Hackett v Allianz Australia Insurance Limited
[2022] NSWPICMP 398
•12 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Hackett v Allianz Australia Insurance Limited [2022] NSWPICMP 398 |
| CLAIMANT: | Peter Hackett |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Dr David Gorman |
| MEDICAL ASSESSOR: | Dr Geoffrey Stubbs |
| DATE OF DECISION: | 12 October 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident in 1 April 2016; assessment of permanent impairment under the Motor Accident Compensation Act1999; fracture of the right third metatarsal; right foot/leg injury to superficial peroneal nerve; dispute as to whether subsequent falls and resulting injury to right shoulder; right ankle; right hip; right knee; and lumbar spine due to giving way of right leg causally related to injury sustained to right foot in accident; Held – no complaint of back pain and no assessable impairment; no abnormal findings and no assessable impairment in right hip, right knee or right ankle; injury to superficial peroneal nerve; no mechanism to explain why isolated cutaneous sensory loss would cause recurrent giving way; the accident has no more than a negligible contribution to the injuries resulting from the falls; right shoulder injury; right ankle joint injury; right hip injury, right knee injury and lumbar spine injury not caused by accident; no assessable impairment of right third metatarsal; 2% whole person impairment (WPI) for dysesthesia in the superficial peroneal nerve distribution and 1% WPI for dysesthesia in right sural nerve; total WPI for right foot crush injury 3%; atrial fibrillation previously assessed at 5% WPI; new combined certificate issued certifying a combined impairment of 8%. |
| DETERMINATIONS MADE: | The Panel revokes the Combined Certificate of Medical Assessor Samuel Mark Herman dated 24 May 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) of 8% which, in total, is not greater than 10%. · atrial fibrillation; · fracture of the right third metatarsal, and · right foot/leg – injury to the superficial peroneal nerve and injury to the sural nerve. The Panel revokes the Certificate of Medical Assessor Peter Steadman dated 11 January 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and do not give rise to a WPI which is greater than 10% but give rise to a WPI of 3%: · fracture of the right third metatarsal, and · right foot/leg – injury to the superficial peroneal nerve and injury to the sural nerve. The Panel finds the following injuries were not caused by the accident: · right shoulder injury – aggravation of right acromioclavicular joint osteoarthritis subacromial bursitis; · right ankle joint injury– deltoid ligament tear/strain; fracture; · right hip injury– soft tissue; · right knee injury– soft tissue, and · lumbar spine – soft tissue injury. |
REASONS
This is to certify that permanent impairment was assessed by a Medical Review Panel comprising Medical Assessor David Gorman, Medical Assessor Geoffrey Stubbs and Member Susan McTegg and by Medical Assessor Samuel Mark Herman.
Details of the assessments and full reasons are given in the following certificates:
Assessment 1
Certificate of the Medical Review Panel dated 10 October 2022
The permanent impairment in relation to the following injuries is 3%:
· fracture of the right third metatarsal, and
· right foot/leg – injury to the superficial peroneal nerve and injury to the sural nerve.
Assessment 2
Certificate of Medical Assessor Samuel Mark Herman dated 6 April 2021
The permanent impairment in relation to the following injuries is 5%:
· atrial fibrillation.
Using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, the combined permanent impairment is 8%.
REVIEW PANEL REASONS FOR DECISION
BACKGROUND
Mr Peter Hackett (the claimant) suffered injury in a motor vehicle accident on 1 April 2016 (the accident).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act, 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
OTHER MEDICAL ASSESSMENT REPORTS
[1] Sections 57 and 58 of the MAC Act.
Certificate of Medical Assessor Crocker
Medical Assessor David Crocker assessed the claimant and issued a certificate dated 3 June 2019. He certified a 1% WPI in respect of injury to the right lower extremity.[2]
[2] AD10 p 323.
Medical Assessor Crocker also determined a treatment dispute.
Certificate of Medical Assessor Mason
In a certificate dated 19 June 2019, Medical Assessor Mason determined that the claimant’s adjustment disorder with mixed anxiety and depressed mood had resolved, thereby giving rise to no assessable degree of impairment. There was a concurrent determination of the claimant’s treatment and care needs
Review Panel Certificate
A Medical Review Panel comprising Medical Assessor Samson Roberts, Medical Assessor Lorraine Dennerstein and Medical Assessor Peter Anderson reviewed the assessment of Medical Assessor Wayne Mason and issued a certificate dated 23 January 2020.[3]
[3] AD10 p 305.
The Review Panel concluded as a result of the accident the claimant had sustained a chronic adjustment disorder with mixed anxiety and depressed mood which resulted in a WPI of 4%. The certificate also determined a treatment dispute.
Further application for review
The matter was thereafter referred for further assessment due to a deterioration of the injuries previously assessed and seeking an assessment of additional injuries including a cardiac condition and a subsequent right shoulder injury. Medical Assessor Herman assessed the cardiac condition, and the remaining physical injuries were referred to Medical Assessor Steadman for assessment. It is the assessment by Medical Assessor Steadman which is the subject of this dispute.
Certificate of Medical Assessor Herman
Medical Assessor Samuel Herman issued a certificate dated 6 April 2021 certifying 5% WPI for atrial fibrillation.[4] Medical Assessor Herman assessed a 30% WPI which he reduced by 90% due to pre-existent and ongoing provocative factors. He stated:
“Whilst ‘alleged’ emotional stress from a minor leg injury may provoke an exacerbation of atrial fibrillation, his pre-existent atrial fibrillation in the setting of dilated atria, heavy ethanol consumption, COPD with ongoing smoking, are far more likely to have been provocative”.
[4] AD10 p 74.
MEDICAL ASSESSMENT UNDER REVIEW
In his certificate dated 11 January 2021 Medical Assessor Peter Steadman provided an assessment of 0% WPI in respect of injury to the right third metatarsal – fracture.[5]
[5] AD10 p 80.
The injuries referred to Medical Assessor Steadman for assessment were listed as follows:
· right shoulder – aggravation of right acromioclavicular joint osteoarthritis subacromial bursitis;
· right ankle joint – deltoid ligament tear/strain; fracture;
· right third metatarsal – fracture;
· right foot/leg – crush injury to superficial peroneal nerve;
· right hip – soft tissue;
· right knee – soft tissue, and
· lumbar – soft tissue injury.
Medical Assessor Steadman concluded the fracture of the right third metatarsal was caused by the accident but did not result in any permanent impairment. He stated there was no medical based evidence to support the contention that the subsequent conditions reportedly related to functional abnormalities associated with the right foot gait would result in permanent impairment. He found the diagnosis of the common peroneal nerve injury was not sustained on investigation and in regard to the right shoulder there was no anatomical relationship. Accordingly, he concluded the following injuries were not caused by the accident:
· right shoulder – aggravation of right acromioclavicular joint osteoarthritis subacromial bursitis;
· right ankle joint – deltoid ligament tear/strain; fracture;
· right foot/leg – crush injury to superficial peroneal nerve;
· right hip – soft tissue;
· right knee – soft tissue. and
· lumbar – soft tissue injury.
Combined certificate
A combined certificate was issued by Medical Assessor Samuel Mark Herman dated 24 May 2021 certifying the claimant’s WPI at 5%.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to s 63 of the
MAC Act. The relevant medical assessment was conducted by Medical Assessor Steadman who issued a certificate 11 January 2021.Clause 16.3.3 of the Medical Assessment Guidelines requires an application for review of an assessment by a single Medical Assessor in a permanent impairment dispute assessed by more than one Medical Assessor to be lodged within 30 days after the date on which the combined certificate was sent to the parties on 25 May 2021.
An application for review of the medical assessment of Medical Assessor Steadman was lodged on 28 June 2021 within the 30-day timeframe.
On 24 August 2021 the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[6]
[6] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
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 Commission. The President’s Delegate referred this application for review to the Panel.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[7]
[7] Clause 1.2 of the Guidelines.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[10]
[10] Section 63(3A) of the MAC Act.
Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination. The Panel considered it appropriate for the assessment to review all matters with which the assessment of Medical Assessor Steadman was concerned.
On 23 September 2022 the claimant was examined by Medical Assessor Gorman and Medical Assessor Stubbs on behalf of the panel.
MATERIAL BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 26 July 2022 which required each party to file an indexed, paginated bundle of documents.
In response to this direction the solicitor for the claimant filed a bundle of documents paginated from pages 1 to 679 and filed in the portal as AD10.The solicitor for the insurer filed a bundle of documents paginated from pages 1 to 234 and filed in the portal as AD11.
Statements
The claimant was 60 years of age at the date of accident and was self-employed as a painter and decorator. He is currently 66 years of age.
Statement of Mr Hackett dated 4 December 2018
This statement was prepared in respect of a treatment dispute.[11] Mr Hackett states, inter alia, that he started to experience pain and discomfort in the low back, knee and right hip several months after the accident when he as limping a lot. He stated the pain increased gradually and he was then experiencing that pain or at the very least discomfort most of the time.
[11] AD10 p 477.
Statement of Mr Hackett dated 29 March 2019
Mr Hackett provided a statement dated 29 March 2019.[12] Attached to that statement is a photograph of his right leg which he states shows the tyre mark on his trousers where the 4WD ran over him.
[12] AD10 p 260.
At paragraph 70 of that statement Mr Hackett states that he began to experience pain in his low back by December 2016, initially mild and intermittent but slowly becoming more severe and frequent. He also says about the same time he began to experience pain and reduced movement of his right knee which have also gradually worsened.
Mr Hackett refers to a loss of sensation in his right foot, weakness and a loss of strength in his right foot. Mr Hackett refers to a fall when his foot and leg gave way in May 2017 resulting in injury to his face. He states on occasions he has hit his toes on his right foot without feeling it. He also states on several occasions he has lost balance when his legs have given way causing him to fall including in the driveway and including the fall in the driveway where he hurt his shoulder. In March 2019 Mr Hackett says his right leg gave way causing him to fall sustaining injury to his right thumb.
Statement of Mr Hackett dated 20 November 2019[13]
[13] AD10 p 284.
Mr Hackett states about four months earlier his right leg gave way causing him to fall with the result that his right shoulder hit the concrete driveway heavily. He states he has continued to suffer from right shoulder pain.
Statement of Mr Hackett dated 15 June 2021
The claimant provided a statement dated 15 June 2021 where he outlined various inaccuracies in the history reported by Medical Assessor Steadman in his certificate. Noting this is a review of all matters with which the assessment is concerned the Panel does not need to concern itself with those inaccuracies.
Statement of Amanda Mowbray dated 29 March 2021
The claimant’s friend Amanda Mowbray provided a statement dated 29 March 2021.[14] Ms Mowbray refers to an incident on or about 19 May 2017 when she observed Mr Hackett with a swollen eye and an injury to his nose which he said occurred when he fell and hit his face on the kitchen bench. She details her observations of the claimant including occasions when he has tripped. Ms Mowbray comments “It seems as though his foot does not clear the ground, or he misjudges where his foot is by about 4 – 6 inches left, right, front or back”.
[14] AD10 p 217.
Statement of Amanda Mowbray dated 4 December 2019
Ms Mowbray provided a statement dated 4 December 2019.[15] Ms Mowbray was present in about December 2016 when Mr Hackett fell off a retaining wall and onto the driveway, landing on his shoulder. She states based on her observations and on what she has been told by Mr Hackett he had tripped and fallen on average once a month since the accident. On another occasion Ms Mowbray describes a fall when she took Mr Hackett to a medical appointment, and he fell to his knees when his leg gave way while crossing the road at the lights. Ms Mowbray describes witnessing a fall in about June 2019 when Mr Hackett was walking along the paved area outside the kitchen. She states his leg gave way and he slammed his right shoulder into the brick wall between the kitchen and family room. In July 2019 Ms Mowbray states Mr Hackett told her he had fallen on the driveway when his leg gave way and he hit the retaining wall with his right shoulder.
[15] AD10 p 242.
Statement of Amanda Mowbray dated 15 June 2021
Ms Mowbray also provided a statement dated 15 June 2021 in which she described the circumstances of the claimant’s attendance on Medical Assessor Steadman. Accompanying that statement are photographs of the claimant’s feet taken the day after the assessment by Ms Mowbray purporting to show swelling of the right foot.
Motor Accident Personal Injury Claim Form
Th claim form was completed by the claimant on 3 May 2022.[16] The injury was described as fractured metatarsal bones of the right foot. His description of the accident was as follows:
“I was stationary at intersection, car behind me came around and turned into me, driving over my right leg and foot, bike fell to left and then came to right as crash bars and pegs caught on his car, I was then pinned between his car and my bike”.
[16] AD10 p 379.
Treating medical records
Clinical records of Primary Ingleburn
A discharge referral from Campbelltown Hospital dated 4 November 2007 states the claimant presented with lower back pain following heavy manual work. He was unable to weight bear and felt spasms in his spinal region.[17]
[17] AD11 p 200.
On 5 November 2007 the claimant presented to his general practitioner (GP) reporting ongoing back pain with radiation of symptoms into his left leg.[18]
[18] AD11 p 134.
On 6 November 2007 the claimant returned to his GP with ongoing complaints of severe spasm in his spinal region. The doctor recorded “Inj morphine”.[19]
[19] AD11 p 134.
On 7 November 2007 a CT scan was performed. The reported concluded:
“Circumferential disc bulge at L3/4 most marked postero-laterally to the left encroaching upon the inferior aspect of the left L3/4 neural foramen. There does not appear to be significant foraminal narrowing although early impingement upon exiting left L3 nerve root would need to be excluded clinically. Minor disc bulge at L4/5 does not appear to cause significant mass effect. Small broad disc bulge at L5/S 1 with minor effacement of the thecal sac. Encroachment upon the inferior aspect of the foraminae with small postero-lateral osteophyte formation encroaching upon the left L5/S1 neural foramen. Impingement upon exiting left L5 nerve root would need to be excluded clinically. Early spondylitic change. No destructive bony lesion”.[20]
[20] AD11 p 196.
On 13 December 2013 the record states, “suffers from OA multiple joint pain esp knees and shoulders”.[21]
[21] AD11 p 132.
Campbelltown Hospital
The claimant attended Campbelltown Hospital on 1 April 2016.[22] The triage comment states:
“MBA. Stationary, wearing helmet and leathers, another vehicle, low speed collided into R lower leg/ankle. Ambulant. Pain over ankle joint and top of foot. Fell off bike. With R lower leg at acute angle. No LOC. No C-spine pain, chest or ABDO pain”.
[22] AD11 p 104.
The admission summary states:
“He is able to walk on it but feels that his ankle is tender with some loss of sensation over the lateral aspect.
On examination Peter has some mild swelling around his ankle, with some non specific sensory loss over the lateral malleolus ? swelling related. He did have track marks over his pants.
X-Ray was unremarkable, nil fractures visualised.
In light of the above I feel his injury is an ankle sprain.”
Clinical records of Campbelltown Medical and Dental Centre
On 8 April 2016 attended Campbelltown Medical and Dental Centre. His foot was painful and swollen and he was unable to weight bear. He was treated with a Moon boot.
Clinical records of Tahmoor 7 Day Medical Centre[23]
[23] AD10 p 110.
On 1 May 2016 Mr Hackett attended Tahmoor 7 Day Medical Centre and saw Dr Prasad when he reported an injury to the right foot, fracture of the 3rd metatarsal and noted the claimant had a cam boot. Panadeine Forte was prescribed.
On 28 February 2017 Dr Hathiramani reported Mr Hackett was complaining of pain in his ankle and described being debilitated by his injury.
On 11 May 2017 it was noted the claimant needed Endone nightly due to pain in his foot.
The records include the following history of falls and instability as of 18 November 2019:
· 19 May 2017 – his right ankle gave way … bruise in orbital ridge left eye;
· 22 May 2017 – he reports right foot since accident 5-6 times has given way and feels like ground goes underneath him;
· 7 June 2017 – complaining of intermittent numbness in the plantar and lateral aspect of the right foot. He has also had the right foot giving way which caused him to fall. He also complains of right knee and hip/thigh pain. He has pain on walking and prevent him from returning to work. Loss of sensation esp right heel >ball of foot - pain shooting up knee and thigh on walking - right foot giving way causing a bad fall;
· 6 January 2018 – worsening mobility - walking on heels - misplacing right foot as he cannot judge position of right foot;
· 12 March 2018 – fall slipped, now pain shoulder good range of motion;
· 9 April 2018 – still leg foot giving way;
· 4 July 2018 – falls reported x 3 in last month due to pain and lack sensation in area foot affected by accident;
· 12 February 2019 – weakness foot - reports falling over - came in using a stick;
· 27 February 2019 – fall last week due to weakness foot - gives way - nerve damage;
· 7 March 2019 – since fell over CTP claim - pain right thumb - analgesia/splint …thumb pain after fall … was due to weak leg he states;
· 2 August 2019 – symptoms much the same - giving way;
· 12 September 2019 – chronic foot pain with neuropraxia;
· 30 September 2019 – shoulder on analgesia – neuropraxia sx worse - giving way;
· 31 October 2019 – diagnostic imaging requested; uss shoulder and x-ray r shoulder - fell 6 m ago due to foot pain., nil in notes re shoulder pain during April 2019 pain analgesia works temp then wears off … can’t have mri as has stents [sic].
· 11 November 2019 – bursitis and oa shoulder – gpmp physio and analgesia – issue wouldn’t have been caused by accident but certainly flared up by it [sic].
Peter Gartner, physiotherapist
Mr Gartner provided a report dated 22 June 2017.[24] He reported that the claimant’s main concern was the numbness and collapse during gait. Mr Gartner said it was hard to explain as he was unable to reproduce the symptoms in the clinic, but his best assumption was disruption to the common peroneal nerve at the time of the accident. He also said there may be some input from the peroneal muscle on the course of the nerve at the fibula head as a result of disuse post-accident.
Radiological investigations
[24] AD10 p 491.
An X-Ray undertaken at Campbelltown Hospital on 1 April 2016 was normal.
Mr Hackett had a bone scan on 7 April 2016 which showed increased vascularity in the right mid-foot at the base of the third right metatarsal bone, a micro fracture.[25] There was mild associated reactive bone bruising at the metatarsophalangeal joint of the third toe, the ankle joint and to a lesser extent the lateral malleolus.
[25] AD10 p 455.
On 27 June 2016 Mr Hackett had a CT of the right foot which showed an undisplaced fracture of the base of the third metatarsal.[26]
[26] AD10 p 462.
On 7 December 2016 Mr Hackett had a CT of the right foot which showed partial union of the fracture at the base of the right 3rd metatarsal and satisfactory progress of healing.[27]
[27] AD10 p 495.
On 3 March 2017 Mr Hackett had an ultrasound of the right ankle.[28] No significant abnormality was detected.
[28] AD10 p 471.
On 30 April 2018 Mr Hackett underwent nerve conduction studies of the lower limbs.[29] The lower limb sural, tibial and peroneal nerve responses were symmetrical and within normal limits.
[29] AD10 p 475.
Mr Hackett had an X-ray and ultrasound right shoulder on 5 November 2019.[30] The history provided was of a fall on the shoulder. The X-ray noted no fracture or dislocation but mild osteoarthritis at the acromioclavicular joint. The ultrasound found no tears, the bursa was thickened suggestive of bursitis and mild osteoarthritis was noted at the acromioclavicular joint.
[30] AD10 p 140.
Mr Hackett had an X-ray of the pelvis, right hip and right knee on 4 November 2020 following a fall.[31] The report noted minor arthritis at the hips, and mild to moderate osteoarthritis at the right knee with small old, detached fragments along the margin of the patella and minor joint fluid.
[31] AD10 p 525.
On 11 November 2020 Mr Hackett had an ultrasound guided injection of the right acromioclavicular (AC) joint.[32]
Dr Leicester, orthopaedic surgeon
[32] AD 10 p 525.
Mr Hackett saw Dr Leicester on 1 June 2016.[33] He noted a significant injury to the right foot and recommended an MRI scan which the claimant was unable to undergo due to the presence of intra-abdominal metal staples.
[33] AD10 p 461.
On 14 December 2016 Dr Leicester reported Mr Hackett had pain in the right foot on prolonged standing and “intermittent numbness in the foot”. He was unable to explain the numbness on an anatomic basis. Dr Leicester reported gross sensation was intact, all the tendons around the foot were normal and there was normal ankle and subtalar movement. A CT scan showed the fracture was uniting solidly. Dr Leicester noted “some mild nerve irritability” which he felt would settle with time.
Dr Martin Sullivan, foot and ankle surgeon
On 25 September 2018 Dr Sullivan reported complaints of constant pain radiating proximally in the direction of the superficial peroneal nerve in the right lower leg, intermittent pins and needles and occasional numbness of the foot.[34]
[34] AD10 p 452.
Dr Sullivan reported with the right foot plantar flexed and tension on the superficial peroneal nerve Mr Hackett had tenderness at the proximal site where the superficial peroneal nerve exits the deep fascia.
Having viewed the photos taken the day of the accident he was of the view the tyre marks on the claimant’s trousers indicated there was likely pressure against the superficial peroneal nerve where it exists the deep fascia. He also noted the claimant said his right foot was caught and dragged behind him with forced plantar flexion of his right foot which he considered was suggestive of tension on that nerve.
Dr Sullivan noted there was no clinical evidence of a neuroma. His diagnosis was of a crush traction injury to the superficial peroneal nerve proximal to the ankle joint where it exits the deep fascia. He felt Mr Hackett most likely had scarring secondary to the trauma at the proximal end of the superficial peroneal nerve where it exits the deep fascia. Dr Sullivan stated the claimant’s problem with the nerve was one of tethering and irritation, and in that case, he would expect a nerve conduction test to be normal.
Report of Dr Neerai Hathiramani, 5 March 2020[35]
[35] AD10 p 163.
Dr Hathiramani, GP provided a report in which he concluded Mr Hackett’s injuries were caused by the accident and based on the opinion of Professor Martin Sullivan his falls were likely due to weakness and paraesthesia in his right foot.
Clinical records of Northstar Medical
The clinical records of Northstar Medical do not contain any records of note.[36]
[36] AD10 p 520.
Clinical records of The Family Practice at Sugarland
On 23 June 2021 Dr Lwin reported a fall onto the right side three days earlier with a complaint of right shoulder pain.[37] Range of movement of the shoulder was limited by pain. On examination Dr Lwin reported slight joint swelling of the right knee, although there was nil tenderness and range of movement was normal.
[37] AD10 p 544.
Mr Hackett consulted Dr Lwin again on 28 June 2021, and 26 July 2021 in respect of right shoulder pain. Dr Lwin diagnosed right subacromial bursitis. The claimant had an ultrasound guided cortisone injection to the right shoulder.
Further consultations relate to other conditions including the claimant’s chronic obstructive pulmonary disease.
Records of Associate Professor Rohan Rajaratnam[38]
[38] AD10 p 171.
The records of Associate Professor Rajaratnam, cardiologist address treatment of the claimant’s atrial fibrillation.
Medico-legal reports
Dr Anthony Smith, orthopaedic surgeon
Dr Smith assessed the claimant at the request of the insurer and provided a report dated 23 March 2017.[39] He reported complaints of pain about the left lateral right ankle with numbness. He also reported pain and numbness running up the back of his right calf towards the knee. Mr Hackett could not stand on his feet too long and could not use ladders or scaffolding or drive for any length of time. He was taking Endone.
[39] AD10 p 419.
Dr Smith noted the claimant walked with a normal gait with no wasting in either limb. He noted a normal range of movement of both ankle subtalar and midtarsal joints. He found no ligamentous instability nor swelling. He reported the claimant was somewhat tender between the third and fourth right metatarsal heads. There was no neurological deficit in either lower limb.
Dr Smith stated the history suggested the claimant had sustained a crushing trauma to his right foot which he considered could produce the fracture and the changes in the base of the third metatarsal, a condition likely to recover within three months. He thought a possible diagnosis was a Betts neuroma or Mortons’s metatarsalgia and recommended an MRI. In the absence of such a diagnosis Dr Smith concluded he could not explain the claimant’s ongoing symptoms and unfitness for work. Dr Smith reviewed the report of Dr Dalton dated 11 May 2018 but did resile from his opinion.
Dr Julian Parmegiani, psychiatrist
Dr Parmegiani provided a report dated 12 October 2017. He diagnosed an adjustment disorder with mixed anxiety and depressed mood complicated by an alcohol use disorder.
Dr Grant Walker, neurologist
Dr Walker provided a report dated 19 October 2017.[40] He concluded the claimant had suffered a fractured third metatarsal as a result of the accident which would be expected to heal in a couple of months. He noted the claimant had ongoing pain in the foot.
[40] AD11 p 96.
However, he was of the view neither the pain nor the sensory symptoms had any relationship to the peroneal nerve or any peripheral nerve in the foot. He thought anatomically they represented an S1 nerve root distribution and may relate to the claimant’s past history of lower back pain and sciatica.
Dr Endrey-Walder, general surgeon
Dr Endrey-Walder assessed the claimant and provided a report on 16 April 2018.[41] He reported the following complaints:
“‘The leg gives out on me. I would be just walking, take a step forward with my right leg and I fall down. This happens at least once a month. I fell five days in a row last December, it’s like there is nothing there’, referring to the lower leg.
‘I keep stubbing my toes, like on a doorjamb, sometimes there is a trail of blood, sometimes from the nail bed, from a tear between my toes’”.
[41] AD10 p 424.
On examination Dr Endrey-Walder found little evidence of sensory deficit in the right leg/foot but he noted definite restrictions in the range of movement at the ankle, or particularly on dorsi-flexion. He thought the claimant was describing partial foot drop but was unable to say what was the cause of his sudden collapses, when “there is nothing there” as he puts his right foot forward. Dr Endrey-Walder recommended nerve conduction studies to try and elucidate any residual neurological deficit.
Dr Seamus Dalton, rehabilitation consultant
Dr Dalton assessed the claimant on 27 March 2018 and provided a report dated 11 May 2018.[42]
[42] AD10 p 430.
He noted that the fracture at the base of the 3rd metatarsal healed with deformity or abnormality to account for the persistent pain. He could not account for the complaints of numbness and give way weakness. He did not consider Dr Sullivan’s opinion that Mr Hackett had suffered a crush injury to the superficial peroneal nerve was consistent with the mechanism of injury, the contemporaneous medical records and the clinical examination findings.
Dr Dalton reported on examination Mr Hackett had a normal gait, good balance on functional testing, no evidence of disuse wasting and no tenderness, allodynia, hyperalgesia or other objective clinical sign to account for his complaints. He noted the only finding on examination was mildly reduced light touch sensation in a poorly defined distribution over the later aspect of his lower leg and ankle, dorsum and the sole of his foot. Dr Dalton concluded Mr Hackett was disability focused, had not suffered any neurological injury due to the accident and had recovered fully from his orthopaedic injury. He reported there was no evidence of disuse, weakness, loss of mobility, or loss of function or agility on functional testing.
On 27 November 2020 Dr Dalton reported Mr Hackett continued to complain of constant pain with intermittent sensory disturbance.[43] He also described give way weakness resulting in a number of falls. He also reported his right shoulder was sore and aches particularly at night.
[43] AD11 p 221.
Dr Dalton states that the only reason to consider a diagnosis of trauma to the superficial peroneal nerve is the fact that Mr Hackett reports neuropathic pain and sensory disturbance which covers the distribution of the superficial peroneal nerve although it also extends well beyond that distribution.
Dr Dalton viewed the photographs of the claimant’s boot and stated it appeared he had suffered a crush injury to the forefoot and midfoot and not a forced plantar flexion and inversion injury likely to have resulted in a traction injury to the superficial peroneal nerve.
Dr Dalton was not prepared to resile from the opinion expressed in his earlier report that the ongoing complaints of neuropathic pain and sensory disturbance are not consistent with isolated trauma to the superficial peroneal nerve given the mechanism of injury and the delayed onset of symptoms.
Associate Professor Michael Fearnside, neurosurgeon
Associate Professor Fearnside assessed the claimant and provided a report dated 6 August 2018.[44] Associate Professor Fearnside concluded the physical findings supported a partial injury to the superficial peroneal nerve. He noted there was mild weakness of dorsiflexion and eversion of the right ankle. He stated more convincing was the sensory loss on the anterolateral aspect of the right shin extending to the foot. However, he also concluded the findings of altered sensation on the posterior surface of the right calf, the posterior right thigh and the right buttock were not explained by the mechanism of injury.
[44] AD10 p 444.
Whilst Associate Professor Fearnside was prepared to agree with Dr Sullivan that the most likely diagnosis was a crush injury of the superficial peroneal nerve he noted the sensory loss extended beyond that nerve and he felt there may have been a functional component to the claimant’s symptoms.
Associate Professor Fearnside in a report dated 15 July 2019 reviewed the nerve conduction studies of 30 April 2018 and the report of Professor Sullivan dated 25 September 2018.[45] He noted Mr Hackett complained of occasional sensory loss in the right foot, pain radiating proximally in the direction of the superficial peroneal nerve in the right leg and intermittent paraesthesia worse at night. Associate Professor Fearnside also noted the claimant had a normal gait, he could walk normally on heels and toes and there was no evidence of a digital neuroma. He agreed with the diagnosis of Professor Sullivan that Mr Hackett had sustained a crush traction injury to the superficial peroneal nerve proximal to the ankle. He also agreed that if the pathology is one of nerve tethering and irritation the nerve conductions studies could be normal.
Associate Professor Richard Haber, cardiologist/physician
[45] AD10 p 166.
On 31 March 2020 Associate Professor Haber reported Mr Hackett had been diagnosed with atrial fibrillation (AF) in about 2002 and since then had experienced episodes once or twice a year lasting for between 24 and 48 hours. Since the accident the claimant experienced more frequent attacks of AF occurring at least once a week and lasting up to a few days at a time. He also reported the claimant tends to fall to the ground on average, two or three times a month resulting in different injuries. Associate Professor Haber concluded that paroxysmal AF may be aggravated by or brought on by emotional stress and that it was more likely than not aggravated and contributed by the injuries sustained in the accident.
Dr Thomas Sheehan, rehabilitation consultant
Dr Sheehan assessed the claimant at the request of his lawyers and provided a report dated 24 April 2020. Since his earlier assessment Dr Sheehan described spontaneous giving way of the right leg especially when negotiating stairs, steps, slopes or uneven ground. The claimant described several falls because he right lower leg gave way and as a result has injured his right shoulder, his right knee, hip and back.
Mr Hackett complained his right ankle joint was constantly painful and stiff, his leg gives way and he experienced shotting pain and intermittent altered sensation involving the outside of his right calf which can radiate upwards to the buttock. He has right-sided low back pain, his right shoulder is stiff and sore and movements are restricted.
Dr Sheehan concluded that the following injuries were causally related to the accident:
· right ankle joint deltoid ligament tear/strain;
· right third metatarsal fracture – healed;
· crush injury of the right superficial peroneal nerve requiring assessment by a neurologist;
· an aggravation of right acromioclavicular joint osteoarthritis, causing same to become symptomatic for the first time;
· right shoulder joint subacromial bursitis, and
· depression.
Dr Sheehan assessed a 3% WPI due to the right ankle joint injury and an 8% WPI due to the consequential shoulder injury resulting in a 11% WPI but not taking in account the crush injury to the right superficial peroneal nerve which he considered required assessment by a neurologist.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 22 June 2021.[46]
[46] AD10 p 1.
The claimant asserts notwithstanding the negative findings of the nerve conduction studies there is sufficient evidence to establish a peroneal nerve injury was caused by the accident having regard to the opinions of Medical Assessor David Crocker, Professor Martin Sullivan, Associate Professor Michael Fearnside and Dr Thomas Sheehan.
The claimant relies upon the opinion of Dr Sheehan to assert that he sustained consequential injury to the right shoulder as a result of several falls because his right leg gave way due to the peroneal nerve injury.
The claimant also provided submissions in support of the application for further assessment, the subject of Medical Assessor Steadman’s certificate.[47] The claimant relies on the history of falls contained in the clinical records from Tahmoor Medical Centre as of 18 November 2019 and his statements and those of Amanda Mowbray.
[47] AD10 p 63.
As a result of a fall the claimant was referred for an ultrasound and X-ray of his right shoulder on 31 October 2019 which he underwent on 5 November 2019.
Insurer’s submissions
The insurer relies on submissions dated 31 October 2018 in respect of the initial dispute as to permanent impairment.
Soft tissue injury to the lumbar spine
The insurer disputes the claimant sustained a soft tissue injury to his back noting:
· when he attended Campbelltown Hospital following the accident the claimant expressly denied any spinal pain;
· Dr Hathiramani did not mention back issues when he examined the claimant in May 2016;
· the back is not mentioned in the CTP medical certificate dated 3 May 2016;
· the claimant did not nominate injury to his back in the Personal Injury Claim Form dated 3 May 2016;
· Dr Leicester made no mention of any back issues;
· correspondence including referrals from Dr Sor in June 2017 do not refer to the back, and
· the claimant did not disclose any back symptoms during medico legal assessments including to Dr Hampshire, psychiatrist, Gillian Stewart, Dr Smith, Dr Parmegiani, psychiatrist, Dr Walker, Dr Dalton, Dr Endrey-Walder, Associate Professor Fearnside and Dr Sullivan.
The insurer submits there is evidence of pre-existing impairment which ought to be considered when determining WPI of the back including entries from Primary Ingleburn on 4 November 2007, 5 November 2007, 6 November 2007 and 7 November 2007.
Soft tissue injury to the right hip
The insurer disputes the claimant sustained a soft tissue injury to the hip noting:
· the mechanism of injury is not consistent with a hip injury;
· when he attended Campbelltown Hospital following the accident the claimant did not mention any hip symptoms;
· Dr Hathiramani did not mention hip issues when he examined the claimant in May 2016;
· the hip is not mentioned in the medical certificate dated 3 May 2016;
· the claimant did not nominate injury to his hip in the Personal Injury Claim Form dated 3 May 2016;
· Dr Leicester made no mention of any hip issues;
· correspondence including referrals from Dr Sor in June 2017 do not refer to the hip;
· the claimant did not disclose any hip symptoms during medico legal assessments including to Nicola Acworth, occupational therapist, Dr Hampshire, psychiatrist, Gillian Stewart, Dr Smith, Dr Parmegiani, psychiatrist, Dr Walker, Dr Dalton, Dr Endrey-Walder, Associate Professor Fearnside and Dr Sullivan;
· Dr Dalton found examination of both hips was normal, and
· Dr Endrey-Walder found full range of movement of both hips.
Soft tissue injury to the right knee
The insurer disputes the claimant sustained a soft tissue injury to the knee noting:
·the mechanism of injury is not consistent with a knee injury and the claimant was able to get back on his motorcycle and ride away from the scene;
·when he attended Campbelltown Hospital following the accident the claimant did not mention any knee symptoms;
·Dr Hathiramani did not mention knee issues when he examined the claimant in May 2016;
·the knee is not mentioned in the CTP medical certificate dated 3 May 2016;
·the claimant did not nominate injury to his knee in the Personal Injury Claim Form dated 3 May 2016;
·Dr Leicester made no mention of any knee issues;
·correspondence including referrals from Dr Sor in June 2017 do not refer to the knees; and
·the claimant did not disclose any knee symptoms during medico legal assessments including to Nicola Acworth, occupational therapist, Dr Hampshire, psychiatrist, Gillian Stewart, Dr Smith, Dr Parmegiani, psychiatrist, Dr Walker, Dr Dalton, Dr Endrey-Walder, Professor Fearnside and Dr Sullivan.
The insurer submits there was a pre-existing symptomatic impairment in the claimant’s knees noting the records from Primary Ingleburn express reference to multiple joint pain secondary to osteoarthritis especially in the claimant’s knees.
Dr Dalton found the claimant had normal and symmetrical range of motion at both knees, no joint effusion, no joint line tenderness and no pain on either passive or active movement.
Dr Endrey-Walder found full range of movement of both knees and equal circumferences in the lower limbs.
Associate Professor Fearnside found no muscle wasting in the claimant’s right lower limb and knee reflexes were equal and symmetrical at the time of his assessment.
Fracture of the right ankle/foot
The insurer submits, other than the fracture of the third metatarsal there was no separate injury to the claimant’s right ankle or foot noting:
· when he attended Campbelltown Hospital following the accident the claimant was ambulant from the outset and the attending physician was of the impression the claimant had sustained an ankle sprain only;
· when he examined the claimant in May 2016 Dr Hathiramani noted there was no swelling and the claimant’s ankle movements were unaffected;
· in his report dated 14 December 2016 Dr Leicester noted the claimant was walking with a normal gait, there was no swelling or deformity in the region of the fracture and no detectable nerve damage.
· Dr Dalton found a lack of muscle wasting in the right leg and symmetrical range of motion in both ankles and subtalar joints as well as the midfoot with no pain, guarding or localised tenderness;
· Dr Dalton found there were no features of post-traumatic arthritis or synovitis in the adjacent tarsometatarsal joint, and
· Dr Smith and Dr Walker found the claimant had sustained a fracture to his third metatarsal which had recovered and the claimant had no disability.
In submissions dated 22 July 2020 the insurer concedes the claimant sustained a micro fracture of the third metatarsal of his right foot. However, the insurer disputes the claimant sustained any neurological impairment by way of damage to the peroneal nerve, or that the claimant suffered a fracture/injury of the right ankle. The insurer notes that the claimant’s own evidence is that he has sustained a 3% WPI solely because of his right ankle/joint/foot injuries as assessed by Dr Sheehan.
In relation to the claimant’s assertion that “falls” he suffered subsequent to the accident were caused by ongoing disability in the right lower leg and foot the insurer submits:
(a) the records from Campbelltown Hospital evidence the claimant was ambulant from the outset and that the injury appeared relatively minor;
(b) in May 2016 Dr Hathiramani confirmed there was no swelling and the claimant’s ankle movements were unaffected;
(c) Dr Leicester reported the claimant was walking with a normal gait, there was no swelling or deformity in the region of the fracture, and no detectable nerve damage;
(d) Dr Leicester could not explain the claimant’s subjective report of numbness on an anatomical basis and predicted a “full recovery” in the coming months; the prognosis for the fracture was excellent; any mild nerve irritability would settle in time and the claimant was unlikely to have any long term disability;
(e) nerve conduction studies on 30 April 2018 were completely normal;
(f) Dr Dalton reported on 11 May 2018 that the claimant’s thigh and calf circumferences were equal with no sign of disuse or wasting in the right lower limb; the claimant had a symmetrical range of motion in both ankles and subtalar joints with no guarding or tenderness;
(g) Dr Dalton reported neurological examination was normal other than a subtle reduction in light touch sensation over the lateral calf and foot and that such mild sensory impairment would not account for the level of disability described, and
(h) Dr Endrey-Walder found no clinical evidence of sensory deficit in the claimant’s right ankle or foot and disagreed with the suggestion that a peroneal nerve injury had been sustained.
The insurer submits the claimant has failed to establish the mechanism of the alleged shoulder injury and of any plausible causal link between an alleged shoulder injury and the accident.
The insurer submits no falls were reported until more than 12 months after the accident at a time when it was commonplace for an uncomplicated fracture to have healed.
The insurer submits the radiology does not demonstrate any fracture, tear, rupture, dislocation or the like of the right shoulder to indicate a traumatic “fall” injury and suggests age is an alternative explanation for the development of mild osteoarthritis or repetitive strain injury such as bursitis.
The insurer submits the following evidence supports the conclusion that the claimant did not sustain a peroneal nerve injury:
· nerve conduction studies dated 30 April 2018;
· the opinion of Dr Leicester, treating orthopaedic surgeon;
· the report of Dr Dalton, rehabilitation physician dated 11 May 2018;
· the report of Dr Endrey-Walder, general and trauma surgeon, and
· the report of Dr Walker, neurologist.
The insurer notes that Associate Professor Fearnside’s opinion ought to be given little weight where it was formed on the basis of the claimant’s self-reported symptoms and where he acknowledged that “the sensory loss extends beyond [the peroneal] nerve and there may be a functional component to [the claimant’s] symptoms”.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
“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”.
EXAMINATION
Medical Assessors Gorman and Stubbs conducted an interview and examination with Mr Hackett at the PIC rooms on 23 September 2022 between 12.00pm and 1.30pm. Mr Hackett was accompanied by Amanda Mowbray, his companion as a support person. They had travelled to Sydney from Bundaberg, Queensland by car.
Background History
At the time of the accident Mr Hackett was 60 years of age. He was a former member of the regular army for six years and a reservist for further 16 years and is twice divorced. His youngest son stayed with him frequently as he had shared custody.
He worked as a painting and decorating subcontractor and lived in a rented four bedroom house with his brother and son. He used a utility as a work vehicle and would store his equipment at the worksite. If he did not need to move the painting material, he would use his Yamaha motorcycle for transport. One of his sons also worked as a painter and decorator and they often worked together.
He had a history of attacks of atrial fibrillation for which he would take beta blockers when required. The atrial fibrillation generally did not last more than a few days.
He was a member of the member of the Military Motorcycle Club and rode frequently with them as well as using the motorcycle for day-to-day transport when possible. He drank and smoked. He considered himself in good physical condition and did not struggle with his work demands. He did not suffer from falls and could climb ladders with confidence before the accident.
History of the accident
The accident occurred at about 8.00am the morning of 1 April 2016. He was on his way to work on the motorcycle. He was stationary at a T intersection on an off-ramp waiting to make a left-hand turn. A following driver in a four-wheel-drive utility became impatient and overtook him. The utility struck the right side of the motorcycle throwing him off balance, but he was able to recover until the left rear wheel arch of the four-wheel-drive snagged the crash bars that extend from the motorcycle, and he was dragged along the road with the bike upright and his right foot flexed. Somehow the rear wheel of the utility passed over the outside of his right ankle. There are photographs of tyre markings on the cuffs of his work trousers. He was helped off the motorcycle by passers-by. Neither police nor ambulance attended the accident. He rode the motorcycle to the Campbelltown Hospital and was triaged to the Accident Emergency Department. He then attempted to right home from the hospital but could only get as far as Ms Mowbray’s home. She is a long-time friend and gave him assistance over the weekend.
As advised by Campbelltown Hospital he attended the Campbelltown Medical Centre on the following Monday. The injury to the right ankle was recorded and he was referred for a regional bone scan three days later, also at the Campbelltown Medical Centre. He was placed in a moon boot to support the ankle and referred to Dr Hartnell, an orthopaedic surgeon at Bowral. The insurer, however, directed him to see Dr Leicester, also an orthopaedic surgeon at Bowral. Dr Leicester’s correspondence to the Campbelltown Medical Centre suggested this was as a treating doctor but Mr Hackett and Ms Mowbray seemed to think this was for an insurance consultation. Dr Leicester arranged for an X-ray which revealed a hairline fracture of the base of the third metatarsal of the right foot. The moon boot was not much help, but he got around on borrowed crutches. With time the pain in the foot settled down and is now only occasionally a nuisance.
Subsequent progress
His son took over his outstanding work. He attempted to return to work three or four months after the accident but only lasted for a few hours. The pain in the foot had improved but he was unsteady on stepladders and was experiencing fluctuating pins and needles pain in the outside of the right calf. As it worsened, it spread upwards into the outer side of the right thigh and down to the lateral side of the right foot.
Current status
Pain was discussed with Mr Hackett. There was no pain in the low back. The centre of the “pins and needles” (Mr Hackett describes this as an “electrical” sensation) is in the outer side of the right calf. It was relieved by rest and Endone, an opioid analgesic used on an as needed basis. Since moving to Queensland 18 months ago he is reliant on a paracetamol – codeine preparation, also on as needed basis with only very occasional use of the remaining Endone previously prescribed.
Mr Hackett’s present problems are:
· Paraesthesia in the lateral right calf spreading proximately and distally as it worsens. Mr Hackett dated the onset of this pain and paraesthesia to about, or a little less than, 12 months after the accident.
· The midfoot pain that was the initial symptom has largely resolved over the last five years though it can become a problem driving motor vehicles with a manual gearbox. There was swelling in the ankle and foot associated with this, but this has been absent for several years.
· Giving way of the left leg which seems to be associated with an inability to initiate forward movement of the left foot when he rises from a chair or otherwise starts to walk. He is unsteady on ladders and needs handrails on stairs. There are falls associated with this with the first fall occurring about 12 months after the accident and leading to an injury to the right shoulder.
· Right shoulder – there is a painful catching sensation in the right shoulder. This limits his overhead use. It is noted he is left hand dominant and there are no complaints about the left shoulder. The onset of the right shoulder problem was in December 2016. He fell whilst walking on a low retaining wall.
· There have been further falls since and the right shoulder is episodically more troublesome than it was on the day of this examination. He has had an ultrasound performed of the shoulder and three steroid injections with little relief
· Atrial fibrillation - this is become worse over the last four to five years. Not only is it more frequent but, in 2021, he retired cardioversion to return to sinus rhythm. Mostly his heartbeat is regular. He attributes the worsening atrial fibrillation to emotional stress bought on by the difficulties of his insurance claim.
· He requires regular assistance with household tasks and cannot work. He could not drive a manual car. His present vehicle is an Isuzu automatic four-wheel-drive. He sold his Holden Commodore utility that he used as a work vehicle and his motorcycle 18 months ago when he decided to accompany Ms Mowbray to Bundaberg in Queensland. She is his long-term friend and provides day-to-day care for him. Ms Mowbray is a registered nurse with accounting accreditation. Though he first intended to stay in Colo Vale it made more sense to accompany her to Bundaberg when she accepted a position as the site administrator at an avocado and mango orchard. Ms Mowbray has since purchased a house near Bundaberg.
· Mr Hackett made no mention of low back problems arising from the accident.
In short, his ongoing complaints are of secondary injuries, principally to the right shoulder, caused by falls from giving way of the right leg. He has been advised that there is an injury to the cutaneous branch of the superficial perineal nerve and that this is the cause of the falls.
Clinical examination
Mr Mowbray is 179 cm tall and 67 kg in weight. When inspected in his underpants, he has a noticeably lean frame and well-defined musculature. He has a normal standing posture. He normally walks without a stick. He can tip toe and heel toe walk without difficulty and fully squat. He can dress and undress without assistance and climbed on and off the examination table without help. There are no scars or altered skin colour and skin temperature was the same on both sides.
Spine
There are no specific complaints about the neck, mid back or the low back following the accident. He shows a normal symmetrical range of motion in all areas of the spine. He can forward flex fingertips to mid-shin, put his chin on his chest and with shrugging bring the point of his shoulder to both ears. He can rotate the whole spine to look backwards over his shoulders to a three-quarter facial profile. He can extend the neck and low back to a point where the facial plane is 70° to horizontal. Additionally, there is no tenderness to palpation over the spine nor any guarding or spasm. There is no upper limb pain. The lower limb pain in the right leg is of non-dermatomal distribution. Nerve traction signs are negative in both the cervical and lumbar spine. Straight leg raising is limited by hamstring tightness to 60°, ankle dorsi flexion is not painful and knee extension is full when sitting. Brachial stretch test is negative. He can attempt an unassisted sit up from a supine position limited only by abdominal muscular weakness.
Neurological examination
The biceps, triceps, supinator, hamstring, knee, and ankle jerks are brisk and symmetrical. Muscle power in all groups including the right shoulder girdle is 5/5 evaluated with the elbows by the side. Ankle plantar and dorsi flexion and big toe plantar and dorsi flexion is 5/5 when evaluated supine and 5/5 when walking.
Cutaneous sensation was evaluated with a 6mm pinwheel and checked by the other examiner with pin and tissue. The girth of the arms and forearms is right equals left. Girth of the thighs and calves shows a consistent but minor difference in girth (about half a centimetre) right greater than left.
Cutaneous sensation is normal in all areas except for a mapped out area beginning on the lateral side of the ankle, extending over the dorsum of the right foot to the lateral border of the right foot. There was diminished sensation of numbness and decreased two-point discrimination. There is a similar area of numbness in the upper lateral calf from below the head of the fibula to about mid-calf region. There is no observable atrophy, swelling, colour change or temperature difference when comparing the lower extremities. The common peroneal nerve can be palpated around the neck of the fibula on both sides without any irritability. There is no point irritability of the superficial peroneal nerve meaning there is no neuroma formation.
During ankle evaluation a point of discrete tenderness in the midfoot was noted which would correspond to the base of the third metatarsal. Radiologically he is known to have suffered a hairline fracture here. Apart from the tenderness there are no other changes. In particular, the staining pattern of the sole of each foot is identical between both sides meaning there is normal weight transfer.
Since Mr Hackett’s complaint is of falls cerebellar function was also assessed. In the upper limbs it was normal but in the lower limbs his ability to place one foot directly in front of the other in a straight-line is noticeably abnormal, particularly with his eyes closed. There were no other positive cerebellar signs to explain this unsteadiness.
Peripheral joints
Range of motion and joint stability is entirely normal in the elbows, wrists, hands, hips, knees, and ankles on both sides. The range of motion recorded on repeated goniometer measurements for the shoulders is given in the table below. Except for a marginal diminution in sagittal flexion, the range is equal between the two sides. There is no wasting around the right shoulder girdle compared to the left. However, the right side shows a modest bony prominence of the right acromioclavicular joint which is tender, and the impingement test is positive against resistance. An ultrasound performed of the right shoulder was reviewed. It shows changes entirely consistent with normal function. The changes are those one would expect in a symptom-free shoulder in a manual worker of his age.
Right Left Flexion 140 150 Extension 50 50 Abduction 140 140 Adduction 40 40 External rotation 70 70 Internal rotation 60 * 70
*Near and Hawkins impingement test positive. Very consistent over three series of measurements with goniometer.
CONCLUSION
There is an injury to the superficial peroneal nerve at the right ankle. The mapped area of sensory abnormality corresponds to the cutaneous distribution of the nerve. Since sensation between the first and second toes is normal, the cutaneous branch of the common peroneal nerve is not affected. There is no injury to the common peroneal nerve. Since the area of numbness extends to the little toe on the lateral side of the foot it is also possible there is an injury to the terminal cutaneous branch of the sural nerve as it crosses the lateral border of the calcaneus (See attached images). Both the nerves are unprotected by surrounding soft tissues and would be vulnerable to a crush injury. Neither nerve supplies joints nor muscles. There is no reason injuries to either nerve would cause any problem with joint position sense, muscle strength or postural reflexes. Indeed, the sural nerve is sometimes sectioned for histological examination in variety of congenital muscular dystrophies syndromes or peripheral neuropathies for diagnostic purposes.
There is no plausible mechanism to explain why isolated cutaneous sensory loss would cause recurrent giving way. The Panel finds the accident has no more than a negligible contribution to the injuries that have resulted from the falls, including the injury to the right shoulder. He is unsteady in heel-toe gait, and this may explain his falls.
WHOLE PERSON IMPAIRMENT
Right foot/leg crush injury
No neuroma or other source of abnormal sensitivity (dysesthesia) was identified in either nerve so surgical release will be of no benefit and the impairment is only for dysesthesia.
Table 68 on page 89 of AMA 4 assigns 2% WPI for the dysesthesia in the superficial peroneal nerve distribution and a further maximum 2% for the dysesthesia in the sural nerve. However, as picture 3 shows the area of cutaneous innovation, the terminal branches of the sural nerve are only a small portion of the total distribution – the sural nerve impairment is therefore estimated as half the maximum giving 1% WPI. The total WPI for the right foot crush injury is therefore 3%.
Right third metatarsal
There is residual tenderness at the site of the known third metatarsal fracture but there is no evidence of displacement or gait disturbance. There is no assessable impairment present.
Lumbar spine
Mr Hackett does not complain of back pain or restriction of movement. The Panel finds there is no assessable impairment.
Right hip, right knee and right ankle
The Panel did not find any abnormal findings in the right hip, right knee or right ankle. This is consistent with the findings made by Dr Dalton, Associate Professor Fearnside and Dr Endrey-Walder. The Panel finds there is no assessable impairment.
Right shoulder
The Panel finds there has been no secondary injury to the right shoulder. The Panel is not satisfied injury caused by the accident has caused Mr Hackett’s right leg to give way causing injury to the right shoulder. The Panel finds Mr Hackett has not sustained injury to the right shoulder caused by the accident.
For completeness the right shoulder impairment was calculated although the Panel is not satisfied any impairment is causally related to the accident. For the right shoulder impairment to be calculated, one needs to subtract the impairment for the injured right shoulder from that of the uninjured left shoulder. Using Figure 38 on page 43 of AMA 4, the upper extremity impairment (UEI) on the right due to loss of flexion is 3% UEI and on the left is 2%. There is no impairment for loss of flexion. Using Figure 41 on page 44, the UEI due to loss of abduction is 2% on the right and 2% on the left. There is no impairment for loss of adduction. Using Figure 44 on page 45 the UEI due to loss of external rotation is 0% on the left and right. The UEI due to loss of internal rotation is 2% on the right and 1% on the left. The total UEI on the right is therefore 7% and on the left is 5%. Using Table 3 on page 20 the WPI on the right is 4% and on the left is 3%. Subtracting left from the right impairment gives a WPI for the right shoulder of 1%.
PANEL DECISION
The Panel finds that the accident was a cause of the following injuries:
· fracture of the right third metatarsal; and
· right foot/leg – injury to the superficial peroneal nerve and injury to the sural nerve.
The Panel finds the following injuries were not caused by the accident:
· right shoulder injury – aggravation of right acromioclavicular joint osteoarthritis subacromial bursitis;
· right ankle joint injury– deltoid ligament tear/strain; fracture;
· right hip injury– soft tissue;
· right knee injury– soft tissue, and
· lumbar spine – soft tissue injury.
The Panel found that the following injuries give rise to 3% WPI:
· fracture of the right third metatarsal, and
· right foot/leg – injury to the superficial peroneal nerve and injury to the sural nerve.
COMBINED CERTIFICATE
The Review Panel notes that more than one assessment has been required to assess the permanent impairment arising from the injured person’s physical injuries.
The Panel notes Medical Assessor Samuel Herman issued a certificate dated 6 April 2021 certifying 5% WPI for atrial fibrillation.
Using the Combined Values Chart at page 322 of the AMA 4 Guides the combined permanent impairment is 8%.
In accordance with s 7.26(8) of the MAI Act, the Review Panel has issued a combined certificate combining the result of this review with the results of the other assessments issued in determining this dispute.
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