GIO Insurance (Australia) Ltd v Koles
[2021] NSWPICMP 199
•6 October 2021
DETERMINATION OF REVIEW PANEL CITATION: GIO Insurance (Australia) Ltd v Koles [2021] NSWPICMP 199 CLAIMANT: Lana Koles INSURER: GIO Insurance (Australia) Ltd REVIEW PANEL: Principal Member John Harris
Dr Mohammed Assem
Dr Richard CraneDATE OF DECISION: 6 October 2021 CATCHWORDS: MOTOR ACCIDENTS- The Claimant was injured in a motor accident whilst walking across a pedestrian crossing; the original Medical Assessor (MA) held that the injuries were assessed at 15% permanent impairment for the purposes of the Motor Accident Injuries Act 2017 (2017 Act); on review the Insurer only disputed that there was a fractured coccyx and that it should be assessed at 5%; Held - although the review is a new assessment of all matters, the Review Panel (RP) accepted the agreement of the parties that the findings of the MA of the other body parties; the MRI scan was reviewed by the MAs on the RP who agreed with the Radiologist that it showed a subluxation at C2 on C3; there was no indication of a fracture line; the Claimant’s clinical symptoms were consistent with the MRI findings; it was appropriate to assess impairment based on analogy (clause 6.24 of the Motor Accident Guidelines) relating to the deformity of the second and third coccygeal segments with residual signs; this pathology is analogous to the non-union of a displaced coccygeal fracture as described in Table 3.4 of the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment; the RP came to the same assessment as the original MA for slightly different reasons; original certificate confirmed.
STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
Medical Assessment – Permanent Impairment
Review Panel Certificate
Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel confirms the certificate dated 6 May 2021.
REASONS
Background
1.Ms Lana Koles suffered injury on 10 April 2019 when she was walking across a pedestrian crossing with her young daughter and was struck by a motor vehicle.
2.GIO Insurance (Australia) Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Koles any damages under the Motor Accident Injuries Act 2017 (the MAI Act).
3.The present dispute is whether Ms Koles’ 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.[1]
[1] See Division 7.5 and Schedule 2 clause 2 of the Act.
4.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).
5.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.[2]
[2] Clause 6.2 of the Guidelines.
6.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 Shane Moloney and dated 6 May 2021. The Medical Assessor assessed the degree of permanent impairment at 15% which included 5% for a fractured coccyx. The details of that assessment are set out later in these Reasons.
7.The application for referral of a medical assessment to a Review Panel (RP) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3] The insurer’s submissions were limited to contesting the assessment of the coccyx.
[3] Section 7.26(10) of the Act.
8.On 23 July 2021, the delegate of the President referred the medical assessment to the RP 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.[4]
[4] Section 7.26(5) of the Act.
9.Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, clause 14F(2) of the Personal Injury Act 2020 (the PIC Act), the RP consists of two medical assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
The review
10.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.[5]
[5] Section 41(2) of the PIC Act.
11.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.[6]
[6] Rule 128 of the PIC Rules.
12.All members of the RP had no previous involvement with Ms Koles or with this matter. The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the Act.
13.On 10 August 2021 the RP issued a Direction to the parties requesting bundles of documents and “to specify the assessments of the various body parts made by Medical Assessor Moloney that are accepted in the Review”.
14.The insurer subsequently confirmed that it was only challenging the assessment of the coccyx.
15.On 31 August 2021 the RP issued a further Direction which is set out in full. The further Direction provided:
“1. Ms Koles has not replied to that part of the first Direction as to whether she accepts the assessments made by the Medical Assessor. The Insurer has advised that it accepts all assessments other than the assessment of the coccyx. Absent a response by Ms Koles by close of business, 2 September 2021, the RP will assume that the assessments by the Medical Assessor, other than the coccyx, are agreed.
2. Ms Koles is to provide a digital file to the Commission of the following scans/x-rays by close of business, 10 September 2021:
(a)X-ray of the pelvis dated 8 May 2019;
(b)MRI scan of the coccyx dated 14 September 2019; and
(c)Any scans/x-rays of low back/pelvis and/or the coccyx taken prior to the motor accident.
Ms Koles is to advise in writing if no scans/x-rays exist in relation to the request in 2(c).
3. The parties are advised that the RP may assess by way of analogy pursuant to clause 6.24 of the Motor Accident Guidelines if it is satisfied that there was no fracture but that there is otherwise an analogous condition to that provided by Table 3.4 of the Guides to the Evaluation of Permanent Impairment, 4th edition.
4. The RP notes the history and examination findings recorded by the Medical Assessor of pain and tenderness of the coccyx.
5. The Insurer is to file and serve written submissions by close of business 17 September 2021 on:
(a)The matter raised in paragraph 3; and
(b)Whether the RP can act on the history and examination findings of the coccyx (paragraph 4) without the need for a further examination.
6. Ms Koles is to file and serve written submissions in response by close of business, 24 September 2021.”
Assessment under review
16.The Medical Assessor was asked to determine permanent impairment of the following injuries, finding they were caused by the accident and gave rise to a permanent impairment which was greater than 10%:
· Coccyx – fracture displacement;
· Left ankle – fracture;
· Left foot – peripheral nerve injury;
· Left shoulder – soft tissue injury;
· Left knee – soft tissue injury, and
· Left ankle – scarring.
17.The Medical Assessor examined Ms Koles and described the motor accident in the following terms:
“Mrs Koles was a pedestrian and crossing the road with her 10-year-old daughter when hit by a car. She was taken by ambulance to Prince of Wales Hospital. She states that she was hit on the left side and the car drove over her left foot and she fell onto her buttocks.”
18.Under the heading current symptoms, the Medical Assessor noted:
“At present Mrs Koles has persistent pain in the left ankle and in particular over the medial malleolus. There is a sharp pain in the left knee equally at night and occasionally when walking. The dorsum of the left foot is very sensitive to touch and occasionally is a feeling of numbness. The left shoulder continues to be painful particularly in any above shoulder movement. She feels that there is weakness in the left arm, and she is unable to sleep on the left shoulder. The worst pain is in the coccyx region and she is unable to sit comfortably without a special cushion. There is discomfort on getting out of low chairs and it is painful when doing activity such as ironing. There is increased ankle pain when walking downstairs.
Mrs Koles is able to drive short distances and is limited by coccygeal pain. She is able to walk for about five minutes, but the left ankle becomes sore. Mrs Koles has not returned to paid work but does household duties such as cooking and cleaning.”
19.On clinical examination the Medical Assessor recorded full range of movement of the lumbar spine and on palpation “there was tenderness over the coccyx”. The conclusions on diagnosis were:
“Mrs Koles had tenderness over the coccyx after the accident and an MRI recorded significant angulation between segments two and three. I consider that this injury was caused by the accident and ongoing discomfort. She has been treated extensively at the pelvic clinic to improve the situation. This fracture is assessed using table 3.4 of AMA fourth edition on page 131. There is a healed fracture with displacement, deformity and residual pain/tenderness. This is 5% WPI.”
20.The Medical Assessor noted the following investigations:
“27 May 2019 – CT scan left foot showing multiple metatarsal fractures.
28 May 2019 – X-ray and ultrasound left shoulder showing mild degeneration and bursitis.
28 May 2019 – X-ray pelvis showing degenerative changes.
17 July 2019 – X-ray left ankle showing internal fixation in good anatomical position.
14 September 2019 – MRI sacrum and coccyx indicating deformity of the second and third coccygeal segments.
The Medical Assessor made the following diagnosis and assessments which totalled 15%:
Coccyx – fracture with displacement 5%;
Left ankle – fracture 4%;
Fractures of the left foot – resolved 0%;
Left foot – peripheral nerve 1%;
Left shoulder – soft tissue 3%;
Left knee – soft tissue 0%;
Scarring of left foot/ankle 2%.”
Material before the review panel
21.The RP requested and were provided with two bundles of material provided by the parties.
Scans/x-rays
22.The MRI scan of the coccyx dated 14 September 2019 records a clinical history of coccygeal pain after fall. Dr James Linklater found that there was abnormality alignment in the sagittal plane at the level of the articulation between the 2nd and 3rd coccygeal segments consisting of an anterior angulation “approximately 70-80 percent anterior translation of the 3rd coccygeal segment”.
Medical records
23.The ambulance report recorded a history that Ms Koles was walking across a pedestrian crossing when she was struck by a vehicle causing injury to the left lower limb. The ambulance officer recorded:
“Nil impact of vehicle to head, chest, abdo or pelvic area. Nil LOC or fall to ground. Nil cervical neck pina. Pt was lifted to side of road, has not tried to weightbear to limb. O/E limb has abrasions to distal lower leg.”
24.Ms Koles was taken by the ambulance and admitted to Prince of Wales Hospital. The Hospital notes refer to Ms Koles being struck by the insured vehicle in the left lower limb. The initial treatment at the Hospital was to the lower left limb. The Hospital notes include a record by Dr Goldberg that Ms Koles “fell to ground”.[8]
[8] Claimant’s bundle, p 188.
25.Ms Koles was readmitted to Hospital on 17 April 2019 and underwent a left ankle open reduction and internal fixation. On discharge on 18 April 2019 Ms Koles was to remain not weight bearing for six weeks. Medication prescribed at that time included Endone and Targin.
26.Dr Andrew McDonald has provided a series of reports. In a report dated 25 June 2019 Dr McDonald noted the coccygeal pain and the absence of the coccyx in the pelvic
x-ray. The doctor recommended further investigations.27.Dr McDonald noted that the MRI scan showed significant abnormality between the second and third coccygeal segments which was consistent with a history of trauma.
Dr McDonald stated:
“Lana’s MRI findings are in keeping with a traumatic injury and explain her ongoing coccydynia. There is no history of coccydynia prior to Lana being struck by [the] car and the recent accident is clearly the cause of her current symptoms.”
28.Dr Raymond Wallace, Orthopaedic Surgeon was qualified by the insurer and provided a report dated 17 July 2020. Relevantly Dr Wallace diagnosed a traumatic subluxation coccygeal segment C2 on C3 caused by the motor accident. The doctor diagnosed
0% whole person impairment according to Table 3.4 of AMA4.29.Dr Eugene Gehr, Orthopaedic Surgeon was qualified by Ms Koles and provided a report dated 21 October 2020. Dr Gehr diagnosed coccydynia secondary to coccygeal injury with angulations or displacement. The doctor applied table 6.7 of the Guidelines by analogy to a vertebral bone compression fracture and allowed 5% WPI.
Clinical notes – General Practitioner
30.Ms Koles first consulted Dr Kundan Giri following the motor accident on 4 May 2019. The doctor’s notes for that consultation include the following:[9]
“Examination:
tender left shoulder, painful range of movements
tenderness lower back and coccygealleft/ankle in cast and walking with crutches”[9] Claimant’s bundle, p 240.
Other records
31.The claim form signed by Ms Koles on 2 May 2019 described the motor accident in the following terms:
“My daughter and I were completing the crossing at a school zone when a car came through and hit my left leg. I fell on the ground and was unable to move, feeling pain in my leg and in my low back spine.”
32.Ms Koles’ description of her injuries included an “injured coccyx” and “bruises all over the left leg”. She also declared that there was no illness or injury affecting the same or similar body parts at the time of the accident.
Submissions
33.The insurer submitted that the Medical Assessor had failed to provide adequate reasons why there was a fracture of the coccyx with displacement and, given the incorrect diagnosis, had incorrectly applied Table 3.4 of AMA 4.
34.The insurer referred to the MRI scan of the sacrum/coccyx dated 14 September 2019 where the radiologist stated that “no fracture was identified”. It submitted that there was no medical evidence upon which the Medical Assessor could have formed the opinion that there was a fracture of the coccyx with displacement.[10]
[10] Insurer’s submissions, [16]-[17].
35.The insurer submitted that given Ms Koles’ age there was a “possibility of anterior translation to be as a result of other factors, including degeneration, which has not been explored or addressed specifically by the Medical Assessor when making his conclusion”.[11]
[11] Insurer’s submissions, [18].
36.The insurer submitted that the incorrect diagnosis of a healed fracture with displacement has led to an incorrect application of Table 3.4 of AMA 4. This is because it is necessary that there be radiological evidence of a fracture to satisfy Table 3.4. This does not exist.
37.Ms Koles submitted that there was no error in the certificate. She referred to opinions expressed by Dr Andrew McDonald in a report dated 26 September 2019 that there was a significant displacement of the second and third coccygeal segments in accordance with the MRI scan of the coccyx and the opinion of Dr Wallace that there was a traumatic subluxation of the coccygeal segment C2 on C3.
38.Ms Koles submitted that the opinions of Dr Gehr, Dr Wallace and Medical Assessor Moloney indicate that the MRI scan provided an indication that there was a fracture.[12] The Medical Assessor reported that there was “altered geometry in the articulation between the 2nd and 3rd coccygeal segments”.
[12] Claimant’s submissions, [3.8].
Response to further Direction dated 30 August 2021
39.In response to paragraph 1 of the further Direction Ms Koles advised that she accepted the other assessments made by Medical Assessor Moloney.[13]
[13] Email from Claimant’s solicitor dated 2 September 2021.
40.Ms Koles also forwarded a digital version of the MRI scan to the RP.
41.The insurer replied to the further direction as follows:
“We refer to the review panel direction dated 27 August 2021 and provide a response as follows:
(a) The [Insurer] acknowledges that the RP may assess by way of analogy pursuant to clause 6.24 of the Motor Accident Guidelines if it is satisfied that there was no fracture but that there is otherwise an analogous condition to that provided by Table 3.4 of the Guides to the Evaluation of Permanent Impairment, 4th edition.
(b) The Insurer consents to the RP acting on the history and examination findings of the coccyx (paragraph 4) without the need for a further examination.”
42.The Claimant did not reply to these submissions.
Re-examination
43.The RP conducts a new assessment of all the matters with which the medical assessment is concerned.[14]
[14] Section 7.26(6) of the Act.
44.The submissions were only directed to error with respect to the assessment of the coccyx. The parties otherwise confirmed that they accepted the other assessments when this issue was specifically raised. In those circumstances the RP adopts the findings and assessments by Medical Assessor Moloney of all body parts referred for assessment other than the coccyx.
45.The insurer otherwise accepted that the RP use the examination findings of the Medical Assessor. Consistent with the objectives of the Commission in circumstances where the pandemic has prevented in-person examinations, the RP has accepted that it could act on the examination findings made by Medical Assessor Moloney in light of the concessions and limited submissions made by the insurer.
Findings
Causation - legal principles
46.Clauses 6.6 and 6.7 of the Guidelines provide:
“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.
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.”
47.In Peet v NRMAInsurance Ltd[15] the Court reviewed a number of Supreme Court authorities including the observations in Owen v Motor Accidents Authority of NSW[16] when Campbell J stated that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002,
s 5D”.[17][15] [2015] NSWSC 558 (Peet).
[16] [2012] NSWSC 560 (Owen).
[17] Owen at [27].
48.More recently in Hunter v Insurance Australia Ltd[18] the Court noted that a Review Panel was obliged to apply the Guidelines (set out above at [46] herein) which incorporated “common law principles of causation”[19].
[18] [2021] NSWSC 623 (Hunter).
[19] Hunter at [16].
49.Various authorities have discussed error made by Review Panels and Medical Assessors in determining the issue of causation solely based on the absence or record in contemporaneous notes.
50.In Norrington v QBE Insurance (Australia) Ltd[20] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[20] [2021] NSWSC 548 (Norrington).
51.The Court stated:[21]
“In the context of assessment under MACA, there is now a substantial body of authority that a panel which describes the question of causation solely on the basis of the existence of otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1).”
[21] Norrington at [31].
52.The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[22] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga[23]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[24]).
[22] [2016] NSWCA 229 at [64]-[66].
[23] [2004] NSWCA 34 at [35].
[24] [2014] NSWSC 888 at [31]-[32].
53.In QBE Insurance (Australia) Ltd v Shah[25] referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”[26] between the motor accident and the alleged injury.
Application of legal principles
[25] [2021] NSWSC 288 (Shah).
[26] Shah at [36].
54.Clause 6.24 of the Guidelines relates to assessment by analogy where the condition is not covered by the Guidelines and AMA 4. The clause provides:
“A condition may present that is not covered in these Guidelines or the AMA4 Guides. If objective clinical findings of such a condition are present, indicating the presence of an impairment, then assessment by analogy to a similar condition is appropriate. The medical assessor must include the rationale for the methodology chosen in the impairment evaluation report.”
55.Dr Gehr assessed by analogy and the parties were otherwise put on notice that the RP may take this approach.
56.A digital copy of the MRI scan was provided to the two Medical Assessors on the RP who examined the scan. A fracture line was not seen on the MRI scan taken five months after the accident.
57.There is otherwise no objective evidence that there was a fracture of the coccyx. However, the scan, consistent with medical evidence in this matter, shows a deformity consistent with a traumatic subluxation of the coccygeal segment C2 on C3.
58.The Internal Review decision and the insurer’s submissions did not dispute that the coccyx was injured. The submissions were limited to the argument that there was no fracture and that the proper impairment assessment was 0%.
59.The RP notes the ambulance record which states that Ms Koles did not fall to the ground. It is unclear what is the source of that record. It is a logical inference that
Ms Koles would have been in a deal of pain when she was seen by the ambulance officers at the scene of the accident.
60.The discharge summary noted that Ms Koles fell to the ground. The report of orthopaedic registrar, Dr Michael Goldberg, also noted no injuries other than to the left foot but recorded that Ms Koles “fell to ground”.
61.Ms Kole’s statement dated 2 May, some three weeks after the accident, indicated among the injuries that there was injury to the coccyx with pain.
62.The absence of recording pain in the coccygeal area at the Prince of Wales Hospital could have been explained by the more significant degree of pain dominating Ms Kole’s distress related to the fractured ankle and the fact that she was taking heavy pain relief. Indeed, the general practitioner recorded on 4 May 2019 that Ms Koles told him that she did not complain of other injuries due to the ankle being “more serious”.
63.The RP is cognisant of the fact that coccygeal anatomy is variable, and it is difficult to determine on radiological grounds only whether deformity could have been congenital or traumatic.
64.The RP accepted on balance that Ms Koles had fallen to the road onto her buttocks following the accident and this fall is consistent with injury to the coccyx. Other histories show that there were no prior coccygeal symptoms which were initially reported and recorded a short time after the motor accident. The temporal inference is that these symptoms were caused by the motor accident. The clinical symptoms are explicable on the basis that Ms Koles fell to the ground causing a deformity consistent with a subluxation at C2 on C3. That conclusion is otherwise consistent with the medical opinion in the matter that Ms Koles has ongoing symptomatology in the coccyx.
65.The RP considered that it was appropriate to assess impairment based on analogy relating to the deformity of the second and third coccygeal segments with residual signs, which resulted from the fall onto the buttocks as evidenced by the MRI scan. This pathology is analogous to the non-union of a displaced coccygeal fracture as described in Table 3.4 of the AMA 4.
66.The insurer properly accepted that the RP could act on the examination findings made by the Medical Assessor. Those findings are set out at [17] - [19] herein and are expressly adopted by the RP. The Medical Assessor noted continuing tenderness over the coccyx.
67.Accordingly, the RP assesses permanent impairment of the coccygeal trauma with residual signs at 5% by way of analogy in accordance with clause 6.24 of the Guidelines and Table 3.4 of AMA 4.
68.The RP is satisfied the condition is permanent based on the longstanding symptoms and the objective scan evidence. There is no basis to suggest any pre-existing impairment or subsequent injury.
69.The RP accepts the parties’ joint submissions that the other body parts are assessed in accordance with the assessments provided by Medical Assessor Moloney.[27] Accordingly, the ultimate assessment made by Medical Assessor Moloney of 15% is correct.
[27] See also s 7.25 of the Act.
Conclusion
70.The assessment made by Medical Assessor Moloney is correct. However, in reaching the same assessment, the RP has assessed the coccygeal injury by way of analogy.
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