Campbell v QBE Insurance (Australia) Limited
[2024] NSWPICMP 115
•26 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Campbell v QBE Insurance (Australia) Limited [2024] NSWPICMP 112 |
| CLAIMANT: | Renae Campbell |
INSURER: | QBE Insurance Australia Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 26 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury in motor accident on 29 April 2018 from head on collision; assessment of permanent impairment of right ankle, hindfoot and surgical scarring; right ankle assessed by manual muscle testing pursuant to Table 38 and 39 of AMA4; hindfoot assessed by loss of range of motion at 1%; surgical scar assessed at 1% under best fit principle; Held – claimant assessed at 7% permanent impairment due to physical injuries; medical assessment confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the Medical Assessment Certificate dated 13 July 2023 and certifies that the following injuries caused by the motor accident does not give rise to a permanent impairment greater than 10%: · fracture dislocation of the right ankle joint with transverse fracture of the medial malleolus and comminuted oblique fracture at the distal fibular shaft; · fractures through the bases of the third and fourth metatarsals in the right foot – resolved; · scarring, and · soft tissue injury to the cervical spine – resolved. |
REASONS
BACKGROUND
On 29 April 2018 Ms Renae Campbell (the claimant) was injured whilst driving her motor vehicle. The insured driver was travelling in the opposite direction and crossed to the claimant’s side of the road resulting in a head on collision.[1] The claimant sustained traumatic injuries to her right leg and soft issue injuries.
[1] Claimant’s bundle, p 28.
QBE Insurance Australia Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Campbell any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms Campbell’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] 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 made 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 (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[3]
[3] 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 Preston and dated 13 July 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the CL Act.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused a bimalleolar fracture dislocation of the right ankle requiring open reduction and internal fixation with subsequent surgical scarring of the right leg.
The Medical Assessor noted a pre-existing history where the claimant was diagnosed with palindromic rheumatoid arthritis with symptoms mainly in the upper limbs including the hands, wrists, shoulders and elbows with occasional groin pain. It was noted the claimant was under the care of a rheumatologist and currently on medication.
The Medical Assessor noted the operative procedure at hospital and subsequent removal of two large screws from the fracture site in July 2018 with a plate and smaller screws remaining in situ. Current symptoms noted by the Medical Assessor were:
“Ms Campbell reports a constant ache in the right ankle. Symptoms are often worse towards the end of the day or if she is standing at work. Symptoms can disturb sleep. At times, the joint feels unstable and she can experience a sharp pain, especially when changing directions. She has difficulty with inclines because of the movement of dorsiflexion required. Ms Campbell is no longer playing tennis or running the dog since the accident. She reports 12 kgs of weight gain since 2018.
She reports that the right ankle and scans well at times but there is no paraesthesia, temperature or colour change in the limb. Driving can be difficult.
….
With respect to the scar, she is conscious of the scar and modifies her clothing to cover it. She may avoid shoes that expose the scar and may be asked questions about it by children at school. She uses a general moisturiser to the skin, not solely to the region of the scarring.
With respect to her rheumatoid arthritis, she reports occasional discomfort in the thumb basis and her proximal interphalangeal joints of hands as well as both wrists. She is not aware of any joint swelling and morning stiffness is not prolonged. She has no spine pain.”
The Medical Assessor noted no obvious gait disturbance and examination of the cervical spine was normal. The arrangement of movement in both hips was full and reported as pain-free. The Medical Assessor provided a table setting out the range of ankle and hindfoot movements with the claimant described as being consistent.
The Medical Assessor described two scars over the lateral aspect of the right ankle. The scar over the lateral aspect was pale and one was 15cm in length and the other was 2cm in length. There were no obvious suture marks, no adherence and no contour defect. The scar over the medial aspect of the left ankle was also pale. Suture lines are visible. There was no adherence and no contour defect.
The Medical Assessor concluded that the motor accident caused a significant injury to the right leg with fracture dislocation of the ankle joint with a transverse fracture of the medial malleolus and a comminuted oblique fracture at the distal fibular shaft with moderate displacement.
Review of the medical file from John Hunter Hospital also documented fracture through the basis third and fourth metatarsals in the right foot (X-ray dated 15 May 2018). The Medical Assessor noted that those injuries were not listed by the parties although were caused by the accident.
The Medical Assessor assessed impairment as follows:
“Ms Campbell is assessed as having a moderate whole person impairment of 6% based on plantar flexion with respect to table 42 and a mild hindfoot impairment based on inversion and eversion range of movement using table 43. These are combined to give a value of 7% due to the right ankle fracture. She is assessed as having a 1% whole person impairment using TEMSKI. Ms Campbell is conscious of the scars and does have visible staple or suture marks but there is no contour defect, no treatment only intermittent treatment required and no adherence.”
MATERIAL BEFORE THE PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
Dr John Van Der Kallen, rheumatologist, provided a report dated 20 June 2016.[11] The doctor noted that the claimant had muscular musculoskeletal symptoms for many years initially with knees in her early 20s with intermittent swelling and occasional morning stiffness and pain which prevented running. Over the last six years the claimant had intermittent wrist and proximal inter-phalangeal (PIP) joint pain without significant swelling or morning stiffness. In the past 12 months the claimant had global pain in the elbows without range of motion of the elbows and intermittent right ankle pain “again without significant swelling or morning stiffness”.
[11] Insurer’s bundle, p 18.
Medical records post-accident
The ambulance record included the following history:[12]
“This patient was the driver of a vehicle travelling at approximately 90 km/hr when the vehicle has crossed the road in front of her, bounced off the curb and collided with patients vehicle mostly on the front passenger side. Major defamation to both vehicles, airbags deployed. Patient wearing lap/sash seatbelt. Patient self-extricated and extricated her daughter before lying down on the side of the road. C/O pain to right ankle. O/E patient alert and oriented, obvious fracture with deformity to the right ankle, denies neck pain and pain to the spine on palpation always to the base of the spine, do not patient denies LOC, denies paraesthesia anywhere, … Some pain to nose where the airbag is connected to her face. Mild graze to left hip and from seatbelt. Patient with C-spine collar precaution and given pain relief with good effect.”
[12] Claimant’s bundle, p 157.
The claimant was admitted to John Hunter Hospital following the motor accident with a primary diagnosis of Bimalleolar fracture dislocation of the right ankle.[13]
[13] Claimant’s bundle, p 43.
The CT scan of the cervical spine reported no fracture or dislocation and only a small degenerative endplate spur at C6.[14] The X-ray of the right ankle showed marked fracture dislocation of the ankle joint with transverse fracture of the medial malleolus and comminuted oblique fracture at the distal fibular shaft with moderate displacement. There was marked disruption of the ankle mortise.[15]
[14] Claimant’s bundle, p 44.
[15] Claimant’s bundle, p 45.
The claimant underwent surgery by way of open reduction of the ankle fracture with internal fixation of diastasis, fibula or malleolus.[16]
[16] Claimant’s bundle, p 45.
On 18 July 2018 the diastasis screws were removed.[17]
[17] Claimant’s bundle, p 98.
The X-ray dated 27 November 2018 showed internal fixation of the distal fibula with a lateral plate and multiple screws and the medial malleolus with two screws. Hardware and bony alignment were reported as stable and the medial malleolus fracture line much less conspicuous. The distal fibular fracture had healed.[18]
[18] Claimant’s bundle, p 71.
A report from Alex Holmes, physiotherapist dated 1 August 2019 noted the claimant’s progress over the previous 11 months. The physiotherapist noted that the claimant had residual deficits primarily due to ankle dorsi flexion range of motion and her ability to perform hobbies that her pre-injury level.[19]
[19] Claimant’s bundle, p 47.
A further report from the physiotherapist dated 11 October 2019 was basically repetitive of the earlier report.[20]
[20] Insurer’s bundle, p 24.
Qualified opinions
Dr Ghabrial, orthopaedic surgeon, was qualified by the claimant and provided a report dated 20 September 2021.[21]
[21] Claimant’s bundle, p 32.
After noting the details of the motor accident and the claimant’s treatment in some detail, Dr Ghabrial assess the whole person impairment based on Grade 4 weakness of the flexion and extension of the right ankle at 12% in accordance with Table 17-15. The doctor also assessed the scar at 1%. The doctor’s examination findings included the following:
“There is Grade 4 residual weakness of the right ankle flexion and extension. She was able to walk on tiptoes but with difficulty on the right side but she was not able to launch herself on the right tiptoes or stand on the right heel alone without support.”
Dr Ghabrial opined that the neck injury had fully recovered.
Dr Raymond Wallace, orthopaedic surgeon, was qualified by the insurer and provided a report dated 13 October 2020. The doctor then recommended that the claimant would benefit from an unsupervised home exercise program concentrating on mobilisation and strengthening exercises are right ankle with intermittent use of simple analgesic medication.
Dr Wallace then assessed the loss of range of movement of the right ankle in accordance with Tables 42 and 43 of AMA 4 at 4%. The doctor assessed the scar at 0%.
Dr Wallace provided a further report dated 28 March 2022. The doctor noted the applicant’s complaint of intermittent aching pain at the medial aspect of the tibia and the anterior aspect of the tibia-talar joint as well as a pressure like feeling at the lateral fibula.
Clinical examination showed a 7cm medial longitudinal scar which had healed to a fine white wine and a15cm lateral longitudinal scar which was minimally visible.
Dr Wallace accepted that the right ankle condition was caused by injury sustained in the motor accident and assessed whole person impairment at 3% based on loss of range of movement in accordance with Tables 42 and 43 of AMA 4. The scars were again assessed at 0%.
Statement
The claimant provided a victim Impact statement dated 28 October 2019.[22] The statement details the claimant’s injuries, treatment, and subsequent suffering in some detail. We have read but have not repeated the claimant’s statement.
[22] Claimant’s bundle, p 17.
The police report confirms the claimant’s account of the motor accident.[23] There are also photographs of the accident scene.
[23] Claimant’s bundle, p 16.
SUBMISSIONS
Claimant’s submissions dated 15 August 2023[24]
[24] Claimant’s bundle, p 254.
These submissions were filed seeking a review of the medical assessment.
The claimant referred to clauses 6.70, 6.71 and 6.83 of the Guidelines.
The claimant referred to the absence of assessment of the fractures through the bases of the 3rd and 4th metatarsals in the right foot. It was submitted that there was an absence of reference to Table 45 in the range of motion assessment for these injuries. It was submitted that these fractures are otherwise assessable under Table 64 of AMA 4.
The claimant referred to AMA 4 Table 44 which allows 5% permanent impairment for “mild hindfoot deformity impairment” which was not referenced by the Medical Assessor. This assessment is in addition to Table 43.
The claimant submitted that the Medical Assessor failed to consider and apply “manual muscle strength testing” as provided by clause 6.83 of the Guidelines. The claimant submitted that there were various references in the medical assessment certificate supporting this method of assessment as being appropriate. It was also noted that Dr Ghabrial applied this method of assessment.
The claimant submitted that the Medical Assessor did not test for muscle strength which was supported by the claimant’s clinical presentation as well as the opinion proffered by Dr Ghabrial.
Insurer’s submissions dated 11 July 2022[25]
[25] Insurer’s bundle, p 2.
The insurer referred to the long-standing complaints of bilateral musculoskeletal knee and right ankle pain of such severity that the claimant was unable to mobilise. It submitted that the “ongoing right lower limb symptoms are largely related to the pre-existing unrelated diagnosis of polyarthralgia and psoriatic arthritis”.
The insurer referred to clause 6.31 of the guidelines and submitted there was objective evidence of pre-existing symptomatic permanent impairment and that the assessor “will make the necessary deductions should the right lower limb attract any assessable impairment rating”.
There was no submission as to the pre-existing symptomatic permanent impairment of the right lower limb at the time of the accident.
The insurer accepted that the motor accident caused a right ankle fracture/dislocation but noted the claimant had failed to provide submissions in support of the allegation that the threshold had been exceeded. It otherwise submitted that the claimant’s right ankle has “notably improved since initially sustaining injury”.
The insurer relied on the opinion of Dr Wallace who assessed permanent impairment of either 3 or 4%. The claimant had received physiotherapy from Mr Holmes which had been beneficial, and range of motion had improved. The claimant had returned to preinjury employment of unrestricted duties and did not require further treatment.
The insurer submitted that the opinion expressed by Dr Ghabrial was an error as he relied on Table 17-15 of AMA 4. That table applied to upper extremity impairments. Applying the correct table and AMA 4, Table 42, this would attract a mild category of only 6% permanent impairment.
The insurer noted that Dr Ghabrial had purportedly assessed muscle weakness but made no mention of undertaking a physical manual test as was required. It otherwise noted the opinion of Dr Gabriel was outdated and unlikely to reflect the improvement recorded by Dr Wallace between the examinations undertaken by him in October 2020 and March 2022.
The insurer submitted that the scarring should be as assessed at 0% in accordance with the opinion provided by Dr Wallace. It queried the photographs in support of the claim and whether there had been improvements since the photographs were taken. The insurer submitted that the scarring attracts no assessable impairment in accordance with clause 6.261 of the guidelines noting good colour match with the surrounding skin, no staple or suture marks present, no contour defect or effect on the activities of daily living, and the location of the scar was not clearly visible under usual claimant clothing such as shoes. Both Dr Ghabrial and Dr Wallace also agreed that no treatment was required.
Insurer’s submissions dated 5 September 2023[26]
[26] Insurer’s bundle, p 52.
These submissions opposed the application to review the medical assessment certificate.
The insurer submitted that the Medical Assessor assessed the hindfoot appropriately under Table 43 which is specifically used to assess hindfoot impairments. It further submitted that assessment under Table 44 was unnecessary based on the examination findings and observations of the Medical Assessor.
The insurer further submitted that the claimant has failed to provide any evidence in support of impairment of the position of the varus or valgus. As there was no discernible medical evidence or any observable indication of such an impairment, there was no error by the Medical Assessor in not providing assessment under Table 44.
The insurer submitted that the only medical evidence in support of the fractures through the bases of the third and fourth metatarsals in the right foot was the X-ray dated 15 May 2018. The insurer noted the claimant reported no complaints of ongoing symptoms with respect to that body part during the assessment with the Medical Assessor. Further, the claimant was able to walk independently without aid and with no obvious gait disturbance.
The insurer submitted that even if the third and fourth metatarsals were assessed for whole person impairment, they would have attracted an assessment of 0%.
In respect of the Medical Assessor’s failure to undertake manual muscle strength testing, the insurer noted that the Medical Assessor conducted testing in accordance with Tables 42 and 43 of AMA 4 which was consistent with the preferred method of testing used by Dr Wallace. The insurer otherwise noted there is no specific reference of muscular atrophy which would include one leg being smaller than the other, marked weakness, numbness and tingling.
RE-EXAMINATION
Ms Campbell was examined by both Medical Assessors on 14 February 2024. The examination report is as follows:
“Ms Campbell attended the medical suites at PIC on 10 February 14, 2024. She was unaccompanied.
The examination and interview was undertaken by Medical Assessors Stubbs and Moloney.
Pre-accident history
Ms Campbell stated that she was single and living with one teenage child. At the time of the accident, she was working full-time as a high school, science teacher.
Prior to the accident she had been diagnosed as rheumatoid arthritis but she said no medication was needed for this condition although she had knee pains and occasionally in the thumbs and hands. She was under the care of a rheumatologist. She stated she had no previous injuries of those assessed today.
History of motor accident
Ms Campbell was driving her car when she had a front on collision that impacted the front passenger side of her car from a car travelling in the opposite direction at speed of possibly 90 km an hour. She states that the other driver had lost control of the car causing the collision on her side of the road. She was wearing a seatbelt at the time and airbags were deployed. There was no loss of consciousness during the impact, and she was able to get out of the car. There was immediate pain due to a fracture dislocation of the right ankle and associated bruising with the impact of her nose on the airbag. Her daughter was a passenger in the car and was later diagnosed as having had a perforated bowel. The ambulance and police attended the scene of the accident, and she was transported to John Hunter Hospital.
History of subsequent treatment
At John Hunter Hospital, she was diagnosed as having a bimalleolar fracture dislocation of the right ankle which required open reduction and internal fixation. She was off work for 6 weeks after the accident and then returned to part-time teaching with dependence on crutches. The 2nd operation was undertaken in July 2018 to remove the large screws. The plate and smaller screws remain in situ. She states that her neck and lumbar spine were asymptomatic and there was some discomfort in the right shoulder related to the rheumatoid arthritis.
Current symptoms
At present, Ms Campbell has persistent anterior right ankle pain which increases with driving or any twisting motion. She can no longer jog with her dogs or played tennis. There is a slight swelling of the ankle joint and walking upstairs is okay, but she has difficulty walking downstairs with occasional collapsing of the leg during this. She is dependent on using the stair railing when walking down the stairs. This also increases with any quick change in direction.
Ms Campbell has returned to near full-time work but finds it very painful when undertaking playground duty as the yard is uneven. She states that there has been 10 kilograms weight gain since the accident. The present workload is .8 the normal load and is limited due to ankle pain.
Present medication
Mrs Campbell takes Celebrex on a regular basis which helps relieve ankle pain and gets relief with elevating the leg after work but has no manual therapy except for personal massage. She treats the scars with moisturising cream and massaging.
Clinical examination
Ms Campbell walked into the room with a normal gait and sat comfortably during the interview. Her height was measured at 161 cm and weight 74 kg.
She was able to walk on tiptoes on heels with some difficulty and on squatting there was an elevation of the right heel (see muscle weakness later in these Reasons). Ms Campbell was able to hop on the left leg and had weakness when attempting to do so on the right leg.
There was a normal range of movement of the hips and knees and lumbar spine. No muscle wasting was apparent with the circumference of the lower thighs 54 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 39 cm bilaterally. At the level of the ankle joint the right ankle was 24 cm and the left 22 cm.
Ankles
On inspection of the right ankle there was slight swelling laterally but a stable talus bone on testing. In relation to Table 42 of AMA4 we confirm that there was no impairment of flexion contracture and plantar flexion capability.
She had a full range of movement of all her toes.
Ankle Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion/extension
40°
50°
Plantarflexion
50°
50°
Hindfoot Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Inversion
10°= 1% WPI
30°
Eversion
10°= 1% WPI
20°
On inspection of the ankles and feet, no valgus or varus deformity was noted. The examination findings on muscle weakness are set out later in these Reasons.
Surgical scar
There is a 13 cm surgical scar on the lateral right ankle and a 6 cm medial scar. These scars were well healed with no obvious suture marks, no adherence or contour defect. Mrs Campbell is easily able to locate the scars, there is a slight colour match with surrounding skin with no trophic changes and she is conscious of the scars. The scars would be slightly visible when sandals are worn. No treatment is required.
The scars are assessed using the Temski chart and classification of best fit at 1% WPI.
Comments
At the time of our examination, there is no WPI for ankle range of movement and only 1% WPI for the right hindfoot using table 42 and 43. No varus or valgus deformity was noted to give a WPI using table 44.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[27]
[27] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[28] and Insurance Australia Ltd v Marsh.[29]
[28] [2021] NSWCA 287 at [40], [41] and [45].
[29] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination report provided by the Medical Assessors supplemented by the following further reasons.
The claimant initially sustained neck symptoms following the motor accident. Both Dr Ghabrial and Dr Wallace reported that the neck symptoms had resolved. The claimant made no complaint of neck symptoms to the Medical Assessors. That soft tissue injury has resolved and there is no impairment.
The Panel confirms that there was no measurable muscle wasting/atrophy at the thighs and the calves as defined in Table 6.1(a) and 6.1(b) of the Guidelines. No impairment arises under that Table.
In relation to the assessments of the toes, the Medical Assessors found no loss of movement. Accordingly, there is no loss under Table 45. In relation to the claimant’s submission that Table 64 applied, the Panel confirms that on examination there was no forefoot deformity and no assessable impairment. Our conclusion is that the toe fractures had resolved with no ongoing symptoms and no impairment.
Whilst on Table 64, the Panel confirms that the examination showed no ligamentous instability.
Manual muscle testing is assessed pursuant to Table 38 and 39 of AMA 4 and par 6.83 of the Guidelines. The Medical Assessors found that the claimant raised her heel off the ground on squatting due to dorsiflexion weakness arising from the fractures. We assess this as Grade 4 (active movement against gravity with some resistance). This is assessed as 5% permanent impairment.
There was no varus or valgus of the hindfoot or ankle. Accordingly, there is no assessment under Table 44 of AMA 4.
The insurer submitted that there should be a deduction for pre-existing impairment. The insurer did not identify any objective evidence of a pre-existing impairment.
In relation to the hindfoot assessment, the Medical Assessors found 1% loss for inversion and 1% for eversion. These cannot be combined (see paragraph 6.85 of the Guidelines). The hindfoot is assessed at 1% permanent impairment based on loss of range of motion.
With respect to scarring the claimant was conscious of the scar, some parts of the scar have colour contrast (1%) and she is easily able to locate the scar (2%). There were minimal trophic changes (1%). The scars are visible with summer clothing because the claimant did not wear sandals to avoid comments (1%).
The claimant stated that she rubbed cream into the scar which had negligible effect.
Factors which support a 0% assessment include no contour defect, no suture marks, no effect on activities of daily living and no adherence.
Noting the length of the scar and considering all these factors we assess the impairment on a best fit basis at 1%.
The insurer also submitted that any ongoing impairment was related to the pre-existing condition. There was no basis for that submission, and it was inconsistent with the opinion of Dr Wallace qualified on its behalf. That submission was without an evidentiary basis to support it.
The Panel confirms, based on the clinical experience of the Medical Assessors who undertook the examination, that the ongoing symptom in the right lower extremity relates to the fractures caused by the motor accident.
We are conscious that the range of movement assessment of the ankle is less than that assessed by Dr Wallace, Dr Ghabrial and the previous Medical Assessor. That improvement in the range of movement is explained by the claimant’s efforts in returning to activities and rehabilitation since the previous examinations. This comment does not detract from the fact that the claimant continues with pain and ongoing disabilities in the right lower extremity.
The claimant is assessed at 7% permanent impairment based on the right ankle – muscle weakness in dorsiflexion (5%), hindfoot – loss of range of movement (1%) and scarring (1%).
There is no basis for any deduction for pre-existing impairment.
The impairment is stabilised and permanent within the meaning of clauses 6.19 and 6.20 of the Guidelines due to the duration of symptoms, no need for operative treatment in the foreseeable future and the consistency of symptoms over the past 12 months. Based on the clinical experience of the Medical Assessors on the Panel, we do not expect any change in impairment over the next 12 months.
CONCLUSION
The assessment of impairment is not greater than 10%. Although we agree with the assessment issued by the Medical Assessor that the impairment is not greater than 10%, the slight change in assessment means it is necessary to revoke the medical assessment certificate and issue a new certificate.
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