Davis v Allianz Australia Insurance Limited
[2024] NSWPICMP 446
•8 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Davis v Allianz Australia Insurance Limited [2024] NSWPICMP 446 |
| CLAIMANT: | Sherry Davis |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 8 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; medical dispute about permanent impairment; claimant was involved in a motor accident as the driver and sole occupant of the vehicle; head on collision; claimant was wearing a seatbelt; airbags were fitted and deployed; driver of the other vehicle was found to be under the influence of alcohol (high range); claimant sustained numerous injuries and underwent numerous surgical procedures; the insurer admitted liability for the claim; Medical Assessor assessed permanent impairment at 7%; Held – Medical Review Panel assessed permanent impairment at 8% for injury to cervicothoracic spine and 1% for scarring; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel revokes the certificate dated 4 October 2023 issued by Medical Assessor Philip Truskett and issues a new certificate determining that: (a) The following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%: (i) left arm – fractures of the radius and ulnar with scarring; (ii) left elbow – ulnar nerve injury; (iii) cervical spine – soft tissue injury; (iv) left shoulder – soft tissue injury, and (V) left wrist – scapholunate soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
Sherry Davis (the claimant) was involved in a motor accident on 1 April 2021 at approximately 2.15pm. She was the driver and sole occupant of her Ford Focus vehicle which was proceeding down a hill on White Street, East Tamworth. A vehicle coming up the hill in the opposite direction turned in front of her. There was a head on collision. The claimant was wearing a seatbelt. Airbags were fitted and deployed. Her car was fitted with a headrest. The driver of the other vehicle was found to be under the influence of alcohol (high range). The claimant was assisted by passers-by. The claimant was stunned and may have had episodes of unconsciousness. Ambulance, fire brigade and police officers were called. The claimant was transported to Tamworth Hospital. The claimant’s vehicle was a total loss. The claimant sustained numerous injuries and underwent a number of surgical procedures.
Allianz (the insurer) insured the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant damages and statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer admitted liability for the claim.
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under Schedule 2 cl 2(a) of the Motor Accident Injuries Act 2017 (the Act), the claimant was referred for assessment by Medical Assessor Philip Truskett, who certified on 4 October 2023 as follows:
The following injuries caused by the motor accident giver rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%:
- Arm – fracture of the left radius and ulnar and scarring
- Cervical spine – musculoligamentous injury
- Elbow – left – an ulna nerve lesion behind the medial epicondyle and musculoligamentous injury to left elbow
- Shoulder – left – rotator cuff injury to the left shoulder
- Wrist – left – scapholunate ligament injury to the left wrist
Medical Assessor Truskett found 6% whole person impairment for the left upper limb (combined ulnar sensory and motor loss below mid forearm) and 1% whole person impairment for surgical scarring. He found 0% whole person impairment for the left shoulder, left elbow, left wrist and cervical spine. Medical Assessor Truskett made no adjustment for pre-existing/subsequent impairment or treatment effects.
THE REVIEW
The claimant sought a review of Medical Assessor Truskett’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects.
The claimant submitted that Medical Assessor Truskett erred on the following grounds:
(a) error in relation to the assessment of the cervical spine;
(b) illogically;
(c) lack of transparency, and
(d) failure to demonstrate a path of reasoning.
The claimant’s submissions largely were directed to Medical Assessor Truskett’s assessment of the cervical spine. It was submitted that Medical Assessor Truskett erred when considering the symptoms reported, the examination and findings, and the impairment determined.
The claimant noted that Medical Assessor Truskett recorded that the claimant has complained of pain in her neck since the date of the motor accident. The pain is made worse with activity and relieved by medication and rest. The pain radiates to the back of both her shoulders. There is no radicular distribution. In contrast, the claimant notes that Medical Assessor Truskett finds no muscle guarding and full range of neck movement.
The claimant further submits that Medical Assessor Truskett “clearly accepts an injury to the cervical spine and is informed that the pain radiates to the back of her bilateral shoulders, although he records there is no radicular distribution”. It is submitted that those findings justified an assessment of diagnosis-related estimate (DRE) II, which would attract a whole person impairment of 5%, in accordance with Table 73 of American Medical Association Guides to the Evaluation of Permanent Impairment Fourth Edition.
The claimant submits that Medical Assessor Truskett disregarded her symptoms and erred in finding an impairment of 0% which, it is said, is not supported by the history provided in the competing medical evidence. It was submitted that the reported symptoms to the claimant’s neck, radiating to the back of both shoulders, would amount to a non-verifiable radicular complaint, which Medical Assessor Truskett dismissed without testing, and without explaining his reasons for so doing.
In relation to his examination of the cervical spine, the claimant submitted that Medical Assessor Truskett makes no reference to the non-verifiable radicular complaints which, it is submitted, is illogical.
The claimant’s application for a review was opposed by the insurer. The insurer submitted that the claimant failed to demonstrate that there is reasonable cause to suspect that Medical Assessor Truskett’s assessment was incorrect in a material respect.
The insurer noted that, despite the claimant’s ongoing complaints of pain and referred symptoms to the shoulders, Medical Assessor Truskett found a full range of movement in the cervical spine, and no evidence of guarding.
The insurer further submitted that complaints of pain do not translate to evidence of guarding, dysmetria or non-verifiable radicular complaints, as required by the Guidelines.
The insurer submitted that Medical Assessor Truskett’s assessment of whole person impairment is wholly consistent with his examination findings. The insurer disputed that the claimant’s ongoing complaints of pain required a DRE Category II classification and assessment of 5% whole person impairment.
President’s delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 23 February 2024 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that Medical Assessor Truskett’s assessment was incorrect in a material respect. The basis of that decision was stated to be that the Medical Assessor failed to demonstrate his path of reasoning in reaching his findings and ultimate determination. The President’s delegate felt there is some confusion regarding the Medical Assessor’s assessment of the cervical spine, especially why Medical Assessor Truskett disregarded the symptoms reported by the claimant, when he found that her presentation was consistent, with no evidence of exacerbation or diminution of symptoms or signs.
Accordingly, the application for review was accepted and referred to the Review Panel, which is to re-assess all of the referred injuries, which have been itemised.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 63 of the Act, and upon review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following medical material (not indexed nor paginated) all of which the Review Panel has considered:
(a) Certificate of determination with reasons as to internal review confirming the decision not to concede that the degree of permanent impairment resulting from injuries caused by the accident is greater than the 10% threshold (A8).
(b) Report dated 5 July 2022 by Dr James Bodel, orthopaedic surgeon, to claimant’s lawyers (A9).
The patient was involved in a serious motor vehicle accident on 1 April 2021. As a result, she has suffered a musculoligamentous injury to the neck, rotator cuff injury to the left shoulder, a musculoligamentous injury to the left elbow, a fracture of the left radius and ulna and a scapholunate ligament injury to the left wrist. There is also an ulnar nerve lesion behind the medial perichondral of the left elbow. Dr Bodel ascribed a DRE Cervicothoracic Category II level of assessable impairment in accordance with the description in Table 73 on page 3/110 of AMA 4. He found asymmetry of movement and guarding but no clinical sign of radiculopathy. He found 5% whole person impairment for the cervico-thoracic spine. Dr Bodel assessed 13% whole person impairment for the left upper limb and 1% whole person impairment for scarring under the Table for the Evaluation of Minor Skin Impairment (TEMSKI). He found 18% combined whole person impairment.
(c) Clinical records of Move Better for Life (A10).
(d) Clinical records of Warner Bay Private Hospital (A11).
(e) Clinical records of Northwest Health (A12).
(f) Clinical records of Dr Brett McClelland of Hunter Hand Surgery (A13).
(g) Clinical records of Tamworth General Practice (A14).
(h) Clinical records of Caroline Davie of Peel Healthcare (A15).
(i) Clinical records of The Belmore Surgery (A16).
(j) Clinical records of Tamworth Hospital (A17).
(k) Report of Dr Robert Sharp dated 21 June 2021 to Dr Rathore (A18).
The claimant has a scapholunate ligament tear in the left wrist for which Dr Sharp referred her to Dr McClelland, hand surgeon, for repair.
(l) Report of Dr Sharp dated 3 June 2021 to Dr Rathore (A19).
“On examination, the biggest problem seems to be an ulnar nerve injury, associated with a compound fracture to her radius and ulna.”
Dr Sharp organised a MRI scan for the left wrist.
(m) X-ray left forearm reported on 27 May 2021 by Dr Craig Dyer (A20).
Mid-sharp left radial and ulnar fractures internally fixed with plate and screws in satisfactory alignment. Union is not yet complete. There is widening of the scapholunate distance indicating previous ligament disruption.
(n) MRI left wrist reported on 10 June 2021 by Dr Dyer.
Scapholunate ligament disruption. Joint effusion. Eight millimetre ganglion triquetropisiform joint. Mild OA STT[TR1] and first CMC [TR2] joints.
(o) Records of NSW Ambulance (A22).
(p) Certificates of Fitness/Capacity - various dated (A23-A27).
The insurer relied upon the following material which the Review Panel has considered:
(a)submissions in reply to the claimant’s application for review of Medical Assessor Truskett medical assessment (previously summarised).
The insurer did not rely upon, nor refer to, any qualified expert medical evidence, nor evidence from any of the claimant’s treatment providers.
RE-EXAMINATION
The claimant was assessed on 31 May 2024 by Medical Assessor Ian Cameron whose report is as follows:
“Ms Davis – re-examination report
Ms Davis was assessed at Hornsby on 31 May 2024 by Assessor Cameron. She was accompanied by her granddaughter Jodie. They had travelled together by car from Tamworth.
History of Injury
On 01 April 2021 Ms Davis was the driver of a vehicle. Another vehicle turned in front of her and there was a collision. Airbags deployed. Ms Davis was assisted by bystanders.
Ambulance attended and she was taken to Tamworth Hospital.
At Tamworth Hospital there were diagnoses of fractures of the midshaft left radius and ulna. On 02 April 2021 there was open reduction and internal fixation of these fractures. There was discharge on 03 April 2021.
Subsequently there were symptoms in the ulnar side of the left hand. There was also a subsequent MRI that showed a left scapholunate ligament tear.
The treating hand surgeon, Dr McClelland noted neurological deficit in the distribution of the left ulnar nerve. Nerve conduction studies were subsequently performed but I do not have details of these. There was a subsequent left wrist arthroscopic debridement and scapholunate repair and cubital tunnel release by Dr McClelland on 17 November 2021.
Ms Davis returned to work about 16 months after the accident.
Background
Ms Davis is living alone at Tamworth. She has family nearby.
Ms Davis is working full time at Tamworth Hospital as a cleaner. She said she has had that position for about seven years. She said she has had to take significant amounts of time off work recently.
Ms Davis said her health is otherwise good.
Current Status
Ms Davis said she had pain in her left wrist and left elbow. This was worse with cold weather. There is also numbness in the ulnar side of her left hand and forearm. There is also some weakness in the left hand.
There has been some shoulder pain and there has been a steroid injection to the right shoulder. There is said to be some low back pain and posterior neck pain.
Ms Davis had physiotherapy which helped but it has not been funded for some time. She has been referred to a psychologist as part of the Mental Health Plan from her general practitioner, Dr Ranwalla.
Current medications are Norgesic, escitalopram 10 mg daily and meloxicam 15 mg daily.
Ms Davis is driving locally and also drove a significant amount of the journey from Tamworth to Sydney.
Examination
Ms Davis is right handed, approximately 165 cm in height and weighs approximately 64kg.
Ms Davis was co-operative and provided a clear history.
At the cervical spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders.
At the left elbow range of movement was 0 to 130 degrees, with full pronation and supination.
At the left wrist range of motion was flexion 60, extension 50, ulnar deviation 30 and radial deviation 20 degrees.
There was a full range of motion at other upper extremity joints.
There was a 9 cm volar scar on left forearm with some colour contrast and a 10 cm dorsal scar over left ulna that was difficult to see.
There was some muscle wasting of the left hypothenar eminence. There was a left ulnar sensory deficit. There was weakness of small muscles of the left hand.
Circumferences of the upper extremities were right 23cm and left 22 cm.
At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There were no abnormalities in the lower extremities detected.
Ms Davis walked with a normal gait.
Imaging
There were no imaging studies to review except an x-ray image on Ms Davis' phone which showed plates and screws to the midshaft of the left radius and ulnar fractures. The date was not apparent on the image.
Diagnosis and Prognosis
In the motor vehicle crash on 01 April 2021 Ms Davis sustained significant injuries to her left forearm. These have been appropriately treated. She has a residual left ulnar nerve injury. There were other soft tissue injuries sustained in the motor vehicle crash.
The injuries listed in the application form are redefined and the whole person impairment is assessed as shown below.
Left arm – fractures of radius and ulna with scarring
The fractures have been appropriately treated. There is residual impairment.
At the left elbow range of movement was 0 to 130 degrees, with full pronation and supination. With reference to Figure 32, page 40 AMA4, there is 1% UEI due to the restriction of flexion at the left elbow.
At the left wrist range of motion was flexion 60, extension 50, ulnar deviation 30 and radial deviation 20 degrees. With reference to Figure 26, page 37 AMA4, there is 2% UEI due to the restriction of extension at the left wrist. With reference to Figure 29, page 38 AMA4, there is 0% UEI due to restriction of radial and ulnar deviation at the left wrist.There was a 9 cm volar scar on left forearm with some colour contrast and a 10 cm dorsal scar over left ulna that was difficult to see. Permanent impairment with reference to this scarring is assessed with reference to section 6.264, the TEMSKI scale, Table 6.18 Motor Accident Guidelines. Ms Davis’ impairment of the skin due to the scarring is 1% WPI, with reference to this Table, because she is conscious of the skin condition, she is easily able to locate the skin condition, there is some colour contrast and minimal trophic changes, the anatomic location is usually visible and there is no contour deficit, no effect on ADL, no treatment and no adherence.
Left elbow – ulnar nerve injury
There was some muscle wasting of the left hypothenar eminence. There was a left ulnar sensory deficit. There was weakness of small muscles of the left hand. This is due to the ulnar nerve injury. The permanent impairment related to this injury is evaluated with reference to Table 15, page 54 AMA4 Guides, and Tables 11 and 12, pages 48-49 AMA4 Guides. The sensory grade from Table 11 is 2. Thus, in keeping with sections 1.58 to 1.60 page 15 Motor Accident Guidelines, 25% is multiplied by 7% UEI for sensory impairment which rounds to 2% UEI. The motor grade from Table 12 is 4. Thus, in keeping with sections 1.58 to 1.60 page 15 Motor Accident Guidelines, 25% is multiplied by 35% UEI for motor impairment which rounds to 9% UEI. These are combined to give 11% UEI.
The upper extremity impairments (11%, 2% and 1%) are combined to give 14% UEI which converts to 8% WPI using Table 3, page 20 AMA4 Guides.
The impairments (8% and 1% WPI) are combined to give a total of 9% WPI.
Cervical spine – soft tissue injury
The neck injury (injury to the cervicothoracic spine) is assessed with reference to the Diagnosis Related Estimate method from Chapter 3.3h of AMA4. Ms Davis has ‘no significant clinical findings’ with reference to this spinal region, and therefore DRE Cervicothoracic Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation. The Nguyen judgement issues do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part.
Left shoulder – soft tissue injury
For evaluation of the impairment associated with this injury the only applicable method is related to abnormal range of motion and using this method there is 0% WPI.
Left wrist – scapholunate ligament soft tissue injury
There is no additional assessable impairment related to this injury. It should be noted that there has been an assessment of abnormal range of motion at the left wrist recorded above.”
In his reports dated 5 July 2022, Dr Bodel found a greater percentage whole person impairment than Medical Assessor Cameron, at the re-examination on 31 May 2024, and also by Medical Assessor Truskett at his examination on 29 September 2023. At the time of the assessment by Medical Assessor Cameron, the findings at the cervical spine, left shoulder, left elbow and left wrist were different to those reported by Dr Bodel. The reason could be the passage of time. In the approximately two years following the assessment by Dr Bodel, Ms Davis was able to achieve improvement with greater movement at her cervical spine, left shoulder, left elbow and left wrist.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] Medical Assessor Gibson concurs with the reasons of Medical Assessor Cameron which the Review Panel adopts.
[4] Section 7.26(6) of the Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[5] The Medical Assessors have explained the basis of their assessment which is not greatly dissimilar to that provided by Medical Assessor Truskett.
[5] Insurance Australia Group limited v Keen [2021] NSWCA 287.
The Review Panel notes that no diagnostic investigations were provided to Medical Assessor Truskett who referenced the imaging reports and nerve conduction studies in his findings. Similarly, the Review Panel directed that the claimant was to bring to her re-examination the original hard copy diagnostic imaging reports and nerve conduction studies to which Medical Assessor Truskett referred, but did not see. As stated in the re-examination report, no imaging studies were brought to the review, except an X-ray image on the claimant’s phone which showed plates and screws to the mid shaft of the left radius and ulnar fractures. The date was not apparent on the image. The Review Panel was not greatly assisted by that material.
CONCLUSIONS
For the above reasons, the Review Panel revokes the certificate issued on 4 October 2023 by Medical Assessor Truskett. The new certificate appears at the beginning of these Reasons.
[TR1]Write in full in first instance
[TR2]Write in full in first instance
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