Allianz Australia Insurance Limited v Tucci

[2024] NSWPICMP 163

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v Tucci [2024] NSWPICMP 163

CLAIMANT:

Peter Tucci

INSURER:

Allianz

REVIEW PANEL

MEMBER:

Hugh Macken

MEDICAL ASSESSOR:

Drew Dixon

MEDICAL ASSESSOR:

Michael Couch

DATE OF DECISION:

20 March 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; certificate under section 7.23(1); whole person impairment; pedestrian struck by motor vehicle; fractured tibial plateau fracture; open reduction and internal fixation of right lateral tibial plateau; full leg brace; reduced capacity pre-accident social, sporting, domestic and recreational activities; scarring; lumbar spinal injury; contemporaneous medical evidence available; permanent impairment assessment; the impairment method giving greatest impairment; range of movement combined with LLD; statutory provisions guidelines; Held – certificate of Medical Assessor Philip Truskett and Medical Assessor Geoffrey Curtin revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION
Medical Assessment – Permanent impairment
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1.     The Review Panel revokes the certificate of Medical Assessor Philip Truskett dated
29 October 2022 and the certificates of Medical Assessor Geoffrey Curtin dated 2 June 2023 and 5 June 2023 and issues a new certificate determining that:

·        lumbar spine soft tissue injury – 0%;

·        right leg tibial plateau fracture – 11%, and

·        scarring – 1%,

the claimant has suffered a whole person impairment of 12%.

STATEMENT OF REASONS

INTRODUCTION

1. Peter Tucci (the claimant) is a 52-year-old man who was injured when he was hit by a car whilst crossing the road on the morning of 14 September 2017. The claimant lodged an application for personal injury benefits. The claimant sought a concession from the insurer that the injuries he sustained in the accident exceeded the 10% whole person impairment threshold.

REASONS
Details of who attended the assessment

1. Peter Tucci attended at the Personal Injury Commission’s (Commission) medical suites for Panel re-examination by Medical Assessor Oates on 16 February 2024 as arranged.

HISTORY
Pre-accident medical history and relevant personal details

1. Mr Tucci completed a trade as a motor mechanic in which he worked for 10 years, and then as a painter for two years, vacuum cleaner repair person for three years, and then for Complete Power Solutions as an electrician since 2005.

2. He was married but has been separated for about three years. There is a son aged 26 and twin daughters aged 17.

3. He recently bought a house where he lives with his son and one daughter. He has been living with those two of his three children since the time of the accident. The other daughter visits regularly from her mother’s place, where she resides.

4. He had an umbilical hernia repair about eight years ago, which was covered by workers compensation. He has also had renal calculi.

5. He was not on any regular medications.

6. He has not had any previous injuries to the right knee or elsewhere.

History of the motor accident

1. He confirmed that on 14 September 2017, a Thursday, at about 8.00am, he was crossing Clarence Street near the corner of Erskine Street in Sydney CBD. There was one way traffic heading north towards the Harbour Bridge coming from his right. As he reached the third lane at the kerb on the opposite side from where he had started crossing, and where the traffic had stopped in the first two lanes, he was hit by a car on the lateral side of his right leg, thrown onto the bonnet and then fell to the ground.

2. He is unsure whether he was knocked unconscious but the next thing he remembers is being in front of the vehicle, lying on the ground. Police and ambulance attended and he was taken to St Vincent’s Hospital Darlinghurst.

History of symptoms and treatment following the motor accident

1. After admission, he was transferred to the care of Dr Oh (orthopaedic surgeon). Imaging showed a tibial plateau fracture. He had open reduction and internal fixation of a right lateral tibial plateau fracture by Dr Oh.

2. He was discharged on 16 September 2017 in a full leg brace, but when he returned to Wollongong that evening he had severe pain, so attended the Wollongong Hospital ED and was given analgesia and kept in overnight for observation. He was then referred to Dr Leong, orthopaedic, Wollongong, for follow-up.

3. He was off work for three months, resting in bed in a brace in a locked position straight and non-weight-bearing at first. Eventually he had physiotherapy with treatment to the low back and gluteal area as well, and the brace was gradually put into an increasing angle of flexion with gentle mobilisation of the part by the physiotherapist.

4. He returned to work in February 2018 in the brace, doing administrative work. He then had a trial of field work but could not manage because of the demand for kneeling and squatting, so he was put in stores work for the next two years before he again tried a return to field work.

5. He had ongoing knee pain and further investigation, and then an arthroscopy by Dr Leong on 28 May 2018 at which time two broken screws were removed and he thinks one or both were replaced. He was told he had early arthritis in the knee joint.

6. He had more physiotherapy. He had continuing right knee and low back to right buttock and hip pain, and was referred to Dr Bashford, pain specialist, Wollongong, and had multiple cortisone injections to the right knee, right hip and back, and nerve blocks, all without much benefit.

7. He was told he would have to live with his condition the way it was.

8. He continues in field work and gets help from an apprentice or other tradesmen on site, and always attends job sites with one other worker.

9. He last saw Dr Leong about 12 months ago and was told to come back if it was required to make further review of his injury.

Details of any relevant injuries or conditions sustained since the motor accident

1. Nil relevant.

Current symptoms

1. He has pain in the right knee which radiates up to the anterior right thigh, which is worse after working. There is restricted movement in the knee and it gives way without warning at times, so he has to support the knee in a knee brace at work. Knee pain disturbs his sleep.

2. His right ankle swells after he has been on his feet all day. He has orthotics in his shoes which are of different thickness under the heels (thicker on the right).

3. The right side of his lower back is sore and radiates across the pelvis, but there is no radiation down to the legs.

4. He described discomfort in the lateral areas of both hips, adjacent to the trochanters. He can’t run or jog and can’t ride a pushbike with the kids. He has to lead with his left foot when going up and down stairs and uses rails if available.

5. He is putting more weight on the left leg and he kneels and squats on the left knee alone when doing low set tasks, with the right leg straight out and to the side of the body.

6. He does housework in a modified fashion and gets his son to help with the mowing whilst he does the whipper-snipping. He has to do yard work in segments.

7. He can’t play soccer or ride his motorcycle or jet ski or quad bike. He can shower and dress. He wears toughened toe work boots obtained from The Athlete’s Foot for work, which are lightweight but protective.

Current and proposed treatment

1. He takes Panadol with Nurofen daily and depending on the amount of work he has done, which involved connecting backup batteries at telecommunications exchanges, which involves floor-level work with a lot of kneeling and squatting on the left leg with the right leg straight out to the side, he will get a sore back and soreness in both hips and in the left knee with tight muscles.

2. He has Palexia or Panadeine Forte at night as required but minimises these as he only can get a prescription occasionally from his general practitioner (GP), who is worried about habituation.

3. He continues under the care of his GP, Dr Zafa, Corrimal. He has a knee brace on at all times except when he is in bed or in the shower or relaxing on the lounge. This is because his right knee gives way without warning and he has fallen and got a black eye on one occasion.

EXAMINATION

General presentation

1. He is right-handed. He was of average build with height 167cm and weight 78.2kg.

2. He walked with a stiff-legged gait on the right, with his knee in a brace.

3. Leg length; right 91cm, left 89cm measured from anterior superior iliac spine to medial malleolus.

4. The orthotics were thicker under the right heel than the left.

5. Thigh girth; right 45.5cm, left 47.5cm at 10cm above the superior patellar pole.

6. Calf girth; right 37.5cm, left 38cm at 12cm below the inferior patellar pole.

Lower extremities

1. Active of movement of the knees measured with a goniometer.

2. Right knee – flexion 80°, extension -10°.

3. Left knee – flexion 130°, extension 0°.

4. Both knees were stable in anteroposterior and mediolateral directions, and there was no patellofemoral tenderness or crepitus.

5. There was a 16cm scar over the anterolateral aspect of the right knee which had colour contrast with surrounding skin, being paler than surrounding skin, there were some visible suture marks, minimal trophic changes, a minor contour defect, non-adherent, with no effect on daily activities leaving (ADL) and no requirement for treatment. There were several smaller scars about the patella including a 25mm by up to 6mm wide pale longitudinal scar just lateral to the patella, a 1cm small transverse scar with minor depressed contour just medial to the patella, and a 2cm longitudinal thin pale scar with no trophic change or contour defect just inferior to the knee on the proximal anteromedial aspect of the lower leg.

   Note: The scarring has been assessed by a plastic surgeon separately.

Lumbar spine

1. Slight reduction of lordosis, no guarding and no rigidity. Flexion and extension were both one-half of normal range, lateral flexion two-thirds of normal range and rotation at the thoracic spine two-thirds of normal range bilaterally.

2. Power and sensation in the left leg were normal. Right leg power was normal but sensation was said to be increased lateral to the scar over the right knee and partially reduced in the distal right leg and foot in a non-dermatomal fashion. Reflexes were symmetrical with plantar responses in both flexor.

Right and left hips

1. Tenderness about the trochanteric areas bilaterally. Squatting was quite limited by right knee discomfort to about one-quarter of normal on that side.

2. He stood with the right knee in 6° valgus and left knee 2° valgus.

Hip Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	60°, 50°, 40° with attempts to check passive range strongly resisted	110°
Extension	Normal	Normal
Adduction	0°, 0°, 0°	20°
Abduction	5°, 0°, 0°	40°
Internal Rotation	0°, 0°, 0°	15°
External Rotation	0°, 0°, 0°	30°

Note: As for flexion, gentle passive range of movement testing in the other planes of movement in the right hip were met by strong resistance with an explanation of fear of pain.
Consistency of presentation

1. The claimant was asked why there was such a reduction in range of movement in the lumbar spine and right hip compared with that reported by the original Medical Assessor, Philip Truskett, and he replied that he is getting worse over time with increasing pain and stiffness and finds it increasingly difficult to keep going with work and “everything”.

2. The significant lack of active movement at the right hip denotes fear (of pain) avoidance (of movement) behaviour, rather than an organic physical problem affecting the hip, despite my asking the claimant at the commencement of examination to show his best possible effort in demonstrating active range of movement and to move slowly so as not to increase pain and discomfort.

3. It is clearly medically implausible that the right hip should show 0° range of active movement in all planes, apart from flexion.

RADIOLOGICAL INVESTIGATIONS

1. The following was brought to the examination:

   ·        10 October 2017 – X-ray right knee;

   ·        7 November 2017 – X-ray right knee;

   ·        5 December 2017 – X-ray right knee;

   ·        12 April 2018 – CT scan – nothing in the packet;

   ·        17 April 2018 – X-ray right hallux;

   ·        17 November 2017 – X-ray right ankle;

   ·        13 February 2018 – X-ray right knee;

   ·        12 April 2018 – MRI and CT right knee;

   ·        13 May 2019 – X-ray left hip and pelvis;

   ·        2 March 2020 – X-ray right knee, and

   ·        30 March 2020 – CT lumbar spine.

2. Reports of investigations brought to the examination are attached to this report.

3. I measured joint cartilage intervals on the X-ray of right knee dated 2 March 2020. Patellofemoral joint – minimum width is 4mm laterally and the lateral compartment joint space is 5mm and medial compartment joint space is 3mm including on weight bearing views.

DETERMINATIONS
Diagnosis, causation and reasons

1. The diagnosis is right tibial plateau fracture. The accident was a cause of this injury based on the contemporaneous medical evidence available in the file of evidence.

Impairment

1. For the guidance of the parties, the clinical examination findings for the lumbar spine indicating no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy result in a DRE Category I with 0% whole person impairment.

2. There is no assessable permanent impairment arising from the right hip.

3. It is not medically plausible for any condition, in my clinical experience, affecting the hip to result in complete lack of movement in four of the six planes of motion, except for a totally fused hip which is not the case here.

4. Assessing all the scars as a single system, the claimant is conscious of the scars, there is some colour contrast with surrounding skin, the clamant can locate the scars, there are minimal trophic changes, there are some visible suture marks, the anatomical location of the scars would be visible with usual clothing, there is a minor contour defect, but no effect on ADL, no requirement for treatment and no adherence. The majority of the ten criteria fall into the 1%WPI column of the TEMSKI table.

Permanent impairment assessment

1. There are several methods of assessing impairment in this case.

2. Two centimetres atrophy of right thigh gives 11% LEI (lower extremity impairment).

3. Limb length discrepancy (LLD) 2cm gives 9% LEI.

4. Range of movement flexion 80° gives 10% LEI, whilst extension -10° gives 20% LEI. The latter is the one chosen, as these two impairments cannot be combined. They also cannot be added.

5. Diagnosis-based estimate – undisplaced tibial plateau fracture gives 5% LEI.

6. Arthritis – 3mm medial compartment joint space narrowing gives 7% LEI.

7. Atrophy cannot combine with limb length discrepancy, range of movement, DBE or arthritis, therefore 11% LEI.

8. Range of movement can combine with LLD – 20% by 9% gives 27% LEI.

9. DBE can combine with LLD and arthritis – 9% by 7% by 5% gives 19% LEI.

10. Arthritis can combine with LLD and DBE – 9% by 7% by 5% gives 19% LEI.

11. The impairment method giving the greatest impairment is range of movement combined with LLD. 20% by 9% giving 27% lower extremity impairment, equivalent to 11% whole person impairment.

12. Eleven per cent WPI combined with 1% WPI from scarring (assessed separately) gives 12% WPI.

13. The following is an assessment of the claimant’s scarring by Medical Assessor Geoffrey Curtin a further certificate issued under s 61 of the Motor Accident Compensation Act 1999 (MAC Act) was issued. This certificate, dated 2 June 2023, found that the scarring caused by the motor accident gave rise to a permanent impairment of 1%. As a consequence of this Medical Assessor Geoffrey Curtin issued a combined certificate under s 61(10)(b) of the MAC Act determining that the motor accident gave rise to a permanent impairment of 11% which is greater than 10%.

14. Following this combined certificate the insurer submitted that, as the combined certificate was premised on a finding by Medical Assessor Truskett of a whole person impairment of 10% it follows that the combined certificate was incorrect in a material respect. Accordingly, the President’s delegate, Tajan Baba, issued a decision dated 18 August 2023, dealing with both the certificate of Medical Assessor Truskett dated 18 November 2022 and the combined certificate of Medical Assessor Curtin dated 5 June 2023 and concluded that there is a material cause to suspect that the medical assessment was incorrect in a material respect. Accordingly, there are two certificates which have been referred to the Medical Panel. Both reviews can be dealt with concurrently as the alleged material error in the combined certificate is purely as a consequence of the alleged material error of the first certificate of Medical Assessor Truskett dated 29 October 2022.

15. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.

16. The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.

17. Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.

18. 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 matter solely based on the written application.

19. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.

STATUTORY PROVISIONS/GUIDELINES

1. Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.

2. Section 58 and s 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.

3. The claimant was assessed by Medical Assessor Chris Oates on 16 February 2024 at the Commission’s medical suites.

4. I note the medical assessment of Medical Assessor Geoffrey Curtin dated 2 June 2023 concludes that the skin scarring to the right lower leg was caused by the motor accident and given rise to a whole person impairment of 1%.