Gray v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 360
•5 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Gray v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 360 |
| CLAIMANT: | Maureen Gray |
| INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 5 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Shahzad of 12 October 2023 who found that the claimant had a whole person impairment (WPI) of 19%; claimant was 86 years of age at the time of the accident and now 88 years of age; car versus pedestrian accident; the claimant’s injuries included fractures to her left ankle and leg, a fracture to her right leg and an injury to her shoulder; claimant had been living independently prior to the accident and able to mobilise without aids but following the accident required a four wheel walker for mobility; insurer submitted that the MA had not considered the claimant’s pre-accident condition and had also incorrectly applied the AMA 4 Guides and the Motor Accident Guidelines for assessment of whole person impairment; Panel disagreed with the methods of assessment adopted by the MA but concluded that the claimant did exceed the WPI threshold for the total of her injuries; Held – certificate of MA Shahzad revoked and claimant assessed as having a total WPI of 12%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate dated 12 October 2023 of Medical Assessor Shahzad. 2. The following injuries were caused by the accident; (a) injury to left ankle - musculo-ligamentous strain injury, soft tissue injury, medial plafond fracture and small posterior malleolus fracture; (b) injury to left leg - musculo-ligamentous strain injury, soft tissue injury, left distal tibia and displaced avulsion fracture involving the lateral talus; (c) injury to right leg - musculo-ligamentous strain injury, soft tissue injury, transverse fracture through proximal right fibula and mid-shaft tibia, and (d) injury to left shoulder - musculo-ligamentous strain injury, soft tissue injury, left proximal humerus fracture. 3. The Panel finds that the claimant has a total whole person impairment assessment of 12% |
STATEMENT OF REASONS
INTRODUCTION
This is an application by the insurer to review the certificate and reasons of Medical Assessor Shahzad (the Medical Assessor) dated 12 October 2023.
The following injuries were referred by the Personal Injury Commission (Commission) for
assessment:
(a) injury to left ankle - musculo-ligamentous strain injury, soft tissue injury, medial plafond fracture and small posterior malleolus fracture;
(b) injury to left leg - musculo-ligamentous strain injury, soft tissue injury, left distal tibia and displaced avulsion fracture involving the lateral talus;
(c) injury to right leg - musculo-ligamentous strain injury, soft tissue injury, transverse fracture through proximal right fibula and mid-shaft tibia, and
(d) injury to left shoulder - musculo-ligamentous strain injury, soft tissue injury, left proximal humerus fracture.
The Medical Assessor found the following injuries caused by the motor accident gave rise to a permanent impairment of 19%:
(a) injury to left ankle - musculo-ligamentous strain injury, soft tissue injury, medial plafond fratire and small posterior malleolus fracture;
(b) injury to left leg - musculo-ligamentous strain injury, soft tissue injury, left distal tibia and displaced avulsion fracture involving the lateral talus;
(c) injury to right leg - musculo-ligamentous strain injury, soft tissue injury, transverse fracture through proximal right fibula and mid-shaft tibia, and
(d) injury to left shoulder - musculo-ligamentous strain injury, soft tissue injury, left proximal humerus fracture.
Documentation
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided”- see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46].
The accident
The claimant is 88 years old. At the time of the accident, she was a resident of a retirement village.
The claimant was involved in a pedestrian versus vehicle accident on 25 May 2022. At approximately 1:30pm, she was walking out of the village driveway to a bus stop on Barrenjoey Road, Newport, when the insured car turned in and ran into her. She could not remember the events clearly after the accident. She reported that the car was driven by another resident at approximately 5kmph.
The claimant was taken by ambulance to Northern Beaches Hospital where she was admitted.
Insurer’s submissions
The insurer’s submissions regarding this application are:
(a) the Medical Assessor has failed to provide sufficient reasons to indicate why and how he had arrived at his apportionment for the left leg fractures given the medical evidence present at the time of the Commission’s assessment;
(b) the Medical Assessor has failed to provide sufficient details to justify why he had chosen gait derangement was the most appropriate form of assessment of the left leg fractures when there were more specific forms of assessment applicable at the time of his assessment, and
(c) the Medical Assessor has included typographical errors within his certificate when arriving at the final impairment for the left shoulder.
The insurer noted the Medical Assessor’s review of the medical reports provided for the assessment only referred to two reports from Dr Yu dated 12 October 2022 and
12 July 2022.The insurer also noted that the medical documentation provided for the Medical Assessor’s assessment included the physiotherapy discharge summary from Northern Beaches Hospital dated 31 May 2022. This recorded the claimant’s previous medical history as including Syncope, a previous cerebellar stroke and BPPV (benign paroxysmal positional vertigo). The summary also recorded the claimant lived alone in a retirement village and was independently mobile with a walking stick.
The insurer referred to the initial needs and activities of daily living assessment report from OT Rehab Consulting dated 18 August 2022. The insurer said that on page 4 of this report, it was said that after liaising with the examiner, Ms Gantvoort, it was thought it may not be possible for the claimant to return to mobilising with the use of a walking stick.
The insured noted the Medical Assessor’s discussion of the claimant’s pre accident medical history as noted on pages 3-4 of his certificate. The Medical Assessor recorded the claimant’s history included osteopenia, a left internal carotid artery (ICA) aneurysm, ischaemic heart disease (IHD), a stent which was placed in 2021 and a traumatic subdural haemorrhage in 2015. The claimant had also previously sustained an ankle fracture, however it was not made clear when this occurred or on which side the fracture occurred. The Medical Assessor was noted to record the claimant lived by herself in a one-bedroom unit. The claimant was recorded to be independent in showering and had no problems walking prior to the motor accident and was mobilising well. The Medical Assessor noted the claimant required assistance with domestic chores, making beds, and hanging washing on the lines and shopping.
Regarding the Medical Assessor’s consideration of permanent impairment relating to the left shoulder as noted on page 10 of the Medical Assessor’s certificate, the insurer noted the Medical Assessor determined the shoulder impairment was 5% whole person impairment (WPI). The insurer noted the Medical Assessor stated within his table relating to the workings out of the left shoulder impairment, the total upper extremity impairment for the left shoulder was 9% upper extremity impairment. However, the insurer also observed under this table the Medical Assessor stated “Using Table 3 on page 20 a 6% upper extremity impairment is a 5% whole person impairment in the left shoulder.”
The insurer referred to the Medical Assessor’s reasons relating to his determination of impairment regarding the left leg on page 9 of his certificate. The Medical Assessor said there was essentially a normal range of movement at the left and right knees and both ankles. There was no muscle guarding, rigidity or muscle spasm or muscle wasting detected at the knees or ankles of the lower limbs in general. The Medical Assessor stated the reflex, tendon and ligament testing was all negative. The Medical Assessor stated there was no significant displacement in the fractures to warrant the use of Table 64. Consequently in light of his reasons, the Medical Assessor determined it was appropriate to utilise gait derangement when considering section 6.78 of the Medical Assessment Guidelines (the Guidelines).
The Medical Assessor stated that the claimant had a significant gait derangement since the accident whereas prior to the accident, she was mobilising well. The Medical Assessor noted the claimant was using a four-wheeled walker since the accident.
The Medical Assessor determined the claimant had a moderate impairment when considering Table 36 on page 76 of the American Medical Association Guides to Permanent Impairment, Fourth Edition (AMA4), referring to the routine use of a walking aid. The Medical Assessor therefore determined the claimant was assessed as having 20% WPI.
The insurer observed the Medical Assessor had considered the issue of pre-existing impairment for the claimant. The Medical Assessor was noted to state “Ms Gray had a previous ankle fracture and a history of osteopenia and therefore, I have allocated a pre-existing impairment of 25% WPI, which would be 5% WPI. Therefore, she has a 15% whole person impairment in the lower limb.”
The insurer submits that when considering the reasons provided by the Medical Assessor within his certificate, these contained typographical errors of the left shoulder assessment. The Medical Assessor was noted to state following his working out of the left shoulder movement, the claimant was assessed to have 6% upper extremity impairment which equated to 5% WPI. However, the insurer submits that when reference is made to Table 3 of AMA 4, this states a 6% upper extremity impairment equates to 4% WPI. The insurer did however, note the final table listed by the Medical Assessor determined the claimant to have 5% WPI, which the insurer presumes was related to a 9% upper extremity impairment when using Table 3.
Regarding the Medical Assessor’s determination of the impairment for the left leg, the insurer submits the Medical Assessor has erred when providing reasons to support his determination of 15% for the claimant’s fractures at the left leg.
The insurer submits the Medical Assessor has erred in his assessment of the pre-existing impairment of the left leg. The insurer observed the Medical Assessor did not comment on the claimant’s requirement to use a stick to achieve independent mobility prior to the motor accident, as evidenced within the physiotherapy discharge summary from Northern Beaches Hospital dated 31 May 2022 or the initial needs and activities of daily living assessment report from OT Rehab Consulting dated 18 August 2022. The Panel notes that the Medical Assessor did refer, in his reasons, to the claimant using a walking stick prior to the accident. The claimant however, denied such use, when examined by Medical Assessor Oates.
The insurer submits the claimant’s medical history prior to the motor accident, which was provided for the Medical Assessors assessment, indicated the claimant had a gait derangement which could be assessed as a moderate severity because of the routine use of a cane or crutch, as described within Table 36 of the AMA 4. The insurer noted this category was awarded a 20% WPI for this severity. The insurer submitted the Medical Assessor erred by failing to consider this given the nature of the medical evidence provided for the assessment when determining the claimant’s pre-existing impairment.
The insurer submits the Medical Assessor has also failed to detail his consideration regarding the reasons the claimant required a stick prior to the motor accident. The insurer raised whether this was related to the previous ankle fracture or the diagnoses of Syncope, a previous cerebellar stroke or BPPV or a combination of these conditions prior to the motor accident.
The insurer noted the Medical Assessor detailed the claimant required a walker for balance and weakness. The insurer submitted the Medical Assessor had failed to provide evidence of an assessment relating to the claimant’s balance following the accident. The insurer says the Medical Assessor had failed to provide evidence of a consideration or an examination to determine if the claimant’s balance had changed since the accident.
The insurer submitted the Medical Assessor had failed to provide evidence of an examination relating to the possible presence of lower limb muscle weakness and muscle circumference measurements of the thigh and calf as required by sections 6.81 and 6.83 of the Guidelines and given the Medical Assessors statements of the claimant reporting symptoms of weakness following the accident.
The insurer submitted the Medical Assessor had not provided reasons within his certificate as to the cause for the pins, needles and numbness and indicated if this may be impacting the claimant’s ability to mobilise.
The insurer submits the Medical Assessor’s statement with regard to his determination on pre-existing impairment on page 9 of the certificate is not clear. The insurer submits it is not apparent based on a reading of the Commission’s certificate as to how the Medical Assessor has determined claimant’s previous ankle fracture and a history of osteopenia had equated to a pre-existing impairment assessment of 25% WPI. Nor is it apparent as to what tables/sections from the AMA Guides or Guidelines the Medical Assessor had relied upon to arrive at this statement to permit the reader to understand his subsequent permanent impairment assessment.
Furthermore, the insurer submits when referring to the Table 24 of the certificate, it is also not clear how the Medical Assessor had arrived at his determination of 5% from a pre-existing impairment at the left leg when referring to his previous statement on page 9 of the certificate that the claimant had a “pre-existing impairment of 25% WPI, which would be 5% WPI.”
The insurer submits that it is incumbent on the Medical Assessor to comply with section 6.70 of the Guidelines. This says,
“It may be possible to perform several different evaluations as long as they are reproducible and meet the conditions specified below and in the AMA4 Guides. The most specific method, or combination of methods, of impairment assessment should be used. However, when more than one equally specific method or combination of methods of rating the same impairment is available, the method providing the highest rating should be chosen. Table 6.6 can be used to assist the process of selecting the most appropriate method(s) of rating lower extremity impairment.”
However, the insurer says that it is also required of the Medical Assessor to provide reasons to support his choice of impairment method when using gait derangement if it can be demonstrated “if no other valid method is applicable, and reasons why it was chosen” as indicated in section 6.78 of the Guidelines.
The insurer noted the Medical Assessor determined the claimant had sustained fractures to the left ankle, a displaced avulsion fracture to the left lateral talus and a fracture to the right fibula and mid shaft tibia.
The insurer noted the Medical Assessor stated there was no evidence of muscle guarding, rigidity or muscle spasm noted over the knees or ankles and no muscle wasting in the lower limbs. There were no abnormalities in reflex, tendon or ligament testing. The insurer said there was evidence of loss of movement at the right knee at the Commission’s assessment. Therefore, the insurer submits it could be argued the most specific form of assessment of these injuries at the claimant’s lower legs was range of motion at both knees and ankles in line with 6.84 of the Guidelines.
The insurer noted the Medical Assessor stated there was no significant displacement of the lower limb fractures to use a category in Table 64 of AMA4. The insurer submits however, the Guidelines did not specifically state the use of Table 64 should be exclusively used for fractures with displacement.
The insurer submits that should it be accepted that gait derangement is the most appropriate method for assessing the claimant’s impairment following the motor accident, the insurer suggests that the medical evidence referred to in paragraphs 5 and 6 of these submissions would indicate the claimant could be assessed as having a pre-existing impairment of 20% based on the routine use of a cane at Table 36 of the AMA4.
Furthermore, the insurer says that following the motor accident and using the Medical Assessor’s line of reasoning the claimant’s permanent impairment following the accident was 20%, that is, the claimant “has a moderate impairment in that she requires the routine use of a walking aid though not a leg brace and therefore she has a 20% whole person impairment”.
Therefore the insurer submits, when following ss 6.31 to 6.33 from the Guidelines, deducting the pre-existing impairment from the impairment following the motor accident would involve 20% - 20% which equals 0% as the final impairment. The insurer submits this outcome is material when compared to the determination as made by the Medical Assessor with regards to the left leg.
In conclusion, the insurer says that considering the above reasons, the Medical Assessor has erred in his determination by failing to provide sufficient reasons within his certificate to the standard as listed within Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, to permit the reader to understand how he had determined the claimant to have an impairment of 15% for the left leg.
The insurer submits the Medical Assessor has also erred in his decision by failing to provide sufficient reasons within the Commission’s Certificate to provide details of a complete medical examination as stated within the Guidelines for the lower limbs and as detailed within Crnobrnja v Motor Accidents Authority of New South Wales [2010] NSWSC 633.
Claimant’s submissions
The claimant submits that the Medical Assessor was required to form his own opinion in the manner dictated by the Guidelines. The claimant says the Medical Assessor did so.
Regarding the left lower extremity and any pre-existing impairment, the claimant submits the Medical Assessor noted the history of a previous ankle fracture at paragraph 8 on page 3 of his report.
The claimant noted that the insurer submitted that the Medical Assessor has failed to provide sufficient reasons to indicate why and how he had arrived at his apportionment for the left leg fractures given the medical evidence present at the time of the assessment. The claimant noted that the insurer submitted that the Medical Assessor had not identified “which side the fracture occurred on”.
The claimant says that the Medical Assessor reported as follows:
“With reference to Table 36 on page 76 of the AMA Guides, 4th Edition, she has a moderate impairment in that she requires the routine use of a walking aid though not a leg brace and therefore she has a 20% whole person impairment.
This impairment is awarded to the left limb, seeing as this was the one that she was unable to weight bear on after the injury and also sustained fractures in both the ankle and the leg.
Pre-existing Impairment
With reference to the Guidelines paragraphs 6.31 to 6.33, the claimant says that the evaluation may be complicated by the presence of an impairment in the same region that existed prior to the relevant motor vehicle accident. If there is objective, symptomatic pre-existing impairment, then its value must be calculated and subtracted from the current WPI value.
Ms Gray had a previous ankle fracture and a history of osteopenia and therefore, I have allocated a pre-existing impairment of 25% WPI, which would be 5% WPI.
Therefore, she has a 15% whole person impairment in the lower limb.”
The claimant submits that the Medical Assessor makes clear that the deduction for pre-existing impairment is because of the presence of an impairment in the same region that existed prior to the accident.
The claimant says that the Medical Assessor took the following additional history:
“She used to be involved in walking, swimming, and various activities prior to the accident. She had no problems with walking prior to the accident and she was mobilising well. Additionally, she used to attend aqua aerobics at Hornsby.”
The claimant submits that she was not restricted by reason of her previous ankle fracture.
The claimant says that the deduction for pre-existing impairment was appropriately made on the basis that she had a previous ankle fracture and a history of osteopenia. The claimant says that this is clearly set out on page 9 of the Medical Assessor’s certificate.
The claimant says that the Medical Assessor made a reduction, as foreshadowed in the body of his report, of 5% on account of the claimant’s pre-existing impairment.
Regarding the lower extremity method of assessment, the claimant referred to the Guidelines which state as follows:
“The approach to assessment of the lower extremity
3.2, Assessment of the lower extremity involves a physical evaluation that can, utilise a variety of methods. In general, the method that most specifically addresses the impairment present should be used.”
In relation to the assessment of impairment based on gait derangement, regarding the Guidelines, the claimant says these state as follows:
“Gait derangement
3.11 Assessment of impairment based on gait derangement should be used as the method of last resort (pp 75-76 AMA 4 Guides). Methods most specific to the nature of the disorder should 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 is chosen should be provided in the impairment evaluation report.”
The claimant submits that the Medical Assessor had not combined his assessment of gait derangement with any other impairment evaluation in the lower extremity.
The claimant submits that the Medical Assessor chose the most appropriate method of assessment to address the impairment suffered by the claimant as he was required to do.
The claimant says that the insurer submitted that the Medical Assessor failed to provide reasons to support his choice of impairment. However, the claimant says that this is plainly incorrect as the Medical Assessor reported:
“There was no significant displacement of the fractures to place her into a category listed in Table 64 of the AMA Guides. The most suitable method to assess her impairment, therefore, is gait derangement. As per page 97 paragraph 6.78, the NSW SIRA Guides,this method is used as a last resort.”
Regarding the upper extremity impairment finding, the claimant says that the Medical Assessor has not erred in finding a 5% WPI.
The claimant submits that using his clinical expertise and judgment, Medical Assessor Shahzad has properly determined that the claimant’s condition has stabilised on the day of the assessment.
Medical evidence
Medical Assessor Shahzad provided a certificate dated 12 October 2023.
The Medical Assessor noted that the claimant had a history of osteopenia, left ICA aneurysm, and IHD and a stent was placed in 2021. In 2015, she suffered from a traumatic subdural haemorrhage. She previously had sustained an ankle fracture. She had never had injuries to her shoulder prior to the accident. She suffered from hypertension and hyperlipidaemia.
Examination revealed an essentially normal range of movement in both the left and the right knees with the right side being slightly reduced but not by enough to allocate a percentage impairment. Both ankles had a full range of motion. There was no muscle guarding, rigidity or muscle spasm noted over the knees or ankles. There was no muscle wasting observed in the lower limbs in general. There was no significant displacement of the fractures to place her into a category listed in Table 64 of the AMA Guides. He found the most suitable method to assess her impairment was gait derangement. As per page 97 paragraph 6.78 of the AMA 4 Guides, this method was used as a last resort.
The claimant was noted to have a significant gait derangement since the time of the accident. Prior to the accident she was mobilising well. At the time of examination, she used a four-wheeler walker frame with brakes to mobilise. At assessment, she needed assistance from her daughter to take off her jumper. She was reported as needing support when walking. This decrease in functional capacity was said to be clearly related to the accident.
The Medical Assessor assessed WPI at 19% as follows;
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Left Ankle | AMA 4, Tables 42 to 44, page 78 | YES | 0% | 0% | 0% |
| 2 | Left Leg | AMA 4, Table 41, page 78 | YES | 20% | 5% | 15% |
| 3 | Right Leg | AMA 4, Table 41, page 78 | YES | 0% | 0% | 0% |
| 4 | Left shoulder | AMA 4, Figures 38, 41 and 44, pages 43 to 45 | YES | 5% | 0% | 5% |
| Total Degree of Permanent Impairment is | 19% | |||||
The Northern Beaches Hospital discharge summary recorded that the claimant had an impacted left humeral surgical neck fracture or dislocation. She had a transverse fracture through her proximal right fibula and mid shaft tibia. She was admitted on the day of the accident, 6 June 2022 and discharged on 18 August 2022.
Dr Yu, orthopaedic surgeon, performed surgery to the claimant and provided an operation report. He also provided a report dated 27 May 2022 where he said;
“She sustained multi-limb injuries. This consisted of a right closed midshaft tibial fracture, a left distal tibial fracture which is undisplaced and a left proximal humerus fracture which is undisplaced.
On 27/5/22 Maureen underwent a right tibial nail. This was performed via an infrapatellar approach. A Stryker T2 Alpha nail was inserted. Anatomical reduction was achieved.
Postoperatively Maureen will be allowed to weight bear on the right leg. However, she will be non-weightbearing on her left leg and will have difficulty with walking aids due to her left shoulder fracture. It is likely she will require respite care.”
Dr Yu provided a further report to the insurer on 12 October 2022. He reported;
“Maureen was admitted under my care at Northern Beaches Hospital in May of 2022. I understand she was involved in a motor vehicle accident (car versus pedestrian). She did sustain multiple limb injuries including a right displaced, closed mid shaft tibial fracture; a left distal radius fracture which was undisplaced and a left proximal humerus fracture which was undisplaced.
On the 27/5/22 Maureen underwent a right tibial shaft open reduction and internal fixation. X rays at the time also demonstrated a left distal tibial shaft fracture. Her surgical treatment was of the right tibial fracture, whereas her left wrist, left shoulder and left ankle were treated non-operatively.”
The claimant, following discharge from hospital underwent rehabilitation, physiotherapy and had occupational therapy needs assessments. Her goal was to progress to walking with one walking stick which was her pre-accident level and to regain range of motion and strength in her left arm to allow here to undertake light cooking tasks.
X-rays revealed;
“X-ray report of the left ankle and shoulder dated 2 Jun 2022: Plaster obscures bone detail around the ankle. Alignment is roughly anatomic. There is very subtle impaction of the humeral neck fracture with subtle indistinctness of the margins possibly suggesting early healing.
X-ray report of the left humerus dated 25 May 2022: Non-displaced longitudinally oriented intra-articular fracture involving the distal tibia. Displaced avulsion fracture involving the lateral talus. Mild cortical irregularity involving the dorsal aspect of the talar head is equivocal for a fracture - for clinical correlation with point tenderness (see key images). Normal alignment of the imaged joints. Small ankle joint effusion. Calcaneal spur involving the plantar fascia origin.
CT trauma dated 25 May 2022:
Head: No skull fracture. No intracranial bleeding or surface fluid collection. Grey-white matter differentiation is preserved. No hydrocephalus. No mass or raised intracranial pressure.
Cervical spine: No fracture. Alignment is normal. No epidural haematoma.
Chest: No acute aortic injury. No PE. No cardiomegaly or pericardial effusion. No mediastinal haematoma. No hydropneumothorax. No acute lung injury. Patchy opacity in the anterior segment right upper lobe. Otherwise, the lungs and pleural spaces are clear. Impacted left surgical humeral head fracture. No other fracture. Severe left shoulder joint arthrosis.
Abdomen and pelvis: No acute hollow viscus or solid organ injury. No acute abdominal vascular injury. Cholelithiasis. Moderately severe sigmoid diverticulosis. No haematoma. No fracture.
CT right shoulder: No fracture or dislocation. Mild glenohumeral and moderate acromio clavicular joint arthrosis.
CT right leg: Transverse minimally displaced fracture through midshaft right tibia and minimally displaced and cyst fracture through proximal third shaft right fibula. Moderate talocrural joint arthrosis with several subarticular cysts. No dislocation. Mild knee joint arthrosis.
Conclusion: Impacted left humeral surgical neck fracture. No right humeral fracture or dislocation. Transverse fracture through proximal right fibula and mid-shaft tibia.”
Panel medical examination
The claimant was examined by Medical Assessor Oates on 3 May 2024. His report follows;
“REASONS
Details of who attended the Assessment
Ms Gray was assessed by Medical Assessor Oates on behalf of the Medical Review Panel on 3 May 2024 as arranged.
Her son-in-law, Mr Jeff Shields, accompanied her and assisted her with removal and replacement of her raincoat and shoes, as she had difficulty with undressing and redressing because of left shoulder restriction.
Ms Gray has unilateral hearing loss.
HISTORY
Pre-accident medical history and relevant personal details
Ms Gray has had a left cerebral aneurysm in the past which did not require surgery. She has ischaemic heart disease and had a single coronary stent placed in 2021.
In 2015, she became off balance and fell and hit her head, suffering a subdural haematoma.
She twisted her ankle and fractured it, and also had an Achilles tendon rupture which was treated in a moon boot; this was at some stage prior to the accident but she can’t remember when.
She is on medication for high blood pressure and high blood lipids. She does not recall having swollen ankles from any cause prior to the motor vehicle accident.
She recovered satisfactorily from the previous fractured left ankle.
She lives alone in a one-bedroom unit at Eurobodalla Retirement Village at Newport, an independent retirement village, and has been there for over 20 years.
Before the accident she did her own personal care and housework. There was no yard work to do, as this was covered by the Body Corporate.She enjoyed jewellery making, cooking, painting and going to concerts at the Opera House, and she was a member of the U3A (University of Third Age). She did swimming in an aquatic centre at Hornsby.
I asked the claimant about the physiotherapy discharge summary from Northern Beaches Hospital, which stated that she was using a walking stick before the accident, and she said that this was untrue and that she did not require or use a walking stick or walker before the accident. She said that if she had an episodic event of dizziness and loss of balance, she would take a Stemetil, which was prescribed for this, and hold onto the wall for support if she had to move around, but otherwise stay home and rest.
Before the accident she would take public transport consisting of community bus which took residents once a fortnight to shops, and she would also catch public buses when going to her daughter’s place or to the swimming pool.
Ms Gray is 88 years old and has long retired from the workforce, being in receipt of an aged pension. She previously worked in hospitality.History of the motor accident
Ms Gray stated she is right hand dominant.
She said that on 25/05/2022, she was walking up a narrow inclined driveway out of the village to the bus stop on Barrenjoey Road, when a car turned left and started coming down the driveway and knocked her. The car was being driven by another resident, but Ms Gray believes the car was travelling faster than 5kph, although she does have a patchy memory of events after the accident.
She says the car struck her right leg and knocked her over and she landed on her left side. Thereafter, the details were patchy.
Bystanders came to offer assistance. An ambulance arrived and police also attended.
History of symptoms and treatment following the motor accident
She was conveyed by ambulance to Northern Beaches Hospital and had trauma CT scans. She sustained an injury to the left shoulder consisting of impacted fracture of the surgical neck of the humerus and she also had a transverse fracture through the right mid-tibial shaft and proximal fibular shaft.
On the left side there was an undisplaced intra-articular fracture involving the distal tibia with a displaced avulsion fracture involving the lateral talus and equivocal appearance of fracture on the dorsal aspect of the talar head.She was under the care of Dr J Yu, orthopaedic surgeon, who operated on 27/05/2022 inserting a right infrapatellar tibial intramedullary nail with distal and proximal locking screws. The left ankle was treated conservatively in a Cam boot. Her right leg was placed in a brace post-operatively. Her left shoulder was treated conservatively by use of a sling.
She was discharged from Northern Beaches Hospital on 31/05/2022 and directed to have physiotherapy.
She was non-weight-bearing on the left leg and was in a wheelchair for eight weeks. She was admitted to Lady Davidson Hospital for rehabilitation on 7/06/2022. She underwent range of motion exercise and balance exercise and gait retraining, with exercises for the left shoulder to assist mobilisation of this part.
X-rays on 6/07/2022 demonstrated callus formation and healing of fractures.
She saw Dr Yu for follow-up on 12/07/2022 who noted that tibial fractures on the right had healed well in good position, with only minimal evidence of a left medial malleolar fracture, with the left shoulder fracture impacted but in an appropriate position. She was allowed to come out of the plaster and Cam boot and continue rehabilitation, but was not to weight bear on either lower extremity.
She was discharged from Lady Davidson Hospital on 18/08/2022 and reviewed by Dr Yu on 31/08/2022. She was mobilising well on a four-wheel walker. She was allowed to fully weight-bear on both legs but Dr Yu felt her shoulder would take the longest to recovery.
The physiotherapist had planned to progress her onto a walking stick, but she did not feel confident with this and would only use this briefly at home indoors or for very short distances outside, such as to the line, but would use her four-wheeled walker elsewhere.
Because of continuing restriction with active movement of the left shoulder the GP, Dr J Healey, Asquith, referred her to a surgeon at the SAN for review of the left shoulder. He could not guarantee that an operation to re-fracture and re-set the humerus would be successful, so she did not proceed with surgery.
Details of any relevant injuries or conditions sustained since the motor accident.
She stated to have had no new injuries or conditions develop since the motor accident.
She has had some falls from episodes of vertigo but no serious injury.Current symptoms
Her main problem is left shoulder stiffness preventing her from lifting the arm into elevation. She has aching in the left shoulder joint radiating into the left upper arm if she attempts this movement. She can’t wash and comb her hair with the left hand.
She used to have a lump over the upper left arm but it is less noticeable now.
Her right knee is swollen most of the time and the right ankle and leg swell at times. She has been given compression stockings (below knee) which she wears at times, particularly in cold weather, but they are uncomfortable in warmer weather.
She has pins and needles from the knee to the proximal lateral shin.
She can’t kneel because of knee pain, so has a pick-up stick to get objects off the floor. She feels she has satisfactory range of movement in the legs. Her left leg also swells at times but she can move it OK and it is not painful and there are no pins and needles.
She finds her right leg is more limiting than the left for walking and for performance of ADLs.
She can walk without her walker for only about 3 metres at one time and will hold furniture or the walker for support. With the walker, she can walk about 100 metres or so and if she is on her feet too long, her legs swell more.
An ACAT assessment was done and she was provided with handrails at the back door and in the shower, and she uses a shower chair. She also has an over toilet seat frame. This was covered by her aged pension.
Since the accident, her daughter now does most of the cooking, preparing meals for her and then freezing them. They have turned off the stove and she just uses a small skillet and microwave for heating things up.
She self-funds a cleaner who comes once a fortnight for general cleaning and also for changing linen and they hang out any washing when it is done. Ms Gray has difficulty with household tasks, because she can’t lift the left arm above shoulder height.
Current and proposed treatment
She exercises with a pulley at home to practise elevation of the left arm.
There are no specific medications for the effects of her injuries.
Her current medications are Atacand, Clopidogrel, Crestor, Pradaxa, Ostelin Vitamin D, Salbutamol inhaler, Seretide inhaler, and Coloxyl. These medications are for general health conditions.EXAMINATION
General presentation
She entered the examination room using a four-wheel walker frame fitted with brakes. She was able to walk a few steps from the walker, left at the foot of the examination couch, to the chair at the interview table. Her gait was slow.
She had restricted range of movement of the left arm and discomfort in the left shoulder noted when she tried to position herself on the examination couch using her left hand.
Her son-in-law assisted her with removal and replacement of her raincoat and footwear on the left foot.
Upper extremity
Active range of movement was measured with a goniometer.
Range of Movement of Shoulders Movement Right shoulder ROM Left shoulder ROM Flexion
140° (3% UEI)
60° (8% UEI)
Extension 50° 50° Abduction 110° (3% UEI) 60° (6% UEI) Adduction 40° 30° (1% UEI) Internal rotation 70° (1% UEI) 60° (2% UEI) External rotation 80° 30° (1% UEI) Girth of right upper arm 31.5cm, left 31cm.
Lower extremity
There were well-healed surgical scars on the right leg from insertion of intramedullary rod to the right tibia.
Calf girth; right 32.5cm, left 33cm.
There was swelling about the left ankle with girth of right ankle 25cm and left 27cm.
There was no pitting oedema in the pretibial or ankle areas.
Sensation was intact in both legs.
Active range of movement of ankles, subtalar joints and knees were measured with a goniometer.
Range of Motion of Ankles Movement Right ankleROM Left ankle ROM Dorsiflexion
5° (7% LEI)
20°
Plantar flexion 30° 40°
Range of Motion of Hind Feet Movement Right hindfoot ROM Left hindfoot ROM Inversion
15° (2% LEI)
20° (2% LEI)
Eversion 10° (2% LEI) 15°
Range of Motion of Knees Movement Right knee ROM Left knee ROM Flexion
110°
120°
Extension 0° 0°
Valgus 4° bilaterally.
There was no rotational or angular deformity in the right lower leg resulting from the healed tibial fracture.
Consistency of presentation
I asked the claimant about the inconsistency in the active range of movement of the left shoulder when measured at my examination today, compared with that recorded by Assessor Shahzad, and the claimant replied that she was not able to flex to 90° or abduct the left shoulder to 120°, as recorded by Assessor Shahzad. She questions the accuracy of these measurements.
Imaging
There were no investigation films or reports brought to this assessment.
DETERMINATIONS
Diagnosis and causation
There were injuries to the left shoulder and right and left lower extremities.
The left shoulder was the site of an impacted fracture of the surgical neck of the proximal left humerus. The accident was a cause of this injury, as it is documented in the hospital records dating from the time of the accident.
The diagnosis for the right leg is transverse fracture throughout proximal right fibula and mid-shaft of tibia. The accident was a cause of this injury because it is documented in the hospital records from the date of accident.
The injury to the left lower extremity consists of displaced avulsion fracture of lateral talus, non-displaced intra-articular fracture of distal tibia, and probable fracture of dorsal aspect of talar head. The accident was a cause of this injury, as it is also documented in the hospital record from the date of accident.
There was no evidence of any pre-existing condition causing permanent impairment in existence prior to the subject motor vehicle accident affecting these body parts.
CONSIDERATIONS
Regarding the claimant’s balance difficulties and whether this arises from the diagnoses of Syncope, a previous cerebellar stroke or benign paroxysmal positional vertigo (BPPV) the claimant stated she did not use a stick pre-MVA when asked directly. She did experience balance difficulty at times due to BPPV, which was treated with prochlorperazine and rest.
The claimant has submitted that the Medical Assessor failed to provide evidence of an assessment to the claimant’s balance following the accident. The claimant was observed to be unsteady on her feet when walking without an aide due to lack of confidence following her musculoskeletal injury, however this was not due to vertigo. A balance disorder examination was not within the remit of this examination because this requires assessment by an ear nose and throat specialist.
The insurer says the Medical Assessor failed to provide evidence of an examination relating to the possible presence of lower limb muscle weakness and muscle circumference measurements of the thigh and calf as required by sections 6.81 and 6.83 of the Guidelines. The insurer says this is required because of the claimant reporting symptoms of weakness following the accident. The Panel responds that accurate measurements of lower extremity girth are invalidated because of the presence of swelling in the legs. There was no pathological weakness such as give way on weight bearing on examination of the lower extremities.
The claimant, before the Medical Assessor, complained of pins and needles and numbness. The Medical Assessor did not say what the cause of this was. The claimant did complain about this at the time of examination, but the symptoms were localised to the lateral right knee region. However, there was no abnormality of sensation present to indicate a peripheral nerve lesion. A diagnosis would only be speculative in the absence of investigation by a neurologist.
The insurer says assessment of the lower legs at levels of both knees and ankles should be in line with paragraph 6.84 of the Guidelines. The Panel responds that range of movement is the most specific method of permanent impairment assessment, which was why the Panel adopted this method.
The insurer says that the Medical Assessor stated there was no significant displacement of the lower limb fractures to use a category in table 64A of the Guidelines. The insurer says that the Guidelines do not specifically state the use of table 64 should be exclusively for fractures with displacement. The Panel responds that Table 64 covers a host of different conditions, but in fractures of the long bones of the lower extremities, specifically tibial shaft fracture, the injury being dealt with here, only malalignment of the healed fracture attracts a rateable permanent impairment.
The claimant has submitted, amongst other things, that the deduction for pre-existing impairment was appropriately made on the basis that the claimant had a previous ankle fracture and history of osteopenia. The Panel responds that there is no documented evidence of loss of active range of motion of the ankle or other abnormality assessable according to p. 101 of the Guidelines prior to the accident. Osteopaenia is not a rateable condition per se, being a state of reduced calcium content of bone.
PERMANENT IMPAIRMENT
At the left shoulder there is measurable loss of active range of motion resulting in an assessable impairment.
Flexion 90° gives 8% UEI, abduction 120° gives 6%, 50° adduction gives 1%, 60° internal rotation gives 2% and 30° external rotation gives 1%. Adding these gives 18% UEI.
At the uninjured and asymptomatic right shoulder there is age-related loss of active range of motion in elevation and rotation.
Flexion 140° gives 3% UEI, abduction 110° gives 3% UEI and internal rotation of 70° gives 1% UEI. Adding these gives 7% UEI.
Clause 6.51 of the SIRA Guidelines states that if a contralateral uninjured joint has a less than average mobility, the impairment values corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint.
In my opinion this situation applies here, as there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury owing to the advanced age of the claimant.
It is widely accepted by clinicians that older subjects gradually lose active range of movement, particularly in elevation, at the shoulders.
The claimant did not consider that she had any abnormal loss of active movement in the uninjured right side.
18% minus 7% gives 11% UEI which is equivalent to 7% whole person impairment.
There is no assessable permanent impairment from loss of active range of motion in the right knee or left knee, however there is assessable impairment arising from loss of active movement in both the right ankle and left ankle.
At the right ankle, extension 5° gives 7% lower extremity impairment (LEI) and at the right subtalar joint, inversion 15° gives 2% LEI and eversion 10° also gives 2% LEI.
The impairment from inversion and eversion cannot be combined as they lie within the same table, however the impairment from extension can be combined with the higher value from the subtalar joint table in accordance with the SIRA Guidelines.
7% combined with 2% gives 9% LEI which is equivalent to 4% whole person impairment.
At the left ankle there is also loss of active range of motion in the subtalar joint. Inversion 20° gives 2% LEI which is equivalent to 1% WPI.
Table 6.78 of the SIRA Guidelines says assessment of impairment based on gait derangement should be used as a method of last resort. Methods most specific to the nature of the disorder must always be used in preference.
In this case, there is measurable loss of active range of motion in the right and left ankles, which is a more specific method of assessing impairment, considering the nature of the injuries, and is preferred in this case to assessment by way of gait derangement.
At the right ankle and subtalar joint, 7% combined with 2% gives 9% LEI, equivalent to 4% WPI.
At the left ankle 2% LEI is equivalent to 1% WPI.
The combined impairment is 7% WPI from the left shoulder combined with 4% WPI from the right ankle subtalar joint combined with 1% WPI from the left ankle, resulting in 12% whole person impairment.”
The Panel adopts the report of Medical Assessor Oates.
Causation
The claimant was involved in a pedestrian versus car collision. She was 86 years old at the time of the accident and she was collided into at about 5kmph by a car.
In the circumstances the Panel is satisfied that the claimant did suffer the injuries the subject of this claim as a result of the accident.
The table of assessment is as follows;
Body part or system
AMA4 Guides/Guidelines
(Chapter/page/
Table)
Permanent
(Yes/No)
Current %
WPI
%WPI from pre-existing OR
Subsequent causes
% WPI due to motor accident
1
Left ankle
Ch 3,T 42-44, p. 78
Yes
1
0
1
2
Left leg
Refer to left ankle
3
Right leg
Ch 3, T 42-44, p. 78
Yes
4
0
4
4
Left shoulder
Ch 3, T 3, p. 20, Fig. 38, 41, 44 p. 43 - 45
Yes
7
0
7
Total degree of permanent impairment
12
CONCLUSION
The Panel is satisfied that the following injuries referred to it for assessment of WPI were caused by the accident;
(a) injury to left ankle - musculo-ligamentous strain injury, soft tissue injury, medial plafond fracture and small posterior malleolus fracture;
(b) injury to left leg - musculo-ligamentous strain injury, soft tissue injury, left distal tibia and displaced avulsion fracture involving the lateral talus;
(c) injury to right leg - musculo-ligamentous strain injury, soft tissue injury, transverse fracture through proximal right fibula and mid-shaft tibia, and
(d) injury to left shoulder - musculo-ligamentous strain injury, soft tissue injury, left proximal humerus fracture.
The Panel finds that the claimant has a total WPI assessment of 12%.
DETERMINATION
The Panel revokes the certificate dated 12 October 2023 of Medical Assessor Shahzad.
The following injuries were caused by the accident;
(a) injury to left ankle - musculo-ligamentous strain injury, soft tissue injury, medial plafond fracture and small posterior malleolus fracture;
(b) injury to left leg - musculo-ligamentous strain injury, soft tissue injury, left distal tibia and displaced avulsion fracture involving the lateral talus;
(c) injury to right leg - musculo-ligamentous strain injury, soft tissue injury, transverse fracture through proximal right fibula and mid-shaft tibia, and
(d) injury to left shoulder - musculo-ligamentous strain injury, soft tissue injury, left proximal humerus fracture.
The Panel finds that the claimant has a total whole person impairment assessment of 12%.
0
3
0