergency Department notes a physical examination that included a record of a possible deformity of the left shoulder, however, it was difficult to assess tenderness/range of motion due to significant distracting pain in the right leg. Mr Olumee was hit on his right leg which caused him to land on the left side of his body i.e. shoulder with some impact affecting his cervical spine.
On the balance of probabilities, the Panel accepts the claimant suffered an injury to his chest wall, cervical spine and left shoulder. However, each of these injuries has now resolved and attract a finding of 0% WPI.
In respect of the left ankle, the claimant alleges that this injury is related to the motor accident on the basis of overuse, particularly following operative procedures to the right lower extremity. The claimant stated that his left ankle pain started about January 2022 and was later treated by the physiotherapist.
The Panel notes the MRI findings of bilateral osteochondral injury. These are degenerative changes that are pre-existing to the motor vehicle accident.
However, on the balance of probabilities, the Panel accepts that the claimant suffered an overuse type injury to the left ankle. However, it is the finding of the Panel, based on the Medical Assessor’s expert medical opinion, that any such injury would have settled and resolved after no more than a year after the last surgery to the right ankle. As found above, the osteochondral lesion is not related to the motor accident and hence the arthroscopy was not required due to any injury caused by the motor accident. However, such arthroscopy is the most likely explanation of the slight loss of range of motion of the left ankle at the time of the Panel examination.
On the balance of probabilities, the Panel does not accept that the claimant suffered a lumbar spine injury as a result of the motor accident. The symptoms complained of by the claimant are noted, however, noting the lack of complaint contained within the clinical material, particularly of a contemporaneous nature does not support the contention that the claimant suffered a lumbar spine injury as a result of the accident. The symptoms did not arise, according the documentation, until approximately six months after the accident and were then treated by a physiotherapist and an MRI undertaken. The Panel accepts that in all likelihood the claimant would have suffered from muscular aches arising from the use of crutches and the like which would have now resolved. However, there is no evidence to substantiate a finding of a soft tissue injury caused by the motor accident.
Whole Person Impairment
Right lower extremity
Utilising table 42 and 43 of AMA 4th edition. 10° of inversion gives 2% lower extremity impairment (LEI) in table 43.
The right knee is 0% WPI for range of movement using table 41. Table 64 awards 2% LEI for a partial medial knee meniscectomy.
The fracture to the right tibia has healed an anatomical alignment and therefore 0% WPI.
For peripheral nerve damage, there was sensory loss of the right lower limb involving superficial and deep peroneal nerve and the sural nerve. In table 68 the sural nerve is 2% lower extremity superficial peroneal nerve is 5% lower extremity and deep peroneal which can be assessed under the common peroneal is also 5% lower extremity. This totals 12% LEI. Using table 11, I consider this to be a grade 3 classification due to decreased sensibility with some pain not forgotten during activity. This is 60% of the 12% which is 7.8% and rounded to 8% LEI. (cl 6.59 of the guidelines have determined that the maximum value for each grade should be used).
Thus, there is 2% LEI or loss of inversion the right ankle with 2% of the partial medial knee meniscectomy and 8% for peripheral nerve injury. This adds to 12% LEI. With table 6.4 of the Guidelines, 12% LEI equals 5% WPI.
Scarring
Scarring is assessed using the TEMSKI chart and classification of best fit is 4% WPI. Medical Assessor Menogue also assessed 4% WPI for scarring. This is because Mr Olumee was conscious of this scar and could easily locate the scar. There were pigmentary changes trophic changes evident to touch and usually visible when he wore shorts. There was some adherence to underlying structures and minor limitation in performing a few ADLs and avoidance of sunlight as there is an increased chance of skin cancer occurring over time in such a large scar.
CONCLUSION
The Panel finds that the following injuries, caused by the motor accident, give rise to a
9% WPI:- Right lower extremity – 5%
- Scarring – 4%
- Left lower extremity – 0%
- Chest wall – 0%
The Panel finds that the following injuries, caused by the motor accident, have now resolved:
- Left lower extremity – soft tissue injury
- Chest wall – soft tissue injury
- Left shoulder – soft tissue injury
The Panel find that the following injuries were not caused by the motor accident:
- Lumbar spine
0
2
0