Cundy v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 414
•21 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Cundy v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 414 |
| CLAIMANT: | Wayne Mitchell Cundy |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Dr Neil Berry |
| MEDICAL ASSESSOR: | Dr David Gorman |
| DATE OF DECISION: | 21 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 7 July 2019 when he was riding a bicycle and struck by the insured vehicle; the issue was the extent of permanent impairment; the claimant sustained compound fractures of the right tibia and fibula and soft tissue injuries to the right knee and low back caused by altered gait from the right leg limp; right lower extremity assessed at 6%; no assessable impairment of the scar based on a best fit principle; low back assessed at diagnosis related estimate (DRE) I and assessed at 0% due to full movement and lack of other signs; Held – claimant reassessed at 6% permanent impairment. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 31 May 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%: · low back, soft tissue injury; · compound fracture of the right ankle; · right knee, and · scarring. |
REASONS
BACKGROUND
Mr Wayne Cundy (the claimant) suffered injury on 7 July 2019 when the insured vehicle struck him whilst riding a bicycle.[1] Mr Cundy fell to the ground suffering fractures to his right leg.
[1] Claimant’s bundle, page 12.
Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Cundy any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The present dispute is whether Mr Cundy’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 clause 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 (AMA 4). Where there is any difference between AMA 4 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 McGrath and dated 31 May 2022. The Medical Assessor assessed the degree of permanent impairment at 9%. The details of that assessment are set out later in these Reasons.
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 the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 15 July 2022 the delegate of 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 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 (the 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.
ASSESSMENT UNDER REVIEW
Medical Assessor McGrath provided a medical assessment dated 31 May 2022 determining that the permanent impairment of the injuries sustained in the motor accident was not greater than 10%. The Medical Assessor found that the claimant suffered a compound fracture of the tibia and fibula with associated scarring and soft tissue injuries to the back and right knee.[9]
[9] Claimant’s bundle, page 286.
MATERIAL BEFORE THE REVIEW PANEL
The claimant provided a bundle of documents. The insurer agreed that the bundle contained all relevant material.
Contemporaneous records
The ambulance report notes:[10]
“C/T ped vs car, o/a NSWPF on scene, pt supine on road, well perfused, orientated, alert, obvious deformity to R lower leg with multiple fracture sites, Pt states that he was riding home from the pub (4 – 5 drinks consumed), low impact less than 20 km/h) impact with car – whereby leg got entangled with frame of bike resulting in injury. Pt denies LOC, denies headstrike. O/E GCS 15, denies C spine, nil obvious secondary injuries. Localised injury to R leg.”
[10] Claimant’s bundle, page 46.
The claimant attended the emergency department of Hunter New England Hospital.[11] CT scan showed comminuted intra-articular fracture of the distal tibia extending into the tibiotalar and distal tibiofibular joint spaces with multiple bone fragments. The distal fibula was moderately displaced and there were minimally displaced fractures of the anterior talar dome. Old, healed fractures of the distal tibial and fibular shafts with residual angulation were noted.
[11] Claimant’s bundle, page 55.
An X-ray dated 15 July 2019 noted that the comminuted fractures of then distal tibia and fibula were in a satisfactory position following external fixation.[12] Further X-ray dated 16 August 2019 showed callus formation. Fracture lines were “clearly visible” with “no union”.[13]
[12] Claimant’s bundle, page 67.
[13] Claimant’s bundle, page 71.
The CT scan dated 27 September 2019 showed ununited comminuted features of the distal tibia and fibula. Old, healed fractures of the midshaft of the tibia and fibular were again noted.[14]
[14] Claimant’s bundle, page 73.
On 17 October 2019 the external fixations were removed. The internal fixation was left in situ due to movement under valgus stress.[15]
[15] Claimant’s bundle, page 78.
The X-ray dated 1 November 2019 showed minimal healing of the comminuted fractures of the distal tibia and fibula.[16]
[16] Claimant’s bundle, page 86.
Physiotherapy
Physiotherapy notes from 2 January 2020 refer to the development of lumbosacral and left hip pain. Both knees were reported as aching and showed swelling.[17]
[17] Claimant’s bundle, page 124.
Claim form
The claim form dated 16 July 2019[18] noted the motor accident with injuries to the foot, ankle and leg.
[18] Claimant’s bundle, page 12.
The police report is consistent with the claimant’s version of the motor accident in the claim form.[19]
[19] Claimant’s bundle, page 23.
Radiology
The X-ray dated 26 May 2020 showed that the distal tibia showed altered morphology with advance secondary osteoarthritis.[20]
[20] Claimant’s bundle, page 121.
The X-ray of the right knee dated 27 August 2020 showed mild tricompartmental changes.[21]
[21] Claimant’s bundle, page 123.
The CT scan of the right ankle dated 2 November 2020 showed probable fibrous union of the ankle fractures and severe disuse osteopaenia.[22]
[22] Claimant’s bundle, page 120.
The X-ray dated 26 April 2021 showed suprapatellar effusion of the right knee with possible avulsion. The right ankle had a healed fracture with degenerative changes/partial fusion of the distal tibiofibular joint and ankle.[23]
[23] Claimant’s bundle, page 285.
General practitioner
On 10 December 2019, Dr Ashwarya Nath noted the development of contra lateral knee and low back pain from compensatory weight distribution. Physiotherapy was recommended.[24]
[24] Claimant’s bundle, page 114.
Specialist treating records
Dr Nicholson, orthopaedic surgeon initially examined Mr Cundy on
22 November 2019.[25] The doctor noted that there was a significant intra articular component to the fracture. Recent scan did not show significant healing. Weight bearing seemed unlikely at that stage due to the imaging and the doctor suspected that there will be significant post-traumatic osteoarthritis of the ankle.[25] Claimant’s bundle, page 176.
On 14 January 2020 Dr Nicholson noted scans showing progressive healing of the fracture with bridging callus and recommended that the plaster come off and Mr Cundy go into a boot.[26]
[26] Claimant’s bundle, page 175.
On 19 February 2020 Dr Nicholson noted that Mr Cundy had started to weight bear. He recommended progressive weight bearing with ongoing physiotherapy and hydrotherapy.[27]
[27] Claimant’s bundle, page 181.
In May 2020 Dr Nicholson noted that the fracture had essential united with marked
post-traumatic osteoarthritis of the ankle.[28][28] Claimant’s bundle, page 183.
In a report dated 26 August 2020 Dr Nicholson noted progressive improvement with
Mr Cundy undertaking normal activities including lawn mowing. Dr Nicholson noted pain and swelling in the knee which was likely due to injury in the motor accident and probably stirred up by the altered gait related to the distal tibial injury.[29][29] Claimant’s bundle, page 185.
On 30 September 2020 Dr Nicholson noted that the MRI scan of the right knee showed some full thickness loss in the patella with cyst formation which was not symptomatic. Ligaments were intact and no meniscal tear was identified.[30]
[30] Claimant’s bundle, page 189.
Statement – Mr Cundy
Mr Cundy made a statement in relation to his assessment by Medical Assessor McGrath.[31]
[31] Claimant’s bundle, page 300.
Qualified opinions
Associate Professor Kleinman was qualified by the claimant and provided a report dated 15 December 2020.[32] The doctor opined that there was a development of
post-traumatic arthritis of the right ankle which will become stiffer and more painful over time. Chondromalacia patella of the right knee had either been caused or aggravated by the motor accident.[32] Claimant’s bundle, page 88.
Professor Ghabrial was qualified by the claimant and provided a report dated
26 April 2021.[33] The doctor noted the development of severe osteoarthritis in the right ankle with 0 cartilage interval assessed at 12%. Scarring was assessed at 2% and the right knee, with 2 mm cartilage interval, assessed at 8%.[33] Claimant’s bundle, page 101.
Dr Chris Harrington, orthopaedic surgeon, was qualified by the insurer and provided a report dated 26 July 2021.[34] On examination the doctor noted that Mr Cundy walked with a limp favouring the right side. The doctor noted good range of movement in the right knee with some minor loss of extension and some crepitus over the kneecap which was not painful.
[34] Claimant’s bundle, page 220.
Dr Harrington opined that the claimant had achieved “a pretty good result from a very nasty injury”. There was ongoing restricted movement of the ankle and a stiff subtalar joint with recurrent swelling and difficulty with prolonged standing/walking.
Dr Harrington assessed loss of range of movement of the ankle at 15% lower extremity impairment and the subtalar joint, presumably by analogy, at 10%. This resulted in a combined permanent impairment, with no deductions, of 10%. There was no applicable impairment of the right knee. Scarring was not mentioned in the report.
SUBMISSIONS
Claimant’s submissions dated 15 June 2022[35]
[35] Claimant’s bundle, page 298.
These submissions were filed seeking a review of the Medical Assessment. The claimant’s legal representatives asserted that the Medical Assessor “did not properly assess the claimant’s spine”.
Insurer’s submissions dated 2 November 2021[36]
[36] Claimant’s bundle, page 204.
The insurer referred to the medical evidence in detail. It noted that Dr Harrington opined that the claimant had a “pretty good result” considering the serious nature of the open fractures.
The insurer submitted that Professor Ghabrial’s assessment of the right knee was “invalid” as the 2 mm cartilage interval finding due to arthritis did not comply with
cl 6.88 of the Guidelines. It otherwise submitted that the assessment of the scar was deficient because the report did not outline the scar location or details of its presentation.The insurer conceded that the right foot and ankle were assessed at 10% permanent impairment based on loss of range of movement.
The insurer disputed that there was an injury to the right knee. It noted that in 2019 the physiotherapist recorded some contralateral knee problems caused by compensatory knee distribution rather than any accident-related trauma. Further, Associate Professor Kleinman noted an almost full range of movement with slight crepitus. The history provided to Dr Harrington was that the claimant could not recall an injury to the right knee. Examination showed a good range of movement with slight crepitus.
The insurer submitted that crepitus cannot be assessed in the absence of direct trauma. There was otherwise no assessable loss of range of motion.
The insurer submitted that the lumbar spine was not injured in the motor accident and was not mentioned on the claim form. In December 2019 there were reports of lumbar spine symptoms in the context of compensatory knee distribution. By January 2020 the claimant had reported that the lumbar symptoms had improved. In August 2020 the claimant sought to increase his hours to six hours per days, five days per week with a lifting capacity of 20 kg. This is not suggestive of any impairment to the lumbar spine.
The insurer submitted that the scarring on the right ankle was not assessable. It was not commented by Dr Harrington. If it was prominent then “Dr Harrington would have made note of such and included it in his assessment of permanent impairment”.[37]
[37] Claimant’s bundle, page 206.
Insurer’s submission dated 28 June 2022[38]
[38] Claimant’s bundle, page 301.
These submissions were filed opposing the review application. The insurer submitted that the Medical Assessor assessed the lumbar spine and recorded his observations of full symmetrical movement, no non-verifiable radicular complaints, guarding or spasm and no abnormalities on neurological examination.
The insurer submitted that the claimant’s complaint of lack of assessment and the statement that he was 14% permanent impairment is inconsistent with the certificate which is binding and conclusive.
RE-EXAMINATION
Mr Cundy was examined by Medical Assessor Gorman of the Panel. The examination report is as follows:
“The examination was carried out from 11.30am to 12.40pm on 13 October 2022 in the PIC rooms at 1 Oxford St Sydney by Assessor David Gorman. Assessor Neil Berry was on the phone throughout the examination and Dr Gorman outlined details of the examination to Dr Berry and Dr Berry was able to contribute.
HISTORY
Pre accident medical history and relevant personal details
Mr Cundy is 60 years of age and is a single man.
He has no children and lives alone.
He is a non-smoker and has never smoked. He drinks a couple of beers per day but has never been heavier.
After high school he qualified as a Fitter and Turner. He continues to do this work.Previous injuries
Mr Cundy was involved in a motor vehicle accident on 20 September 1984 which resulted in a right leg tibia and fibula fracture. His motorbike was hit by a bus. He had no ongoing problems he stated. He was able to return to work after this accident. He was able to work as a Fitter and Turner and was able to do things such as surf and swim.
He also had a right wrist fracture while skateboarding.History of the motor accident
Mr Cundy was riding his bicycle at around 6:30pm. He was on his way home from Woolworths. As he passed through an intersection, he was aware of a stationary vehicle on his lefthand side. The car pulled out and his bicycle was hit by the car on the left side. He was knocked to the ground and put his right foot out to reduce the impact. He had immediate pain in his right ankle. An ambulance attended him and took him to the John Hunter Hospital in Newcastle.History of symptoms and treatment following the motor accident
At John Hunter Hospital on the Sunday (the day of the accident) a supportive cast was applied. Dr Gill, an Orthopaedic surgeon, applied an external fixation device on the Monday. After 10 days in hospital, he was sent home with the external fixation.
This was removed on 17 October 2019, and he was placed in a moon boot for 14 days. This was to allow the wounds to heal. He was later put in a cast for a further two months.Current symptoms
Mr Cundy's main pain is in his right ankle.
He is having some right hip pain if he sits for too long as well as low back pain.
His low back, ankle, knee and hip pain ease when he walks.
He usually walks with a limp he reports, with the leg turned outwards. He has trouble crouching down because of loss of movement in the right ankle.
When he puts his work boots on, they reduce the swelling he states. However, when he takes them off, the foot often swells after a day of work.
He cannot rock fish or do anything which jars his ankle or knee stop if he walks the dog for too long it locks up. He can only go fishing in his boat.Work after the accident
He worked for six weeks after the subject accident but could not wear a boot. He works for a company (UGL) which provides maintenance services to power stations, petrochemical factories and mines. He used to work interstate for six to eight weeks at a time. When working previously he had to climb ladders, scaffolding, walk on uneven ground and wear heavy boots.
He returned to work after the subject accident in October 2020. He is in the workshop now where he can sit down if he needs to. He is doing limited duties. He is not working on site.Current treatment
Mr Cundy regularly swims. He tries to keep fit.
He takes two Panadol Osteo tablets in the morning
On occasions, when he has severe pain, he takes tapentadol (Palexia) 50mg at night. His last tablet was three weeks ago.
He takes occasional Nurofen.
He is also on allopurinol for gout.Investigations
CT of the ankle – 9 July 2019 – comminuted intra-articular fracture of the tibial plafond and distal fibula with minor displacement post fixation; there are also tiny fractures of the talar dome.
X ray of right ankle – 14 November 2019 – healing fractures of the tibial plafond and fracture of the distal fibula.
X ray right ankle – 21 August 2020 – old healed fractures of the shaft of the tibia and fibula in good alignment with some shortening; healed comminuted fracture of the right tibial plafond and distal fibula; post traumatic osteoarthritis of the right ankle.
MRI right knee – 22 September 2020 – chondromalacia patellae with loss of articular cartilage.EXAMINATION
General presentation
His height was 175 centimetres and his weight 74.4 kg. He was a thin well-tanned man.Lumbar spine
Mr Cundy had a normal range of lumbar spinal movements in all planes. There was no muscular spasm or guarding.
He did not indicate any pain or sensory symptoms radiating to the legs.
In the lower extremities deep tendon reflexes, sensation and power were normal.
There was some wasting of the right calf, but this was related to the ankle fracture and, possibly, to the previous tibia and fibula fracture in 1984.Lower extremities
Mr Cundy walked with a slight limp and with his right foot externally rotated around 10 degrees.
There is mild swelling around the right ankle.
The hip range of motion on both the right and the left side was normal although he had some discomfort in the right hip on internal rotation.
The left and right knee were not swollen. There was an old 2 centimetre raised scar over the right patella which was from a previous injury.
The range of motion of the right knee was from 0-130 degrees and of the left knee from 0-140 degrees.
There was mild ACL laxity of the right knee when compared to the left.
There was a step deformity in the mid tibia the result of the earlier fracture in 1984.
There was some atrophy of the right calf on the right when compared to the left. The circumference of the right calf, measured 10 centimetres below the tibial tubercle, was 33 centimetres - the circumference of the left calf measured 10 centimetres below the tibial tubercle was 35 centimetres.
With respect to the ankle movements, dorsiflexion on the right was restricted at 0 degrees and was normal on the left at 10 degrees. Plantar flexion on the right was restricted at 40 degrees and on the left was 50 degrees.
With regard to hindfoot movements, inversion was restricted on the right to 10 degrees and on the left was normal at 30 degrees. Eversion was restricted on the right to 10 degrees and on the left was normal at 20 degrees.
These findings are summarised below –
Ankle Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTDorsiflexion
0°
10°
Plantarflexion 40° 50°
Hindfoot Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTInversion 10° 30° Eversion 10° 20°
Scarring
There was a well healed surgical scar above the lateral malleolus on the right. It was Y shaped, with the vertical part 1 centimetre with two arms of the Y being 1.5 centimetres in length. It was slightly paler but was a fine scar and not easily seen. There were some other small puncture wounds on the heel and over the tibia which were not easily seen.Other findings
There was a large gouty tophus in the left olecranon bursa which measured 6 by 5 centimetres.WHOLE PERSON IMPAIRMENT
In his lumbar spine he has pain but symmetrical normal movements without radiculopathy, spasm or guarding. He is DRE I giving him 0% whole person impairment (WPI) based on Table 72 on page 110 of AMA 4.
In the lower extremity, using Table 42 on page 78 of AMA 4, the reduction in dorsiflexion gives a mild impairment (7% lower extremity impairment (LEI)). The reduction in inversion and eversion both give mild impairments (2%) based on Table 43 on page 78. The Motor Accident Guidelines (paragraph 6.85 on page 103) state that only the largest value is used so the LEI for the hindfoot is 2%.
The mild anterior cruciate laxity gives 7% LEI based on Table 64 on page 85 of AMA 4 – this is a DRE based estimate.
The impairment due to atrophy is 8% LEI based on Table 37 on page 77. The atrophy is predominantly from the ankle injury but may also include some contribution from his previous mid-tibia fracture.
Table 6.5 on page 108 of the NSW Motor Accident Guidelines 2020 outlines which impairments can be combined to give the lower extremity impairment. One can choose to assign whatever methodology yields the largest value. Paragraph 6.70 outlines this and paragraph 6.71 makes it clear that each injury is to be assessed separately.
One cannot combine range of motion and atrophy for an injury based on Table 6.5. For the ankle (7%) LEI is added to the hindfoot (2%) giving the range of motion impairment of 9%. This is greater than that assigned for the muscle atrophy (8%).
This ankle/hindfoot injury LEI (9%) is then combined with the knee LEI (7%) giving a total LEI of 15% for the right lower extremity.
Using Table 6.4 on page 107 of the NSW Motor Accident Guidelines, gives 6% WPI.
The scarring is fine, difficult to see, not depressed (no contour defect) and does not show suture marks. It is barely visible in summer clothing.
There are no trophic changes. The scarring has no effect on the activities of daily living and does not require any treatment.
The best fit is 0% WPI based on the TEMSKI scale.
The total whole person impairment is therefore 6% as outlined in the table below.
Body Part or System AMA Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident Lumbar spine Table 72 on page 110 of AMA 4 Yes 0% 0% 0% Right lower extremity Table 42 and 43 on page 78 of AMA 4; Table 6.4 and 6.5 on pages 107 and 108 of Motor Accident Guidelines 2020 Yes 6% 0% 6% Scarring - skin TEMSKI scale – Table 6.18 on page 142 of NSW Motor Accident Guidelines 2020 Yes 0% 0% 0%
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[39] The Panel adopts the examination findings of Medical Assessor Gorman and adds the following brief reasons.
[39] Section 7.26(6) of the 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[40] and Insurance Australia Ltd v Marsh.[41]
[40] [2021] NSWCA 287 at [40], [41] and [45].
[41] [2022] NSWCA 31 at [11], [21], [64].
We observe that the overall permanent impairment is not as high as that assessed by Medical Assessor McGrath. This is partly explained by the improvement in knee extension over the period since the previous examination. This is not uncommon and medically plausible given the period between the examinations.
We otherwise assess the skin at 0% on a best fit basis for the reasons expressed which include that the scar is fine and difficult to see.
The Panel otherwise observes that Mr Cundy presented in a credible fashion and did not exaggerate his symptoms. This is evident from the claimant’s full movement in all planes of the lumbar spine and the consistency in the examination findings of the right lower extremity.
We otherwise accept that the low back pain (which is assessed as DRE I) and the right knee symptoms are causatively related to the motor accident on the basis of the claimant’s altered gait from the right leg limp which would affect the biomechanics in those body parts.
CONCLUSION
The certificate which assessed permanent impairment is revoked. The new certificate is attached at the commencement of these Reasons.
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