El Falak v Insurance Australia Limited t/as NRMA Insurance

Case •

[2022] NSWPICMP 24

•

16 February 2022
DETERMINATION OF REVIEW PANEL
CITATION: El Falak v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 24
CLAIMANT: Christian El Falak
INSURER: Insurance Australia Limited T/as NRMA Insurance
REVIEW PANEL: Member Susan McTegg
Medical Assessor Thomas Rosenthal
Medical Assessor Michael Couch
DATE OF DECISION: 16 February 2022
CATCHWORDS:  MOTOR ACCIDENTS-  Medical Review; permanent impairment; inconsistency on examination; causation; fractured femurs; shoulder injury; thumb injury; cervical spine injury; lumbar spine injury; hip injury; knee injury; scarring; combined certificate; the claimant suffered serious injury in a motor vehicle accident; the dispute related to the assessment of permanent impairment; inconsistency on examination accepted by Panel as result of maladaptive cognitive and behavioural response to persistent pain with the presence of a comorbid mood disorder; questions of causation of injury to cervical spine, left shoulder injury and bilateral thumb injuries addressed; Held- left femur fracture, right femur fracture, soft tissue injury to the cervical spine, soft tissue injury to the lumbar spine, soft tissue injury to the right shoulder, soft tissue injury to the left shoulder, bilateral hip injury, bilateral knee injury, right CMC joint injury-thumb, left CMC joint injury-thumb caused by the accident; soft tissue injury to the right shoulder, soft tissue injury to the left shoulder, right CMC joint injury-thumb and left CMC joint injury - thumb gave rise to a permanent impairment under the combined tables of 10%; scarring to both forearms and hands and to both thighs previously assessed at 4% whole person impairment; new combined impairment certificate issued certifying a combined permanent impairment of 14%.  

Medical Assessment –Permanent Impairment

Review Panel Certificate

issued under Part 3.4 of the Motor Accident Compensation Act, 1999

following a review under section 63 as to

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

The Panel revokes the Combined Certificate of Medical Assessor Giles dated 21 May 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%.

·        left shoulder – soft tissue injury;

·        right shoulder – soft tissue injury;

·        left CMC Joint Injury – thumb;

·        right CMC Joint Injury – thumb;

·        scarring- both forearms and hands, and

·        scarring – both thighs.

The Panel revokes the Certificate of Medical Assessor Gliksman dated 16 September 2020 and issues a new certificate determining that the following injuries were caused by the motor accident and do not give rise to a WPI which is greater than 10%.

·        left shoulder – soft tissue injury;

·        right shoulder – soft tissue injury;

·        left CMC Joint Injury – thumb, and

·        right CMC Joint Injury – thumb.

REASONS

This is to certify that permanent impairment was assessed by a Medical Review Panel comprising Member Susan McTegg, Medical Assessor Thomas Rosenthal and Medical Assessor Michael Couch and by Medical Assessor John Giles.

Details of the assessments and full reasons are given in the following certificates:

Assessment 1

Certificate of the Medical Review Panel dated 16 February 2022

The permanent impairment in relation to the following injuries is 10%.

·        thumb - right CMC joint injury;

·        thumb - left CMC joint injury;

·        shoulder - left shoulder injury, and

·        shoulder - light shoulder injury.

Assessment 2

Certificate of Medical Assessor Giles dated 28 May 2018

The permanent impairment in relation to the following injury is 4%

·        Scarring – both forearms and hands, and

·        Scarring – both thighs.

Using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, the combined permanent impairment is 14%.

REVIEW PANEL REASONS FOR DECISION

BACKGROUND

  1. Ms Christian El Falak (the claimant) suffered injury in a serious motor vehicle accident on 30 June 2015 (the accident). 

  2. Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Ms El Falak under the Motor Accident Compensation Act, 1999 (the MAC Act).

  3. This dispute is in relation to whether the degree of permanent impairment sustained by Ms El Falak as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]

    [1] Section 57 and 58 of the MAC Act.

Report of Medical Assessor John Giles dated 28 May 2018

  1. Medical Assessor John Giles assessed Ms El Falak’s scarring and issued a Certificate dated 28 May 2018 certifying a 4% whole person impairment (WPI) for scarring to both forearms and hands and for scarring to both thighs.[2]

    [2] Claimant’s bundle page 1,312.

Report of Medical Assessor Gehr dated 22 June 2018

  1. Medical Assessor Eugene Gehr assessed Ms El Falak on 15 June 2018 and issued a certificate dated 22 June 2018.[3]  He found Ms El Falak had sustained injury to the left CMC joint of the thumb and to the right CMC joint of the thumb caused by the accident and giving rise to a 6% WPI.

    [3] Claimant’s bundle page 211.

  2. He concluded the following injuries caused by the accident had resolved and gave rise to no assessable permanent impairment:

    •       left femur fracture;

    •       right femur fracture;

    •       lumbar spine injury;

    •       cervical spine injury;

    •       left shoulder injury, and

    •       right shoulder injury.

  1. Assessor Gehr also concluded the following injuries were not caused by the accident:

    •       both hips;

    •       left knee injury, and

    •       right knee injury.

  2. Assessor Gehr noted inconsistencies between Ms El Falak’s presentation on examination and the movements demonstrated during the remainder of the assessment in respect of her neck, lumbar spine and both shoulders.

  3. In relation to causation Assessor Gehr noted it was important to consider that the life-threatening injuries to both femurs would over-shadow other injuries sustained. He noted the neck was recorded in the personal injury claim form, although not in the certificate, the ambulance report or the report of Dr Nazha.  It was noted in the report of Dr Graham, in the report of Professor Fearnside and the report of Dr Dias. On examination Assessor Gehr found the cervical spine was normal and he concluded the cervical spine injury was causally related to the accident but had resolved.

  4. Assessor Gehr considered causation of the right and left shoulder pain. He noted it was reported in the personal injury claim form but not in the medical certificate. He noted imaging of the right shoulder was undertaken during the hospital admission, but no further imaging in the three years since. On examination Assessor Gehr stated Ms El Falak reported mainly problems with the right shoulder and little pain of the left shoulder. He noted no muscle wasting of the rotator cuff muscles and observed Ms El Falak move both shoulders freely. He reported that the range of motion he found of her shoulders was considerably less than that recorded by Dr Fearnside in his report of 24 January 2017 and that recorded by Dr Buckley in his report of 17 June 2016.  Assessor Gehr found the bilateral shoulder injuries were caused by the accident although he also concluded they had resolved.

  5. Assessor Gehr also concluded the thumb injuries were causally related to the accident. He noted they were not noted in the personal injury claim form, or in the medical certificate. He noted imaging was done of the left hand and wrist in hospital and an MRI of the left wrist on 4 July 2016.  He noted injury to the left wrist/thumb was recorded in the treatment report of Dr Graham of 10 March 2017.

  6. The matter was thereafter referred for further assessment on the basis of a deterioration of the injuries previously assessed and on the basis of additional relevant information.  It was this application which resulted in the assessment by Medical Assessor Gliksman, the subject of this dispute.

  7. Medical Assessor Giles issued a Combined Certificate dated 21 May 2021.

MEDICAL ASSESSMENT UNDER REVIEW

  1. In his Certificate dated 16 September 2020, Medical Assessor Gliksman provided an assessment of 0% WPI.[4]  He found the following injuries were caused by the accident:

    ·        left femoral fracture;

    ·        right femoral fracture;

    ·        lumbar spine injury;

    ·        right shoulder injury;

    ·        bilateral hip injury, and

    ·        bilateral knee injury.

    [4] Claimant’s bundle page 107.

  2. Medical Assessor Gliksman found the following injuries were not caused by the accident:

    ·        left CMC joint injury – thumb;

    ·        right CMC joint injury – thumb;

    ·        cervical spine injury, and

    ·        left shoulder injury.

  3. Medical Assessor Gliksman concluded that the left and right femoral fractures were caused by the accident, were treated by internal fixation and achieved a good anatomical result resulting in a 0% WPI.

  4. Medical Assessor Gliksman found the accident resulted in ongoing symptomatic soft tissue injury to the lumbar spine which met the criteria for Diagnosis Related Estimates (DRE) 1, resulting in a 0% WPI.

  5. Medical Assessor Gliksman noted that investigations performed 3.5+ years after the accident demonstrated bursitis affecting the right shoulder with impingement. However, he noted that an investigation of the right shoulder, albeit no abnormal results were reported, was undertaken during Ms El Falak’s hospital admission following the accident. On that basis the Medical Assessor accepted that the ongoing symptomatology in the right shoulder was causally related to the accident. However, he found a 0% WPI arising out of injury to the right shoulder.

  6. Medical Assessor Gliksman accepted Ms El Falak had trochanteric bursitis affecting both hips which was causally related to the accident but noted in the absence of gait disturbance it did not result in a greater than 0% WPI.

  7. Having regard to the bilateral knee abrasions, including possible meniscal changes affecting the left knee, described in the hospital notes Medical Assessor Gliksman concluded ongoing symptoms affecting both knees were causally related to the accident but assessed at 0% WPI.

  8. On the basis no record was made by the hospital or the treating general practitioner for 12 months the Medical Assessor concluded that the pathology found affecting the left thumb CMC was not causally related to the accident.

  9. The Medical Assessor concluded there was no causal relationship between the ongoing complaints affecting the right thumb and the accident because of the absence of evidence of trauma/fracture/dislocation on investigations of the right thumb which were performed 21+ months later, coupled with the absence of recorded symptomatic complaints in the intervening period.

  10. Medical Assessor Gliksman found Ms El Falak did not sustain injury to the cervical spine in the accident because there is no relevant pathology and no medical records indicative of symptomatic complaints contemporaneous with the accident and for one year following.

  11. In respect of the left shoulder Medical Assessor Gliksman reported that investigations performed 3.5+ years after the accident demonstrated bursitis with a partial tear but without impingement but concluded there was no causal relationship with the accident.

REVIEW PROCEDURE

  1. The present application is a review of a medical assessment pursuant to section 63 of the
    MAC Act. The relevant medical assessment was conducted by Medical Assessor Michael Gliksman. He issued a certificate dated 16 September 2020.

  2. Whilst an earlier certificate was issued by Medical Assessor Giles on 28 May 2018 certifying a 4% permanent impairment as a result of scarring a combined Certificate was not issued by Medical Assessor Giles until 21 May 2021. That certificate was issued to the parties on 25 May 2021.

  3. Clause 16.3.3 of the Medical Assessment Guidelines requires an application for review of an assessment by a single Medical Assessor in a permanent impairment dispute assessed by more than one Medical Assessor to be lodged within 30 days after the date on which the combined certificate was sent to the parties.

  4. An application for review of the medical assessment of Assessor Gliksman was lodged on 26 May 2021 within the 30-day timeframe.

  5. On 28 July 2021, the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[5]

    [5] Section 63(2B) of the MAC Act.

  6. The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).

  7. Under clause 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.

  8. Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.

  9. 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 Commission. The President’s Delegate referred this application for review to the Panel.

  10. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to section 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on 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.

  11. 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.[7]

    [7] Section 41(2) of the PIC Act.

  12. 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.[8]

    [8] Rule 128 of the PIC Rules.

  13. The review is by way of a new assessment of all matters with which the medical assessment is concerned.[9]

    [9] Section 63(3A) of the MAC Act.

  14. Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination. In submissions filed with the application Ms El Falak sought a re-examination. The insurer provided submissions dated 4 November 2021 objecting to the review being conducted without an examination. The Panel agreed an examination was required.

  15. In response to a Review Panel Direction dated 16 November 2021 the claimant sought a re-assessment of all body parts initially assessed.

  16. Accordingly, the Panel considered it appropriate for the assessment to review all matters with which the assessment of Assessor Gliksman was concerned.

  17. On 3 December 2021 Ms El Falak was examined by Medical Assessor Rosenthal and Medical Assessor Couch on behalf of the panel.

MATERIAL BEFORE THE REVIEW PANEL

  1. The Panel issued a Direction to the parties on 27 October 2021(the first Direction) which required each party to file an indexed, paginated bundle of documents.

  2. In response to this direction the solicitor for Ms El Falak filed a bundle of documents paginated from pages 1 to 1,494 and filed in the portal as AD13.[10]  The solicitor for the insurer filed a bundle of documents paginated from pages 1 to 166 and filed in the portal as AD17.[11]

    [10] Claimant’s bundle (AD 13).

    [11] Insurer’s bundle (AD 17).

  3. At the request of the Panel the insurer filed in the portal an Activities of Daily Living Assessment following an assessment by Laura Feredoes of Benchmark on 27 July 2015 and marked AD21. 

  4. The documents considered by the Panel are the documents comprising AD13, AD17 and AD21.

Statements of Christian El Falak

  1. Ms El Falak was 22 years of age at the date of accident and is currently 29 years of age.

  2. Ms El Falak provided a statement dated 26 June 2018.[12]  She stated the truck in which she was a passenger at the time of the accident was “flung violently” and she was “in severe shock as my whole body was shaking and I felt immediate pain in both legs, right shoulder and hands”. She describes being trapped in the truck, pinned against the front of the truck and the seat and requiring sedation for the emergency workers to free her from the truck.

    [12] Claimant’s bundle page 476.

  3. Ms El Falak states that with time it became apparent that pain in her legs, shoulders, hands, arms, neck, hips, and low back was not merely temporary.

  4. Ms El Falak provided a supplementary statement dated 7 May 2019. She described regular and often severe headaches, pain in the neck, lower back pain but more significantly pain in the pelvis and hips. She also described problems with both shoulders, with moving her arms repetitively or using her arms at or above shoulder height or with lifting and carrying.
    Ms El Falak also described problems with her right knee but also with the left knee. She stated problems with both hands and wrists include difficulty using both hands and arms for anything other than light activities.

  5. In a supplementary statement dated 11 November 2019 Ms El Falak stated the improvement she experienced following thumb surgery did not last and since about 2017 her thumbs have been getting worse.[13] She said “I feel like they have become loose and they click when I touch them. I also have to avoid putting any pressure on them at all.”

    [13] Claimant’s bundle page 164.

  6. Ms El Falak stated she was afraid to undergo further surgical procedures as recommended by Dr Nabarro or plastic surgery for the scarring to her hands and legs.

  7. Ms El Falak described swelling of her left thigh. She said she experienced a lot of pain and was unable to walk or stand for long otherwise she experiences pain in the left leg which she described as sore over the fracture site. She also complained of increased lower back pain and weight gain which she associated with her inability to be active.

  8. Ms El Falak stated she experienced constant headaches which impacted on her memory and concentration.  She also described problems with her shoulders, asserting her right shoulder had worsened and she had difficulty in attempting to lift her arm about shoulder height.

  9. Ms El Falak described neck pain and an inability to rotate her neck freely.

  10. She also described problems with her hips, including pain radiating down her leg.

Treating medical records

  1. Dr Chwah’s clinical notes record a complaint of low back pain on 22 September 2014.[14]

    [14] Claimant’s bundle page 769.

  2. On 30 September 2014 Ms El Falak consulted Dr Youssef of Greenoaks Medical Centre complaining of, inter alia, lower back pain, described as chronic, muscular, lateral and worse at the end of the day or after exercise.[15]  Dr Youssef prescribed Celebrex.

    [15] Claimant’s bundle page 1,318.

  3. An X-ray of the lumbosacral spine on 22 September 2014 did not report any abnormality although the clinical data was recorded as “Low back pain. Longstanding.”[16]

    [16] Claimant’s bundle page 793.

  4. Following the accident on 30 June 2015 Ms El Falak was taken to Westmead Hospital by ambulance.[17]  The ambulance report referred to a high-speed head on accident and major deformation and damage to the middle front seat position of a small truck. It reports

    [17] Claimant’s bundle page 552.

    Ms El Falak was trapped by compression for approximately 1.5 hours and notes bilateral fractured femurs, otherwise no other injury evident.

  1. Ms El Falak was hospitalised at Westmead Hospital until 9 July 2015. She had suffered a fractured right and left femur of the mid shaft with displacement. Ms El Falak underwent surgery under the care of Dr Edward Graham on 30 June 2015, for open reduction, internal fixation with fixation rods of the right and left femur.

  2. On 30 June 2015 the clinical record states Ms El Falak was complaining of pain in the right scapula and on 1 July 2015 during a trauma ward round, the following was noted:

    ·        complaints of back pain;

    ·        a graze of the central forehead;

    ·        right arm tenderness and pain and a right elbow bruise;

    ·        left arm cubital fossa tenderness;

    ·        tenderness over T7;

    ·        right and left knee abrasions;

    ·        right shin abrasion; and

    ·        a bruise on the dorsal of the left foot.[18]

    [18] Claimant’s bundle page 845.

  3. On 6 July 2015 the clinical notes report Ms El Falak was complaining of right ankle/calcaneal pain and an X-ray was arranged.

  4. The Discharge Summary states issues identified during the admission include bi-femoral fractures, right foot pain and left wrist pain.

  5. The following table is an outline of the scans undergone by Ms Falak whilst hospitalised:

Date

Investigation

Comments

30.6.2015

Plain X-rays lower extremities

Transverse fracture of both mid shafts right and left with displacement of each. No fracture in the tibia and fibula. Apparent widening of the right ankle mortise.

30.6.2015

Plain X-rays right shoulder/scapular

The right shoulder is enlocated and no fracture is evident.

30.6.2015

Chest X-ray

The lungs were clear and no evidence of rib fracture

30.6.2015

Pelvis X-ray

The hip joints appear enlocated and no recent fracture is seen.

30.6.2015

CT scan cervical spine

No acute fracture. No prevertebral soft tissue swelling. No epidural haematoma.

30.6.2015

CT Brain

No abnormality evident.

30.6.2015

CT scan chest

No injury to the lungs or great vessels. Mild atelectasis in the dependent aspect of the lower lobes.

30.6.2015

CT scan abdomen and pelvis

No acute traumatic injury of the abdominal viscera or bony pelvis.

30.6.2015

CT scan thoracic and lumbar spine

No acute fracture.

30.6.2015

Plain X-rays pelvis

Does not define any bony or soft tissue abnormality.

6.7.2015

Plain X-rays right foot and ankle

No recent fracture or dislocation seen.

8.7.2015

Plain X-rays left hand

Does not report any abnormality.

8.7.2015

Plain X-rays left wrist

Does not report any abnormality.

  1. In the Personal Injury Claim Form dated 15 July 2015 Ms El Falak alleged the following injuries:

    ·        fractures both legs femur;

    ·        discal back;

    ·        discal neck;

    ·        soft tissue tears both shoulders, and

    ·        anxiety state and depression – psychological.

  2. A medical certificate dated 1 July 2015 completed by Dr Slope of Westmead Hospital only referred to the bilateral femur fractures and significant pain.

  3. The medical certificate which accompanied the Personal Injury Claim Form was completed by Dr Wong at Westmead Hospital on 10 July 2015 and only referred to the bilateral mid shaft femoral fractures.

  4. On 27 July 2015 Laura Feredoes, occupational therapist of Benchmark undertook an activities of daily living assessment.[19]  In a report dated 3 August 2015 she identified the nature of injury as follows:

    “Bilateral midshaft femoral fractures, anxiety and depression, soft tissue injury to the neck and lower back and tears in the right and left shoulders”.

    [19] AD21.

  5. On 13 July 2015 Ms El Falak consulted Dr Aneale Uppal of Greenoaks Medical Centre for removal of staples.[20] This entry only refers to the bi-femoral mid shaft fractures and the considerable emotional distress displayed by Ms El Falak.

    [20] Claimant’s bundle page 1,321.

  6. On 27 July 2015 Dr Graham reviewed Ms El Falak stating he was happy for her to start weight bearing.[21] He also reported she was having pain in the wrist and thoraco-lumbar spine and recommended she undertake X-rays.[22]

    [21] Claimant’s bundle p 797

    [22] Claimant’s bundle p 1116

  7. A Notice of commencement of physiotherapy dated 30 July 2015 describes the injury as ”lower back”.

  8. On 7 September 2015, two months post-surgery, Dr Graham reported Ms El Falak had ongoing pain in both legs and difficulty mobilising.[23] He also reported she was complaining of back pain and ongoing symptoms in her left thumb. He recommended an MRI scan to rule out ligamentous injury.

    [23] Claimant’s bundle p 564.

  9. A physiotherapy review of 14 September 2015 describes the injury as “neck, lower back, left and right femur”.[24]

    [24] Claimant’s bundle p 1172

  10. On 23 September 2015 Dr Predny of Greenoaks Medical Centre reported the bilateral femoral fractures and noted Ms El Falak was still using crutches for mobilisation and was experiencing ongoing significant pain. This entry refers to hip pain and pain under the nails of the big toes of each foot.

  11. Benchmark completed an ADL assessment on 30 October 2015.[25] Ms El Falak was mobilising with one crutch. She continued to report hip pain on both sides and leg pain. Arrangements had been made for Ms El Falak to undergo bilateral x-rays on her femurs and an MRI scan of the right thumb and wrist.

    [25] Claimant’s bundle p 554.

  12. An x-ray of the left and right femur on 10 December 2015 indicated hypertrophic non-union of the fractures. The imaging of the hips and knees were unremarkable. A further x-ray on 1 December 2016 showed that both fractures of the femur had healed.

  13. An MRI of the cervical spine dated 14 December 2015 reported mild ossified formation at C3/4, C5/6 and C6/7.

  14. On 14 December 2014 Dr Graham reported Ms El Falak was continuing to have discomfort in both femora and whilst x-rays showed the fractures were continuing to heal, he indicated it was likely he would have to remove the rods.

  15. A Benchmark Progress Report of 21 December 2015 reported Ms El Falak did not go ahead with the MRI scan for her left wrist and thumb because she was scared about the procedure.

  16. Ms El Falak, Dr Chwah and Ms Walker, occupational therapist from Benchmark participated in a case conference on 24 February 2016. Ms El Falak complained of symptoms associated with her lower back, knees, shoulders, and neck and more recently weakness and discomfort in her left hand.

  17. On 16 May 2016 Dr Graham reported he had received approval to remove the right femoral nail. He again noted Ms El Falak was complaining of discomfort in the left thumb and again recommended an MRI be conducted.[26]

    [26] Claimant’s bundle page 1,268.

  18. Dr Graham removed the right femur rod and excised the scar on 20 May 2016.[27]

    [27] Claimant’s bundle page 802.

  19. On 6 June 2016 Dr Graham reported Ms El Falak was recovering well from removal of hardware right femur. He noted an MRI of her left thumb had been requested.[28]

    [28] Claimant’s bundle page 803.

  20. An MRI of the left wrist and hand on 4 July 2016 disclosed a fracture of the base of the 1st metacarpal, extending into the 1st carpometacarpal joint and associated with a small joint haemarthrosis.[29]

    [29] Claimant’s bundle page 586.

  21. The left femur rod was removed by Dr Graham on 15 July 2016. He reviewed Ms El Falak on 25 July 2016 and noted keloid scarring to several scars. He also noted the MRI scan of the left thumb showed a fracture at the base of the 1st metacarpal. He recommended she see Dr Simon Chan.

  22. On 19 August 2016 Benchmark undertook a further activities of daily living assessment.[30]  At that time, she reported experiencing a regular “electric shock” bilaterally from her hips to her feet, a throbbing pain at the base of her left thumb and neck pain. It was also noted that Ms El Falak avoided using her left hand for daily tasks relying predominantly on her right hand.

    [30] Claimant’s bundle page 593.

  23. On 8 September 2016 Dr Graham reported the wounds had healed, seven weeks after removal of left sided hardware, but Ms El Falak was having difficulty with straight leg raising and taking her full weight on the left side.

  24. On 22 September 2016 Ms El Falak saw Dr Simon Chan, hand and wrist surgeon on referral from Dr Graham.[31] Dr Chan reported:

    “Christiane was involved in a motor vehicle accident on 30/06/2015 (64 weeks ago). There was a high-speed head-on collision. She sustained bilateral femoral fractures. She noticed pain at the base of her left thumb during her rehabilitation. She has also noticed instability, being able to sublux and reduce her thumb CMC joint…….

    The right thumb CMC joint was also mobile, but not as much as the left side, and it was not painful”.

    [31]  Claimant’s bundle page 614.

  25. Dr Chan reported X-rays of her thumb showed a well-rounded avulsion fragment from the base of the thumb metacarpal. Dr Chan diagnosed an avulsion of the volar beak ligament of the left thumb CMC joint with resultant left thumb CMC joint instability and early post traumatic arthritis.

  26. In his report dated 10 November 2016 Dr Chan reported Ms El Falak also mentioned pain in her right thumb and noted there was crepitus and irritability in the right thumb MCP joint.[32]

    [32] Claimant bundle page 618.

  27. A bilateral femur X-ray of 1 December 2016 showed that the fractures had healed in near anatomical position.

  28. An MRI of the left knee on 1 December 2016 reported evidence of the prior intramedullary nail and subtle signal change posterior horn medial meniscus without distinct tear. [33]

    [33] Claimant’s bundle page 620.

  29. On 14 December 2016 Dr Chan reported Ms El Falak had recently started hand therapy.[34]  Both thumbs remained irritable.

    [34] Claimant’s bundle page 1,254.

  30. Dr Chan reviewed Ms El Falak on 25 January 2017.[35] He reported slight improvement in the left thumb pain with hand therapy but ongoing pain in the right thumb limiting function.

    [35] Claimant’s bundle page 1,253.

  31. On 3 March 2017 Ms El Falak commenced physiotherapy with Handcare. A report of Annie Leung states “When using crutches at rehab, she noted pain in her left thumb base. An MRI scan showed an old avulsion fracture of the beak ligament. Cristiane also reports pain in her right thumb.”[36]

    [36] Claimant’s bundle page 1,302.

  32. The treating surgeon Dr Edward Graham provided a report dated 10 March 2017.[37] He stated the injuries suffered at the time of the accident were bilateral femoral shaft fractures and an injury to the left wrist/thumb.  As at March 2017 Dr Graham reported Ms El Falak had lateral sided left knee pain, ongoing pain and discomfort in the hips, to the scar, the left thumb and the left wrist.

    [37] Claimant’s bundle page 635.

  33. A CT scan of the cervical spine of 16 March 2017 reported “very mild posterior disc bulges at C4/5 and C5/6 levels without significant canal narrowing”.  An X-ray of the right thumb did not disclose any fracture or focal bony abnormality.[38]

    [38] Claimant’s bundle page 1,176.

  34. On 22 March 2017 Dr Nabarro reported Ms El Falak had sustained an injury to her left thumb in the head on collision.[39]  He further stated she had been using her right hand for most activities and had developed pain over the base of the right thumb.  He opined Ms El Falak has sustained a Bennett’s fracture of the left first metacarpal, and instability of the base of the first metacarpal and possibly a similar injury to the right thumb.

    [39] Claimant’s bundle page 1,237.

  35. Ms El Falak underwent a post synovectomy and FCR stabilisation at the left 1st CMC joint, which involved a ligament transfer to stabilise the CMC joint on 18 April 2017 under the care of Dr Mark Nabarro.[40]

    [40] Claimant’s bundle page 1,194.

  36. Luedmila Ugov, occupational therapist of Benchmark undertook another ADL assessment on 16 June 2017.  She reported complaints of pain in the base of the left thumb and along the scars on the forearm; base of the right thumb; base of the neck near the right shoulder blade; lower back; lateral aspect of the left thigh and anterior aspect of the right thigh.

  37. An MRI of the right hand of 27 June 2017 reported no acute soft tissue injury.[41]

    [41] Claimant’s bundle page 1,155.

  38. Ms El Falak was reviewed by Dr Nabarro on 12 July 2017, three months following surgery to the left thumb.[42]  At that time she felt the pain in the right thumb had become worse than the left.

    [42] Claimant’s bundle page 1,234.

  39. On 16 August 2017 Ms El Falak underwent a bone scan for an assessment of ongoing left knee pain. The report concluded an explanation for the pain would most likely be ongoing stress reaction and bone healing at the site of the previous fracture.  

  40. Dr Nabarro performed a post synovectomy and FCR stabilisation at the right 1st CMC joint, which involved a ligament transfer to stabilise the CMC joint on 22 August 2017.[43]

    [43] Claimant’s bundle page 1,290.

  41. Dr Alan Nazha, pain management specialist saw Ms El Falak for the first time on 12 October 2017.[44] He was aware she had sustained bilateral fractured femurs requiring intramedullary nailing following the accident but stated her predominant pain at that time was in relation to her back predominantly on the left side radiating into the lateral aspect of the left leg and the sole of the foot. He also described pain in both hips as well as both hands and was aware Ms El Falak had seen Dr Nabarro for what she described as tendon transfers of each thumb. Dr Nazha described a maladaptive cognitive and behavioural response to persistent pain with the presence of a comorbid mood disorder.

    [44] Claimant’s bundle page 1,179.

  42. An MRI of the lumbar spine on 20 October 2017 was a normal study. 

  43. An ultrasound of both hips performed on 20 October 2017 demonstrated mild bilateral trochanteric bursitis and the possible presence of low-grade partial thickness tear involving the deep fibres of the gluteus medius tendon at the insertion.

  44. In a report to Dr Chwah dated 15 November 2017 Dr Nabarro stated Ms El Falak was complaining of ongoing pain in both thumbs, left worse than right.[45]  She felt the left thumb was unstable and she had developed some numbness and tingling in her right hand.

    [45] Claimant’s bundle page 1,228.

  45. Dr Nazha reviewed Ms El Falak on 29 November 2017 when he concluded there was no evidence for radicular back complaint and that the pain experienced by Ms El Falak in the lower back and extending to the left hip and lower leg was most likely musculoskeletal.

  46. Dr Edward Graham reviewed Ms El Falak on 15 December 2017 and reported she was still experiencing stiffness, swelling and pain.

  47. Dr Nabarro reviewed Ms El Falak on 15 January 2018 and reported complaints of ongoing pain at the base of both thumbs, worse on the left.[46]

    [46] Claimant’s bundle page 1,294.

  48. At review on 30 January 2018 Dr Nazha reported Ms El Falak’s greatest pain was from her left knee.[47] He discussed interventional pain measures and recommended a diagnostic intraarticular injection. 

    [47] Claimant’s bundle page 1,198.

  49. Dr Nazha provided a report to C & M Lawyers dated 12 March 2018 in which he summarised his earlier consultations and investigations undergone by Ms El Falak.  He concluded
    Ms El Falak had suffered accident-related injuries to her legs, hip, lower back, neck, left wrist and hand, and right wrist and hand. He described chronic pain resulting in loss of independence, inability to work, inability to complete domestic duties and limited ability to self-care.

  50. Mr Leo Ho, physiotherapist reported back to Dr Nazha 13 March 2018. He diagnosed widespread chronic pain, deconditioning and reported Ms El Falak was somatically focused. The history he recorded included bi-lateral thumb pain and bi-lateral shoulder pain.

  51. On 12 April 2018 Ms El Falak underwent an ultrasound guided steroid injection of her left 1st CMC joint.[48]

    [48] Claimant’s bundle page 1,200.

  52. On 13 June 2018 Dr Nabarro reported complaints of increasing pain over the base of both thumbs, worse on the left.[49]  He recommended fusion and bone grafts of both 1st CMC joints.

    [49] Claimant’s bundle page 1,201.

  53. On 9 July 2018 Dr Nazha reported complaints of chronic widespread pain and a “fibromyalgia like” picture.

  54. On 20 August 2018 Dr Nazha reported Ms El Falak was experiencing “electrical shock” sensations in both shoulders in what he thought was the distribution of C5. He discussed Ms El Falak’s needle phobia and recommended she have nerve conduction studies without the EMG component.

  55. On 10 September 2018 Ms El Falak underwent an ultrasound guided right subacromial bursa injection.

  56. Dr Nazha reviewed Ms El Falak on 15 October 2018 and reported multisite pain, with the worst pain in the lumbar spine and left leg.[50]  Other complaints included cervical spine, bilateral shoulders and bilateral wrists. In a subsequent report dated 7 January 2019 Dr Nazha reported significant discomfort in the left hip and buttock.

    [50] Claimant’s bundle page 1,490.

  57. Dr Nazha reviewed Ms El Falak on 7 January 2019 when he reported increasing pain affecting the left hip and buttock.[51]  He noted evidence of tenderness to palpation of the left trochanteric bursa.

    [51] Claimant’s bundle page 1,489.

  58. An MRI of the left hip and sacroiliac joint dated 8 January 2019 reported mild gluteus minimus and medius tendinopathy and mild trochanteric bursitis.

  59. A right shoulder ultrasound on 25 January 2019 reported subacromial/subdeltoid bursitis and suggested an ultrasound guided steroid injection.

  60. An ultrasound of the left ankle and foot failed to demonstrate any ligamentous or tendon abnormality although a small amount of fluid was noted in the dorsal aspect of the sinus tarsi.

  61. An ultrasound report of the left shoulder dated 14 February 2019 reported a partial thickness tear of the supraspinatus tendon and subacromial and subdeltoid bursitis.

  62. An ultrasound of the left thigh also on 14 February 2019 noted a partial thickness tear and tendinitis of the gluteus medius tendon and greater trochanteric bursitis.

  63. An MRI of the lumbar spine performed on 9 May 2019 did not disclose any abnormalities, whilst an MRI of the thoracic spine reported minimal disc bulges at T6/T7 and T7/T8 not associated with significant narrowing of the exit neural canals or nerve root impingement and with no cord lesion or compression.  A CT of the cervical spine was reported to show very mild posterior disc bulges of C4/5 and C5/6 levels without significant canal narrowing.  A right thumb X-ray did not disclose any fracture or focal bony abnormality in the right thumb.

  64. Dr Youssef, general practitioner (GP) provided a report dated 17 May 2019.[52]  He reported chronic persisting pain at the legs, together with left hip, lower back and gluteal pain. He described associated gait disturbance. He also reported chronic bilateral knee pain and suggested images showed a dislodged fragment within the right knee joint. He diagnosed bilateral iliotibial band syndrome and patellar tendinopathy. Due to the thumb injuries Dr Youssef stated both hands have weaker grip strength, are quite stiff and a source of persistent pain. He described bilateral shoulder injuries with worsening pain since the accident, chronic bilateral ankle pain, and chronic stiffness and pain in the neck and headaches.

    [52] Claimant’s bundle page 509.

  65. An ultrasound of the right shoulder dated 3 March 2020 reported subacromial bursitis with impingement, but no evidence of a rotator cuff tendinopathy or a tear.

  66. Pain physician Dr Alan Nazha reviewed Ms El Falak on 14 May 2020. He reported

    [53] Claimant’s bundle page 1,487.

    Ms El Falak did not wish to proceed with further surgery to her hands although Dr Nabarro had recommended a fusion of the left thumb.[53] Whilst Ms El Falak had significant pain in her left shoulder and bilateral hands, he noted Ms El Falak’s main complaint was in relation to her right shoulder, lower back and left leg. On examination he found a reasonable range of motion of both upper limbs, but with significant lethargy with movement. He observed a positive Tinel’s sign over the suprascapular nerve on the right but no evidence of impingement. He noted mild subacromial tenderness, significant tenderness over the superior cluneal nerve and at the lumbosacral junction.  He noted the presence of trochanteric bursitis but no hip irritability.

  1. On 20 August 2020 Dr Nazha reported that a percentage of the ongoing lower limb pain was likely due to trochanteric bursitis.[54] 

    [54] Claimant’s bundle page 1,476.

  2. On 20 July 2021 Ms El Falak was reviewed by Dr Nazha who stated her main pain complaints related to the bilateral lower limb pain and the right shoulder pain.[55] 

    [55] Claimant’s bundle page 1,475.

  3. Ms El Falak was reviewed by Dr Nazha on 29 October 2021.[56] He noted she had resumed medication and was on Norflex, Celebrex, Panadeine Forte, Lyrica and Amitriptyline. He reported a focal pain overlying the area of the rhomboids, but no significant pain overlying her shoulder which may have improved. He also reported complaints of trochanteric bursitis worse on the left side.

    [56] Insurer’s bundle page 166.

Medico-legal reports

Professor Fearnside

  1. Ms El Falak was reviewed by Professor Fearnside who provided a report dated 24 January 2017.[57]  He reported Ms El Falak experienced neck pain at most times, pain in both shoulders with loss of range of motion, more so on the right, pain at the base of the left thumb and pain when flexing or extending her wrist. He also noted Ms El Falak said she had experienced some aching in the base of the right thumb since the accident which she felt might be related to the use of crutches for about nine months. He also reported constant low back pain radiating to the buttocks and down the legs and bilateral thigh and knee pain.

    [57] Claimant’s bundle page 623.

  2. He reported Ms El Falak suffered fractures of the left and right femur, an injury to the left thumb and the left wrist, a cervical spine soft tissue injury and a lumbar spine soft tissue injury.  He assessed 0% WPI for the cervical spine, 5% WPI for the lumbar spine, a 5% WPI for the right shoulder, and 4% WPI for the left shoulder. He did not assess the left wrist and thumb because that injury had not stabilised

Dr Dias

  1. Dr Dias, occupational physician assessed Ms El Falak and provided a report dated 26 September 2017.[58]  He reported ongoing symptoms of pain, stiffness and discomfort, affecting the neck, lumbar spine, hips, thighs, knees, both shoulders, both wrists and both hands. On the basis Ms El Falak was pain free and asymptomatic prior to the accident with no significant pre-existing condition and noting she has experienced chronic symptoms of pain, stiffness and discomfort in relation to the various injured regions since the accident Dr Dias was of the view the causal chain stemming from the accident to Ms El Falak’s current condition was unbroken.

    [58] Claimant’s bundle page 675.

  2. Dr Dias assessed a DRE Cervical Category II resulting in a 5% WPI for the cervical spine. For the lumbar spine he assessed a DRE Lumbar Category II resulting in a 5% WPI for the lumbar spine. Dr Dias was of the view the loss of range of movement of the right and left shoulder was due to referred pain from the cervical spine condition.  He assessed an 8% WPI for the right shoulder and a 7% WPI for the left shoulder. He assessed a 2% WPI in respect of each hip and a 4% WPI in respect of each knee. Having regard to recent surgery he did not assess the left and right wrist and hand or scarring.

Dr Tony Antoun

  1. Dr Tony Antoun assessed Ms El Falak and provided a report dated 15 August 2018 in which he assessed a 26% WPI in respect of bilateral shoulder, bilateral thumb, left hip, and left knee injuries and scarring.[59]

    [59] Claimant’s bundle page 253.

  2. In respect of the hands and wrists Dr Antoun reported the surgery to both thumbs had been unsuccessful and Ms El Falak continued to experience chronic pain in the thumbs and loss of function. Dr Antoun concluded Ms El Falak had sustained a 3% WPI in respect of both thumbs because of the accident.

  3. In respect of both shoulders’ Dr Antoun reported stiffness and restriction of movement and reported lifted arms to or above chest height causes pain. Dr Antoun concluded Ms El Falak had bilateral shoulder functional limitation with clinical signs suspicious of rotator cuff pathology and found Ms El Falak had sustained an 8% WPI of the right shoulder and a 7% WPI of the left shoulder. 

  4. Dr Antoun agreed with Assessor Gehr that Ms El Falak had sustained a 0% WPI in respect of the cervicothoracic spine, the lumbosacral spine, the right femur and the left femur respectively.

Dr Raymond Wallace

  1. Dr Raymond Wallace, orthopaedic surgeon reviewed Ms El Falak at the request of the insurer on 21 August 2018 and provided a report dated 27 August 2018.[60]  Dr Wallace causally related the cervical spine, bilateral shoulder, bilateral thumb, lumbar spine and bilateral thigh conditions to the accident. He did not provide an assessment of permanent impairment.

    [60] Claimant’s bundle page 489.

Dr Stephen Buckley

  1. Dr Stephen Buckley assessed Ms El Falak at the request of her lawyers on 3 April 2017. He provided a report dated 17 June 2016 (more correctly 17 June 2017).[61]

    [61] Claimant’s bundle page 639.

  2. Dr Buckley reported:

    “Apparently, the van toppled over onto its side and Ayoub crushed down on top of her. She said that her legs were crushed under the dashboard and she could see that both her legs were fractured at the thighs. She had severe left hand and thumb pain and right-hand pain (having been holding her mobile phone when the accident occurred, and later finding the phone completely shattered.)”

  3. Dr Buckley assessed 0% WPI in respect on injuries to the left femur, the right femur, the cervical spine, the thoracic spine and the lumbar spine. However, he assessed a 16% WPI for the left thumb, a 5% WPI for the left shoulder resulting in a 12% WPI for the left upper extremity.  He assessed at 10% WPI for the right shoulder, a 5% WPI for the right thumb resulting in a 9% WPI for the right upper extremity.  Combining all impairments Dr Buckley assessed a total 20% WPI.

  4. Dr Buckley provided a second report dated 20 September 2018.[62]  He noted Ms El Falak continued to suffer neck and lower back pain and left greater trochanter region pain associated with swelling. He also reported swelling of the left leg associated with a deep pain inside the thigh going all the way into the left foot.

    [62] Claimant’s bundle page 273.

  5. Whilst Dr Buckley noted a degree of hand function while removing and applying her splints, he reported she otherwise did not move her hands while showing them to him. He concluded she still had severe joint subluxation of both thumbs. 

  6. He noted severe restriction in the range of movement of both shoulders which he felt was not surprising given Ms El Falak’s overall lack of physical exercise and the diagnosis of traumatic capsulitis. Dr Buckley started there was no evidence Ms El Falak’s shoulders had recovered from the injuries initially sustained, which he noted were identified by the occupational therapist appointed by the Insurer 20 days after the accident.

  7. Dr Buckley assessed Ms El Falak via videoconference on 13 September 2021.[63]  He noted she gave birth to a son on 13 May 2021. Ms El Falak complained of pain in her right shoulder, both legs, the lumbar spine, both thumbs, the neck and the left shoulder.

    [63] Claimant’s bundle page 1.

    Ms El Falak described difficulty with many activities, in particular, in caring for her baby.

  8. Dr Buckley felt there was little difference to his earlier assessment and concluded
    Ms El Falak remained considerably impaired, although he also felt that much of her disability was due to the psychological reaction to her injuries.

Dr Peter Giblin

  1. Dr Peter Giblin, orthopaedic surgeon assessed Ms El Falak at the request of her lawyers and provided a report dated 18 July 2019.[64]  He diagnosed bilateral fractured femurs, a fractured left 1st metacarpal, soft tissue injury to her right 1st CMCJ, and soft tissue injuries to her axial skeleton, both shoulders and secondary soft tissue restrictions of both hips’ consequent upon the accident.

    [64] Claimant’s bundle page 499.

  2. Dr Giblin assessed a 4% WPI in respect of each thumb and using an analogous term of rotator cuff impingement he assessed both shoulders as having a 2% WPI resulting in a 6% WPI for each upper extremity.

  3. He assessed both the lumbar and cervical spine as having a DRE 1 category equating to a 0% WPI.

  4. Whilst Dr Giblin did not give a rateable impairment for the lumbar spine, he utilised the Nguyen Principle to assess a 2% WPI for the right lower extremity and 4% WPI for the left lower extremity. This was on the basis that the intramedullary rods produced a degree of soft tissue disruption in the muscle groups around the hips which was associated with pain and the limitation of active flexion of both hips.

SUBMISSIONS

Claimant’s submissions

  1. The claimant submits that Assessor Gliksman erred in finding that the thumb injuries were not causally related to the accident in the absence of contemporaneous complaint. The claimant relies upon the following:

    (a)     the letter from Dr Edward Graham to Dr Chwah dated 7 September 2015 where he states that the claimant “…. Is complaining of ongoing symptoms in the left thumb and wrist and as such I have recommended MRI scan to rule out ligamentous injury.”

    (b)     the history taken by Dr Simon Chan in his letter dated 22 September 2016: “she noticed pain at the base of her left thumb during her rehabilitation”.

    (c)     the history recorded by Medical Assessor Gehr in his certificate dated 22 June 2018: “She also injured both thumbs at the time of the accident…when she got out of bed, mobilized with crutches, she noticed problems with her thumbs”.

  2. The claimant submits that notwithstanding the failure to diagnose injury to one of the thumbs at the hospital Dr Buckley, Dr Wallace and Dr Giblin found the injury to both thumbs causally related to the accident.

  3. The claimant submits it would be reasonable to infer the X-ray of the left wrist and hand was pre-empted by complaints relating to that hand.

  4. Further, the claimant submits there is no history of complaint of symptoms in her thumbs prior to the accident and no history of injury subsequent to the accident to explain the development of those symptoms.

  5. Similarly, in respect of causation of the left shoulder the claimant submits the weight of the evidence including the opinions of Assessor Gehr, Dr Giblin, Dr Wallace and Dr Buckley support a finding that the injury to the left shoulder is causally related to the accident.

  6. The claimant also submits the finding of a 0% WPI for each shoulder is against the weight of the evidence and notes that even Assessor Gliksman detailed significant pathology in both shoulders.

Insurer’s submissions

  1. In respect of causation of the left and right thumb the insurer submits the first history is that of Dr Graham on 7 September 2015, over two months post-accident, referencing the left thumb.

  2. The insurer relies on the opinion of Assessor Gliksman that a fracture at the base of the left thumb would be immediately and significantly symptomatic.

  3. Furthermore, the insurer submits the opinion of Assessor Gliksman as to causation of the thumb injuries is supported by the specific radiological investigations carried out during the hospital admission which he concludes “militate against the conclusion that the subject motor vehicle accident had caused the type of pathology noted on subsequent investigation”.

  4. The insurer submits Assessor Gliksman correctly found no causation for the left shoulder and no temporal relationship between the findings of the ultrasound conducted on 14 February 2019 and the accident on 30 June 2015.

  5. The insurer submits in finding 0% WPI for both shoulders it should be kept in mind that the previous assessments were conducted in 2018 and 2019. The insurer submits Assessor Gliksman was entitled to rely on clauses 1.40 and 1.141 of the Permanent Impairment Guidelines having regard to the inconsistencies he observed when Ms El Falak was donning and doffing her cardigan and having regard to his clinical examination.

EXAMINATION

  1. An examination of Ms El Falak occurred at Assessor Couch’s rooms in King Street Sydney on 3 December 2021. Interpreter May Dabliz was connected by telephone for the claimant. In attendance were Assessors Couch, Rosenthal and Ms El Falak.

  2. Ms El Falak confirmed the history previously provided to Assessor Gliksman. Her accident occurred on 30 June 2015. She was a passenger in a small truck sitting in the bench seat between another passenger and the driver. The vehicle was involved in a head on collision. She had a lap seatbelt across her stomach, and she said the truck flipped on its side after a front collision. She thinks she may have lost consciousness in the accident.

  3. An ambulance took Ms El Falak to Westmead Hospital. She spent two weeks in hospital. The main injuries originally treated were the fractures of both femurs, but she did note injuries also to her spine, shoulders, hips, and knees.

  4. Following discharge from hospital she did require crutches and apparently both thumbs were then injured due to the use of crutches.

  5. She recalled requiring surgery to both of her thumbs, and she also recalled having ongoing pain management. She recalls having various cortisone injections into various body parts including the left hip. She had a large amounts of physiotherapy treatment.

  6. Ms El Falak has remained symptomatic in multiple body parts since the accident which occurred nearly six and a half years ago. She did have poor recall of a lot of the specific treatment that has occurred over the last six years.

  7. In terms of her current symptoms from the accident, Ms El Falak said she has pain in both hips, both shoulders, neck, back, knees, thumbs, pins and needles in her toes and fingers. She is generally restricted with sitting, standing, walking and various movements and activities.

  8. Ms El Falak said she is not working. She has a seven-month-old son at home. Her husband works as a driver for his father’s company, and he does intermittent work.

  9. She denied any further accidents or injuries since the subject accident.

Current treatment

  1. Ms El Falak has remedial massage. She takes four to six Panadeine Forte per day. She takes Endep and Endone on occasions. She is not having any physiotherapy or other physical treatments.

Investigations

  1. She did not bring any X-rays with her to the assessment.

Physical examination

  1. There were a number of pain behaviours apparent during the assessment. There was a lot of grimacing, grabbing of various body parts and a lack of effort given when requested to do a lot of movements.

  2. In addition, Ms El Falak seemed to require assistance when getting up onto the examination couch and after sitting on the couch for a short period. She also complained of increasing pain throughout the examination. As the examination continued, she complained of more pain to the point where she refused to perform any further requested movements.

  3. Ms El Falak weighed approximately 88kg and her height was estimated at 172cm.

  4. Examination of her spine revealed a forward poke neck. She was tender in the midline. All neck movements were reduced in all directions, but they appeared to be reduced due to lack of effort and complaints of pain. The inconsistencies in her movement were brought to her attention and she basically said that the pain was variable and was impacting on everything she did.

  5. There were no neurological deficits in the upper limbs. Attempts at assessing muscle power were met with no or minimal effort. There were no dermatomal sensory changes and reflexes were brisk in the upper limbs. There was no evidence of muscle wasting. There was no spasm or guarding noted in the neck region or any upper trapezial region.

  6. Both shoulders were reportedly tender over the glenohumeral joint, right greater than left and all shoulder movements were significantly restricted inconsistently with pain behaviours and lack of effort. The inconsistencies were brought to Ms El Falak’s attention, and her answer was that she was in pain. Passive movements were attempted at the shoulder joint, and they were also more restricted than was apparent on active movement.  Ms El Falak seemed to resist any attempt to elevate her arms.

  7. She appeared to have a full range of elbow movements and was encouraged to provide maximal effort. Her hands were soft and clean and there was a 20mm scar present over the base of both thumbs which had healed well. The upper arms measured 34cm on the right and 33cm on the left, 10cm above the olecranon. Forearms measured 28cm on the right and 27cm on the left, 10cm below the olecranon (she is right-handed). There was no evidence of any muscle wasting around the hands.

  8. The thumb movements in both hands were restricted. Again, it appeared she did not provide maximal effort on thumb movements, complaining of pain and stiffness. Radial abduction of the right thumb was measured to 30 degrees, opposition to 5cm and adduction to 5cm. The same measured movements were found in the left thumb. The MP joints of both thumbs showed 20 degrees loss of extension and 50 degrees of flexion. The IP joints of both thumbs showed 0 degrees extension and 40 degrees of flexion. Examination of her lower limbs was attempted. She required assistance to get up on the bed to sit, and to lie down on the bed, complaining that she was not able to do it on her own.

  9. There was some patellofemoral tenderness over both knees. Her ligaments were intact and her knees, on encouragement had a full range of movement of 0 degrees extension to 110 degrees of flexion. Knee girths were 45cm on the right and 46cm on the left. Thighs measured 60cm on both sides, 10cm above the superior patella pole and calf measurements were 41cm on both sides, 10cm below the inferior patella pole. There was no retropatellar crepitus at either knee joint.

  10. It was difficult to get full cooperation of hip movements but there was trochanteric tenderness, particularly on the right. Passive hip movements were normal and active hip movements were unable to be accurately measured due to inconsistency and lack of effort. Straight leg raise was not attempted due to ongoing complaints.

  11. When she got off the couch, she refused to perform any lumbar movements saying she was in too much pain. There was no muscle guarding evident in the lumbar region. Lumbar lordosis was maintained.

  12. No further examination occurred due to the distress of the claimant. When she left the examination, she walked slowly down the corridor albeit with normal gait and posture. She did not require any walking device or other assistance on leaving the examination.

RELEVANT LEGAL AUTHORITY

  1. Causation of injury is addressed in the Guidelines:

    1.5    An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

    1.6    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.

    1.7    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.

  1. In Norrington v QBE Insurance (Australia) Ltd[65] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:

    “In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”

    [65] [2021] NSWSC 548, Norrington.

  2. Brereton J. referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[66] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where “busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga[2004] NSWCA 34 at [35]).”

    [66] [2012] NSWSC 650, Owen.

  3. In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[67] where the Court stated at [64]:

    “The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”

    [67] [2016] NSWCA 229, McGiffen.

  4. Even more recently In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[68] Justice Walton set aside the decision of a Medical Review Panel.  In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.

    [68] [2021] NSWSC 804, Kinchela.

PANEL FINDINGS

  1. The Panel carefully reviewed the documentation regarding the following injuries which were referred to Assessor Gliksman:

    ·        lumbar spine injury;

    ·        cervical spine injury;

    ·        left shoulder injury;

    ·        right shoulder injury;

    ·        bilateral hip injury;

    ·        bilateral knee injury;

    ·        right CMC joint injury thumb;

    ·        left CMC joint injury thumb;

    ·        left femur fracture; and

    ·        right femur fracture.

Inconsistencies on examination

  1. The Panel has regard to clauses 1.40 and 1.41 of the Guidelines having regard to the lack of effort and inconsistency demonstrated by Ms El Falak during the examination. Having regard to the extensive documentation available the Panel accepts that the inconsistencies displayed by Ms El Falak are as a result of what Dr Nazha described as “a maladaptive cognitive and behavioural response to persistent pain with the presence of a comorbid mood disorder”.

Left and right femur fractures

  1. The Panel notes the mechanism of injury and the extensive documentation relating to the accident on 30 June 2015. The Westmead Hospital notes confirmed the fractures of both femurs. The Panel accepted causation of these listed injuries.

  2. The Panel notes that there has been a good result in regard to the treatment of these injuries. There were no abnormal clinical findings in relation to the fractures which have healed in good alignment. There is no residual whole person impairment.

Cervical spine

  1. The Panel notes that injury to the cervical spine spinal was consistent with the mechanism of the accident and there was contemporaneous documentation including the CT scan of the cervical spine on 30 June 2015, the Personal Injury Claim Form dated 15 July 2015 and the assessment undertaken by Ms Feredoes on 20 July 2015 to corroborate injury to the cervical spine. Any lack of consistent complaint is not surprising where, as Assessor Gehr stated, the life-threatening injuries to both femurs undoubtedly overshadowed other injuries sustained. The Panel accepts that Ms El Falak sustained a soft tissue injury to the cervical spine in the accident.

  2. As to WPI, the Panel notes the significant inconsistencies and lack of effort in the clinical examination of the cervical spine. The Panel found clinical evidence to place the cervical injury into DRE I category, Cervicothoracic Spine Table 73, page 110.  The Panel notes there was no muscle spasm or guarding, no asymmetry of neck movement, no non-verifiable complaints, no structural inclusions and no radiculopathy. The cervical spine is assessed as 0% WPI.

Lumbar spine

  1. The Panel notes that injury to the lumbar spine was consistent with the mechanism of the accident and there was contemporaneous documentation including complaints of back pain whilst in hospital, a CT scan of the lumbar spine on 30 June 2015, the Personal Injury Claim Form dated 15 July 2015 and the assessment undertaken by Ms Feredoes on 20 July 2015 to corroborate injury to the lumbar spine. 

  2. The Panel accepts that the injury to the lumbar spine was a soft tissue injury.

  3. As to WPI, the Panel notes the significant inconsistencies and lack of effort in the clinical examination of the lumbar spine. The Panel found clinical evidence to place the injury into DRE I category, Lumbosacral Spine Table 72, page 110. The Panel notes there were no non-verifiable complaints, no structural inclusions, and no radiculopathy. The lumbar spine is assessed as 0% WPI.

Bilateral hips

  1. In terms of the bilateral hip injury, the Panel notes the hip joints were viewed in an X-ray of the pelvis undergone on 30 June 2015 but otherwise the first specific reference to the hips is when Dr Nazha referred to pain in both hips on 12 October 2017 followed by an ultrasound on 20 October 2017.

  2. Dr Dias reported ongoing symptoms of pain, stiffness and discomfort affecting the hips and Dr Giblin concluded Ms El Falak has suffered secondary soft tissue restrictions of both hips consequent upon the accident. Assessor Gliksman found trochanteric bursitis affecting both hips which was causally related to the accident.

  3. The Panel finds Ms El Falak sustained soft tissue injuries to both hips having regard to the mechanism of injury, the lack of complaint prior to the accident, the fracture of both femurs and the available medical records. 

  4. However, in the absence of gait disturbance or other findings on examination the Panel finds there is no rateable whole person impairment in relation to the bilateral hip injuries. The Panel finds a 0% WPI for both hips.

Bilateral knees

  1. Having regard to the contemporaneous documentation including the bilateral knee abrasions recorded in the hospital notes, the X-ray of both knees of 10 December 2015 and the Benchmark Report of 24 February 2017 which refers to symptoms associated with the knees the Panel accepts Ms El Falak sustained bilateral knee injury in the accident. 

  2. The Panel confirms the injures were soft tissue injuries with no rateable WPI based on the clinical examination and the available documentation. The Panel finds a 0% WPI for both knees.

Right shoulder

  1. The Panel notes that injury to the right shoulder was consistent with the mechanism of the accident and there was contemporaneous documentation including an X-ray of the right shoulder on 30 June 2015, the Personal Injury Claim Form dated 15 July 2015 and the assessment undertaken by Ms Feredoes on 20 July 2015 to corroborate injury to the right shoulder. 

  2. The Panel noted various diagnoses in respect of the right shoulder but determined that the most likely diagnosis was a soft tissue injury to the right shoulder.

  3. In terms of WPI, the Panel was unable to establish any consistent range of motion of the right shoulder during the physical examination of the claimant. The Panel refers to clause 1.50.4 and clause 1.50.5 of the Guidelines which state:

    “1.50.4If there is inconsistency in range of motion then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines’.

    1.50.5 If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give all available evidence to determine if an impairment is present.”

    The Panel assessed shoulder impairment by analogy finding that a soft tissue injury of the shoulder is often equivalent to an aggravation of AC joint arthritis, which normally presents with mild crepitation of the AC joint. Based on Table 18 and Table 19 of the AMA 4 Guides, mild crepitation of the AC joint results in 2.5% upper extremity impairment which is rounded to 3% upper extremity impairment.

Left shoulder

  1. In assessing causation of the alleged left shoulder injury, the Panel notes the lack of complaint, or any record of investigation undertaken whilst Ms El Falak was at Westmead Hospital or in the clinical notes of the general practitioner. 

  2. However, Ms El Falak referred to “soft tissue tears both shoulders” in the Personal Injury Claim Form dated 15 July 2015 and, in a report, dated 3 August 2015 Laura Feredoes identified tears in the right and left shoulders following an assessment on 27 July 2015.

  3. In his report dated 24 January 2017 Professor Fearnside reported Ms El Falak experienced pain in both shoulders with loss of range of motion and on 3 April 2017 Dr Buckley diagnosed a left shoulder traumatic capsulitis, with a reduced range of movement.  On 26 September 2017 Dr Dias reported ongoing symptoms of pain, stiffness and discomfort, affecting both shoulders. On 15 June 2018 Assessor Gehr found the bilateral shoulder injuries were caused by the accident although he also concluded they had resolved.  An ultrasound report of the left shoulder dated 14 February 2019 reported a partial thickness tear of the supraspinatus tendon and subacromial and subdeltoid bursitis.

  4. Whilst there was significant delay in investigation of the left shoulder injury following the accident the Panel notes in line with authority the test for causation is not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the accident materially contributed to that injury. On the basis Ms El Falak was only 22 years of age at the date of accident, where there was no other intervening event, where there were no complaints of shoulder pain prior to the accident and where the bilateral femur fractures arguably overshadowed other injuries following the accident, the Panel is satisfied that the accident materially contributed to the injury to the left shoulder.

  5. The Panel noted various diagnoses in respect of the right shoulder but determined that the most likely diagnosis was a soft tissue injury to the left shoulder.

  6. In terms of WPI, the Panel was unable to establish any consistent range of motion of the left shoulder during the physical examination of the claimant and having regard to clauses 1.50.4 and 1.50.5 of the Guidelines the Panel assessed the shoulder impairment by analogy.

  7. The Panel found that a soft tissue injury of the shoulder is often equivalent to an aggravation of AC joint arthritis, which normally presents with mild crepitation of the AC joint. Based on Table 18 and Table 19 of the AMA4 Guides, mild crepitation of the AC joint results in 2.5% upper extremity impairment which is rounded to 3% upper extremity impairment.

Right CMC joint injury –thumb and Left CMC joint injury - thumb

  1. The Panel is satisfied the thumb injuries are causally related to the accident. On 7 September 2015 Dr Graham reported ongoing symptoms in the left thumb and recommended an MRI scan.  On 30 October 2015 Benchmark noted arrangements had been made for Ms El Falak to have an MRI scan of the right thumb and wrist and on 22 September 2016 Dr Chan reported Ms El Falak had noticed pain at the base of her thumb during her rehabilitation. Dr Chan diagnosed an avulsion of the volar beak ligament of the left thumb CMC joint with resultant left thumb CMC joint instability and early post traumatic arthritis.

  2. The Panel found the thumbs particularly became symptomatic after Ms El Falak mobilised on crutches. This conclusion is consistent with the history recorded by Assessor Gehr and with the opinion of Professor Fearnside. The Panel is of the view the use of crutches is entirely consistent with injuries to the CMC joints of both thumbs, noting the weight force on the crutch handles would correspond with the CMC joint pressure.

  3. Ms El Falak underwent a post synovectomy and FCR stabilisation at the left 1st CMC joint on 18 April 2017 and at the right 1st CMC joint on 22 August 2017. The Panel is satisfied the surgery was causally related to the accident.

  4. The Panel assessed WPI of both thumbs based on the physical examination which they accepted was a reliable measure of thumb impairment and was also reasonably consistent and similar to the impairment assessment of Assessor Gehr.

  5. Based on the range of motion, the IP joint was 0 degrees extension to 40 degrees of flexion and reference to Figure 10, this results in 4% thumb impairment.

  6. Range of motion of the MP was minus 20 degrees extension to 50 degrees of flexion and reference to Figure 13, results in 2% thumb impairment.

  7. For radial abduction measured at 30 degrees, reference to Table 6, results in 3% thumb impairment.

  8. Adduction of the CMC joint was measured at 5cm of adduction, which is equivalent to a 3cm lack of adduction. Based on Table 5, a 3cm lack of adduction results in 3% thumb impairment.

  9. The Panel measured 5cm of opposition. Based on 5cm of opposition and under Table 7 this is rated as 5% thumb impairment. The impairments are added.

  10. The total thumb impairment comes to 17%. Under Table 1 a 17% thumb impairment converts to 7% hand impairment under Table 2 which converts to 6% upper extremity impairment under Table 3 in respect of each thumb.

  11. In accordance with page 17 of the AMA 4 Guides regional impairments of the upper extremity are to be combined before they are converted to WPI.  Where the upper extremity impairment for each shoulder is 3% and for each thumb is 6% the combined upper extremity impairment is 9% for each limb.  In accordance with Table 3 of the AMA 4 Guides a 9% upper extremity impairment equates to a 5% WPI for each upper extremity resulting in a 10% WPI.

PANEL DECISION

  1. The Panel has found that the accident was a cause of the following injuries:

    ·        left and right femur fractures;

    ·        soft tissue injury to the cervical spine;

    ·        soft tissue injury to the lumbar spine;

    ·        soft tissue injury to the right shoulder;

    ·        soft tissue injury to the left shoulder;

    ·        bilateral hip injury;

    ·        bilateral knee injury;

    ·        right CMC joint injury – thumb, and

    ·        left CMC joint injury – thumb.

  2. The Panel found that the following injuries give rise to a permanent impairment:

    ·        soft tissue injury to the right shoulder;

    ·        soft tissue injury to the left shoulder;

    ·        right CMC joint injury – thumb, and

    ·        left CMC joint injury – thumb.

  3. Using the Combined Tables Ms El Falak has a WPI of 10%.

Pre-existing/subsequent impairment

  1. There is no pre-existing or subsequent impairment.

Apportionment

  1. Apportionment is not applicable where there is no objective evidence of a pre-existing symptomatic impairment.

Effects of treatment

  1. Whilst the Panel has noted the surgical procedures undergone for each thumb, there has been no substantial or total elimination of impairment.  Accordingly, the Panel makes no adjustment for the effects of treatment. 

COMBINED CERTIFICATE

  1. The Review Panel notes that more than one assessment has been required to assess the permanent impairment arising from the injured person’s physical injuries.

  2. Using the Combined Values Chart at page 322 of the AMA 4 Guides the combined permanent impairment is 14%.

  3. In accordance with section 7.26(8) of the MAI Act, the Review Panel has issued a combined certificate combining the result of this review with the results of the other assessment issued in determining this dispute.

Member Susan McTegg on behalf of the Review Panel

Personal Injury Commission


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Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650