Graham v Allianz Australia Insurance Limited
[2025] NSWPICMP 247
•9 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Graham v Allianz Australia Insurance Limited [2025] NSWPICMP 247 |
CLAIMANT: | Richard Graham |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Alan Home |
MEDICAL ASSESSOR: | Mohammed Assem |
DATE OF DECISION: | 9 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whole person impairment (WPI); right knee injury; comminuted fracture right tibial plateau; C7 facet joint fracture; lateral tibial plate with 15 screws; plate and screw removal; post-operative infections; anterior tibial artery filling defect; cervical spine fracture treated conservatively; right lower extremity scarring; mild medial lateral laxity; cruciate ligaments graft; tricompartmental osteoarthritis; Held – 6% WPI assessed; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Panel revokes the certificate of Medical Assessor Raymond Francis Wallace dated · right knee – permanent impairment 5%, and · scarring – 1%. |
STATEMENT OF REASONS
BACKGROUND
Richard Graham (the claimant) is a 61-year-old man who was injured in a motor vehicle accident on 28 October 2019. The parties agreed the claimant had sustained a non-threshold injury. The insurer did not concede that the claimant’s injuries exceed 10% whole person impairment (WPI) and accordingly the claimant lodged an Application for Assessment of Permanent Impairment.
The claimant was ultimately examined by Medical Assessor Wallace on 10 September 2024 who issued a certificate determining that the claimant had sustained a permanent impairment of 3% consequent on the right knee injury. The claimant sought a review of this determination and, in a certificate dated 27 September 2024 President’s delegate, Ashley Payne, determined that there was a reasonable cause to suspect that the medical assessment is incorrect in all material aspects. Accordingly, the matter was referred to this Panel.
Following the making of directions in respect to the provision of material which was before Medical Assessor Wallace, the Panel convened on 20 February 2025 to consider this matter. It was determined that it was appropriate that the claimant be re-examined and that, should a further teleconference ought to take place to finalise the certificate and reasons.
The Review Panel (the Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of Medical Assessor Wallace’s assessment dated 27 September 2024 (the Review).
Pursuant to cl 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel ‘is to conduct and determine the proceedings in accordance with procedures determined by the panel’.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
EXAMINATION
The claimant, was examined by Medical Assessor Alan Home on 24 March 2025 at his Pitt Street Sydney rooms.
The claimant was accompanied to the assessment by his ex-wife, Mariela Graham.
The history was obtained directly from the claimant, Mr Graham.
HISTORY
The claimant states that he sustained injuries on 28 August 2019, as the unaccompanied, helmeted rider of a 250CC SOL motorbike, travelling on The Kingsway Cronulla. The driver, of a car travelling in the opposite direction made a right hand turn, into his path. He struck the front passenger door of the vehicle and then lost consciousness. When he regained his faculties he was laying on the road. He experienced early pain in his neck and right knee.
He was subsequently taken to St George Hospital, where imaging demonstrated a comminuted fracture of the right tibial plateau and a C7 facet joint fracture.
He was admitted under the care of Dr Keeley, orthopaedic surgeon, and underwent open reduction internal fixation of the right tibial plateau fracture, using a Synthes proximal tibial plate, and Zimmer proximal lateral tibial plate with 15 screws.
A proximal anterior tibial artery filling defect was noted on CT Angiograph and that finding was to be followed up by the vascular team.
The cervical spine fracture was treated conservatively.
In relation to his right knee condition, he was non-weight bearing for four months, mobilising on crutches. He then commenced physical therapy and attended Dr Keeley periodically.
In February 2020, he underwent surgery to remove metalwork from his right knee. He also underwent an anterior and posterior cruciate ligament reconstruction. His recovery was complicated by staphylococcus infection, for which he required a further month admission with use of intravenous antibiotics. He also required three drainage procedures.
He was then discharged on oral antibiotics, which he took for a further three months.
He received physical therapy for a further 18-month period. Currently he takes Celebrex, anti-inflammatory medication, 3-4 days per week. He applies heat packs to his knee. He takes paracetamol as required.
CURRENT SYMPTOMS
There are no residual neck pain symptoms. He does describe a frequent creaking sensation in his neck.
At the right knee, he reports activity-related pain, felt anteriorly about the knee cap and also anteriorly across the knee joint, extending to the medial and lateral aspects of the joint.
There is a frequent sensation of wobbling in the knee and occasional giving way. He says that his knee is particularly unstable when descending stairs or walking on uneven surfaces:
· he describes his right knee pain as of variable severity and quality;
· there is activity-related swelling of the knee;
· he cannot perform deep crouching through his right knee;
· he performs stair climbing asymmetrically, using the handrail for support
· he describes a capacity to walk on the flat for up to an hour, before taking a rest break;
· he describes a need to move the knee frequently whilst seated;
· there is exacerbation of knee pain with prolonged driving;
· he reports that he walks with a limp after walking for 50m;
· his sleep pattern is mildly disturbed, and
· he is able to carry moderate weight, but avoids heavy lifting through his knee.
Social history
Mr Graham is separated, with two adult sons, aged 26 and 27 years. He lives alone in a house in Caringbah.
He performs his own domestic chores, but his ex-wife helps him with mopping on occasion.
He enjoys bonsai gardening, but has not been able to resume previous active hobbies of skiing, wakeboarding and surfing.
There is no prior history of knee complaints.
VOCATIONAL HISTORY
Mr Graham works as a sign writer. He has been restricted to computer based design work since the accident.
ON EXAMINATION
Mr Graham presents as a 62-year-old, standing 179cm, weight 90kg.
Examination of the right lower extremity reveals three surgical scars, with an anterior scar across the knee, measuring 12cm in length and 2mm in diameter, white in comparison on the surrounding skin and with barely visible suture marks. There is no trophic change.
There is a further 8cm oblique scar, over the proximal tibia, with 4mm diameter, slightly depressed contour, no visible suture marks with a good colour match.
There is a further 5cm x 5mm scar, laying on the medial aspect of the left thigh, darker than the surrounding skin without further adverse features.
The circumference of the right thigh is 45.5cm, and the left thigh is 47cm.
The circumference of the right calf is 39.5cm, and the left calf is 39cm.
Active motion of the right knee is measured; 0° extension to 120° flexion. There is normal AP stability. There is mild mediolateral laxity.
There is no abnormal joint crepitus.
There is normal gait in the clinical setting.
REVIEW OF DOCUMENTATION
The Panel had available to it medical reports and radiological and imaging in respect to the claimant’s right knee injury. This material was reviewed. In particular the claimant notes the following radiological and imaging:
· 15 February 2020 – X-ray to the right knee showing internal fracture of the tibial plateau;
· MRI investigation of the right knee dated 12 June 2020 showing complex tears of the medial and lateral menisci as well as tricompartmental osteoarthritis. The scan showed chronic posterior cruciate ligament tear and a partial thickness anterior cruciate ligament avulsion, and
· MRI report dated 9 August 2023 showing anterior and exterior cruciate ligament grafts. The middle third of the ACL graft is impinged by the intercondylar roof and is thickened indicative of a high-grade tear. There are full thickness radial tears in the posterior root anchors as well as the medial and lateral menisci. There is also tricompartmental osteoarthritis identified.
The claimant has been under the care of Dr Keely. His report dated 12 August 2022 outlines the history of the treatment of the claimant noting the initial operation being an open reduction and internal fixation of the medial and lateral tibial plateaus with plate and screws. These were subsequently removed. He has since undergone and ACL and PCL reconstruction. Following the development of infections there were washouts required to the knee and the wounds around it. The report also notes moderate to severe post-traumatic osteoarthritis as well as laxity posterior cruciate ligament and impingement on the anterior cruciate ligament. There were tears to medial and lateral meniscus identified.
DIAGNOSIS AND CAUSATION
42. MR GRAHAM SUFFERED A RIGHT KNEE TRAUMA, INCORPORATING A COMMINUTED FRACTURE OF THE LATERAL TIBIAL PLATEAU, WHICH REQUIRED INTERNAL FIXATION. HE ALSO SUFFERED ANTERIOR AND POSTERIOR CRUCIATE LIGAMENTS, WHICH REQUIRED RECONSTRUCTION. THERE IS RESIDUAL MILD MEDIAL LAXITY AT THE KNEE AND SCARRING RELATED TO HIS OPERATIVE TREATMENT.
ASSESSMENT OF IMPAIRMENT
Determinations – permanent impairment
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4) and Part 6 of the Motor Accident Guidelines.
Permanency of impairment
Permanent impairment is defined in the AMA4 (p.315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
The clinical presentation of the claimant satisfies the criteria for permanency set out above.
CONCLUSION – PERMANENT IMPAIRMENT
Right knee – There has been a tibial plateau fracture, with normal angulation. There has been an undisplaced plateau fracture. This attracts a 2% WPI rating, using Table 64, AMA4, page 85;
· there is mild cruciate laxity, which attracts a 3% WPI rating, using Table 64, AMA4, page 85, and
· the total WPI rating for the right knee is 5% WPI.
Scarring – scarring as assessed using the TEMSKI Scale, as follows:
· Table 6.18, SIRA Guidelines page 136;
· the injured person is conscious of the scarring;
· the scars are easily identified due to colour contrasts and contour defect with the surrounding skin as a result of pigmentary and other changes;
· the injured person is easily able to locate the scar or skin condition;
· trophic changes are evident to touch;
· suture marks are barely visible;
· location of scars can be seen with short clothing;
· there is a minor contour defect;
· no effect on ADL;
· no treatment is required;
· there is no adherence, and
· using the principle best fit, a 1% WPI arises.
The WPI degree of permanent impairment caused by the motor accident is 6% WPI.
| Body Part or System | AMA Guides/ MAA Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1. | Right knee | AMA4 page 85, Table 64. | YES | 5% | 0% | 5% |
| 2. | Scarring (Temski) | TEMSKI | YES | 1% | 0% | 1% |
| 3. | Combined | 6 | 0 | 6% |
The Panel notes that it is contentious between the parties of a cervical spine injury of 5%. There is no certificate identifying this and accordingly the Panel is not required to prepare a combined certificate.
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