Fordham v Transport Accident Commission
[2023] NSWPICMP 605
•21 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Fordham v Transport Accident Commission [2023] NSWPICMP 605 |
| CLAIMANT: | Brent Fordham |
| INSURER: | Transport Accident Commission |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 21 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant involved in a motor accident on 1 July 2019 whilst riding a motor bike that struck debris from previous accident; permanent impairment dispute; parties agreed that right lower extremity and scarring assessed at 9%; left leg tendinitis not assessable; gait derangement not assessable due to clause 6.78 of the Guidelines; assessment of lumbar spine; L5/S1 degenerate disc aggravated by postural changes caused by antalgic gait from severe right lower extremity injury; herniation contributed to current lumbar spine dysmetria; DRE category II; Held – medical assessment revoked; finding made that impairment exceeded 10%. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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 ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: The Panel revokes the medical assessment certificate dated 17 March 2023 and certifies that the following injuries caused by the motor accident give rise to a permanent impairment greater than 10%: · left ankle – chronic tendinosis of the left Achilles tendon; · lumbar spine – aggravation of L5/S1 disc; · right ankle and leg – fracture, dislocation and eversion, weber C fracture, oblique comminuted fracture of the distal part of the shaft of the right fibula, and · scarring of the right lower extremity due to operative procedures. |
REASONS
BACKGROUND
On 1 July 2019 Mr Brent Fordham (the claimant) was riding a motor bike when he collided “with a wrecked car” which hit his right leg.[1] The claimant sustained traumatic injuries to his right leg, right knee, right foot and right ankle.[2]
[1] Claimant’s bundle, p 37.
[2] Claimant’s bundle, p 37.
The Transport Accident Commission (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Fordham any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Mr Fordham “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[3]
[3] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[4]
[4] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Wijetunga and dated 17 March 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[5]
[5] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
The Panel issued a further direction dated 26 September 2023 which relevantly provided:
“The Panel understands that the following body parts require assessment:
- Lumbar spine;
- Right lower extremity;
- Scarring; and
- Left lower extremity (left ankle/achilles tendinitis).
The parties are requested to advise whether they accept the assessment of the right lower extremity (7%) and scarring (2%). Absent an agreed response, it will be necessary to assess these parts.
We understand that the insurer disputes both causation of injury and any assessable impairment of the lumbar spine and left lower extremity.
The parties are to advise the Panel, by close of business 9 October 2023, whether there is any agreement of impairments and/or what body parts require assessment. To avoid any confusion, it would be preferable if there was a joint response.”The insurer agreed to this direction.[10]
[10] Message dated 29 September 2023.
The claimant responded:
"The claimant accepts and agrees with the assessment of the right lower extremity at 7% and scarring at 2%.
As to remaining body parts/injuries to be assessed, we note the application referred the following injuries to be assessed:
1. Both legs - altered walking gait.
2. Left lower extremity (ankle and Achilles tendinitis)
3. Lumbar spine.
4. Right lower extremity. (assessment 7% now accepted/agreed)
5. Scarring. (assessment 2% now accepted/agreed)
The claimant requests confirmation that the remaining body parties/injuries to be assessed include injury 1 above, altered walking gait."
The insurer responded:
"The Insurer agrees that the referral includes paragraph 1, though denies causation and quantum as referred to below."
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused chronic tendinosis of the left Achilles tendon, soft tissue injury to the lumbar spine and various fractures of the right ankle with scarring.
The Medical Assessor found that the lumbar spine soft tissue injury had resolved and that there was no lumbar spine disc injury.
In relation to the injury to the lumbar spine the Medical Assessor noted that lumbar lower back pain commenced about a week after the subject accident and then subsided. The Medical Assessor noted the claimant’s submission that back pain recurred at a severe level in February 2022 during a period when the claimant had returned to work, was involved in some physical work and had returned to riding his motorbike. He concluded that the disc injury was probably not causally related to the accident.
The Medical Assessor assessed impairment of the right ankle and leg at 7% and the scarring of 2% resulting in a combined impairment of 9%.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
The pre-accident medical records of the general practitioner (GP) noted a history of diabetes mellitus, obesity, sleep apnoea[13] and some back symptoms. The claimant underwent bariatric surgery in early 2015 resulting in weight loss.
[13] Claimant’s bundle, p 178.
Medical records post-accident
The ambulance report noted the primary collision which left a “large debris field”.[14] It was reported that the claimant clipped the debris with his right foot sustaining lower leg injury.
[14] Claimant’s bundle, p 61.
The claimant was admitted to hospital on 1 July 2019. A CT scan showed a comminuted fracture through the distal fibular shaft and avulsion fracture fragment and adjacent tip of the medial malleolus with resultant loose body along the posterior aspect of the medial portion of the joint.[15] Internal fixation of the distal fibular fracture with plates and screws was then undertaken.
[15] Claimant’s bundle, p 150.
Given the parties’ agreement on the right lower extremity impairment, it is unnecessary to summarise the extensive treatment to that body part.
In January 2020 the GP noted pain in the left calf to thigh and associated numbness in the foot.[16] The claimant was then referred for physiotherapy.[17]
[16] Claimant’s bundle, p 201.
[17] Claimant’s bundle, p 394.
Pinnacle reports dated 28 January 2020, 26 March 2020, 20 May 2020, 23 June 2020,
28 July 2020, 25 August 2020, 21 September 2020, 17 November 2020 and 13 January 2021 all reference left sided lumbar spine to left calf pain described as “nerve pain”.[18][18] Claimant’s bundle, pp 916, 921, 1006, 1014, 1019, 1024, 1028, 1034 and 1039.
In September 2020 the GP noted the claimant was again in a moon boot following recent surgery to remove nails and plate.[19]
[19] Claimant’s bundle, p 204.
In February 2022 the GP noted pain over the lower back and left calf area “since start of last year” and opined that the left Achilles was tender with lumbar back pain. Imaging was requested.[20]
[20] Claimant’s bundle, p 544.
An MRI scan of the lumbar spine dated 28 April 2022 showed large left paracentral disc extrusion at L5/S1 with significant impingement on the left descending S1 nerve root with a small disc bulge at L4/5.[21]
[21] Claimant’s bundle, p 892.
On 5 May 2022 the GP referred the claimant for opinion and management to a neurosurgeon noting radiating back pain for 14 months with limping and favouring left side.[22] A further referral dated 9 June 2022 noted low back and lumbar radiculopathy for a year on the left side to the lower leg with no motor symptoms. The claimant had responded well to Lyrica.[23]
[22] Claimant’s bundle, p 661.
[23] Claimant’s bundle, p 1058.
Dr John McMahon, neurosurgeon, provided a report dated 29 July 2022.[24] The doctor noted the onset of lumbar back pain and left-sided sciatica in 2020 with improvement in symptoms following physiotherapy and chiropractic treatment. The doctor noted that in March 2022 the claimant experienced an exacerbation of lumbar back pain and left-sided sciatica radiating to the left buttock and to the thigh and knee and commenced on Lyrica.
[24] Claimant’s bundle, p 1056.
Dr McMahon noted the MRI scan showed a L5/S1 disc prolapse compressing the left S1 nerve root. There were discussions about surgical option of a left L5/S1 microdiscectomy and decompression of the S1 nerve root.
Qualified opinions
Dr James Bodel, orthopaedic surgeon, provided a report dated 10 June 2022.[25] The doctor examined the claimant by telehealth and noted the extensive treatment in relation to the injuries to the right lower extremity.
[25] Claimant’s bundle, p 48.
Dr Bodel opined that the lower back symptoms were due to the load caused by the non-weight-bearing on the right-hand side. He also opined that the Achilles tendinitis in the left ankle was due to favouring during the period of non-weight-bearing.
Dr Bodel assessed the lumbar spine as DRE category II due to asymmetry of movement and guarding caused by the abnormal gait pattern. Accordingly, the doctor assessed 7% of whole person impairment for the right lower extremity, 5% for the lumbar spine and 2% due to scarring. This produced a combined whole person impairment of 14%.
Dr Bodel provided a supplementary report dated 19 November 2022 having read the claimant’s statement.[26] The doctor opined that the Achilles tendinitis developed in the right ankle due to reliance on the left leg supporting the weight and altered gait pattern because of the right sided limp. This caused inflammation of the Achilles tendon identified as left Achilles tendinitis.
[26] Claimant’s bundle, p 1053.
Dr Bodel also noted that the claimant had degenerative disc disease in the lower back, not uncommon for the claimant’s this age, which had been aggravated or exacerbated by reason of the altered gait pattern. The doctor noted that there was no rateable restriction of left ankle movement due to the mere presence of Achilles tendinitis which did not attract a separate assessment under the Guidelines.
Dr Graham Doig, orthopaedic surgeon, was qualified by the insurer and provided a report dated 7 January 2022.[27] The doctor described the severity of the right lower extremity injury and noted there were no other injuries or conditions sustained in the subject motor accident other than some discomfort in the left Achilles tendon which may be related to the obesity.
[27] Claimant’s bundle, p 906.
Dr Doig opined that the claimant suffered an injury to his right ankle by way of a fracture at the distal fibular with syndesmosis (ligamentous) disruption requiring three operative procedures. An ankle arthroscopic last year revealed early articular cartilage wear.
Dr Doig assessed the right lower extremity at 5% permanent impairment in the scarring of 2% which resulted in a combined permanent impairment of 7%.
Statement
The claimant provided a detailed statement dated 30 June 2022[28] when he noted that he was currently employed by Wilson Transformers in Wodonga, Victoria.
[28] Claimant’s bundle, p 33.
The claimant noted that prior to the motor accident he had not sustain any serious injuries, had never made a workers compensation claim and never been involved in a motor accident. The claimant noted that he suffered from obesity and underwent gastric banding surgery. He had previous back pain. The claimant also referred to other health issues that are unrelated to the injuries the subject of this dispute.
The claimant referred to the motor accident which caused injuries to his right leg and that he was transported by ambulance to the Albury Base Hospital. He underwent emergency surgery for the right ankle fractures.
The claimant detailed his treatment to the right leg noting that he was off the right leg for seven months. He was cleared to wear steel capped footwear in December 2019.
The claimant stated that he developed left calf symptoms and numbness in his left foot and lower back area in January 2020.
SUBMISSIONS
Claimant’s submissions dated 4 November 2022[29]
[29] Claimant’s bundle, p 21.
The claimant referred to the motor accident and the extensive injuries to the right lower extremity.
The claimant submitted that as a consequence of the right lower extremity injuries, he sustained pain and discomfort in the left lower extremity, lower back and radiating pain from lower back into the left lower limb. It was also noted that by reason of the injuries the claimant has developed an altered walking gait.
The claimant referred to the clinical entry of the GP on 23 January 2020 which noted pain in the left calf to the thigh and associated numbness in the left foot. At that time the physiotherapist also recorded onset of radicular pain to the left lower limb which “started on Tuesday last week, no past history of same”.
Reference was also made to the Pinnacle Rehab report dated 17 November 2020 which referred to left-sided lumbar spine pain.
The claimant also referred to the examination by Riverina Podiatry on 15 January 2021 which noted a limp through the mid stance from dorsal ankle pain. On 6 April 2021 there were complaints of pain in the Achilles area on the left side.
On 28 April 2022 an MRI scan showed a large left paracentral disc extrusion and L5/S1 with significant impingement and left descending S1 nerve root.
The claimant submitted that he had an altered walking gait, large disc protrusion at L5/S1, impinging on the S1 nerve root small disc bulge at L4/5 and chronic tendinosis of the left Achilles tendon.
The claimant referred to the report of Dr Bodel dated 10 June 2022 which assessed overall impairment at 14% based on 7% for the right lower extremity, 5% for the lumbosacral spine and 2% for scarring.
The claimant noted that in Dr Doig’s examination report, there was reference to the claimant walking with a slight limp through the right ankle. It was also noted that Dr Doig did not assess the lumbar spine.
The claimant submitted that the impairment for the right lower extremity was either 5 or 7% whole person impairment, 2% for scarring and 5% for the lumbosacral spine. This resulted in an overall impairment of either 12 or 14%.
Claimant’s submissions dated 13 April 2023[30]
[30] Claimant’s bundle, p 1081.
These submissions were filed seeking a review of the medical assessment.
After detailing the post-accident medical evidence, the claimant noted that he returned to restricted duties on 21 January 2020. On 23 January 2020 the GP noted the claimant was experiencing pain in the left leg and diagnosed radicular pain without motor impairment. Physiotherapy was commenced at that time.
An assessment report dated 28 January 2020 noted ongoing right lower leg symptoms as well as left-sided lumbar spine pain to the left calf aggravated by activities.
In a series of reports from Pinnacle Rehab, reference was made to ongoing symptoms affecting the right ankle along with left-sided lumbar spine to left calf sciatic pain.[31] In a report dated 8 February 2021 it was noted the claimant’s lumbar spine and left leg pain had resolved.
[31] Claimant’s bundle, p 1083 [11].
The claimant submitted that the Medical Assessor erred in concluding that there was “rapid” recovery of back and left-sided sciatica. He submitted that these symptoms were first recorded in August 2019, and it was not until 8 February 2021 that the condition was reported to have resolved.
The claimant submitted that the Medical Assessor failed to apply the correct test of causation and refer to cls 6.6 and 6.7 of the Guidelines. It was submitted that the Medical Assessor failed to consider the prospect of aggravation of pre-existing degenerative change which was relevant to the assessment of the degree of permanent. This would constitute an injury within the meaning of the MAI Act.
Insurer’s submissions dated 29 November 2021[32]
[32] Insurer’s bundle, p 1.
The insurer noted that the claimant was transported by ambulance to Albury Base Hospital and underwent an internal fixation of the right ankle and was discharged the following day. He first saw his GP on 9 July 2019.
A CT scan of the left ankle was performed on 23 August 2019 for comparison purposes with the right ankle and was reported as normal. Part of the internal fixation device was removed on 30 August 2019. The remaining parts of the internal device were removed on
11 September 2020.The claimant commenced physiotherapy in January 2020. In late 2020 Dr Slater noted that the MRI scan of the ankle “looked good” and recommended further physiotherapy. Subsequent treatment included the provision of orthotics and an ankle injection.
Pre-accident physiotherapy records commenced in August 2013. The claimant was receiving treatment mainly for foot problems relating to his diabetes as well as general weight management.
The records post-accident refers only to the right ankle and there is no reference to treatment to the left leg or lumbar spine.
The insurer relied on the report of Dr Doig dated 7 January 2022. Dr Doig was not given a history of back problems.
The claimant relied on the report of Dr Bodel dated 10 June 2022. That assessment was via audio visual link. Dr Bodel assessed impairment of the lumbar spine at 5%.
The insurer noted that the GP records show that the claimant complained of back problems in 2015. It noted that the back was not referenced in the ambulance records or the hospital notes.
The insurer noted that the back was not mentioned in various records including the claim form dated 4 July 2019. The first reference to the back is in a certificate of capacity dated
11 February 2020 which refers to “secondary lower back injury”.It was noted that the claimant complained of pain in his left calf to his thigh with associated numbness in his foot on 23 January 2020. That pain had not been mentioned previously.
A referral for physiotherapy dated 23 January 2020 referred to radicular pain to left leg which had started the previous Tuesday. On 11 March 2020 there is a reference to “minor twinge” in the back.
A report from Pinnacle Rehab in May 2020 noted compensatory patterns of movement had likely contributed to an onset of left leg sciatica nerve pain.
An MRI scan of the lumbar spine dated 28 April 2022 noted a history of chronic lumbar spine pain for years.
The insurer submitted that the claimant sustained a fracture of the right ankle, injury to the right knee with some scarring. It submitted there would be no assessment of impairment arising out of alleged altered walking gait affecting the left leg or left ankle. It also noted there was no contemporaneous complaint of the lumbar spine injury and there is some reference to pre-existing problems. It submitted that causation has not been established between the motorbike accident and the lumbar spine problems.
The insurer provided a detailed summary of the treatment from “Flex Out” physiotherapy.[33] We have read these records but do not intend to summarise them.
Insurer’s submissions dated 5 May 2023[34]
[33] Insurer’s bundle, p 8.
[34] Insurer’s bundle, p 34.
These submissions were filed opposing the application to review the medical assessment certificate.
The insurer submitted that the Medical Assessor obtained a clear history of the claimant in relation to the onset of back pain in the resolution of that symptoms and the subsequent re-occurrence of severe back pain in February 2022. It noted that there was a gap in reported symptoms from about February 2021 until February 2022.
The insurer noted that the Medical Assessor explained why he concluded that there was a soft tissue strain in the lower back which had resolved and that a large disc protrusion was most probably unrelated to the altered walking gait.
RE-EXAMINATION
Mr Fordham was examined by Medical Assessor Dixon on 3 November 2023. The examination report is as follows:
“This claimant was involved in a motorbike accident when he was thrown from his bike when he hit debris on the side of the road on the Hume Highway on 1 July 2019. He sustained fractures of his right ankle, injury to his right knee and as a consequence of walking with an altered gait while in a Moon boot, he developed pain in the left ankle while favouring his right ankle and some pain in the lumbar segment. He said the pain in the left leg and back developed in early 2020 and has continued since that time. The pain got worse in 2022 without any reason and he then consulted a neurosurgeon.
When asked about pre-accident back pain, the claimant said that there may have been some back pain years previously but prior to the motor accident he had no pain.
He had open reduction and internal fixation for his ankle fractures and the hardware was removed on 30 August 2019.
It is accepted that the claimant’s right lower extremity was 7% WPI and the scarring was 2% WPI.
On examination there was stiffness of the right ankle with dorsi flexion 0 degrees, plantar flexion 30 degrees. There was stiffness of the right hind foot with inversion 15 degrees and eversion 5 degrees. Altered walking gait was observed on the right side.
There were two scars in his right lower extremity, a medial scar of 4cm which had hypertrophic change and a tender 12cm scar laterally with visible suture marks and contour defects and trophic changes. The scarring qualifies for 2% WPI.
He had a full range of motion of the left ankle with the knee flexed but when the was extended his ankle dorsi flexion was restricted due to tightness of his left heel cord where there was a small lump, suggestive of a partial tear of the tendo achilles or an area of Achilles tendonitis. The range of motion of the ankle with the knee bent was dorsi flexion 15 degrees and plantar flexion 25 degrees and the range of motion of the left hind foot was eversion 15 degrees and inversion 25 degrees. There was no limp on the left. Although his heel cord was tight, it was not tender.
There was stiffness of his lumbar segment with flexion extension and lateral flexion decreased by one third laterally on the right side and lateral flexion to the left decreased by one-quarter. There was tenderness in the left lumbosacral region at L5/S1. There was no erector spinae muscle spasm.
His straight leg raise was 60 degrees bilaterally and there was no neurological deficit of either lower extremity but there was wasting of his right thigh at 44cm compared with 47cm on the left and wasting below the knee of the right calf of 1cm, measuring 35cm on the right compared with 36cm on the left. His reflexes were present and symmetrical. His power was grade 5 out of 5 and there were no objective sensory losses in either lower extremity.
He reported no sciatic pain in his lower extremities and his sciatic nerve root stretch test was negative bilaterally.
He had a full range of motion of both knees without crepitus and the knees were stable.
There was no guarding or non-verifiable radicular complaints. There was non-uniform range of motion (dysmetria). The impairment for his lumbar spine is from Table 72, AMA IV, DRE Category 2, 5% WPI.
That for the left ankle where he has a small area of swelling at his tendo achilles with tightness of the heel cord but no restriction of range of motion of the ankle or hind foot when the knee is flexed is from Tables 41 and 42, Page 78 and Figure 58, Page 92, AMA IV, 0% WPI.
The findings today were consistent with that found by the Medical Assessor in the MAC dated 17 March 2023.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[35]
[35] Section 7.26(6) of the Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[36] and Insurance Australia Ltd v Marsh.[37]
[36] [2021] NSWCA 287 at [40], [41] and [45].
[37] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by the Medical Assessors supplemented by the following further reasons.
Left lower extremity
We accept that the claimant developed left sided Achilles tendinitis from the favouring of the left foot following the extensive right leg injury. However, the examination findings show that there is no assessable impairment from the range of motion found in the left foot, ankle and hindfoot and no impairment rating for achilles tendinitis.
The delay in onset of left foot symptoms is supportive of the causal link because the onset is explained by the extensive favouring of the left foot from a lack of weight bearing on the right foot.
The Medical Assessor otherwise observed no left sided limp associated with this condition.
Gait derangement
Clause 6.78 of the Guidelines relates to “gait derangement” and provides:
“Assessment of impairment based on gait derangement should be used as the method of last resort (pages 75-76, AMA4 Guides). Methods most specific to the nature of the disorder must always be used in preference. If gait derangement is used, it cannot be combined with any other impairment evaluation in the lower extremity. It can only be used if no other valid method is applicable, and reasons why it was chosen must be provided in the impairment evaluation report.”
There was no gait derangement of the left leg observed by the Medical Assessor. Further, the diagnosis of Achilles tendonitis should normally not give rise to any gait derangement.
The parties accepted that the right lower extremity was assessed at 7% permanent impairment. Accordingly, cl 6.78 cannot be applied to any gait derangement of the right lower extremity as the accepted assessment was based on the findings of the original Medical Assessor. Accordingly, there is an accepted valid method of assessment for the right lower extremity and therefore gait derangement cannot be used.
Lumbar spine
Given the findings of Medical Assessor Dixon, the claimant is assessed as DRE Category 2 for the lumbar spine.
We observe that it is medically plausible that a limp would place stress on the joints of the lower spine due to the injured side not functioning properly, causing muscle fatigue, soreness, inflammation and stiffness on the lower back. In that respect we agree with
Dr Bodel’s opinion that there was “undue load on the lower part of the back”[38] due to the altered walking gait.[38] Claimant’s bundle, p 50.
We also agree with Dr Bodel’s opinion that it is likely that the claimant had pre-existing pathology at the L5/S1 disc. Noting that weakness in the L5/S1 disc, it is likely that there was further extrusion of the degenerate disc in early 2020 because of the onset of left sided radicular symptoms at that time. The description of those symptoms accords with the S1 dermatome.
The onset of left sided radicular symptoms in early 2020 is highly suggestive that the L5/S1 disc had herniated at that time.
The claimant’s statement detailed his extensive treatment to the right leg throughout 2019 with the development of radicular symptoms in the left leg in early 2020. The proximal relationship between the development of low back/radicular symptoms and the extensive right leg treatment is suggestive of a causal relationship with the injuries sustained in the motor accident and the aggravation of the L5/S1 disc causing left sided radicular symptoms.
We agree with the claimant’s submissions that the Pinnacle Rehab reports record lumbar spine and left sided symptoms throughout 2020 with a resolution of symptoms in early 2021. There is an absence of reference to symptoms in the clinical notes in 2021 with further complaint in early 2022.
The records in 2022, such as the GP referral to the neurosurgeon, support the notion that there was a continuation of lumbar spine and radicular symptoms during the previous period. However, as the insurer noted, there is an absence of reference throughout 2021 and a comment earlier that year that symptoms had resolved. The insurer’s submission of no symptoms in late 2021 is consistent with an absence of record by Dr Doig in his medical report.
We will assume, against the claimant’s interests, that there was a resolution of lumbar spine and left sided radicular symptoms in 2021. However, that does not mean the pathological effect of the disc aggravation caused by the altered walking gait had resolved. It is likely, given the duration of lumbar spine and left radicular symptoms for a significant period (at least 12 months) that the L5/S1 disc had been permanently aggravated by the antalgic gait. The fact that symptoms had eased after a significant period does not mean that the pathological changes in the spine caused by the altered gait had resolved. The claimant had responded well to treatment with an improvement of symptoms.
Dr Doig examined the claimant on 19 November 2021 and noted complaints “of pain and discomfort at the right foot and ankle with difficulty on uneven ground and an inability to run”. Examination showed a slight limp through the right ankle.[39] In March 2023 Medical Assessor Wijetunga noted the claimant presented with an antalgic gait on the right side.[40] Medical Assessor Dixon also observed a right sided limp.
[39] Claimant’s bundle, pp 907-908.
[40] Insurer’s bundle, pp 19-20.
These examinations showed that the claimant continued to walk with an antalgic gait after the lumbar spine symptoms had resolved in 2021.
The claimant suffered an extensive right lower leg injury which would explain his altered right sided gait. The altered walking gait, observed by various doctors, has continued to place abnormal stress on the lower lumbar spine.
We are satisfied that the altered walking gait aggravated the degenerate L5/S1 disc which has contributed to the claimant’s current presentation.
The Panel is required to determine the issue on the balance of probabilities and the resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[41]
[41] [2022] NSWSC 372 (Briggs (No 2)) at [73].
Accordingly, we are satisfied, that the motor accident materially contributed to the aggravation of the L5/S1 disc which has resulted in the present symptoms in the lumbar spine. The reduced range of motion, more evident on the right side, is consistent with pulling pain on the left side where he has tenderness caused by a left sided herniated disc.
We are satisfied that the condition is permanent given the duration of symptoms and that it is unlikely to change substantially in the next year.[42]
[42] Clause 6.19 of the Guidelines.
CONCLUSION
The Panel has concluded that that the claimant has a 5% permanent impairment of the lumbar spine. The combined permanent impairment is 14%. Accordingly, the medical assessment certificate is revoked, and a new medical assessment certificate is issued.
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