Cic Allianz Insurance Limited v Mulford
[2023] NSWPICMP 336
•18 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | CIC Allianz Insurance Limited v Mulford [2023] NSWPICMP 336 |
| CLAIMANT: | Mark Mulford |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 18 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Assessment of whole person impairment (WPI) under the Motor Accident Injuries Act 2017; on 25 January 2018 concrete truck ran over left foot; pre-existing bilateral club feet; subsequent fall in shower causing right shoulder injury; causation of surgical procedures; causation of fall in shower noting pre-existing bilateral club feet; causation neck injury; causation back injury; Held – crush injury aggravated talo-navicular arthritis leading to surgery; neck strain caused by fall over chair at time injury; fall in shoulder occurred because taking full weight on other leg after surgery to left foot causing full thickness rotator cuff tear; jarred back when fell in shower; altered gait due to left foot injury and subsequent surgery resulted in back pain; soft tissue injury to cervical spine assessed as Diagnosis Related Estimate (DRE) cervicothoracic category 1 or 0% WPI; right shoulder assessed as 8% WPI; lumbar spine assessed as DRE lumbosacral category 1 or 0% WPI; ankylosis of left ankle 4% WPI and ankylosis of left foot 4% WPI added to give 8% WPI; complete sensory loss in distribution of superficial peroneal nerve 2% WPI combined with complete sensory loss of the sural nerve 1% WPI giving a total of 3% WPI for peripheral nerve injury; combining 8% WPI and 3% WPI gives 11% WPI for left foot/ankle; total impairment 18% WPI. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 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 Mohammed Assem dated · crush injury to the left foot with post traumatic ankylosis of the ankle and subtalar joints on the left with residual antalgic gait and surgical fusion of the talo navicular joint; · sensory change grade 5 out of 5 in the superficial peroneal and sural nerves of the left foot; · mild lumbosacral facet arthralgia with lumbar stiffness which is symmetrical with no sciatica and no spasm or guarding; · post traumatic stiffness of the right shoulder with impingement on abduction and with shoulder girdle wasting requiring arthroscopic interventions, and · transient neck strain injury with symmetrical stiffness without radicular complaint in the upper extremities and no neurological deficit in the arms. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 25 January 2018 a concrete truck ran over the left foot of Mark Mulford (the claimant) during the course of his duties as a traffic control officer (the accident). He states he experienced pain on weight bearing and when he attempted to stand up, he fell backwards over the chair resulting in injury to his neck. Mr Mulford asserts that whilst recovering from surgery to his left foot on 9 April 2019 he fell in the shoulder landing on his right shoulder.
Mr Mulford was 57 years of age at the date of accident and is now 62 years of age.
Mr Mulford has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Mulford under the MAI Act.
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 Mr Mulford 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 Mohammed Assem who issued a certificate dated 19 August 2022.
REVIEW PROCEDURE
On 19 December 2022 the insurer sought a review of the medical assessment of Medical Assessor Assem.
On 16 February 2023 the delegate of the President allowed the application to extend time for the making of an application for review pursuant to clause 133A of the Personal Injury Commission Rules, 2021. The delegate was also satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the medical assessment to the Review Panel (the Panel).[2]
[2] Section 7.26 of the MAI Act, AD1 p 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 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.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).[3] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[3] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]
[4] 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.[5]
[5] 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 3 April 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.[6]
[6] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
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:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
CERTIFICATE OF MEDICAL ASSESSOR ASSEM[7]
[7] AD1 p 17.
The following injuries were referred to Medical Assessor Assem:
· foot – crush injury to left foot;
· toes – fracture of fifth left metatarsal and damage to mid-tarsal region;
· cervical spine – musculoligamentous injury;
· leg – secondary injury to right leg;
· lumbar spine – secondary musculoligamentous injury, and
· shoulder – secondary right rotator cuff tear.
Medical Assessor Assem reported Mr Mulford had been born with bilateral club feel and had required three surgical procedures to each foot. He also reported he had suffered from a cerebral haemorrhage and atrial fibrillation. He reported on 3 September 2016 Mr Mulford fell and sustained an injury to his head and back. Mr Mulford had undergone gastric sleeve surgery and managed to lose 110kg of weight.
Medical Assessor Assem reported Mr Mulford sustained a crush injury to his left foot and when he attempted to stand up, he fell backwards over a chair causing his neck to feel stiff and uncomfortable. He reported his left foot and ankle was immobilised in a moon boot and a plain X-ray was reported to be normal. An MRI scan on 19 March 2019 showed a recent fracture involving the proximal phalanx of the left fifth toe.
Mr Mulford ultimately underwent a left lateral column osteotomy, talonavicular fusion, bone graft and Achilles tendon lengthening procedure under the care of Dr O’Carrigan on 20 March 2019. Medical Assessor Assem reported whilst he was recovering from the operation Mr Mulford fell in the shower landing onto his right shoulder. A subsequent MRI confirmed a full thickness rotator cuff tear involving the subscapularis, supraspinatus and anterior infraspinatus with retraction to the glenoid rim. He also reported the fall caused Mr Mulford to sustain injury to his lower back which was aggravated by his altered gait pattern and leg length shortening.
Mr Mulford underwent right shoulder arthroscopic superior capsular reconstruction, rotator cuff repair, biceps tenodesis and acromioplasty at Lakeview Private Hospital.
Medical Assessor Assem reported the left foot hindfoot had a slight valgus deformity of approximately 10 degrees compared to the right. Sensation was reduced at the dorsal aspect of the left foot. He assessed the claimant’s ankle movements as follows:
1. Ankle Movements
Active ROM Measured
2. RIGHT
Active ROM Measured
3. LEFT
4. Dorsiflexion
5. 0
6. 0
7. Plantarflexion
8. 28
9. 12
10. Eversion
11. 10
12. 0
13. Inversion
14. 0
15. 0
Medical Assessor Assem reported mild tenderness over the anterior aspect of the right shoulder. He reported shoulder movements as follows:
16. Shoulder Movements
Active ROM Measured
17. RIGHT
Active ROM Measured
18. LEFT
19. Forward Flexion
20. 110
21. 160
22. Extension
23. 40
24. 60
25. Abduction
26. 80
27. 160
28. Adduction
29. 30
30. 50
31. External Rotation
32. 30
33. 40
34. Internal Rotation
35. 60
36. 80
Medical Assessor Assem expressed the following view as to causation:
“According to the unbroken chain of events described the injuries he sustained to his cervical spine, right shoulder, lumbar spine and left foot are causally related to the accident. There was no evidence of an injury to his right foot and it was considered to be normal …”.
Medical Assessor Assem issued a certificate dated 19 August 2022 where he assessed 0% WPI for the cervical spine, 0% WPI for the lumbar spine, 7% WPI for the right shoulder after deducting 2% WPI for the restriction of movement he found in the ‘normal’ left shoulder. He assessed the left foot and ankle by range of motion and sensory loss at 7% ankle dorsiflexion + 5% valgus + 5% sensation + 3% ankle inversion a total lower extremity impairment (LEI) of 19% which converted to 8% WPI.
Medical Assessor Assem assessed a total WPI of 14% in respect of the following injuries:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· right Shoulder – rotator cuff tear requiring arthroscopic surgical repair, and
· left foot – talonavicular synovitis and undisplaced fracture to the proximal phalanx of the left fifth toe requiring fusion of the talonavicular joint.
Whilst he did not take it into account in his total assessment of WPI he also assessed a 2% WPI for the pigmented scars which he had not been asked to assess.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 21 February 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 AD1 paginated from pages 1 to 1,551. The solicitor for the claimant uploaded to the portal a bundle of documents marked AD2 and paginated from pages 1 to 74.
Pre-accident treating medical evidence
On 1 October 2014 Mr Mulford underwent laparoscopic sleeve gastrectomy.
On 30 January 2015 following a car accident it was reported: “Pain in the lower chest. Mildly tender to palpation. Neck: No tenderness, normal movements. Spine: No tenderness.”
On 23 July 2016 an ambulance report refers to the claimant presenting with a left lower leg abrasion after the wheel arch of a trailer hit his left lower leg. On examination “…Denies neck pain. Denied back pain. No headache. Nil nausea. L lower leg heavy bleeding…”.
Post-accident treating medical evidence
On 25 January 2018 Mr Mulford attended Castle Hill Medical Centre where it was reported his left foot was run over by a truck.[8] Swelling was noted but nil fracture on X-ray. Mr Mulford was certified fit for his pre-injury duties.
[8] AD1 p 992.
On 9 February 2018 and on 12 February 2018 Mr Mulford complained of foot pain. On 14 February 2019 it was reported the forefoot pain had improved but he had more pain into the mid foot. On 23 February 2018 Mr Mulford reported ongoing pain in the left foot and bruising was noted. Analgesia was prescribed and physiotherapy and podiatry recommended.[9]
[9] AD1 p 993.
On 27 February 2018 it was noted Mr Mulford was born with club feet and used to be in casts and splints. A cement truck had run over his foot causing foot pain. He was walking with severe supination and using a walking aid.[10]
[10] Ad1 P 994.
On 12 March 2018 Mr Mulford reported worsening pain in his left foot and it was noted that his recovery did not seem in line with the original injury. He was referred for an MRI and his work activity was downgraded to office only. The MRI disclosed a fracture of the proximal phalanx of the fifth toe.[11]
[11] AD1 p 995.
By 27 March 2018 it was reported Mr Mulford was unable to get his boot on.[12]
[12] AD1 p 995.
On 4 April 2018 the clinical notes of iFamily Medical Centre record:
“Is on WorkCover for his left foot. Fell down as well after his left foot was run over by a concrete truck. He is now having pain in the neck which is bothering him. There is also stiffness in the neck as well. Cannot move neck freely as well.
Examination
On examination of the neck. Movements of the neck are somewhat restricted. There is tenderness in the cervical spine and the paraspinal muscles. There is no tenderness in the sternocleidomastoid or the trapezius on either side. Sensations in both upper limbs are intact. Reflexes are normal.”[13]
[13] AD1 p 165.
On 6 April 2018 the clinical notes of Castle Hill Medical Centre record discussion over a recent episode of torticollis which occurred after unloading a truck. Dr Mosse, general practitioner diagnosed torticollis after lifting signs.
On 16 April 2018 Mr Mulford was assessed by Dr Ke Huang orthopaedic surgeon.[14] He concluded the symptoms and signs were suggestive of a midfoot injury with persistent pain. He recommended further assessment.
[14] AD2 p 41.
On 17 April 2018 Mr Mulford saw Associate Professor Roderick Kuo, orthopaedic surgeon.[15] He diagnosed a healed proximal phalanx fracture left 5th toe and post traumatic sprains of the left tarsometatarsal joints left midfoot. He recommended immobilisation in a CAM boot.
[15] AD1 p 1,083.
On 2 June 2018 Mr Mulford sought treatment for his neck pain.[16] He was noted to have minimal tenderness and minor stiffness. He had taken off the boot and his foot pain was manageable.
[16] AD1 p 165.
On 24 July 2018 Naomi Amor podiatrist reported an abnormal gait with significant limp, early heel lift, and splayed foot.[17] There was pain on palpation and active range of movement.
[17] AD1 p 1,087.
On 1 August 2018 Associate Professor Kuo reported Mr Mulford was improving with physiotherapy and new footwear. He recommended a return to work as tolerated.
Mr Mulford continued to seek medical attention in relation to his left foot and ankle and on 19 October 2018 Associate Professor Kuo reported he was complaining of a lot of pain and a burning sensation.[18] He recommended an open tendo-Achilles lengthening.
[18] AD1 P 1,085.
On 5 November 2018 Dr Mosse reported “Has also been off work due to strained back. Says he strained it whilst driving and had MVA”.[19]
[19] AD1 p 1,001.
On 15 November 2018 the clinical notes of iFamily Medical Centre state: “Was driving – and now he has back pain and is unable to work today as it has worsened…on examination an antalgic gait and lower back stiffness was reported.”[20]
[20] AD1 p 161.
By 8 January 2019 Dr Awais reported the pain in the foot had increased a lot and Mr Mulford was struggling to walk.[21] On examination it was noted the dorsal side of the foot was tender to touch and weight bearing was painful.
[21] AD1 p 158.
On 7 February 2019 Mr Mulford saw Dr Tim O’Carrigan, orthopaedic specialist.[22] He reported Mr Mulford was born with bilateral clubfeet, which had been treated by surgery. He weighed 214kg at one point, causing bilateral foot and ankle pain which was quite severe but lost 104kg after gastric sleeve surgery and was able to get back to light jogging, working long hours, and being active. Dr O’Carrigan reported he had evidence of extensive soft tissue releases that would have occurred as a child with large scars down the posteromedial aspect of both ankles. He noted pain around the talonavicular joint and lateral border of the foot. He reported X-rays showed advanced talonavicular joint osteoarthritis. He recommended a talonavicular fusion to fix the left foot and ankle and Achilles lengthening and osteotomies.
[22] AD1 p 1,255.
On 20 March 2019 Mr Mulford underwent surgery, namely left Achilles lengthening, closing wedge osteotomy heel, talonavicular joint fusion with bone graft, lateral column osteotomy and medial malleolar osteotomy.[23]
[23] AD1 p 1,163.
On 16 April 2019 Dr Quereshi reported:
“He fell during shower bcs of the left foot injury and now having pain in right shoulder.
On examination of the shoulder: No swelling or erythema visible on inspection. There is tenderness on palpation of the shoulder. Range of movements of the shoulder normal. Impingement +ve…”
On 2 May 2019 Dr O’Carrigan reported the claimant had fallen in the shower and injured his right shoulder since his last visit. He recommended Mr Mulford start weight bearing in the boot.[24]
[24] AD1 p 1,275.
On 17 May 2019 Dr Kalman Piper orthopaedic specialist reported a six week history of right shoulder pain.[25] He noted major foot surgery and non-bearing since. He reported Mr Mulford lost his balance trying to get out of the shower as a consequence of trying to not put any weight through the leg, fell through a gap between the shower and toilet and injured his right shoulder. He noted the ultrasound revealed a rotator cuff tear and recommended further imaging.
[25] AD1 p 751.
On 1 July 2019 the clinical notes of iFamily Medical Centre reported pain on the right side, knee, ankle and hip due to compensation.[26]
[26] AD1 p 145.
On 23 July 2019 Mr Mulford underwent surgery, namely right shoulder arthroscopic superior capsular reconstruction, rotator cuff repair, biceps tenodesis and acromioplasty under the care of Dr Piper.[27] On 2 September 2019 Dr Piper reported the claimant was recovering well following his shoulder surgery.
[27] AD1 p 970.
On 15 October 2019 iFamily Medical Centre reported issues with his foot, leg and back.[28] Mr Mulford reported he was advised by the podiatrist that he had a leg difference of 7mm.
[28] AD1 p 141.
On 2 December 2019 Associate Professor Bezhad Eftekhar reported increasing neck and back pain. He noted the lower lumbar and cervical spine were tender to touch but found no objective motor deficits or upper motor neuron signs.[29] On 7 February 2020 Assoc Prof Eftekhar noted the MRI showed degenerative changes associated with facet arthropathy and discopathies, worst at the C5/6 and C6/7 levels. He recommended physiotherapy and hydrotherapy.[30]
[29] AD1 p 327.
[30] AD1 p 455.
On 30 January 2020 Dr O’Carrigan reported all of the osteotomies had healed but Mr Mulford continued to have difficulty with uneven surfaces and was experiencing anterolateral ankle and sinus tarsi pain.[31] He proposed further surgery which would include removal of the calcaneal screw and removal of the K-wire.
[31] AD1 p 1,219.
On 26 February 2020 Dr O’Carrigan performed further surgery to the claimant’s left foot, namely left valgising supramelloeolar osteotomy, tarsal tunnel release, Achilles lengthening and closing wedge osteotomy of calcaneus with external fixation for lengthening.[32]
[32] AD1 pp 1170, and 1,387.
On 25 March 2020 he required further surgery, namely modification of the left ankle frame and debridement of the wound.[33]
[33] AD1 p 1,174.
On 13 May 2020 Mr Mulford underwent removal of the external fixator of the left ankle and wound debridement of the calf.[34]
[34] AD1 p 1,209.
Mr Mulford was reviewed by Dr Carrigan on 20 October 2020 when he complained of swelling around his foot and ankle everyday especially on weight bearing.[35] He also experienced stiffness and a tight sensation on the anterolateral aspect of the ankle.
[35] ADA P 1,316.
Imaging
X-ray left foot, 25 January 2018 – the report concluded:
“No recent fractures, subluxations or dislocations are evident. There are severe arthritic changes in the talonavicular joint with joint space narrowing and sclerosis of the articular surfaces. The metatarsals and phalanges of the toes are intact. There is extensive calcification in the region of the Achilles tendon. A plantar calcaneal spur is noted.”[36]
[36] AD1 p 1,005.
MRI of the left foot, 19 March 2018 – the report concluded:
“There is a transverse fracture without significant displacement through the junction at the base/shaft of the proximal phalanx of the fifth toe. There is a large amount of marrow oedema, keeping with recent injury, and there is oedema which then extends into the adjacent subcutaneous tissues, particularly along the dorsal aspect of the foot. No further fracture along the forefoot area is visualised. There is no tendon pathology… The midfoot was partly included in the field of view, and there are osteoarthritic changes at the talonavicular joint centred laterally, where there is joint space narrowing with subchondral cyst formation.
Comment
Recent fracture involving the proximal phalanx of fifth toe with adjacent oedema”.[37]
[37] AD1 p 1,006.
X-ray and ultrasound of the left ankle and foot, 24 July 2018 – the report concluded:
“… There is fragmentation of the anterior aspect of the talus, adjacent to the dorsal aspect of the talonavicular joint, consistent with a previous fracture. There is advanced osteoarthritis of the talonavicular joint. The 5th metatarsal is intact….
Comment
Active synovitis of the talonavicular joint with severe osteoarthritis and bony fragmentation at this site.”
Cone beam CT – left ankle, 12 February 2019 – the report concluded:
“Severe ankle and hindfoot arthropathy”.[38]
[38] AD2 p 50.
Ultrasound right shoulder, 16 April 2019 – the report showed:
“… partial thickness tear (3.0 x 0.6 x 3.1 cm) with associated haematoma in lateral aspect of arm, 4mm full thickness partial width tear of subscapularis tendon on background of severe tendinosis. Moderate to severe tendinosis of supraspinatus tendon and moderate tendinosis of infraspinatus tendon but no tear. Subacromial bursitis with evidence of right shoulder impingement. Degenerative changes in AC joint”.[39]
[39] AD1 p 246.
MRI right shoulder, 24 May 2019 – the report reads:
“Full-thickness cuff tears involving the subscapularis, supraspinatus and anterior infraspinatus retracted to the glenoid rim. Dislocated long head of biceps. Joint effusion and bursitis. AC joint OA.”
X-ray full spine, 2 November 2019 – the report reads:
“Discal pathology/mild spondylotic bone changes at C5/6. Joint arthritis at C5/6 and C6/7. Bone changes at T8/9 and T9/10. Loss of disc height at L4/5 (10%). Joint OA at L4/5 and L5/S1”.[40]
[40] AD1 p 240.
MRI cervical spine, 2 December 2019 – the report reads:
“… disc desiccation at C5-T1. Right paracentral osteophyte complex at C4/5, posterior disc osteophyte complexes at C5/6 and C6/7. Inflammation at C6/7. Moderate narrowing of spinal canal from superior endplate C5 to inferior endplate C6 with cord flattening. Mild narrowing of neural exist foramina particularly at C4/5 level. Other levels not remarkable.”[41]
[41] AD1 p 230.
MRI thoracic spine, 2 December 2019 – the report concluded:
“No thoracic spine acute injury evident. No disc disease or neural exit foraminal stenosis.”
CT scan cervical spine, 27 October 2020 – the report concluded there were degenerative changes of the cervical spine with multilevel neural exit and canal narrowing.[42]
[42] AD1 p 211.
X-ray left ankle and foot, 22 April 2021 – the report concluded:
“Distal tibial and fibular osteotomy, with sclerosis and bone bridging seen. Healed osteotomy of the calcaneus noted as well. There is a plate screw and screw fixation at the hindfoot. There is a loss of the longitudinal arch. Extensive calcification at the Achilles tendon noted.”
X-ray both feet, ankles and heels, 9 September 2021 – the report concluded:
“Prior left distal tibia and fibula osteotomy with healing and bone bridging noted. The right and left ankle joint spaces are preserved, although arthropathy on the left is seen with sclerosis and cystic change at the talar dome. There is hindfoot arthropathy bilaterally with joint space narrowing, sclerosis and cystic change. There is plate and screw fusion of the left hindfoot. There is also extensive calcification, at the right and left Achilles tendons.”
X-ray of pelvis, hips, knees, ankles and feet, 25 January 2022 – the report concluded:
“Ankles
Transverse fractures of the distal left tibia and fibula are noted with ongoing periosteal reaction and dense callus formation. The alignment is satisfactory. Advanced osteoarthritis is noted in the ankle joints bilaterally.
Left foot
Healed osteotomy of the left calcaneum noted. The position of the hindfoot fixation hardware is stable. Loss of bony plantar arch is unchanged. Extensive calcification of the Achilles tendon appears stable.
Right foot
Advanced osteoarthritis is again noted in the right ankle joint with loss of talar height. Advanced osteoarthritic changes are also seen at the intertarsal and tarsometatarsal joints. There is a loss of bony plantar arch. Extensive calcification of the right Achilles tendon is noted.
Spine
…. There is a mild degenerative L4 spondylolisthesis. Diffuse degenerative changes of the lumbar facet joints are noted. There is focal narrowing of the L4/5 and L5/S1 disc spaces…
Shoulders
Degenerative changes of the glenohumeral and AC joints is noted bilaterally.
Pelvis & lower limbs
… Mild degenerative changes of the knee joint in a symmetrical fashion is noted. Postsurgical and posttraumatic changes of the left tibia is noted. The ankle mortises are intact. Callus bridges the fracture site at the distal tibia and fibula. Calcification is noted along the left Achilles tendon and may be due to previous rupture. Left pes planus and fusion of the talonavicular joint with subchondral sclerosis and collapse of the talar dome of the left ankle is noted. A calcaneal osteotomy is also noted in the left ankle.”[43]
[43] AD1 p 752.
Ultrasound of right shoulder, 2 June 2022 – the report concludes:
“Findings
There is no evidence of a tear. There is supraspinatus tendinosis present… There is only mild thickening of the bursa on abduction, with marked limitation of abduction, indicative of associated adhesive capsulitis.
Conclusion
Supraspinatus tendinosis present, with associated limitation of abduction, consistent with adhesive capsulitis.”[44]
Medico-legal evidence
Dr James Bodel, orthopaedic surgeon
[44] AD1 p 195.
Dr Bodel assessed the claimant and provided a report dated 26 October 2020.[45]
[45] AD2 p 57.
Dr Bodel noted the foot deformities from childhood but reported Mr Mulford functioned quite well until the crush injury which occurred on 25 January 2018. He concluded he had sustained extensive osteotomy formation and a talonavicular joint fusion with bone grafting for management of the crush injury caused by the accident at work.
Dr Bodel accepted Mr Mulford had a consequential injury to the right shoulder as a result of the fall in the shower.
He also found Mr Mulford had consequential pain in the lower part of the back, right knee and foot although Dr Bodel failed to adequately consider causation of those consequential injuries.
Whilst Dr Bodel assessed a total WPI of 24% the Panel finds it surprising that he assessed both the right and left lower extremity at 7% WPI. He also assessed 5% WPI for the lumbar spine, 7% WPI for the right shoulder and 3% WPI for the surgical scarring.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 19 December 2022[46] and 12 May 2023.[47]
[46] AD1 p 1.
[47] AD1 p 28.
Cervical spine
The insurer submits there is no report of any cervical injury or symptoms at the time of the accident and Mr Mulford first reported pain in his neck on 4 April 2018, about 10 weeks later.
The insurer also notes that Dr Mosse recorded Mr Mulford reported on 6 April 2018 he had developed a spasm in his neck after unloading a truck. He diagnosed a torticollis.
The insurer submits if causation of a soft tissue injury to the cervical spine is accepted it must have resolved noting the last record of neck pain was by Dr Awais on 10 November 2020.
Lumbar spine
The insurer submits the first record of lumbar symptoms was by Dr Moses on 5 November 2018 when he recorded:
“Discussed ongoing issues with foot. Has also been off work due to strained back. Says he strained it whilst driving and had MVA.”
The insurer suggests this refers to a separate accident because the claimant was not driving at the time of the accident.
The insurer submits any back injury has resolved given the absence of subsequent complaints.
Left lower extremity
The insurer submitted the surgeries to the left foot and ankle were not related to the accident.
The insurer submits the subluxation of the navicular bone did not occur due to the accident and that treatment of the subluxation, namely the medial malleolar osteotomy is not attributable to the accident. The insurer argued the subluxation of the navicular described in the operation report of 2 March 2019 was not caused by the accident where there was no partial dislocation identified on the X-ray on the day of the accident.
The insurer notes:
(a) an x-ray on 25 January 2018, the day of the accident, found:
(i) No recent fractures, subluxations or dislocations are evident…The metatarsals and phalanges of the toes are intact.
(ii) The talonavicular joint had pre-existing arthritic changes, joint space narrowing and sclerosis.
(iii) There was extensive calcification in the Achilles tendon and a plantar calcaneal spur.
(b) An MRI on 19 March 2018 confirmed a recent fracture in the proximal phalanx of the fifth toe. The results also noted osteoarthritic changes and subchondral cyst formation in the talonavicular joint.
(c) An X-ray on 24 July 2018 concluded, “no acute fracture of the left ankle or left foot”. There was fragmentation of the talus next to the talonavicular joint consistent with a previous fracture. The talonavicular joint showed advanced osteoarthritis along with swelling.
(d) A CT scan on 12 February 2019 identified severe arthropathy in the hindfoot. As noted in previous imaging, the results showed a flattened talar bone, calcified Achilles tendon and plantar calcaneal spurring.
The insurer notes the fifth toe fracture was not diagnosed until 19 March 2018, three months after the accident and the fracture to the talus in the left ankle was not diagnosed until 24 July 2018, six months after the accident. The insurer suggests the inference to be drawn is that these injuries occurred in subsequent events.
Causation of surgery of 20 March 2019
The insurer notes that Dr O’Carrigan’s rationale for a talonavicular joint fusion was treatment of arthritis, rather than a traumatic injury. The insurer submits there is evidence of pathology, calcification, which was pre-existing and not caused by the accident and therefore the treatment for that condition, for the Achilles lengthening, lateral column osteotomy and possibly closing wedge osteotomy to treat the Achilles region was not attributable to the accident
The insurer notes the medial malleolar osteotomy was performed to relieve impingement from the navicular on the medial malleolus. Dr O’Carrigan described the navicular as subluxed in his operative findings, however, the X-ray taken on the day of the accident explicitly stated, “no recent fractures, subluxations or dislocations are evident”.
The insurer asserts that page 79 of the AMA 4 Guides provides a “fused joint” is to be assessed as ankylosis rather than as loss of movement. The insurer submits Medical Assessor Assem failed to explain why the ankylosis provisions were not considered.
The insurer also submits that if the talonavicular joint deviates from the optimum position any impairment arising from ankylosis must have regard to the pre-existing clubfoot condition.
The insurer also noted that Medical Assessor Assem recorded 0 degrees of dorsiflexion in the right and left ankles and also 0 degrees for inversion range of motion when the same range of motion was observed in both ankles. The insurer notes clause 6.72 of the Guidelines provides:
“If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint, only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury.”
The insurer submits where Medical Assessor Assem accepted the accident did not cause injury to the right ankle it was a contralateral uninjured joint that should have served as a baseline to assess impairment to the left ankle.
The insurer also notes that whilst Medical Assessor Assem considered clause 6.72 when he calculated LEI for reduced inversion, he did not apply the same methodology when he assessed LEI for reduced dorsiflexion. The insurer notes Medical Assessor Assem was required to provide reasons on causation especially as clubfoot syndrome affected both ankles.
The insurer submits Medical Assessor Assem found the same range of movement of both ankles, yet they received different Lower Extremity Impairment (LEI) assessments. It is submitted clause 6.72 properly applied would lead to nil LEI because the bilateral movements were equal. The insurer submits there is no coherent reasons for a left ankle inversion finding of 3% LEI.
The insurer also submitted that Medical Assessor Assem did not explain how the valgus deformity was caused by the accident where his diagnosis did not include a pathology involving the left hindfoot. It is also argued Medical Assessor Assem failed to consider application of the ankylosis provisions when considering valgus deformity.
In respect of loss of sensation, the insurer submits the finding of reduced sensation is not commensurate with “complete loss” of sensation. The insurer argues the requirement for complete motor or sensory loss for the named peripheral nerves under Table 68 is not satisfied. The insurer also submits it is not clear the loss of sensation covered the distribution of the common peroneal nerve.
Injury to the right shoulder
The insurer notes the claimant fell in the shower. The Panel understands the claimant says the fall in the shower, occurred on 9 April 2021 when he was recovering from the surgery of 20 March 2019. The insurer says there is no evidence that reduced mobility and instability due to weakness of the left ankle resulted in the fall particularly given the claimant’s pre-existing bilateral club foot condition. The insurer submits that it is necessary to determine, with regards to the right shoulder injury, whether:
(a) the accident could have caused or contributed to the worsening of the impairment, and
(b) the accident did cause or contribute to worsening of the impairment.
Right lower extremity
The insurer submits there is no assessable impairment for the right knee and right ankle, particularly where Dr Bodel concluded they were secondary injuries and where the insurer disputes causation for the primary injury.
The insurer notes in a span over five years the treating records only confirm two instances of right knee pain where the first complaint was not recorded by Dr Awais until 1 July 2019, more than one and a half years after the accident.
The insurer notes an X-ray on 1 February 2022 confirmed tricompartmental osteoarthritis in both knees and submits any symptoms arose from the pre-existing condition.
The insurer notes the first report of pain in the right foot was made to Dr O’Carrigan around April 2021, over three years post-accident. The insurer submits that an X-ray on 9 September 2021 demonstrated calcification in the right Achilles tendon and hindfoot arthropathy and an X-ray of the right foot on 25 January 2022 identified advanced osteoarthritis.
The insurer submits any symptoms are attributable to the pre-existing pathology.
Claimant’s submissions
The claimant provided submissions addressing the decision to be made by the delegate of the President in respect of the application for review.[48]
[48] AD2 p 1.
The claimant provided submissions in support of the application at first instance where reliance is placed upon the opinion of Dr Bodel. The claimant also referenced complaints on 1 July 2019 re the right knee, ankle and hip due to compensation, complaints on 15 October 2019 re back pain and complaints on 4 November 2019 re neck and lower back pain.
MEDICAL EXAMINATION
Mr Mulford was examined by Medical Assessor Dixon on behalf of the Panel on 2 June 2023 at the Medical Suites at the Commission, 1 Oxford Street, Darlinghurst.
History
Mr Mulford is now 63-years-old. He reported that he was employed at the substation, Murray Farm Road at Cheltenham where he was employed as a traffic control leader with Evolution Traffic Control. At the time of the accident, he was sitting on a chair just inside the gate recording registration numbers, weight and quantity of concrete trucks entering the site.
As a concrete truck proceeded through the gate on 25 January 2018, the driver pulled to the left and the rear tyre of the truck drove over his left foot. He sustained a crush injury to his left foot and at the time, when he tried to stand, he fell backwards over a chair, causing a neck strain injury.
He was attended to by first aid and a safety officer and was referred to Dr Mosse at Castle Hill Medical Centre. He notes that prior to the accident, he did not have any pre-existing medical conditions and was not taking regular medication.
He had severe pain in his foot and his wife, Maria, would assist him to bind his foot with sports strapping tape to allow him to put on work boots and she massaged his foot every day to alleviate the pain. This enabled him to attend work, taking considerable pain killers. He had disturbed sleep which made him fatigued the following day.
Mr Mulford stated he lived with severe and unrelenting pain for 14 months until he saw Professor Al Muderis and Dr Tim O’Carrigan at Macquarie University Hospital Clinic who, after examining his imaging, informed the claimant that his foot had been crushed.
On 20 March 2019 he had surgery to his left foot which included lateral column osteotomy and talo-navicular fusion with bone graft and tendo Achilles lengthening. This procedure was complicated by infection.
Subsequently, while he was showering and taking weight on his right leg, this leg gave way causing him to fall onto his right shoulder. He sustained a rotator cuff tear which required operative intervention with arthroscopic capsular reconstruction and rotator cuff repair, acromioplasty and biceps tenodesis on 23 July 2019. Despite physiotherapy and exercises in the convalescent period, the right shoulder remained stiff. As a result of the injury, he advised he could no longer use his knee walker or frame walker as these required two hands to operate.
He had further surgery with Dr O’Carrigan on 26 February 2020 which included removal of hardware as well as calcaneal osteotomy, Achilles lengthening, tarsal tunnel release and calcaneal lengthening which was associated with external fixateur which his wife had to gradually extend each day to perform calcaneal lengthening. Following this, he was in a Calliper for three months before proceeding to a Moon boot and crutches for a further two months. He still had pain however and an antalgic gait.
He found that when he was walking with a limp and favouring his left leg, due to his antalgic altered gait, he developed pain in the lower back with lumbar stiffness but no sciatica. In the main, this back pain has improved, albeit with residual bilateral lumbosacral pain but no sciatica.
He also believed he jarred his back when he fell in the shower.
He has subsequently had podiatry review with Christopher Scanlon who noted a final limb length discrepancy of 7mm and suggested an orthotic.
Clinical examination
On examination he walked with a limp on the left and was unable to toe or heel walk on that side. He could heel raise slightly on both feet. There was no varus or valgus deformity of the left heel. There was no active movement in the left subtalar or ankle joints. There was sensory change with complete sensory loss of the dorsum of the foot in the distribution of the sural nerve and the superficial peroneal nerve (grade 5 out of 5). There was a seroma below the lateral malleolus.
There were numerous surgical scars including a longitudinal 17cm scar at the tendon Achilles and a 7cm anterior scar at the site of fusion and external fixateur scars down the leg and both sides of the foot and heel.
There was mild active motion of the right foot and right ankle with dorsi flexion 5 degrees, plantar flexion 15 degrees, eversion 5 degrees and inversion 10 degrees.
His straight leg raise was 60 degrees bilaterally. On the left it was associated with low back pain. There was 2cm of wasting of his left thigh, 58cm on the left, 10cm above the patella and 60cm on the right. The measurement of both calves, 10cm below the inferior pole of the patella was 42cm bilaterally. His knee jerks were present, as were his medial hamstring jerks. His ankle jerks were difficult to elicit. There were no other sensory changes in his lower extremities. He reported no sciatica today. His sciatic nerve root stretch test was difficult to ascertain because of his previous foot surgeries.
There was stiffness of his lumbar segment with flexion and extension decreased by one third without erector spinae muscle spasm and lateral flexion to the right and left decreased by one third. Flexion extension was associated with pain in the right and left paralumbar regions of the lumbosacral facet joints which were not unduly tender. There was no tenderness of the spinous processes.
The range of motion of both knees was 0 degrees through to 120 degrees and both knees were stable without joint line tenderness.
There was mild symmetrical stiffness of the cervical spine with flexion and extension decreased by one third, lateral rotation decreased by one quarter bilaterally and lateral flexion decreased by one third bilaterally, associated with some pain of the upper right trapezius muscle. There was tenderness in this area. The lower cervical facet joints and spinous processes were non tender.
There was stiffness on elevation of his right shoulder with active abduction 80 degrees, forward flexion 100 degrees, extension 40 degrees, adduction 40 degrees associated with pain and external rotation 80 degrees and internal rotation 60 degrees. Shoulder girdle power on the right was grade 4 out of 5.
There was a full range of motion of his left shoulder where shoulder girdle power was grade 4+ out of 5. The measurement of his upper arms, 10cm above the elbow crease, was 40cm bilaterally and measurement of his left forearm, 10cm below the elbow crease, was 30cm on the left and 30cm on the right. He had a full range of motion of the elbows, wrists and hands. His grip strength, intrinsic power and thenar power were grade 5 out of 5 and there was no neurovascular deficit of either hand.
There was drooping of his right shoulder with some wasting of the deltoid. There was no winging of the scapulae on resisted protraction.
His arthroscopic portals had healed well and were not worrying him.
In summary Mr Mulford had a severe crush injury to his left foot. Despite having a protective boot, he had painful swelling of the left foot and had to strap it to get his work boot on to attend work. Ultimately, he was referred for further orthopaedic opinion and the above reconstructive procedures were performed. He also required arthroscopic surgery to his right shoulder.
Mr Mulford did not report any complaints relating to his right leg.
Consistency of presentation
Mr Mulford presented as a straightforward, honest historian with no attempt to embellish his history. Mr Mulford was walking with a frame but indicated he only uses the frame when he is out and about for the day, otherwise, he ambulates with the use of a stick.
The Panel considers Mr Mulford has displayed amazing resilience having regard to the serious crush injury sustained to his left foot when it was run over by a cement truck. Whilst he had bilateral club feet the Panel notes Mr Mulford had lived with this condition for his entire life and for many years prior to the accident had been asymptomatic.
DIAGNOSIS AND CAUSATION
In the past he suffered from cerebral haemorrhage and atrial fibrillation and had suffered a head and back injury in September 2016.
He had no previous accidents involving his neck, shoulders or lower back and the surgical procedures as an infant for club feet produced a good result. He had been able to ambulate freely as an adult.
He underwent a gastric sleeve operation and managed to lose weight to 110 kg but since the accident, he has gained 20kg and now weighs over 130kg.
Injury to the left foot
Both his feet had been subjected to three operations bilaterally for club feet when he was an infant. However, he had been asymptomatic while growing up and was able to work full time.
Notably only four weeks post-accident on 27 February 2018 Castle Hill Medical Centre reported Mr Mulford was walking with severe supination and using a walking aid.
Whilst the pathology was not apparent on the initial X-ray taken on the day of the accident the Panel does not find this unusual. There is a history of consistent and contemporaneous complaint and no evidence of any intervening event. The Panel is satisfied the crush injury sustained on 25 January 2018 was the cause of the fifth toe fracture diagnosed on19 March 2018 and the fracture of the talus in the left ankle diagnosed on 24 July 2018.
Review of his radiology included an MRI of the left foot on 19 March 2018 which showed recent fracture of the proximal phalanx of the left 5th toe. Mr Mulford was referred to Dr Huang who noted he was ambulating with an antalgic gait with tenderness of the mid foot and metatarsals and felt the claimant had an underlying mid foot injury.
Associate Professor Kuo diagnosed a healed proximal phalanx fracture of the left fifth toe and post traumatic sprains of the left tarso metatarsal joints of the mid foot. Mr Mulford was then referred to a podiatrist who recommended a custom made orthotic.
Progress X-rays of the left foot and ankle on 24 July 2018 showed acute synovitis of the talo-navicular joint with severe osteoarthritis and bony fragmentation.
After consultation with Dr O’Carrigan, he underwent a CT scan that showed severe ankle and hind foot arthropathy and on 20 March 2019 Dr O’Carrigan proceeded with his first reconstructive procedure.
The insurer submits that Dr O’Carrigan’s rationale for a talonavicular joint fusion was treatment of arthritis, rather than a traumatic injury. The insurer submits there is evidence of pathology, calcification, which was pre-existing and not caused by the accident and therefore the treatment for that condition namely Achilles lengthening, lateral column osteotomy and possibly closing wedge osteotomy was not attributable to the accident.
The Panel does not agree the surgery on 20 March 2019 was not attributable to the accident. Whilst there was pre-existing osteoarthritis it was asymptomatic prior to 25 January 2018 when a disturbance created by the massive crush injury resulted in bony fragmentation at the site and symptomatic pain.
But for the crush injury in his left foot caused by the accident, Mr Mulford would not have aggravated the talo-navicular osteoarthritis which had been quiescent since he was an infant. The aggravation caused by the crush injury led to reconstructive surgery in the left foot on two occasions. The second one involved external fixateurs.
Neck injury
The Panel accepts when the concrete truck ran over his foot Mr Mulford stood up and fell backwards over a chair sustaining a neck strain injury which in the main has settled. This was the only history Mr Mulford gave in relation to his neck. He first reported pain in his neck on 4 April 2018, about 10 weeks after the accident.
CT scans of the cervical spine showed a mild disc bulge at C5/6 with developmentally small foramina at C3/4 and C5/6. It is noted that the MRI of the cervical spine did not show acute pathology.
However, the Panel accepts the incident on 25 January 2018 materially contributed to the development of a soft tissue injury to the neck.
Right shoulder injury
The Panel accepts Mr Mulford was taking his full weight on the other leg when it gave way in the shower, causing him to fall on the right shoulder and jar his back. This occurred because he was not able to fully weight bear on his left leg following the surgery which occurred on 20 March 2019.
This is consistent with the history recorded by Dr Piper on 17 May 2019 who reported following major foot surgery Mr Mulford lost his balance trying to get out of the shower as a consequence of trying to not put any weight through the leg, fell through a gap between the shower and toilet and injured his right shoulder.
This severely impacted on his ability to mobilise as he was using a walking frame or rollator and needed both arms.
He had an MRI of the right shoulder on 24 May 2019 which showed a full thickness rotator cuff tear involving the subscapularis, supraspinatus and anterior infraspinatus with a protraction to the glenoid rim.
His subsequent reconstructive surgery was performed at Lakeview Private Hospital on 23 July 2019.
On 26 February 2020 Dr Piper performed a further surgical procedure to the shoulder which the Panel understands was to release adhesions to improve movement.
Mr Mulford has post traumatic stiffness of the right shoulder despite reconstruction of the right shoulder, extensive physiotherapy and a home exercise program.
Back injury
Mr Mulford also reported that when he fell in the shower, he jarred his lower back and he felt this was further aggravated by his altered gait pattern and lower limb length shortening on the left.
The Panel whilst cognisant of the insurer’s submissions and the possibility Mr Mulford may have aggravated his back whilst driving accepts, he also jarred his back when he fell in the shower.
The Panel also accepts the left foot injury and subsequent surgery could have and, in fact, did lead to Mr Mulford adopting an altered gait when walking which resulted in back pain. This is consistent with the report of Dr Huang who reported Mr Mulford was ambulating with an antalgic gait.
The Panel finds causation of the back injury is established where the fall in the shower and Mr Mulford’s altered gait materially contributed to the development of his back condition.
It is noted that the MRI of the thoracic spine did not show acute pathology.
A CT scan of the lumbar spine showed narrowing of the neural exit foramina bilaterally because of congenital short pedicles with facet joint osteoarthritis at the right L5 level and moderate arthritis at the left L4/5 level which is consistent with the clinical findings of Medical Assessor Dixon.
The Panel’s opinion as to diagnosis is as follows:
· crush injury to the left foot with post traumatic ankylosis of the ankle and subtalar joints on the left with residual antalgic gait and surgical fusion of the talo navicular joint;
· sensory change grade 5 out of 5 in the superficial peroneal and sural nerves of the left foot;
· mild lumbosacral facet arthralgia with lumbar stiffness which is symmetrical with no sciatica and no spasm or guarding;
· post traumatic stiffness of the right shoulder with impingement on abduction and with shoulder girdle wasting requiring arthroscopic interventions, and
· transient neck strain injury with symmetrical stiffness without radicular complaint in the upper extremities and no neurological deficit in the arms.
The Panel finds these conditions are causally related to the accident.
PERMANENT IMPAIRMENT
Right shoulder
Mr Mulford has post traumatic stiffness of the right shoulder. According to the AMA 4 Guides, Figure 38 on page 3/43, Figure 41 on page 3/44 and Figure 44 on page 3/45 Mr Mulford has sustained a 13% upper extremity impairment (UEI). Applying Table 3 on page 3/20 of the AMA 4 Guides this equates to 8% WPI.
Unlike Medical Assessor Assem, Medical Assessor Dixon found Mr Mulford had a full range of movement of the left shoulder, so no deduction was made.
Left foot/ankle
The Panel agrees it is appropriate to utilise the ankylosis provisions to assess permanent impairment.
In accordance with page 3/80 of the AMA 4 Guides the ankylosis impairment for the ankle in the neutral position is 4% WPI and in accordance with page 3/81 of the AMA 4 Guides the ankylosis impairment for the foot in the neutral position is 4% WPI. In accordance with clause 6.86 of the Guidelines the values of WPI are to be added giving rise to 8% WPI for ankylosis.
The Panel found complete sensory loss in the distribution of the superficial peroneal nerve on the left foot which is assessed at 2% WPI under Table 68 on page 3/89 of the AMA 4 Guides. The Panel also found complete sensory loss in the distribution of the sural nerve on the left foot which is assessed at 1% WPI under Table 68 on page 3/89 of the AMA 4 Guides. Applying the combined tables in accordance with clause 6.104 of the Guidelines this gives a total of 3% WPI for peripheral nerve injury.
Combining 8% WPI and 3% WPI under the combined tables gives way to 11% WPI in respect of the impairment of the left foot/ankle.
Whilst the Panel notes Clause 6.72 of the Guidelines it is noted that prior to the accident both joints had less than average mobility because of the pre-existing bilateral club feet and therefore it cannot be used as a baseline. The assessed impairment has arisen by reason of the accident and subsequent surgery.
This impairment does not include any impairment for the multiple surgical scars to the left foot resulting from the injury. Whilst scarring was not referred for assessment the Panel notes Mr Mulford is conscious of the presence of the large hypertrophic pigmented scars which are highly visible, easily located, and irritated when bumped causing minor limitation in the performance of activities of daily living. Applying the principle of best fit the Panel is of the view it would be appropriate to assess 2% WPI for scarring under the Table for the evaluation of minor skin impairment (TEMSKI) scale.
Cervical spine
Whilst Mr Mulford has post traumatic stiffness in the cervical spine there was no muscle wasting, muscle spasm, guarding or asymmetry and no radicular complaints. There was also no evidence of radiculopathy and therefore in accordance with Table 73, AMA 4 Guides he would satisfy the criteria for diagnosis related estimate (DRE) Cervicothoracic Category I, or 0% WPI.
Lumbar spine
Mr Mulford has ongoing complaints of pain and restriction of movement of the lumbar spine. However, he has no muscle spasm, guarding or asymmetry. There was also no evidence of radiculopathy and therefore in accordance with Table 72, AMA 4 Guides he would satisfy the criteria for DRE Lumbosacral Category I or 0% WPI.
Total impairment
The Panel combines the impairment of 11% for the left foot/ankle impairment and the impairment of 8% for the right shoulder impairment under the Combined Values Chart giving rise to a total WPI of 18%. This is permanent.
No deduction can be made for the other foot and ankle because it was abnormal, where he had three previous surgical procedures for club foot.
There is also no deduction for the pre-existing club foot because the assessment of permanent impairment was based on ankylosis and the sensory loss caused by the crush injury of 25 January 2018.
There is no adjustment for the effects of treatment.
0
0
0