Haasjes v Coates Hire Operations Pty Ltd
[2022] NSWPICMP 360
•14 September 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Haasjes v Coates Hire Operations Pty Ltd [2022] NSWPICMP 360 |
| CLAIMANT: | Ronald Haasjes |
| INSURER: | Coates Hire Operations Pty Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Dr Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Dr Shane Moloney |
| DATE OF DECISION: | 14 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 25 January 2017 when his right hand was crushed between Armorzone water-fill barriers and the combing rail of a truck suffering partial amputations of the little and ring fingers; the issue was the extent of permanent impairment; late report filed by claimant rejected due to minimal evidentiary value; no explanation for late service contrary to Panel direction and delay to matter if accepted; the claimant was assessed for the amputation of the PIP joints of both ring and little fingers as well as total sensory loss; Panel accepted that right shoulder problems arose due to secondary consequence of amputation and also due to persistent protective postures that were observed during the examination; right shoulder assessed after deducting left shoulder loss of movement; claim that there was overuse of the left arm rejected; Held – claimant reassessed at 12% permanent impairment. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 25 October 2021 and issues the following certificate:1. The degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%.2. |
REASONS
BACKGROUND
Mr Ronald Haasjes (the claimant) was involved in a motor accident on 25 January
2017 during the course of his employment with Coates Hire Operations Pty Ltd (Coates Hire). Mr Haasjes right hand was crushed between Armorzone water-fill barriers and the combing rail of a truck suffering partial amputations of the little and ring fingers.Coates Hire is the owner of the motor vehicle liable to pay Mr Haasjes any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the 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 MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. 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 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor Ho who issued a medical assessment certificate dated 25 October 2021. Medical Assessor Ho determined that the permanent impairment as a result of the injury caused by the motor accident was not greater than 10%.
THE REVIEW
The application for referral of the medical assessments to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 17 May 2022, the President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
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 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 provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (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.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles.
MEDICAL ASSESSMENTS
Medical Assessor Ho found that the claimant suffered a crush injury to the right hand, complicated by the development of a frozen shoulder. The Medical Assessor concluded that the frozen shoulder led to neck stiffness with mild loss of flexion and extension.
The Medical Assessor assessed the right hand at 4% and the right shoulder at 4% resulting in an overall impairment of 8%.
Medical Assessor Curtin provided a certificate dated 2 November 2021 when he assessed the impairment of the skin at 0%. There was no application to review that assessment.
Medical Assessor Curtin assessed the scarring associated with right finger amputation and surgical repair. The Medical Assessor stated:
“Scarring falls into the 0% WPI category because the claimant is barely conscious of the scars, there is a good colour match with surrounding skin, no visible suture marks, no contour defect, no adherence and no treatment is required. Although the scars are located in a clearly visible location, the scars themselves cannot be seen beyond a distance of about 30 cm.”
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 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.1.7 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[6]. In Raina v CIC Allianz Insurance Ltd[7] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[6] See s 3B(2) of the Civil Liability Act 2002.
[7] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the initial Direction.
A late report from Dr Bodel was forwarded to the Panel on 22 August 2022. The insurer objected to the report, and it was not provided with an opportunity to respond.
The report had minimal if any evidentiary value as it did not enlarge on what was discussed in the earlier reports. The claimant did not explain why it engaged a report when the matter was before the Panel and contrary to our initial direction.
The doctor opined in the further report that there was a rotator cuff injury to both the right and left shoulders. The rotator cuff injury to the right shoulder was said to be aggravated when the claimant suffered a traction injury at the time of the accident to both the cervical spine and the right shoulder. For the reasons expressed later, the Panel does not accept that there was a traction injury.
The doctor also mentions a traumatic injury from the accident to the right epicondylitis without explaining how this occurred. Later the right elbow is said to be “a consequential injury following the prime injury to the right hand and wrist”. This statement is a bare opinion without any reasoning as to how the right epicondylitis was “consequential” to the traumatic amputation. The opinion is otherwise contradictory to what was expressed in the earlier paragraph that the right epicondylitis arose as a “traction component” of the initial incident.
The left shoulder condition is said to be “overuse” due to favouring the right side. The nature of this “favouring” and overuse of the left side is not evident from the report. It is otherwise unclear why overuse of the left side would cause impairment in the left shoulder. In our view, normal use would only strengthen the left shoulder. There is no medical reason that normal use of the left arm would cause any structural abnormality and we do not accept that there was any. In any event Dr Bodel does not provide an assessment of impairment of the left shoulder.
Dr Bodel then assessed impairment of the right hand, elbow, shoulder, neck and scarring. For the reasons articulated subsequently, we do not accept that the epicondylitis was caused by the motor accident.
We have considered the recent opinion from Dr Bodel to be of limited use in our determination of the assessment of permanent impairment. The report is rejected. The claimant did not otherwise explain why it was obtaining late evidence when the matter was before the Panel and its evidentiary value is otherwise low. Further, the insurer would be prejudiced by the late admission.
Contemporaneous records
The ambulance records refer to a crush injury to the right hand after which the claimant “quickly pulled out his hand from between the barriers”.[8]
[8] Claimant’s bundle, page 84.
Hospital records refer to traumatic amputation of the tips of the fourth and fifth fingers.[9] Neurological examination showed pin and needles in the median nerve of the right arm.[10]
[9] Claimant’s bundle, page 91.
[10] Claimant’s bundle, page 18.
A certificate dated 31 January 2017 referred to amputation of the tips of the fourth and fifth fingers of the right hand.[11]
[11] Claimant’s bundle, page 31.
Claim form
Mr Haasjes completed a claim form dated 9 May 2019.[12] He described the motor accident occurring when the “forklift driver proceeded to unload truck and applicant’s right hand was subsequently crushed between truck edge and barriers”. The injuries were described as partial amputation of the fourth and fifth fingers of the right hand, pain in the right upper limb and “overuse and overreliance” of the left upper limb.
Treatment records
[12] Claimant’s bundle, page 19.
On 22 March 2017 Dr Nouh, orthopaedic surgeon, stated that Mr Haasjes was “doing well and continues to improve”.[13] The main issue at that time was weakness and grip strength.
[13] Insurer’s bundle, page 70.
On 4 April 2017 Dr Khosravifar, general practitioner referred Mr Haasjes to
Dr Mahanidis for acupuncture to improve grip strength.[14][14] Claimant’s bundle, page 97.
On 18 April 2017 Dr Haig noted continual improvement with grip strength from twice weekly hand therapy.[15] On 5 May 2017 Dr Haig noted continued improvement although there was report of “pain extending from neck/shoulder/upper arm/ ulna forearm and into the fingers” described as a “tight pulling pain”.[16] These complaints were noted on clinical records dated 23 April 2017[17] and 5 May 2017.[18]
[15] Claimant’s bundle, page 98.
[16] Claimant’s bundle, page 99.
[17] Claimant’s bundle, page 223.
[18] Claimant’s bundle, page 226.
On 31 July 2017 Mr Haasjes underwent revision amputation surgery through the DIP joint of the fourth and fifth fingers.[19] Subsequent treatment noted progression with some hypersensitivity.[20] In late 2017 hypersensitivity to cold weather was observed with colour change.[21]
[19] Claimant’s bundle, page 117.
[20] Claimant’s bundle, pages 118 – 123.
[21] Claimant’s bundle, pages 127 – 131.
In February 2018 Dr Tawfik noted worsening sensitivity with cold intolerance and difficulty with hand function.[22]
[22] Claimant’s bundle, page 133.
On 11 May 2018, Dr Tan, physician, noted ongoing dysesthesia. Recent bone scan was suggestive of osteoarthritis rather than complex regional pain syndrome (CRPS).[23]
Dr Tan subsequently recommended Ketamine infusion therapy treatment for CRPS of the right hand.[24][23] Claimant’s bundle, page 138.
[24] Claimant’s bundle, page 146.
Dr Khor, physician provided a further opinion dated 3 June 2019.[25] The doctor diagnosed neuropathic pain with localised form of CRPS Type 2. Various treatment recommendations were made.
[25] Claimant’s bundle, page 162.
Dr Mahanidis commencement his treatment regime on 18 April 2017. The doctor noted cervical and thoracic tension as a result of the trauma caused in the accident.[26]
[26] Claimant’s bundle, page 167.
In late 2019, Dr Stuart Tan, physician, noted recent reduction in neuropathic pain and cessation of pain relief medication.[27] In July 2020 Dr Tan noted increase in pain and cervical spine symptoms.[28]
Qualified opinions
[27] Insurer’s bundle, page 100.
[28] Insurer’s bundle, page 104.
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 22 June 2020.[29] The doctor opined that there was a traction injury to the neck at the time of the accident and a crush injury to the hand. There were no ongoing signs of CRPS which had been previously diagnosed.
[29] Claimant’s bundle, page 74.
Dr Bodel assessed 9% impairment of the right upper limb due to loss of movement, associated sensory loss and scarring. He also assessed 5% impairment of the cervical spine.
Associate Professor Allan Molly, pain physician, provided a report dated
18 December 2018.[30] Complaints at that time were limited to the hand radiating up to the elbow when the fingers tapped against a hard surface. There were no other reports of pain sites in the body.[30] Insurer’s bundle, page 36.
Associate Professor Molloy opined that Mr Haasjes had regional pain syndrome although did not meet the Budapest criteria for a diagnosis of CRPS. He opined that the literature supporting the benefits from Ketamine injections was weak and did not support that treatment.
In a further report dated 17 September 2019[31] Associate Professor Molloy noted
Dr Khors’ recent opinion that Mr Haasjes had CRPS. In those circumstances the doctor supported Ketamine injection therapy.[31] Insurer’s bundle, page 41.
Dr Howard De Torres, hand surgeon, provided a report dated 10 July 2020.[32] The doctor diagnosed traumatic crush injury resulting in traumatic amputations and the development of four neuromas.
[32] Insurer’s bundle, page 43.
In a further report dated 6 October 2020,[33] Dr De Torres assessed whole person impairment at 8%.
[33] Insurer’s bundle, page 50.
Dr John Bentivoglio, orthopaedic surgeon, was qualified by the insurer and provided a report dated 3 December 2020.[34] The doctor noted cervical spine symptoms commenced 12 months earlier and were constitutional in origin.
[34] Insurer’s bundle, page 53.
Dr Bentivoglio assessed loss of movement in the middle finger as well as loss associated with the partial amputations in the little and ring fingers. He assessed permanent impairment at 11%.
In a further report dated 18 January 2021,[35] Dr Bentivoglio noted that there was no forcible extraction of the hand when it was crushed as the fingers were amputated. The doctor otherwise noted that the extensive delay in onset of cervical symptoms was not explained by the motor accident.
[35] Insurer’s bundle, page 61.
Radiology
The X-ray of the right hand dated 22 February 2017 confirmed amputation of the tips of the right ring and little fingers at the level of the midpoint of the terminal phalangeal tuffs.[36] A repeat X-ray dated 1 June 2017 confirmed the extent of the amputation.[37]
[36] Claimant’s bundle, page 96.
[37] Claimant’s bundle, page 107.
Nerve conduction studies dated 20 July 2017 were within normal limits.[38]
[38] Claimant’s bundle, page 114.
A bone scan dated 1 May 2018 did not show findings of reflex sympathetic dystrophy or regional pain syndrome.[39]
[39] Insurer’s bundle, page 77.
The CT scan of the cervical spine dated 3 October 2019 showed cervical spondylosis with bilateral neural foraminal narrowing at the lower cervical levels.[40]
[40] Claimant’s bundle, page 166.
The MRI scan of the cervical spine dated 17 March 2020 reported degenerative changes with nerve root impingement from C4 to C7.[41] A bone scan dated
26 March 2020 showed low grade discovertebral changes from C4 to C6.[42]
SUBMISSIONS
[41] Claimant’s bundle, page 188.
[42] Claimant’s bundle, page 192.
The parties have filed multiple submissions in the course of the medical assessments. The following is only a summary of the extensive submissions.
We observe that this is a new assessment and there are various submissions directed to persuading the President’s delegate[43] that there was error or in seeking a further assessment. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error.
Claimant’s submissions dated 14 December 2020[44]
[43] Or the relevant predecessor.
[44] Claimant’s bundle, page 6.
The claimant noted the crush injury to the right hand and wrist in the motor accident and submitted:
“As an immediate reaction to the painful crush injury, the Claimant yanked his right arm upward to free his right hand and subsequently suffered a traction injury to his cervical spine.”
The claimant noted that complaints of cervical pain were recorded on 23 April 2017 and by Ms Anna Cooper on 5 May 2017. Reference was made to subsequent treatment and scans of the cervical spine.
Claimant’s submissions dated 25 March 2022[45]
[45] Claimant’s bundle, page 11.
These submissions were filed seeking leave to review the certificate issued by the Medical Assessor.
The claimant submitted that the motor accident only need be a contributing cause to the impairment. Further the impairment must be considered in terms of the discussion in Nguyen v The Motor Accidents Authority of NSW.[46]
[46] [2011] NSWSC 35 (Nguyen).
The claimant referred to the nature of the motor accident when his arm was “yanked” which was identified by Dr Bodel. He otherwise referred to the requirement to modify his domestic and employment requirements which also caused impairment of the cervical spine and left upper extremity.
Further the hospital notes on 25 January 2017 referred to “sensation medial nerve, right arm, pins/needles” which is evidence of cervical dysfunction.
Dr Theo Mahanidis confirmed in a report dated 31 October 2019 that Mr Haasjes presented to him for treatment on 18 April 2017 and opined that there were cervical and thoracic symptoms caused during the accident.
Even if it is not accepted that there was direct injury to the cervical spine, shoulder and elbow, the consequences of the injury have led to impairment given the immobilisation and altered mechanics by reason of the injury.
Insurer’s submissions dated 10 February 2021[47]
[47] Insurer’s bundle, page 29.
The insurer noted that the claim dated 7 October 2020 for lump sum compensation under the workers compensation legislation was the first notice of injury to the cervical spine. The respondent otherwise asserted that there was no “crush” injury to the hand and wrist.
The insurer submitted that there was a lack of evidence that the cervical spine pathology and that there is otherwise any restriction of movement in the cervical spine. Reports from Dr De Torres and Dr Bentivoglio do not support a causal relationship between any cervical spine condition and the motor accident.
Insurer’s submissions dated 2 March 2021[48]
[48] Insurer’s bundle, page 1.
The insurer noted that the reports of neck pain in April 2017 were associated with shoulder pain. On 29 May 2017 Ms Haig noted the shoulder pain had resolved.
The insurer emphasised the absence of complaint, the resolution of symptoms and the absence of the factual contention relied upon by Dr Bodel that there was a need to forcibly extract the hand resulting in pulling on the cervical spine.
Insurer’s submissions dated 19 April 2022[49]
[49] Insurer’s bundle, page 234.
Medical Assessor Curtin assessed the scarring at 0%. No review has been sought from that assessment.
The hospital records and initial clinical records do not record any reference to traction injury or cervical or left arm symptoms.
Upper right limb and cervical spine symptoms reported to Niki Haig on 5 May 2017 were reported to have resolved on 29 May 2017.
Dr Molloy examined the claimant on 14 December 2018 and noted symptoms up to the elbow. However, the claimant reported no other pain sites in the body.
The claim form dated 9 May 2019 referred to left arm symptoms but did not refer to cervical spine problems. In June 2019 Dr Khor recorded a spread of pain into the neck and arm regions. On 23 September 2019 the general practitioner noted the neck and shoulder pain had gotten worse over the previous couple of months.
Both Dr Bodel and Dr Bentivoglio stated the cervical spine scans show degenerative disease. The opinion provided by Dr Bodel in June 2020 is the first mention of a traction injury. The doctor did not think the condition was consequential and did not find any problems with the left upper extremity.
In December 2020 Dr Bentivoglio noted cervical spine symptoms of 12 months duration. Dr Bentivoglio did not think there was any cervical spine injury nor any consequential condition to the motor accident. He otherwise found no left arm symptoms.
The insurer emphasised that no doctor has opined that the condition of the cervical spine was consequential to the injury. In any event, the Medical Assessors findings for the cervical spine were of only mild loss of flexion and extension.
MEDICAL EXAMINATION
Mr Haasjes was examined by the Medical Assessors on 31 August 2022. Their joint examination report is as follows.
“History: Mr Haasjes is now 40 years old and works for a construction and hire company he is a truck driver by training, previously well and is married with three children. He is the sole breadwinner. He suffered a traumatic amputation of the ends of the ring and little finger of his right hand on 25 January 2017. He had a revision of the amputation three months after the original surgery. He spent considerable time receiving specialist hand care physiotherapy and rehabilitation. He is back at his former job working for a firm that he says is a good employer. He is mostly doing his normal duties with a few exceptions. He wears a lycra glove underneath the riggers gloves that his firm require as normal protective equipment.
His job was to deliver and collect temporary barricades. These are set up for traffic control and worker safety at construction sites. The barricades are made of plastic and filled with water at the site to add to their mass. The barricades are always transported and stored empty. Mr Haasjes uses a flatbed truck with an attached crane to make the deliveries and pickups. The barricades are usually stored in rows of 15, a second row of 15 may be put on the top. The barricades are secured by cables pass through fenestrations lifted off and on the flatbed truck at the work site using a crane on the truck try. At the depot barricades are moved using a forklift. The twines of which pass through the fenestrations “threading the needle” to allow the barricades to be lifted 15 at a time. Safe practice at the depot mandates the use of the forklift and the technique of threading the twines through the barricades before attempting to move them off the tray of the truck. The barricades can be dangerous to move, and Mr Haasjes reported a previous fatal accident handling the barricades at the depot. On
25 January 2017 Mr Haasjes made a routine pick up. The barricades had been properly stacked at a worksite, so he secured the cables and lifted them on the truck using the attached crane. The normal practice worksite would be for a forklift to lift the rows of barricades of the back of the truck and move them to a storage site. The first forklift driver doing the unloading did exactly this by inserting the tines of the forklift through the spaces in the barricades –‘threading the needle’. This requires skill. A second forklift driver came up to unload the remaining barricades and shows to push the barricades sideways on the tray of the truck to align them better and make threading the needle easier. Mr Haasjes was standing alongside the truck his right hand gripping the slightly elevated rim tray. He was not expecting forklift driver to do as he did, push the barricades towards the side of tray and therefore towards him, as this was not acceptable practice. Consequently, his little and ring fingers were jammed between the empty barricades and the rim on the tray. He suffered a traumatic amputation at the mid-distal phalanx level of the two smaller fingers. He attempted to pull his hand away when he saw what was about to happen. The fingertips remained in the glove which was pinned by the barricades to the to the lip of the tray.
He was taken to the Liverpool Hospital. The injuries were to the fingers were a mixture of crushing and ragged tearing and not suitable for reimplantation. His hospital stay was uncomplicated, but he did have persisting burning pain in both the ring and little finger. As it was only a partial amputation of the distal phalanx, the initial surgery was reinserting the fingernails back in a deformed and troublesome manner. The amputation was revised by specialist hand surgeon to the level of the distal interphalangeal joint. Healing was uncomplicated, dealt with the problem of abnormal nail growth but the continuous burning pain remained.
He was sent for specialist hand rehabilitation and saw several pain specialists. From his description of the medications provided and the personal therapy technique used the Panel believe he was being treated for reflex sympathetic dystrophy. Desensitisation techniques were used, pregabalin prescribed and the lycra glove was provided which he and wears under his riggers gloves. He was given slow release tapentadol totalling 200 mg a day and oxycodone as required also prescribed and are still regularly used. He also uses an analgesic prescription cream which needs to be made up by his pharmacist. His hands therapist reports complaints of neck discomfort and he has been seeing a chiropractor for neck manipulations
Mr Haasjes is now back at work, but he notices various aches and pains in the right arm, including in the region of the lateral epicondyle of the right humerus and right forearm muscles and pain in the region deltoid insertion.
He was assessed for impairment both for the amputations and for the persistent pain. Though his consulting doctors believed that there was an ongoing reflex sympathetic dystrophy the medical examiners did not report typical clinical signs of this. A ketamine infusion was trialled (Dr Tan) parenthesis. This gave some diminution degree of pain he suffered from for three months but only modest relief. The IME assessments were for the amputation.
His solicitors referred him to Dr James Bodel for a further opinion on 22 June 2020. Dr Bodel postulated the theory that there was a traction injury to the right arm from the accident causing the neck and arm complaints and assessed his cervical spine at DRE Category 2 and added a further 5% WPI. This is the first time a traction injury has been postulated.
Mr Haasjes strongly believes that a traction injury did occur in the accident and fully accepts the assessment of Dr Bodel.
Clinical examination:
Mr Haasjes is 186 cm tall in jogging shoes. He weighs 87 kg, the ideal weight for his height. He has a lean build with well-defined though not overly developed musculature. His general clinical examination is excellent. He can tip toe and heel toe walk, hop and squat and shows evidence of problems in the lumbar spine or lower limbs.
Cervical spine: extension is limited by pain to half normal range. Flexion brings his chin almost to his chest without discomfort, near normal range as is extension. Rotation is two thirds normal range right equals left side bending half normal range, right equals left. There is some mild tenderness to firm palpation over the cervical musculature and trapezius but no spasm or guarding, right equals left. Neurological examination is detailed under the upper limb section but apart from the effects of the amputation is entirely normal.
Mr Haasjes has not suffered a traction injury as the cause of his pain. Such injuries require damage to the brachial plexus. Simple traction on the arm with an unrestrained head will not do this. It needs the combination of very forceful lateral flexion of the head and neck away from the injured side in combination with a downward force on the shoulder girdle. To cause an injury you must violently stretch the nerves of the upper arm from both directions. His head was completely unrestrained in the injury. However vigorously he withdrew his arm at impact his hand is not fixed, as already pointed out by Dr Bentivoglio, his fingertips were left behind in his glove so there is no traction on the arm. Depending on the violence of the injury the effects may vary from transitory irritation – a common injury in competitive sports and called a burner all the way through to a high-speed motorcycle crash when there may be serious and permanent injury to the brachial plexus with immediate paralysis. In either case, or anything in between, the effects are immediate. It is possible to slowly develop some neck pain and stiffness from overprotection of an injured arm, a view reinforced by his chiropractor.
Upper limbs: there is well-defined musculature in the arms and forearms. There is no wasting to palpation or observation about the right deltoid or rotator cuff. Shoulders were measured with a goniometer and the Rangers recorded in the table. Special clinics signs such as mid arc impingement are normal. Scapular thoracic movement is normal.
Right Right Right supine left Flexion 120° 120° 130° 140° Extension 50° 50° – 60° Abduction 130° 120° 130° 140 Adduction 60° 60° 60° 60° External rotation 90 90 90 90° Internal rotation 90 90 – 90°
There is a net 2% UEI of the right shoulder when compared to the left shoulder due to secondary consequence of amputation and also due to persistent protective postures that were observed during the examination.
Elbows, wrists, and fingers other than the right and little finger have a normal range of movement. There is mild tenderness in the extensor muscles of the right forearm which is not affected by wrist position and stretching.
The girth of the arms are 28 cm right equals left, the forearms 28 cm on the right cm and 27 cm on the left. Grip strength is 4/5 on the right, strength is otherwise 5/5 right equals left. The biceps, triceps and supinator jerks are symmetrical and moderately brisk.
The right-hand. The skin of the right hand is paler than the skin of the left hand. The colour ends at the wrist and corresponds exactly with the lycra glove that Mr Haasjes habitually wears. Skin colour is otherwise normal, capillary return is brisk, the dorsal veins prominent and there is no change in temperature or hair growth. Mr Haasjes does not have a reflex sympathetic dystrophy.
Skin sensation was marked out using a 5 mm spaced pinwheel. Sensation for two-point discrimination and light touch in both arms, forearms, and left hand and in the right thumb, index and middle fingers of the right hand on volar and dorsal aspects. Movements of both hands are full and fingers including normal flexion at the proximal interphalangeal joints of both the ring and small fingers but with a 20° loss of flexion at the distal interphalangeal joint of the small finger. There is a most unpleasant intrusive sensation response on the palmar aspects of the amputated fingers at the proximal interphalangeal level, dysaesthesia. There is no two-point discrimination, there is complete anaesthesia as well. The distribution of the abnormal sensation is well-defined and corresponds to the terminal branches of the ulnar nerve and the radial sided branch of the median nerve to the ring finger. Mr Haasjes has hypersensitivity in the amputated digital nerve stumps. Injured nerves often become hyperexcitable when trapped in scar tissue. This is called stump neuroma.
Figure 3 of AMA 4 p 18 assigns a 5% impairment of the hand for each amputation at the distal interphalangeal joint level for the ring and small fingers. This totals 10% hand impairment. Table 2 of AMA 4 p 19 equates 10% hand impairment to 9% upper extremity.
There is total sensory loss for the radial palmar branch of the median nerve to the ring finger and the ulnar branch of the ulnar nerve to the ring finger, and the radial and ulnar palmar branches of the ulnar nerve to the little finger.
The claimant has a total sensory loss based on the two-point discrimination test performed by the Medical Assessors (Figure 4 of AMA 4).
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[50] and Insurance Australia Ltd v Marsh.[51]
[50] [2021] NSWCA 287 at [40], [41] and [45].
[51] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the joint medical report of the Medical Assessors which is supplemented by the further reasons.
For the reasons expressed by the Medical Assessors in their joint examination report, we do not accept that there was a traction injury to the cervical spine.
We also observe that the claimant did not allege in the claim form dated 9 May 2019, completed over two years after the motor accident, that he injured his cervical spine in the motor accident.
The claimant otherwise referred to the reference in the hospital notes on 25 January 2017 to “sensation medial nerve, right arm, pins/needles” which he submitted was evidence of cervical dysfunction. However, the damage to the ring finger could also cause symptoms in the median nerve through an entrapment neuropathy and would explain those symptoms.
The claimant also relied on general symptoms emanating throughout the arm as recorded by Dr Haig in late April and early May 2017. Those symptoms did not accord with a specific dermatome from the cervical spine and probably reflect a variety of symptoms from damage to the traumatised fingers.
For the reasons provided by the Medical Assessors in the joint examination report, we accept that the claimant has developed symptomatology in the right shoulder described elsewhere as a frozen shoulder. That conclusion is consistent with and which we agree, with the opinion expressed by Medical Assessor Ho.
It is medically plausible that the frozen shoulder has caused some neck discomfort through altered biomechanics in the shoulder region whereby the disuse in the shoulder joint has placed strain on the muscles in the cervical spine causing discomfort. We agree with the opinion of Medical Assessor Ho that the development of the frozen shoulder probably led to neck stiffness with mild loss of flexion and extension. That conclusion is more consistent with the development of neck symptoms in 2019.
On the recent examination findings, Mr Haasjes is classified as DRE Category I because there is no dysmetria[52], non-verifiable radiculopathy or muscle guarding[53] which is required to establish DRE Category II.
[52] Non-uniform loss of range of spinal motion.
[53] See Tables 6.7 and 6.8 of the Guidelines.
Mr Haasjes noticed various aches and pains in the right arm, including the lateral epicondyle. However, no symptoms of epicondylitis were shown in the recent medical examination. The Panel otherwise does not accept that it is medically plausible that the motor accident could have caused a traumatic epicondylitis. There was otherwise full movement of that body part.
There is a lack of evidence that the use of the left arm caused symptoms in that body part. We reiterate our earlier comments that normal use of the uninjured left arm because there was weakness in the right arm, should strengthen the muscles in the uninjured part. There were otherwise no signs of abnormal pathology in the left arm. The claimant’s submissions of “overuse” is rejected because the left arm performed as expected and there is no reason why normal activities would damage that joint.
ASSESSMENT
The impairment of the little finger and ring finger due to amputation at the DIP is 5% hand impairment for each finger (Figure 3 AMA 4).
The sensory loss of the radial and ulnar sides of the ring and little finger is 5% hand impairment for each finger. The Medical Assessors have previously explained why the claimant has a 100% sensory loss for each finger (Figure 4 of AMA 4).
Pursuant to Figure 1 of AMA 4 the loss due to amputation of the DIP of each finger is combined with the sensory loss. Accordingly, the loss for the ring and little finger is each assessed at 10% hand impairment. These losses are added pursuant to Figure 1 resulting in 20% hand impairment for both fingers which equates to 18% upper extremity impairment (UEI) (Table 2 AMA 4). We also note that the requirement to add or combine as required by Figure 1 of AMA 4 is confirmed by clause 1.54 of the Guidelines.
This loss is combined with the further 2% UEI for the right shoulder which totals 20% UEI. Pursuant to Table 3 of AMA 4 this equates to 12% whole person impairment.
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
Medical Assessor Curtin assessed the permanent impairment of the skin at 0%. No review was sought against that assessment. This certificate is combined with that assessment.
CONCLUSION
The certificate issued by Medical Assessor Ho dated 25 October 2021 is revoked. The new certificate is attached at the commencement of these Reasons.
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