BNZ v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 55
•2 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | BNZ v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 55 |
| CLAIMANT: | BNZ (claimant under legal incapacity) BTK – Appointed Representative for the claimant |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 2 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Gorman; the claimant suffered injury in a motor vehicle accident on 26 June 2019 at 16 years of age; fracture of the right acetabular; fracture of the superior and inferior pubic ramus and separation of the pubic symphysis; undisplaced fracture of the right sacral alar; fracture of the later condyle of the right humerus; scarring; lumbar spine; claimant has made excellent outcome; Held – clause 6.96 of the Guidelines mandatory to assess pelvic fractures under table 3.4 on page 3/131 of AMA 4 Guides; the enquiry as to displacement to be undertaken at the time of the assessment in accordance with clause 6.21 of the Guidelines; fracture of rami bilateral, pubic symphysis, right sacral alar healed without displacement or deformity and assessed at 0% whole person impairment (WPI); fracture of acetabulum assessed using Table 64 on page 85 of AMA 4 Guides at 0% WPI; fracture of right elbow assessed at 0% WPI; lumbar spine assessed as DRE Lumbosacral category I or 0% WPI; surgical scarring assessed under TEMSKI scale at 2% WPI; certificate of MA Gorman revoked; injury gave rise to 2% WPI. |
| DETERMINATIONS MADE: | WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor David Gorman dated · lumbar spine – fracture of the right sacral ala; · pelvis – fracture of the pelvis; · right elbow – fracture of the right elbow; · right hip – fracture of the right hip, and · scarring to the right hip and right elbow. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 26 June 2019 BNZ (the claimant) was 16 years of age. He was riding his scooter when he was struck by a motor vehicle (the accident).
BNZ was 16 years of age at the date of accident and is now 19 years of age.
BNZ has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited t/as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to BNZ under the MAI Act.
On 17 June 2022 BTK was appointed as the appointed representative for the claimant in accordance with s 7.47(2) of the MAI Act where BNZ is considered a person with a physical or mental disability.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by
BNZ as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment was referred to Medical Assessor David Gorman. Medical Assessor Gorman issued a certificate dated 26 June 2023.
DOCUMENTS BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 8 September 2023 (the first Direction) requiring each party to file an indexed, paginated bundle of documents.
In response to this Direction the solicitor for the insurer uploaded to the portal a bundle of documents marked insurer’s bundle paginated from pages 1 to 709.
The solicitor for the claimant uploaded to the portal a bundle of documents marked claimant’s bundle and paginated from pages 1 to 27.
REVIEW PROCEDURE
On 1 August 2023 the insurer sought a review of the medical assessment of Medical Assessor Gorman.
On 5 September 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[2]
[2] Section 7.26 of the MAI Act, AD2 p 6, AD7 p 189.
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.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 16 November 2023 the Panel agreed an examination was necessary.
RELEVANT LEGAL AUTHORITY
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 were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[4]
[4] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
3. “6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
4. '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:
5.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
6.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
7. This, therefore, involves a medical decision and a non-medical informed judgement.
8. 6.7 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.”
Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
9. (a) loss or asymmetry of reflexes;
10. (b) positive sciatic nerve root tension signs;
11. (c) muscle atrophy and/or decreased limb circumference;
12. (d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
13. (e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Relevantly to this dispute cls 6.96 and 6.97 of the Guidelines provide:
15.“6.96 Pelvic fractures must be assessed using section 3.4 (page 131, AMA 4 Guides). Fractures of the acetabulum should be assessed using Table 64 (pages 85 86, AMA 4 Guides).
16.6.97 Residual signs must be present at examination and may include anatomically plausible tenderness, clinically obvious asymmetry, unilateral limitation of hip joint range of motion not associated with fractured acetabulum and/or clear evidence of malalignment.”
CERTIFICATE OF MEDICAL ASSESSOR GORMAN
The following injuries were referred to Medical Assessor Gorman:
· lumbar spine – fracture of the right sacral ala;
· pelvis – fracture of the pelvis;
· right elbow – fracture of the right elbow;
· right hip – fracture of the right hip, and
· scarring to the right hip and right elbow.
Medical Assessor Gorman assessed the claimant on 18 April 2023. He reported BNZ had developmental delay and attention-deficit hyperactivity disorder (ADHD).
Medical Assessor Gorman reported BNZ was riding his scooter on 6 December 2018 when he was struck by a car. He was wearing a helmet and may have been briefly knocked unconscious. He was transported to Canberra Hospital where he was admitted until
8 February 2019.BNZ had a fracture of the pelvis on the right side extending into the right acetabulum which required external fixation initially with pins in the region of the iliac crest anteriorly connected by rods. Later an internal fixation was done in the right side of the pelvis and the external fixation rods were removed.
He suffered a fracture of the right elbow involving the lateral condyle of the distal part of the right humerus requiring open reduction and fixation.
Medical Assessor Gorman reported BNZ walked normally. He could easily squat. There was no dysmetria, no radiation of symptoms to the legs, no muscle guarding and on neurological examination he reported normal reflexes, power, sensation with no atrophy or sciatic nerve root tension signs.
In relation to the upper extremity, he noted slightly reduced extension of the left elbow and a surgical scar over the right elbow which was slightly raised with a mild colour difference to the surrounding skin. He noted the elbow movements were as follows:
18. Elbow Movements
19. Active ROM Measured
20. RIGHT
21. Active ROM Measured
22. Left
23. Flexion
24. 140º
25. 140º
26. Extension
27. 0º
28. -10º
29. Pronation
30. 80º
31. 80º
32. Supination
33. 80º
34. 80º
In relation to the lower extremity, he reported hip range of motion was normal and BNZ could easily perform a full squat.
Medical Assessor Gorman found the following injuries were caused by the accident:
· lumbar spine - fracture of the right sacral ala;
· pelvis - fracture of the pelvis;
· right elbow - fracture of the right elbow;
· right hip - fracture of the right hip, and
· scarring to the right hip and right elbow
Medical Assessor Gorman issued a certificate where he assessed an 18% whole person impairment (WPI) calculated as follows:
· lumbar spine – DRE I assessment giving a WPI of 0% based on table 72 on page 110 of the AMA 4 Guides;
· Pelvis – including the right sacral ala, acetabulum and inferior and superior pubic rami. Whilst the fractures required open reduction and internal fixation and obtained good anatomical reduction Medical Assessor Gorman stated, using the methodology in section 3.4 on page 131 of the AMA 4 Guides they could be considered as “undisplaced fractures”. He concluded there was pubic symphysis and right SI (sacroiliac) joint widening on scanning. He assessed 15% WPI based on s 3.4 on page 131 of the AMA 4 Guides;
· right elbow – the elbow range of extension was restricted and using figure 32 on page 40 and figure 35 on page 41 of the AMA 4 Guides he assessed a 1% upper extremity impairment (UEI) which converts to 1% WPI;
· right hip – fracture of the acetabulum. Medical Assessor Gorman noted the range of hip movement was normal and the impairment assessment for the acetabulum fracture is part of that for the pelvis therefore there was no assessable impairment for the hip itself, and
· scarring to the right hip and right elbow – Medical Assessor Gorman reported the right hip scarring is widened and easily visible in the groin with suture marks and a widened scar. There is no contour defect. The right elbow scarring was raised slight with a slight colour difference to the surrounding skin. Under the TEMSKI scale he assessed a 2% WPI.
EVIDENCE BEFORE THE REVIEW PANEL
Application for personal injury benefits
In the application form completed by BTK on behalf of the claimant and dated
18 April 2019 the injuries sustained by BNZ were listed as follows:· fractures to right upper extremity;
· fractures to hip/pelvis;
· injury to right side of body;
· infection as a result of fixation surgery to pelvis, and
· psychological injury.[5]
[5] Insurer’s bundle p 23.
Treating medical evidence
The claimant was 16 years of age at the time of injury. He had been under the care of
Dr Tiffany Krause, paediatrician of Canberra Hospital and Health Services.[6] He had been diagnosed with the following pre-existing medical conditions:[6] Insurer’s bundle p 513.
· severe intellectual disability;
· ADHD;
· chromosome 2q23.3 duplication, and
· behavioural difficulties.
The Discharge Summary of the Canberra Hospital confirmed BNZ was admitted following the accident from 6 December 2018 until 8 February 2019.[7] He was diagnosed with a right acetabular fracture, superior pubic ramus fracture and a fracture of the right lateral humeral epicondyle/condyle. Whilst hospitalised he underwent the following surgical procedures:
[7] Insurer’s bundle p 525.
· open reduction internal fixation (ORIF) of the right lateral condyle of the elbow on 8 December 2018;
· open reduction and internal fixation (ORIF) of the right acetabulum with a right sacroiliac screw and external fixation of the pelvis on 18 December 2018, and
· removal of pelvic external fixation on 6 February 2019.
On 27 April 2019 Dr Arya, general practitioner noted:
39.“MBA 6/12/2018: fracture of right acetabulum and elbow: much better but gets intermittent pain, limited range of movement in right elbow
40.Had ORIF at TCH
41.Seeing physio
42.Father has now decided to put a claim in for CTP
43.Mx: continue physio
44.Simple analgesics, hot packs, pain creams PRN.”[8]
[8] Insurer’s bundle p 389.
Imaging
X-ray lumbar spine, 6 December 2018 – the report reads:
“No acute displaced vertebral body fracture. There is however right acetabular fracture at the edge of the study. Right acetabular fracture present with some medial displacement. Alignment is anatomical. No mass lesion. No displacement of the secondary ossification centres on imaged anatomy to the T12 level.”
X-ray chest, 6 December 2018 – the report reads:
“Cardiac size and mediastinal contour are within normal limits. The lungs and pleural spaces are clear, No displaced rib fracture or pneumothorax.”[9]
[9] Insurer’s bundle p 531.
CT Brain and cervical spine, 6 December 2018 – the report reads:
“Brain: No intra or extra-axial haemorrhage or surface collection, Ventricles, sulci, grey-white matter differentiation and basal cisterns are normal and age appropriate. No parenchymal oedema or features of mass effect. Left frontal scalp haematoma. No calvarial or skull base fracture.
Cervical spine: Cervical vertebral alignment and morphology is within normal limits. No acute fracture, intervertebral disc space widening or facet joint malalignment. Congenitally unfused anterior and posterior arches of C1. No pre or paravertebral soft tissue abnormality, imaged upper lung portions are clear.”[10][10] Insurer’s bundle p 530.
An addendum to this report dated 7 December 2018 reads:
At request of clinical site to assess for facial bone fracture.
Patient has swelling over the left periorbital region.
I note there is soft tissue swelling relating to the left periorbital region but I can see no underlying fracture of the left orbit or zygoma. No definite facial bone fracture is seen. There is no evidence of surgical emphysema and there is no fluid within the paranasal sinuses.”X-ray both knees, 6 December 2018 – the report reads:
”No acute fracture is demonstrated around the knee joints. Normal alignment. No knee joint effusion.”[11]
[11] Insurer’s bundle p 532.
CT pelvis, 6 December 2018 – the report reads:
“Extensive right hemipelvis compression fractures with moderately displaced fracture through the acetabulum involving the roof, anterior, medial and posterior acetabular walls. Superior fracture extension into the iliac crest. Right superior and inferior pubic ramus fracture. Mild pubic symphysis and right SI joint widening. Undisplaced fracture right sacral ala.
No left pelvic or proximal femoral fracture; imaged lower lumbar spine is intact.
Moderate sized right pelvic sidewall haematoma. The bladder appears intact.”[12][12] Insurer’s bundle p 533.
X-ray left elbow – 6 December 2018 - the report reads:
“Acute moderately displaced fracture lateral humeral epicondyle/condyle. Elbow joint haemarthrosis. Proximal radius and ulna appear intact.”[13]
[13] Insurer’s bundle p 535.
CT brain and cervical spine, 7 December 2018 - the report reads:
“Soft tissue swelling relating to the left periorbital region but there is no
underlying fracture of the left orbit or zygoma. No definite facial bone fracture is seen. There is no evidence of surgical emphysema and there is no fluid within the paranasal sinuses.”X-ray right elbow, 18 January 2019 - the report reads:
“Internal fixation lateral condyle; Confluent osseous union across the fracture site. Radiocapitellar alignment within normal limits.”[14]
[14] Insurer’s bundle p 534.
X-ray of the right hip, 26 November 2019 – the report reads:
“No prior comparison.
Screw transfixing the right SIJ and three screws transfixing the right acetabulum noted.
Bone remodelling of the acetabulum noted. There is no fracture seen. The hip joints are symmetric. The SI joints appear symmetric.”[15][15] Insurer’s bundle p 686.
X-ray of the right hip, 30 September 2020 – the report reads:
“Internal fixation of the right sacroiliac joint and right iliac bone noted. No complication related to internal fixation. No new fracture. Hip joint space and alignment are normal on both sides. No focal bone destruction.”[16]
X-ray right wrist – 19 December 2020 – the report reads:
“Alignment is near anatomical. No dislocation. No acute fracture detected.”[17]
[16] Insurer’s bundle p 688.
[17] Insurer’s bundle p 690.
Medico-legal evidence
Dr James Bodel, orthopaedic surgeon
Dr Bodel assessed the claimant and provided a report dated 8 November 2021.[18] Due to COVID-19 Dr Bodel assessed BNZ by telehealth.
[18] Claimant’s bundle p 17.
Dr Bodel reported BNZ walked reasonably well with a right sided limp. Dr Bodel reported BNZ had pain and stiffness of the right elbow and weakness of grip strength in the right upper limb. He also reported pain in the lower part of the back and the right sacroiliac joint and pain and stiffness in the right hip. Dr Bodel reported BNZ cannot push, pull or lift heavy objections and he cannot run or jump.
On examination Dr Bodel reported a restricted range of elbow movement as follows:
48. Elbow Movements
49. Active ROM Measured
50. RIGHT
51. Active ROM Measured
52. Left
53. Flexion
54. 120º
55. 140º
56. Extension
57. -10º
58. 0º
59. Pronation
60. 70º
61. 80º
62. Supination
63. 70º
64. 80º
Dr Bodel reported a full range of wrist and hand movement and reported BNZ could make a strong fist with both hands.
Dr Bodel reported some discomfort over the lower part of the back in the region of the sacroiliac noting BNZ had undergone a sacroiliac joint fusion as part of the surgical repair of the pelvis. He noted complaints of back and right buttock pain and on extension with a reduced range of lateral bending to the left. He noted straight leg raising at 70º on each side. Whilst he performed the examination by videolink Dr Bodel though BNZ may have had a slight restriction of hip movement. Whilst he recorded active range of motion (ROM) he considered it needed to be verified in person.
Dr Bodel diagnosed the following:
· fractures involving the pelvis, the floor of the acetabulum, the superior and inferior pubic ramus, the symphysis pubic and the right sacroiliac joint, and
· a fracture of the lateral condyle of the right humerus in the region of the right elbow.
Dr Bodel assessed a permanent impairment of 25% calculated as follows:
· right upper extremity assessed using figure 32 on page 40 and figure 35 on page 41 at 4% upper extremity impairment which converts to a 2% WPI;
· lumbosacral spine assessed in accordance with table 72 on page 3/110 of the AMA 4 Guides at 5% WPI on the basis there was asymmetry of movement and guarding but no clinical sign of radiculopathy;
· fractures in the pelvis assessed using table 3.4 on page 131 of the AMA 4 Guides. He noted fractures extending into the sacroiliac joint and separation of the pubic symphysis and assessed a 15% WPI;
· right hip assessed using table 40 on page 78 at 2% WPI for the restricted range of hip flexion and extension, and
· scarring assessed at 2% WPI.
Dr Graeme Doig, general orthopaedic and trauma specialist
Dr Doig assessed the claimant at the request of the insurer and provided a report dated
2 March 2022 together with a supplementary report dated 7 April 2022 which addressed administrative errors in his first report.[19][19] Insurer’s bundle p 698.
Dr Doig reported at the time of the accident BNZ was in Year 11 in a Special Needs School in Queanbeyan. He reported he subsequently tried to undertake physical labour by way of pallet construction but suffered a flare up in his condition. He was seeking employment through an NDIS employment agency. He reported BNZ had lateral-sided elbow pain with use and occasional discomfort in the right hip. He also reported occasional aching in the lower back. He was attending an exercise physiologist and reported using occasional Panadol and Nurofen for hip discomfort.
Dr Doig confirmed BNZ exhibited the following scars:
· an 11 cm pale scar over the lateral aspect of the right elbow;
· a 16 x ½ cm in diameter, pale, ilio-inguinal scar anteriorly over the right hip and groin with associated suture marks, and
· three x ½ cm scars over both iliac crests, caused by insertion of his external fixateur.
Dr Doig reported “BNZ displayed excellent, active range of action arcs at the right hip, essentially symmetrical with the left side, with only discomfort at the extremes of movement”. He reported BNZ had satisfactory, symmetrical movement with discomfort only on full extension. He could perform a full squat. He reported straight leg raising was full, with negative nerve-root tension signs and there was no focal neurological deficit of the lower limbs. He could walk on his heels and toes and leg lengths were equal.
In relation to the right elbow Dr Doig reported BNZ displayed 10º of fixed-flexion deformity to 140º of flexion and normal pronation and supination.
Dr Doig who confirmed the claimant sustained a displaced fracture of the lateral condyle and a complex fracture of the right hemi-pelvis, including fractures of the acetabulum, superior and inferior pubic rami and right sacral ala.
Dr Doig provided a combined assessment of 4% WPI assessed as follows:[20]
[20] Insurer’s submissions p 707.
· pelvis – healed fracture without displacement or residual signs in respect of the anatomical fixation of the right sacroiliac joint and asymptomatic pubic rami fractures – 0% WPI;
· right hip – as a result of the reconstructive surgery BNZ had excellent, active range of movement arcs and under table 40, AMA 4 Guides page 78 no measurable restrictions which would justify any impairment;
· right elbow – minimally restricted active range of motion on fixed flexion – 1% WPI as a result of the 10º fixed flexion deformity under figures 32 and 35 on pages 40 and 41 of the AMA 4 Guides;
· scarring – post-operative surgical scars assessed under Table for the evaluation of minor skin impairment (TEMSKI) at 3% WPI, and
· lumbo-sacral spine – there was no evidence of guarding, dysmetria or muscle rigidity – assessed as DRE category 1 which equates to 0% WPI.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 1 August 2023.[21] The insurer submits the certificate of Medical Assessor Gorman is erroneous in respect of the pelvis. The insurer submits:
[21] Insurer’s bundle p 2.
(a) Medical Assessor Gorman failed to identify the requisite “residual signs” to satisfy the criteria to justify the DRE rating allocated to the pelvic injury, and
(b) Medical Assessor Gorman failed to appropriately consider relevant and updated radiological investigation in his assessment of displacement of the pelvic fractures.
The insurer notes the pelvic fractures were assessed in accordance with Chapter 3.4 of the AMA 4 Guides and the Motor Accident Guidelines.
Medical Assessor Gorman concluded the pelvic injury met the criteria outlined at 3.e of page 181 of the AMA 4 Guides which gives rise to a 15% WPI. The insurer submits the pelvic injuries ought to have been assessed at 0% WPI (Disorder 1 of page 131 of the AMA 4 Guides), or worst case, 5% WPI (Disorder 2.e of page 131 of the AMA 4 Guides).
Critical to the assessment is the presence of “residual signs”. The insurer submits Medical Assessor Gorman failed to specify the “residual signs”.
“Residual signs” are defined in cl 6.97 of the Guidelines as follows:
71.“6.97 Residual signs must be present at examination and may include anatomically plausible tenderness, clinically obvious asymmetry, unilateral limitation of hip joint range of motion not associated with fractured acetabulum and/or clear evidence of malalignment.”
The insurer submits Medical Assessor Gorman did not identify or report any tenderness, asymmetry, unilateral limitation of hip joint movement or evidence of malalignment. Medical Assessor reported movement was equal bilaterally, hip range of motion was normal, and
BNZ could easily perform a full squat.The insurer also submits Medical Assessor Gorman failed to consider radiological investigations where he accepted the presence of “displacement” where there were post-accident radiological findings to the contrary.
The insurer submits that to be a category 3 disorder in addition to “residual signs” there must be “displacement” or “deformity”. The insurer submits the X-rays of the right hip dated
26 November 2019 and of 30 September 2020 makes no reference to displacement or deformity.The insurer does not dispute that the claimant’s fractures were initially displaced. However, he recovered well following surgery which successfully corrected the displacement issues.
The insurer noted Dr Doig commented that “post-operative imaging confirmed fracture fixation with anatomical reductions”. The insurer submits the claimant’s pelvic fractures were effectively treated with surgery and healed without displacement or residual signs.
The insurer refers to cl 6.21 of the Guidelines which states:
72.“the evaluation should only consider the impairment as it is at the time of the assessment.”
The insurer submits that Medical Assessor Gorman relied on historical radiological images that do not reflect the claimant’s current state.
The insurer provided submissions dated 13 April 2022 in response to the application for assessment. The insurer relied upon the assessment of Dr Doig who confirmed the claimant sustained a displaced fracture of the lateral condyle and a complex fracture of the right hemi-pelvis, including fractures of the acetabulum, superior and inferior pubic rami and right sacral ala.
Claimant’s submissions
The claimant provided submissions dated 28 September 2023.[22] The claimant notes the insurer accepts that he sustained fractures with displacement. However, the claimant also notes that unsurprisingly the fractures united. No fracture was to be seen on the X-ray of
26 November 2019 and no new fractures were seen on the X-ray of 30 September 2020. The claimant comments that if the fracture itself cannot be seen then clearly there can be no displacement.[22] Claimant’s bundle p 1.
The claimant disputes the insurer’s submission that the radiological changes evidencing the fracture and displacement must be present at the time of assessment. The claimant notes that table 3.4 on page 131 of the AMA 4 Guides is concerned only with healed fractures. It is submitted that the inquiry is directed to the question of whether the injury caused a fracture which healed, that is, united. Here it is argued that question was answered in the affirmative. The next question is said to be whether the fracture(s) was or were displaced, which was also answered in the affirmative. The claimant submits those questions are retrospective as the table contemplates the assessment of healed fractures.
The claimant submits that the history of pain when riding a pushbike reported by Medical Assessor Gorman is evidence of “residual signs” required under table 3.4. The claimant submits that the inquiry at this level is directed to the time of the assessment. However, the claimant submits that the presence or otherwise of displaced fractures is a different inquiry and is not confined to what is shown on scans taken near the time of assessment but is necessarily retrospective.
The claimant submits that the question as to whether the fractures were displaced is directed to the initial fracture(s) and the state of the fracture(s) at the time of injury and accordingly Medical Assessor Gorman was correct to rely on the 2018 CT scan of the pelvis and not the subsequent X-ray at this stage of the inquiry.
The claimant submits the finding of healed fractures with displacement took the matter before the first category of table 3.4 on page 131 of the AMA 4 Guides. The next question was whether residual signs were present, and it is submitted that the signs must be present at examination and not on examination, an important distinction in a case such as this involving a claimant with intellectual disabilities.
The claimant notes that the finding of right hip pain whilst riding a push bike is consistent with “anatomically plausible tenderness” in cl 6.97 of the Guidelines and to ground an assessment under category 3(e) of table 3.4 on page 131 of the AMA 4 Guides.
THE MEDICAL EXAMINATION
BNZ was examined in the company of his father BTK on
7 December 2023 at the Manuka Medical centre, Furneaux Street Manuka ACT.Pre-accident history
BNZ is presently 21 years old. He has a history of developmental disorders attributable to abnormality on chromosome 2. This includes global intellect impairment and behavioural disturbances.
At the time of the accident BNZ was in a special support unit at Queanbeyan High School. Due to the developmental disorders BNZ had a tendency to be hyperactive and disruptive. He was placed on a variety of medications for these disorders. BNZ was independent in self-care albeit with some supervision. He had previously travelled to school by disability transport. About a month before the accident BNZ started walking the 1.5 km to school with a view to increasing his independence.
The accident and subsequent treatment
BNZ was riding an ordinary child’s scooter to make the journey to school when he was hit by a car whilst crossing the road.
He was taken straight to the Canberra Hospital and admitted under the orthopaedic unit with a displaced fracture of the right hemipelvis and a fracture of the right elbow. His father believes there was also hip dislocation. He was treated immediately by the application of an external fixator; a device where threaded pins are inserted through punctures in the skin into the bone of the Iliac crest on each side of the pelvis. The fracture is manipulated in position held by series of threaded crossbars from the heads of pins outside the body. This is standard management of displaced pelvic fractures to allow fracture stabilisation and assist in the control of associated intra-pelvic bleeding.
Over the following week or so the fracture of the right elbow was treated by open reduction and internal fixation and a few days later a definitive internal fixation was performed for the pelvic fracture.
BNZ remained in hospital for about nine weeks. His behavioural disorder would suggest there was some conflict with the nursing staff. Fortunately, it seems the medication control for his behavioural disorder was ceased without apparent long-term problems.
BNZ convalesced at home. There was considerable family disruption as a consequence of his injury and his parents separated. BNZ now spends his time living with either his mother or father.
BNZ is supported by the National Disability Insurance Scheme (NDIS) and undertakes some voluntary manual work under supervision. He also undergoes a regular gym program under supervision. His father is his spokesman, and he receives the carers benefit to look after BNZ. BNZ’s father lives in a three-bedroom single story house.
Current treatment
BNZ takes paracetamol, non-steroidal anti-inflammatory agents and Nurofen on an as needed basis. There has been no return to the medication used prior to his admission. BNZ noted there was probably a period of concussion with some anti-grade amnesia at the time of the accident, but with no apparent permanent effect.
Current symptoms
BNZ has regained his pre-injury level of activity. He reports some ongoing tenderness around the right side of the pelvis and the scars are clearly visible. His father rubs these scars with lanolin gel. BNZ can use public transport provided he is supervised, carries out his own personal care and cycles or walks for local journeys.
Clinical examination
BNZ was animated and cooperative and was able to follow instructions freely. He is 186 cm tall and very thin at 65 kg. The thinness is not a sign of ill-health but rather of his gracile build. BNZ can tip toe and heel toe walk, hop and squat with enthusiasm and without restriction.
Spine
Both the cervical, thoracic and lumbar spines show a full range of movement. There was no spasm or guarding and movement was symmetrical. Nerve root tension signs in both the arms and legs were negative. The upper limb and lower limb manual muscle testing was rated at 5/5. Reflexes were brisk and symmetrical.
Upper limbs
BNZ has mild hypermobility of his upper limb joints. He can easily bring his fingertips together behind his back with one arm reaching down from above and the other up from below.
His shoulder, elbow and wrist movements mildly exceed the normal range of motion for each joint as recorded in the AMA 4 Guides. There was slight laxity present. This is normal for BNZ. His reflexes were brisk, and the symmetrical girth of both limbs was equal.
Lower limbs
BNZ shows the same mild hypermobility in the lower limbs. His hips, knees and ankles have a normal range of movement but on comparison the right injured hip shows some difference in range of movement compared to the left.
Specifically, there was painful limitation of post forced external and internal rotation in flexion and some mild weakness of abduction against resistance. There were no clicks or clunks, and the right hip was noted to be stable. The right hip reaches the full range of movement as outlined in the AMA 4 Guides. Otherwise, girth, reflexes and sensation were all normal
Scarring
Examination revealed a large curved lateral scar closely following the line of the right iliac crest into the groin. The scar is 25 cm in length, with puncture wounds proximally representing the points of pin insertion. There is a slight colour contrast with the surrounding skin. It is not visible with usual clothing.
There is also a 10 cm surgical scar on the lateral side of the right elbow which is well healed. The scar is slightly raised with a slight colour contrast with the surrounding skin. This scar would be visible with usual clothing.
MEDICAL IMAGING
At the request of the Panel the claimant provided medical imaging taken between
6 December 2018 and 18 March 2019 at The Canberra Hospital.The images were reviewed by Medical Assessor Stubbs. He observed a variety of images of the spine and both femurs. Those images confirm that BNZ has a gracile skeleton, where his bones are thin for their length. The images also reveal that the physeal growth plates are still open at the elbow, the knees and the pelvis. BNZ has not yet reached skeletal maturity.
Medical Assessor Stubbs viewed a sequence of images taken of the claimant’s pelvic fractures both on admission to the hospital and after the open reduction and internal fixation and application of the external fixator.
The imaging shows the presence of complex fractures and that the principal mechanism of injury was a violent lateral force directed to the right hip. The consequences are the dislocation of the sacroiliac joint with external rotation of the ilium. There is a fracture through the superior pubic rami both medially in the pubic symphysis and very laterally where the superior rami forms the anterior upper portion of the acetabulum. There is also a fracture of the right ischial ramus and a vertical fracture of the posterior superior portion of the acetabulum.
The fractures were displaced, and the subsequent images show the fracture complex was treated by internal fixation. The right sacroiliac joint is transfixed by a percutaneous screw, which effectively reduces the displaced joint and then secures the position. Very probably the sacroiliac joint will spontaneously fuse on the side in time.
The anterior components of the pubic and ishial ramus fractures have been dealt with by two percutaneous threaded screws introduced into the wing of the ilium just posterior to the anterior superior iliac spine then connected with a crossbar. There is a small plate and screws securing the medial wall of the acetabulum. This has been introduced under the iliacus muscle.
The CT scan dated 26 November 2019 following the post-surgery reconstruction show that there are still visible gaps in the medial and superior portion of the acetabular cup in the region of 3 mm.
The plain X-ray of the right hip dated 30 September 2020 revealed the fractures as a mixture of an open book fracture with some vertical displacement and a central fracture dislocation of the hip. The femoral head has lost some of its sphericity and there may be a small interarticular fragments from this present.
The claimant sustained serious fractures which required stabilisation. The clinical result is surprisingly good given the severity of the injury. The reduction is as good as one could expect given the plasticity of BNZ’s adolescent skeleton. The fractured fragments were observed to bend and buckle as well as break, so the fragments are slightly distorted and no longer fit together nicely.
DIAGNOSIS AND CAUSATION
There is no dispute the claimant sustained the following injuries caused by the accident:
· fracture of the right acetabular,
· fracture of the superior and inferior pubic ramus and separation of the pubic symphysis;
· undisplaced fracture of the right sacral ala;
· fracture of the lateral condyle of the right humerus, and
· scarring.
PERMANENT IMPAIRMENT
BNZ has done very well after a displaced fracture of the right hemipelvis and injury to the right radial head/lateral condyle of the humerus.
Injury to the lumbar spine
On examination the claimant had no significant clinical findings, no muscle guarding or spasm, movement was symmetrical and there were no clinical signs of radiculopathy. The Panel assesses the claimant as DRE Lumbosacral Category 1 in accordance with table 72 on page 3/110 of the AMA 4 Guides or 0% WPI.
Injury to the right elbow
BNZ has had an excellent outcome from the fracture of the right elbow.
The fracture to the elbow is a Salter-Hariss type 5 fracture. The fracture line extends through the medial condyle of the elbow across the still open physeal plate and into the joint. The fracture required open reduction and internal fixation to avoid healing in a displaced position of progressive valgus deformity leading to post-traumatic osteoarthritis. Salter-Hariss type 5 fractures are common around joints in late childhood and early adolescence. Provided they are anatomically reduced there is generally a good prognosis.
On examination BNZ has a slight loss of terminal extension in the right elbow compared to the left. In accordance with Figure 32 and Figure 35 on page 3/40 of the AMA 4 Guides this does not attract any impairment resulting in a 0% WPI for injury to the right elbow.
Scarring
The 25 cm scar is easily visible in the groin. There is some colour contrast, but minimal trophic changes. The scar is easily located by BNZ and shows clear puncture marks. It is not visible with usual clothing and there is no contour defect. It has a negligible effect on any activities of daily living (ADL) and there is no adherence. Treatment namely the application of lanolin gel is administered.
The 10 cm scar on the lateral side of the right elbow is well healed. The scar is slightly raised with a slight colour contrast with the surrounding skin. There are minimal trophic changes and no obvious staple or suture marks. This scar may be visible with normal clothing. There is no contour defect present, and it has a negligible effect on any ADL. There is no adherence. Treatment is limited to the application of lanolin gel.
Using the principle of best fit the scars would be assessed under the TEMSKI scale as 2% WPI.
Injury to the right hip/pelvis
In Chapter 3, section 3.4 is a table showing impairment values associated with selected disorders of the pelvis. Section 3.4 provides for three categories of disorder, as follows:
92. Disorder
93. % impairment of the whole person
94. Healed fracture without displacement or residual sign(s);
95. 0
96. Healed fracture with displacement and without residual sign(s) involving:
a. Single ramus
b. Rami, bilateral
c. Ilium
d. Ishcium
e. Symphysis pubis, without separation
f. Sacrum
g. Coccyx;
97.
98.
99.
100. 0
101. 0
102. 0
103. 0
104. 5
105. 5
106. 0
107. Healed fracture(s) with displacement, deformity, and residuals sign(s) involving:
h. Single ramus
i. Rami, bilateral
j. Ilium
k. Ischium, displaced 1 inch or more
l. Symphysis pubis, displaced or separated
m. Sacrum, into sacroiliac joint
n. Coccyx, non-union or excision
o. Fracture into acetabulum.
108.
109.
110. 0
111. 5
112. 2
113. 10
114. 15
115. 10
116. 5
117. Evaluate on basis of restricted motion of hip joint.
In accordance with cl 6.96 of the Guidelines it is mandatory to assess the pelvic fractures using section 3.4 on page 3/131 of the AMA 4 Guides although the fracture of the acetabulum should be assessed using Table 64 on page 85 of the AMA 4 Guides.
Further regard must be had to cl 6.97 of the Guidelines which provides:
120.“Residual signs must be present at examination and may include anatomically plausible tenderness, clinically obvious asymmetry, unilateral limitation of hip joint range of motion not associated with fractured acetabulum and/or clear evidence of malignment.”
The claimant disputes the insurer’s submission that the radiological changes evidencing the fracture and displacement must be present at the time of assessment. The claimant submits that section 3.4 is only concerned with healed fractures, or fractures which had united and whether the fracture had been or was displaced. The claimant submits the enquiry is retrospective.
The insurer, however, submits the enquiry as to displacement is to be undertaken at the time of the assessment in accordance with cl 6.21 of the Guidelines. The insurer submits the claimant’s pelvic fractures healed without displacement or residual signs and relies upon more recent imaging such as X-rays of the right hip dated 26 November 2019 and
30 September 2021 which do not mention displacement or deformity.Clause 6.9 of the Guidelines defines impairment as a deviation from normality in a body part or organ system and its functioning. Further cl 6.19 states before an evaluation of permanent impairment is undertaken it must be shown that “the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment”. Clause 6.21 states the evaluation should only consider the impairment as it is at the time of the assessment.
Principles of statutory constructions were considered in Military Rehabilitation Commission v May[23] where the court citing Project Blue Sky Inc v Australian Broadcasting Authority[24] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[25] stated “the question of construction is determined by reference to the text, context and purpose of the Act”.
[23] [2016] HCA 19 at [10].
[24] [1998] HCA 28 at [69]-[71].
[25] [2009] HCA 41.
Whilst the Guidelines do not have the force of delegated legislation the Panel considers it is appropriate to view the Guidelines in accordance with accepted principles of statutory construction.[26]
[26] Ali v AAI Limited [2016] NSWCA 110.
The Panel does not accept the claimant’s submissions. If the enquiry was to be made retrospectively, that is, immediately post-accident the fracture would not have healed, and any impairment would not have been static, well stabilised, and unlikely to change substantially regardless of treatment.
In accordance with clause 6.21 the evaluation of impairment is to be undertaken at the time of the assessment.
Fracture of the acetabulum
The claimant sustained a fracture of the acetabulum. Whilst cl 6.96 of the Guidelines requires the fracture of the acetabulum to be assessed using Table 64 on page 85 of the AMA 4 Guides, Table 64 state the acetabulum fracture should be estimated according to range of motion and joint changes.
Hip motion impairments are assessed under Table 40 on page 3/78 of the AMA 4 Guides.
The Panel finds displacement and deformity where there are remaining gaps in the medial and superior portion of the acetabular cup in the region of 3mm. Residual signs include painful limitation of external and internal rotation in flexion and mild weakness of abduction against resistance.
However, whilst BNZ has subtle signs of loss of range of motion, his range of motion exceeds the range of motion that would attract impairment under Table 40. Accordingly, there would be a 0% WPI for the fracture of the acetabulum.
Fracture of the rami, bilateral
BNZ sustained fractures of the superior and inferior pubic ramus.
However, it is apparent from the X-rays that the bilateral rami fractures have healed without displacement or deformity. Whilst there are some residual signs in accordance with section 3.4 the claimant has sustained a 0% WPI.
Fracture of the pubic symphysis
BNZ suffered fracture and separation of the pubic symphysis. However, whilst there are some mild residual signs the fracture has healed without displacement or deformity and in accordance with section 3.4 the claimant has sustained a 0% WPI.
Fracture of the right sacral ala
BNZ sustained a fracture of the right sacral ala. The Panel considered whether it was possible to assess this fracture under Table 64 of page 85 of the AMA 4 Guides which includes a sacroiliac joint fracture.
However, the Panel notes that the right sacral ala is part of the sacrum and therefore in accordance with cl 6.96 of the Guidelines it must be assessed under section 3.4. Noting the fracture has healed without displacement or deformity the fracture of the right sacral ala under section 3.4 would be assessed at 0% WPI.
CONCLUSION
Whilst the Panel notes BNZ was hospitalised for nine weeks following the accident and may develop future osteoarthritis which may impact his future earning capacity, he has made an excellent recovery from the pelvic fractures. Whilst the Panel is sympathetic to
BNZ, assessment under section 3.4 of the AMA 4 Guides leads to the conclusion that he has sustained 0% WPI arising out of the pelvic fractures.Similarly, his excellent recovery means his fracture of the right elbow is also assessed at 0% WPI.
The only assessable impairment is 2% WPI for scarring.
PANEL FINDINGS
The Review Panel revokes the Certificate of Medical Assessor David Gorman dated
26 June 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI which is not greater than 10% and is 2%:· lumbar spine – fracture of the right sacral ala;
· pelvis – fracture of the pelvis;
· right elbow – fracture of the right elbow;
· right hip – fracture of the right hip, and
· scarring to the right hip and right elbow.
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