El-Khodr v Insurance Australia Limited t/as NRMA Insurance

[2024] NSWPICMP 388

DETERMINATION OF REVIEW PANEL

CITATION:

El-Khodr v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 388

CLAIMANT:

Adel El-Khodr

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Belinda Cassidy

MEDICAL ASSESSOR:

Ian Cameron

MEDICAL ASSESSOR:

Les Barnsley

DATE OF DECISION:

18 June 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26 of a permanent impairment dispute; claimant had fractured wrist in 2020 when he was knocked off his motorbike; Medical Assessor (MA) Assem had determined 10% permanent impairment based on an upper extremity impairment (UEI) of 17%, 12% for loss of motion in the wrist, and 6% UEI for mild carpal instability; claimant lodged application for review on two bases, firstly the combined calculation of UEI was incorrect, and secondly because the Medical Assessor did not explain why there was a ‘mild’ and not moderate or severe instability; re-examination occurred via MS Teams as claimant accepted measurements made by MA; Panel considered at length the methodology for the assessment of upper limb impairment generally and wrist impairment noting that page 61 of American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition prevents the combination of range of motion impairment with a separate impairment for carpal instability; Held – permanent impairment assessed at 7% and Medical Assessment Certificate revoked (as it included the figure of 10%).

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION
Issued under Division 7.5 of the Motor Accident Injuries Act 2017

The Review Panel:

1.     Revokes the certificate of Medical Assessor Assem dated 10 January 2024.

2.     Certifies that the degree of Adel El-Khodr’s permanent impairment resulting from the injuries sustained in the motor accident on 12 November 2020 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

1. Adel El Khodr was riding his motorcycle on 12 November 2020. He was stationary at a red light between two vehicles when, as he moved off after the light turned green, he was hit from the rear by one of the vehicles near him and fell to the ground.

2. The claimant says he injured his wrists in the accident and made a claim for statutory benefits with NRMA, the third-party insurer of the vehicle that Mr El Khodr considers at fault. Mr El Khodr then lodged a claim for lump sum damages with NRMA.

3. A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with the damages claim and Mr El Khodr referred that dispute to the Personal Injury Commission (the Commission) for assessment.

4. On 9 January 2024, Medical Assessor Assem determined the claimant did not have a WPI of greater than 10% (he found 10% exactly).

5. The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 25 March 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review to proceed to a Panel.

6. On 26 March 2024 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

1. Mr El Khodr’s claim and his entitlement to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).

2. In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.

3. Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.

   [1] The current maximum as of October 2023 is $620,000.

4. If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]

   [2] See s 4.12 of the MAI Act.

Permanent impairment assessment

1. Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).

   [3] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.

2. Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.

Dispute Resolution

1. Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Assem’s, further medical assessments and the review of medical assessments by this Panel.[4]

   [4] Sections 7.20, 7.24 and 7.26.

2. Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s 1). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss 2 and 2B).

3. The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).

4. Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Assem examined the claimant on 9 January 2024 and issued his certificate the following day.

2. The Medical Assessor confirms at section [2] of his reasons that he was asked to assess the right and left wrist. He notes at [3] the injury to the left wrist was described as:

   “a malunited fracture of the waist of the scaphoid with resultant avascular necrosis, a tear of the scapholunate ligament, and an acute fracture within the distal pole of the scaphoid with marrow oedema”

3. The injury to the right wrist was not further particularised.

4. The Medical Assessor notes at [8] the claimant was 45 years of age and a roof tiler who had been unable to return to his employment since the accident.

5. Medical Assessor Assem had a history at [9] of the claimant sustaining a left wrist injury in 2018 after punching someone. Mr El Khodr had no fractures and returned to work without issue.

6. The claimant told Medical Assessor Assem (recorded at [10]) that two days after the accident due to ongoing discomfort he went to Nepean Hospital where he was X-rayed and his fractures scaphoid was immobilised in a cast. Scans in December 2020 and January 2021 revealed the fracture had not united with necrosis and osteoarthritis in the scapho-trapezoid joint and a new distal scaphoid fracture.

7. The plaster cast was removed in March 2021 and a CT scan in May 2023 suggested the fracture had healed.

8. At [12] Medical Assessor Assem documents the claimant’s current symptoms noting that the “right wrist symptoms have subsided” however symptoms persisted in the left with intermittent discomfort, impaired motion and weakness. It is recorded at [13] that he is not having any treatment at present.

9. On examination, the right wrist is recorded at [14] as having a normal range of motion. The left wrist on the other hand was tender, with “significantly limited” range of motion and mild instability. There was no crepitation in either wrist, normal vascular and nerve functions in the upper limb and no evidence of sensory or motor deficits.

10. Medical Assessor Assem noted at [18] that the chronic conditions of avascular necrosis and carpal osteoarthritis in the left wrist predated the accident however the acute fracture of the left scaphoid is related to the accident noting that the claimant fell onto his outstretched hand in the accident.

11. The Assessor calculated at [21] the loss of range of motion in the left wrist at 12% upper extremity impairment and 6% for the mild carpal instability making a combined total of 10%. He did not adjust this for any pre-existing condition on the basis there was no evidence of any pre-existing symptomatic impairment.

ISSUES FOR DETERMINATION

Claimant’s submissions

1. The claimant identifies two errors in the assessment of impairment:

   (a)    the assessor found 12% Upper Extremity Impairment (UEI) for the range of motion loss and 6% for the carpal instability which he “has incorrectly combined … to amount to 17% when it should be 18%”, and

   (b)    the assessor failed to explain why the claimant was assessed as having a mild carpal instability as opposed to a moderate or severe instability.

2. The claimant’s original submissions identify the injuries, set out a brief procedural history and then cite the evidence that supports injury to both wrists.

Insurer’s submissions

1. The insurer responds to the submissions by:

   (a)    drawing to the claimant’s attention the combined values chart on page 322 of the AMA 4 Guides which states that when 12% is combined with 6% the result is 17% (not 18%);

   (b)    noting that the Medical Assessor had given reasons by writing at [14] that “the Watson’s test indicated mild scapholunate instability” and referring to the medical evidence cited by the assessor, and

   (c)    submitting the Medical Assessor used his “clinical judgment, evaluation, expertise and clinical discretion.”

Procedural matters

1. The Panel met on 6 May 2024 and reported to the parties on 10 May 2024.

2. The Panel noted that the injury to the claimant’s right wrist was listed in general terms in the referral to Medical Assessor Assem and that he found after an examination that the right wrist symptoms had subsided as had Dr Low and Dr Keller. The Panel asked at [7] the parties to advise “whether the parties agree the WPI resulting from the right wrist injury is 0%”.

3. In terms of the left wrist the Panel noted Medical Assessor Assem combined the left wrist loss of motion which resulted in a 12% UEI with 6% for the carpal instability. The Panel noted cl 6.45 and cl 6.54 which required medical Assessors to combine and not add impairments and that in accordance with the chart on page 322-324 of the AMA 4 Guides, 12% when combined with 6% does produce a result of 17% UEI which is 10% WPI.

4. The Panel then noted page 61 of the AMA 4 Guides suggests carpal instability impairment cannot be combined with range of motion impairment and that it was the Panel’s preliminary view that Medical Assessor Assem should not have combined the two figures that he did combine.

5. The Panel called for any update from Dr Low [17].

6. The Panel asked the parties to consider the measurements obtained by Medical Assessor Assem and if they agreed with them, “no physical re-examination would be necessary” but that an interview by MS Teams would be undertaken and a date was set for 17 June 2024.

Further submissions from the parties

1. On 16 May 2024 the claimant responded to the Panel’s directions and advised:

   (a)    the claimant concedes there is no longer an impairment to the right wrist;

   (b)    no updated report had been obtained from Dr Low and no additional documents were to be provided;

   (c)    the claimant has an impairment of the left wrist and if not combined with the carpal instability “this clause of the AMA 4 Guides would be contradictory and is not the intention of the assessment criteria”, and

   (d)    the claimant accepted the measurements obtained by Medical Assessor Assem and agreed to a video assessment.

2. On 14 June 2024, the Panel was advised that the insurer responded accepting Medical Assessor Assem’s measurements and agreeing to the video assessment.

REVIEW OF THE EVIDENCE

Claim form and claim documents

1. The claim form was signed and dated 12 February 2021. It provides a history of the accident consistent with other histories (the claimant had been filtering, was at the front of the traffic and was hit as he left the intersection).

2. A certificate of capacity dated 11 February 2021 was completed by Dr Srinivasan of Penrith noting the only injury mentioned was the left wrist injury. 

3. The claimant provided a statement in support of a late claim. He lists the injuries to his left and right wrists and notes the development of a psychological injury. He also lists the disabilities.

4. He notes he has sought treatment from Nepean Hospital, Health Smart and at the Goulburn Correctional Centre.

5. Mr El Khodr confirms the previous injury and says he was in good health. He identifies his pre-accident medical practices.

Treating medical records and reports

1. The claimant attended Dr Yi of the Healthsmart Medical Centre in Penrith and records have been provided noting the claimant became a patient of the practice on 28 September 202.

2. The notes commence with an attendance on 14 November 2020. The note suggests the claimant was thrown off a motorbike two days before and now could not move the 2nd and 3rd fingers and left wrist and his left hand was swollen. The claimant was referred to Nepean Hospital for X-rays.

3. A Centrelink medical certificate was provided to the claimant on 4 December 2020 and on 21 January 2021 the claimant was told he needs more time in a cast and a further certificate was given.

4. A further attendance occurred on 11 February 2021 when the medical certificate for the claim form was completed.

5. The hospital notes record the radiologist’s finding of an X-ray done of the claimant’s left wrist on 14 November 2020. This report notes “there is a fracture with significant displacement involving the scaphoid.”

6. The MRI of the left wrist performed on 17 December 2020[5] has a clinical history of pain in the anatomical snuff box region with a two-year history of trauma and the conclusion records:

   (a)    a finding of a malunited fracture at the waist of the scaphoid with marked marrow oedema involving the scaphoid and avascular necrosis;

   (b)    a finding of an acute fracture more distally in close proximity to the original malunited fracture;

   (c)    mild osteoarthritic changes as the radiocarpal joint and scaphotrapezoidal joint;

   (d)    a partial tear of the scapholunate ligament;

   (e)    marrow oedema involving all the proximal carpal row bones “likely due to altered mechanics from the above described insult”, and

   (f)    strain/mucoid degeneration involving the volar extrinsic radiocarpal ligament and dorsal extrinsic ligaments with altered signal and thickening.

   [5] Page 7 of the insurer’s bundle.

Medico-legal reports

1. Dr Low, occupational physician provided a report to the claimant’s solicitors dated 6 December 2022. Dr Low has a history of a rear end impact which “caused him to launch some five metres in the air with him landing on outstretched hands”.

2. Dr Low has a consistent history of the previous (2018) incident and the treatment the claimant has had. The claimant told Dr Low of the difficulties he has using his left wrist.

3. The claimant was taking paracetamol and no other medication and was having no treatment.

4. There was tenderness, 50% reduction of motion in flexion and extension but radial and ulnar deviation was normal.

5. In a separate report Dr Low declined to assess WPI on the basis that injuries had not stabilised. In a third report Dr Low said there were no injuries elicited or examined not caused by the accident. He did indicate there was evidence of a pre-existing scaphoid fracture which had been aggravated by the accident, but which was asymptomatic before the accident.

6. Dr Keller, occupational physician provided a report to the insurer’s solicitor dated 27 October 2023. He notes the claimant’s employment as a roof tiler before the accident working 8 hours a day 5 – 6 days a week.

7. Dr Keller has a history of the accident noting the claimant was wearing full safety equipment and travelling at 60 kms filtering between two cars at an intersection. When the light went green, he moved forward and was knocked off his bike by another car. He had immediate pain in the wrists and knees, drove his bike to the police station and reported the accident then went home.

8. The claimant was said to have been in a plaster cast for 18 weeks.

9. The claimant complained of reduced movement and intermittent pain in the left wrist.

10. The range of motion was 30 degrees dorsiflexion, 70 degrees palmar flexion, 5 radial deviation and 30 ulnar deviation. Range of motion in the fingers was normal and there was no abnormal sensation. Grip strength was higher on the right (50 kg) than the left (30 kg).

11. While there was an old fracture seen on the X-ray there was a new fracture seen as well. No future treatment was anticipated. He found no impairment due to the accident.

Accident reconstruction reports

1. Dr Michael Griffiths has provided two reports to the insurer. In the first dated 9 March 2023, he confirms a left sided fall, 2 to 10 metres into the intersection after the claimant had been stationary at lights. He expresses the view that the car did not come into contact with the rear of the motor bike and the location of contact was on its right side below the knee height and there was low energy exchange.

2. He expressed his views on the fault of the claimant, which is not necessary to consider in the current proceedings.

3. In the second report additional material was provided and Dr Griffiths restated his opinion adding that the claimant “had a simple fall to the road surface without tumbling.”

RE-EXAMINATION FINDINGS

1. Mr El-Khodr was assessed over Microsoft Teams on 17 June 2024 by Medical Assessors Barnsley and Cameron. The nature of the assessment was explained in detail, and Mr El Khodr indicated that he understood and was happy to proceed.

History from the claimant

1. Mr El-Khodr said he sustained an injury to his left wrist in 2018 or 2019. He was involved in an altercation which included punches and a fall. He hurt his wrist and was assessed at Townsville hospital. He had X-rays taken and he understands that these did not show any fracture. His left wrist was swollen for 4 to 5 days, and painful for the next two months. He described himself “nursing” the wrist through avoiding any unnecessary movements. Over time, he said his left wrist symptoms completely resolved and he was able to return to his normal activities.

2. On 12 November 2020 he was involved in the motor accident, the subject of these Review proceedings. He was riding his Suzuki motorcycle. He was wearing a jacket, helmet, gloves and closed shoes. He had been lane filtering to bring himself to the front of a queue on a motorway entrance ramp. After stopping, he moved off turning to the right when a car which was also turning to the right hit the rear of his bike. He said that he fell forward over the handlebars and put out both hands to break his fall. He lifted the bike up with assistance from a bystander and he and the other driver entered the motorway to avoid blocking traffic before pulling over to exchange details. He then decided that on his way home he would ride to the police station to report the accident. As he was riding, he noticed increasing difficulty operating the clutch with his left hand and changed gears without using the clutch. He was also having difficulty grasping the handlebars with his left hand.

3. The following day his left wrist was painful and swollen. He also had some minor pain in the right wrist. He said that the right wrist pain has subsequently fully resolved with no residual symptoms. After two days he saw his local doctor and was referred to Nepean hospital where he had some X-rays. On the basis of a scaphoid fracture seen on these X-rays he was placed in a cast for six weeks. During this time, he had ongoing pain in the left wrist. When the cast was removed, he had pain noted pain in the wrist on passive movement. This finding precipitated an MRI scan and then a CT scan. These demonstrated a new fracture of the scaphoid as well as old changes indicative of a previous scaphoid fracture with avascular necrosis. He was referred to an orthopaedic surgeon, but he was incarcerated before this consultation took place.

1. During his time in prison, he said that he avoided using the hand because it remained painful. He recalls having some further X-rays and was told that it was “still broken”. He noticed increasing stiffness and pain in the wrist so that at one stage he had virtually no movement. He was eventually prescribed some exercises shortly before his release from prison in October 2023.

2. Around November 2023 he was the driver of a vehicle which was rear-ended. He had a few hours of neck discomfort but no residual effects. He said there were no new injuries to, or worsening of, his left wrist pain.

3. Mr El Khodr says he has persistent pain and loss of movement in the left wrist. He has noticed impaired grip strength. He has swelling only after direct impact on the wrist. His symptoms are static. He is not receiving any specific treatment at present but understands that he is due to see a specialist at Royal Prince Alfred Hospital but he could give no further information about this.

4. From a functional perspective he is no longer riding his motorbike because he does not believe that he has the strength or movement in the wrist to adequately control and handle the bike. He is driving a car. He is working as a roof tiler about 20 hours a week. He has some difficulty climbing ladders at work but as his job mainly involves restoration rather than new roofs, he has been able to cope with it despite the problems with the left wrist. At home he is able to mow the lawn but finds this aggravates his left wrist pain and he favours the right hand. He is right hand dominant.

5. He is currently using medicinal marijuana but is not taking any other medications for his wrist.

6. He reports that he is 74 kg in weight and 170 centimetres tall.

7. The Medical Assessors demonstrated for him, and then observed him perform a range of active movements of his left wrist. This did not involve formal measurement, but Mr El Khodr demonstrated:

   (a)    flexion which was approximately 50% of normal;

   (b)    extension at approximately 50% of normal;

   (c)    ulnar deviation of approximately 75% of normal, and

   (d)    radial deviation of approximately 50% of normal.

8. These observations were broadly consistent with the measurements taken by Medical Assessor Assem which have been accepted by both parties. The right wrist exhibited a normal range of motion.

9. There were no inconsistencies in the history given today. Mr El Khodr was pleasant and co-operative throughout the examination.

CONSIDERATION OF THE ISSUES

The right wrist

1. The Panel notes the finding of Medical Assessor Assem that there was a full and normal range of motion in the right wrist and the claimant’s concession documented by his solicitor that the right wrist injury has resolved leaving no impairment.

2. The observation by Medical Assessors Cameron and Barnsley was that the right wrist was functioning normally and considered the claimant’s concession was appropriate.

3. While the claimant injured his right wrist, the injury has resolved and there is no assessable impairment in the right wrist.

Causation of the left wrist injury

1. There is unequivocal radiological evidence (MRI of 17 December 2020) of a preceding problem, namely a poorly healed fracture of the left scaphoid, but also MRI evidence of a new fracture of the same bone.

2. The Panel notes the test of causation of injury set out in cls 6.6 and 6.7 of the Guidelines (which quotes the definition at page 316 of AMA 4) involves both a medical judgment of whether the accident could have caused the injury alleged and a factual judgment about whether the accident did cause the injury.

3. The medical members of the Panel considered that a scaphoid fracture could result from a fall from a motorbike onto an outstretched hand, indeed this is, in the clinical judgment and experience of the Medical Assessors, the archetypical event leading to such an injury.

4. There is evidence of persistent symptoms in the left wrist which commenced shortly after the accident and has continued. The Panel accepts the claimant’s evidence as to the continuation of his symptoms and is satisfied that the accident did cause a new injury.

5. The Panel also accepts the claimant’s history of the earlier injury and eventual recovery and notes there is no objective evidence of a pre-existing symptomatic impairment before the 2020 motor accident that could give rise to an apportionment of impairment pursuant to cl 6.31 of the Guidelines.

IMPAIRMENT ASSESSMENT

Upper limb impairment generally

1. The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides.

2. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand.

3. There are specific rules for combining certain impairments (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment).

4. Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4.

5. There are several methods of assessment provided for in the AMA 4 Guidelines as follows:

   (a)    amputation (part 3.1b);

   (b)    sensory loss of the digits (part 3.1c);

   (c)    abnormal range of motion (part 3.1d and 3.1h);

   (d)    peripheral nerve disorders (part 3.1k);

   (e)    vascular disorders (part 3.1l), and

   (f)    other disorders (part 3.1m).

Wrist impairment

1. In the light of the issue identified by the parties, the Panel has carefully considered the question of the preferable method of assessment and the correct interpretation of the AMA 4 Guides in considering the degree of Mr El Khodr’s wrist impairment.

2. There is no amputation of any part of Mr El Khodr’s upper limb and there is no suggestion in the records or in his history given at the re-examination of any sensory loss, a neurological or nerve disorder or vascular disorder.

3. The possible methods of assessment in Mr El Khodr’s case are abnormal range of motion and “other disorders” of the upper extremity.

Abnormal range of motion method

1. Part 3.1h of the AMA 4 Guides at pages 34 – 35 provides for the assessment of abnormal motion at the wrist. There are two planes of motion identified:

   (a)    flexion and impairment, and

   (b)    radial and ulnar deviation.

2. Movement is measured using a goniometer, the readings recorded, and the figures read (24, 25 and 26 for flexion and extension, and 27, 28 and 29 for deviation) to determine the corresponding UEI. In accordance with figure 1 – wrist (page 17) these impairments are added to obtain a total UEI for the wrist.

3. The measurements obtained by the three examiners who have assessed the claimant are set out below:

Left Wrist Movements	Dr Low (claimant) 6 December 2020	Dr Keller (insurer) 27 October 2023	Medical Assessor Assem 9 January 2024
Flexion (60 is normal)	30 degrees 50% reduction	70 degrees No impairment	30 degrees UEI 5%
Extension (60 is normal)	30 degrees 50% reduction	30 degrees 50% reduction	30 degrees UEI 5%
Radial deviation (20 is normal)	Normal No impairment	5 degrees 50% reduction	10 degrees UEI 2%
Ulnar deviation (30 is normal)	Normal No impairment	Normal No impairment	Normal (30) UEI 0%

1. Dr Low was not prepared to provide a WPI assessment on the basis the claimant’s injury has not stabilised. If he had, then on the basis of his measurements the claimant would have been assessed with a UEI of 10%. Dr Keller’s measurements translated to an 8% UEI.

2. The observations of the Medical Assessors at the re-examination were that the claimant has restricted range of motion in the left wrist generally consistent with that measured by Medical Assessor Assem and the degree of this restriction was not disputed by the parties[6].

   [6] The measurements obtained by the Panel’s observation, lack the precision associated with measurements using a goniometer. When the Panel’s measurements were applied to figures 26 and 29 this suggested a UEI of 14% which translates to a WPI of 8%.

3. The Panel is satisfied that using the abnormal motion method, the claimant’s UEI is at least 12% (5% + 5% + 2%).

Other disorders

1. Part 3.1m, at pages 58 – 65 of the AMA 4 Guides identifies a number of “other disorders”. One of these is carpal instability (see page 61).

2. The Panel notes that the claimant fractured his scaphoid bone. This bone is one of the eight carpal bones which forms the carpus or wrist. It is on the thumb side of the hand adjacent to the radius. The scaphoid bone is important for both movement of the wrist and stability of the wrist joint. Muscles are attached to it, and it forms part of the rigid carpal tunnel through which the median nerves and tendons pass allowing hand movement.

3. Carpal instability occurs when the carpus (the wrist) cannot maintain normal alignment and motion when in use due to damage to the tendons, ligaments or bones of the wrist.

4. The Panel notes neither Dr Keller nor Dr Low diagnoses carpal instability or calculated impairment resulting from it. Impairment due to carpal instability is usually based on their being mild, moderate or severe findings in roentgenograms (a form of radiology).

5. There were no roentgenograms available to Medical Assessor Assem. Clause 6.66 of the Guidelines provides that radiographs for carpal instability should be considered if available, “along with clinical signs”. During his clinical examination, Medical Assessor Assem administered the Watson’s test (which is used to diagnose ligament instability) and found scapholunate instability which he assessed as mild. In accordance with Table 26 (page 61 of AMA 4) this results in an UEI of 6%.

Can abnormal motion UEI be combined with carpal instability UEI?

1. The starting point in assessing wrist impairment is cl 6.54 of the Guidelines which directs a Medical Assessor to the instructions in figure 1 of the AMA 4 Guides (at pages 16 - 17) regarding adding or combining impairments. The wrist section of the figure is found at page 17 and provides for abnormal motion impairment to be combined with “other disorders” to determine the regional impairment of the wrist.

2. Clause 6.65 of the Guidelines provides that in respect of s 3.1m:

   “Impairment due to other disorders of the upper extremity … should be rarely used in the context of motor accident injuries. The medical assessor must take care to avoid duplication of impairments.”

3. In the first paragraph of s 3.1m (page 58 of AMA 4), the following instruction is given which is in italics for visual emphasis to examiners:

   “It is emphasised that impairments from the disorders considered in this section are usually estimated by using other criteria. The criteria described in this section should be used only when other criteria have not adequately encompassed the extent of the impairments.”

4. When cl 6.65 of the Guidelines is read with the first paragraph on page 58 of AMA 4, the assessment of impairment for carpal instability should be “rarely used” and only when “other criteria”, such as the abnormal motion method, does not reflect the true impairment flowing from an injury. This suggests a choice must be made between one method of impairment or the other.

5. Carpal instability results in a reduced range of motion. The Panel is satisfied that the abnormal motion method is appropriate and adequately assesses the impairment resulting from the claimant’s fractured scaphoid and any resultant carpal instability.

6. In addition, the Panel notes that after outlining the instructions for the assessment of the roentgenographic criteria and carpal instability, the AMA 4 Guides state at page 61, again with visual emphasis added, that:

   “To avoid duplication, the roentgenographic criteria are only used when all other wrist factors are normal, except in instances after carpal bone resection or implant arthroplasty.”

7. Neither of the exceptional instances apply as Mr El Khodr has not had any of his carpal bones resected and he has not had implant arthroplasty. Mr El Khodr’s wrist is not normal as he has abnormal wrist motion. It is therefore the Panel’s view that “the roentgenographic criteria” (of mild, moderate or severe) due to carpal tunnel instability cannot be used.

8. The claimant has suggested the two impairments can be combined because the clause (presumably page 61) is contradictory. No further explanation or submissions are given.

9. The Panel’s interpretation of the Guides is that while figure 1 suggests abnormal motion impairments can be combined with other disorders generally, the specific instructions in the text regarding a carpal instability disorder prevent the combination of the two impairments in this case. There is no contradiction in the Guides. To combine the two would be to combine an impairment of motion caused by the wrist fracture with carpal instability which has resulted in impairment of wrist motion which could lead to duplication as foreshadowed on page 61.

CONCLUSION

1. The Panel therefore is satisfied that the claimant has a 12% UEI, based on the abnormal range of motion in the left wrist. Using table 3 at page 20 of the AMA 4 Guides, a 12% UEI translates to a 7% WPI.

2. The outcome of this Review is the same as the original assessment, that is the claimant has a WPI that is not greater than 10%. However, as Medical Assessor Assem included the 10% WPI figure he found in his certificate, and the Panel has found a different degree of WPI, it follows that Medical Assessor Assem’s certificate must be revoked and a fresh certificate issued.