Hassan v AAI Limited t/as GIO
[2025] NSWPICMP 82
•12 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Hassan v AAI Limited t/as GIO [2025] NSWPICMP 82 |
CLAIMANT: | Daad Hassan by her next friend Khayria El Hassan |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 12 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 30 July 2020; pedestrian child hit by motor vehicle; claimant suffered extensive left lower limb fractures; the dispute related to whether the degree of permanent impairment was greater than 10%; claimant re-examined; assessment of left lower limb based on muscle wasting in thigh due to knee injury; assessment of loss of movement in left ankle due to extensive fractures; scarring assessed at 4% based on extensive scarring due to injury and surgical procedures; assessment of right lower limb showed reduced range of movement in the ankle and hindfoot; claimant had prolonged inactivity in a wheelchair and otherwise altered gait from surgical procedures causing limping; explanation as to how this would affect right ankle due to lack of activity and limping causing tendons and ligaments on the right side to tighten, contract and shorten; right ankle movements different from previous findings; examination showed consistency on repeated testing and no exaggeration; loss of movement of uninjured right ankle casually related to left ankle injury; Held – claimant’s degree of permanent impairment greater than 10%; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment Certificate WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the medical assessment certificate dated 25 May 2024 and certifies that the degree of permanent impairment that has resulted from the following injuries caused by the motor accident is assessed at 13% and is greater than 10%: · left leg distal and tibial fractures, undisplaced medial malleolus fracture, torn meniscus and various surgical procedures; · right lower leg, and · scarring. |
REASONS
BACKGROUND
Ms Hassan (the claimant) was injured in a motor accident on 30 July 2020. The claimant was a pedestrian when she was struck by the insured vehicle.
AAI Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Hassan any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms Hassan’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Cameron (Medical Assessor) and dated 25 May 2024 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to 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.[4]
[4] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
On 10 October 2024 the Panel advised the parties as follows:
“1. The Review Panel notes the suggestion of proposed surgery in the report of
Dr Ling dated 21 November 2022 (claimant’s bundle, p 232).2. The Panel enquires whether the claimant has undergone recent surgery and/or whether any surgery is proposed in the next 12 months. These queries are asked noting the issue of whether impairment is ‘permanent' (see clauses 6.19 and 6.20 of the Motor Accident Guidelines, version 9.2).
3. The claimant is directed to immediately respond to the Panel’s query raised in paragraph 2. Depending on the response, the Panel may require further information.”
The claimant subsequently advised that she was not scheduled to have surgery in the next 12 months.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[7] In Raina v CIC Allianz Insurance Ltd[8] 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.”
[7] See s 3B(2) of the Civil Liability Act 2002.
[8] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor noted the following body parts referred for assessment were the left ankle, right ankle, left foot, left hip, right hip, left knee and scarring.
The Medical Assessor noted two surgical scars on the left lower leg, left knee was five degrees valgus and the right knee was 0 degrees valgus and there was approximately 0.5 cm leg length difference.
The Medical Assessor assessed the level of whole person impairment at 3% for the left ankle based on range of motion restriction and 2% for scarring. There were no other assessable impairments made by the Medical Assessor.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
The pre-accident records of the general practitioner (GP) do not refer to any medical conditions relevant to the assessment of permanent impairment of the physical injuries.[9] There are references to multiple infections and gastrointestinal issues requiring treatment and behavioural and associated issues. We do not intend to summarise that material as we consider it irrelevant to our consideration.
[9] Claimant’s bundle, pp 500 - 548; pp 576 - 605; pp 668 - 720.
An X-ray of the right ankle dated 8 June 2018 noted a clinical history of a swollen and bruised ankle following trauma. The X-ray showed no significant soft tissue swelling and no acute fracture with small joint effusion.[10]
[10] Claimant’s bundle, p 564.
Medical records post-accident
The ambulance report noted the motor accident and obvious deformity and swelling to the left ankle and minor abrasions to the left knee and thigh.[11]
[11] Claimant’s bundle, p 28.
The hospital notes refer to the motor vehicle accident causing comminuted distal fractures of the left tibia and fibula and an undisplaced medial malleolus fracture.[12] No other injuries were identified at hospital other than superficial grazing.[13]
[12] Claimant’s bundle, p 40.
[13] Claimant’s bundle, p 646.
An X-ray of the pelvis dated 31 July 2020 showed no evidence of acute fracture in the pelvis and proximal femora.[14]
[14] Insurer’s bundle, p 72.
An X-ray of the left lower extremity showed comminuted fractures at the distal metadiaphysis of the left tibia and fibula and both distal fragments demonstrate medial translation and mild medial volar angulation with oedema and subcutaneous emphysema.[15]
[15] Insurer’s bundle, p 74.
On 13 August 2020 the claimant underwent left tibia and fibula open reduction and internal fixation.[16]
[16] Claimant’s bundle, p 26.
A certificate dated 14 August 2020[17] noted open distal and tibial fractures.
[17] Claimant’s bundle, p 25.
The claimant first attended her GP following the motor accident on 24 August 2020. The doctor then noted that the claimant suffered severe neuropathic pain, was on a high dose of gabapentine and the left toes were mildly swollen.[18]
[18] Claimant’s bundle, p 548.
Undated photographs show left leg scarring and surgical cuts.[19]
[19] Claimant’s bundle, pp 87- 110.
On 8 September 2020, Dr Collins, Head of Department of Pain Medicine noted that the internal fixation was complicated by compartment syndrome for which the claimant required a fasciotomy. There were painful burning sensations mainly in the sole of the foot with radiation slightly at the back of the heel and over the sole in general. The doctor recommended that the claimant continued with gabapentin and supplementary Ibuprofen.[20]
[20] Claimant’s bundle, p 656.
The claimant was seen by Dr Britton on 16 February 2021.[21] The doctor noted that there was reported intermittent oedema in the foot which resolved with elevation. On examination the claimant had minor limitation of flexion and aversion in the foot but otherwise movements were painless with normal power. An updated X-ray of the left lower limb showed progressive callous formation across the fracture lines as well as increasing sclerosis surrounding the previous screw insertion sites. The doctor noted progressive healing and was confident the claimant had done very well with the three months of appropriate therapy and did not arrange any further follow-up appointments.
[21] Insurer’s bundle, p 132.
On 13 January 2022 the GP noted left leg pain, had undergone six surgeries, ongoing leg pain and loss of spinal pain. The claimant could not play Oztag for more than four minutes and could not walk for more than 20 minutes.[22]
[22] Claimant’s bundle, p 55.
On 9 June 2022 the claimant underwent arthroscopic repair of the left meniscus.[23] The surgical report indicated a lateral compartment paracentral tear with a small radial component which was debrided and lateral incision and sutures tied.[24]
[23] Claimant’s bundle, p 47.
[24] Claimant’s bundle, p 48.
An MRI scan of the left knee dated 1 August 2022 showed a grade 3 interstitial tear throughout the body and posterior horn extending through to the outer surface.[25]
[25] Claimant’s bundle, p 172.
An Allied Health Recovery Request in August 2022 noted the applicant showed no interest in attending school, chronic low and upper back pain, ankle and foot pain noting antalgic gait issues and loss of muscle bulk in the left leg.[26]
[26] Claimant’s bundle, p 167.
An ultrasound and X-ray of the left foot and ankle dated 9 September 2022 showed an old grade 2 sprain of ATFL with possible tiny avulsion fracture and the sequelae of left distal fibula and tibial shaft fractures.[27]
[27] Claimant’s bundle, p 174.
The claimant presented to Dr Nicholls at the Westmead Children’s Hospital on
23 September 2022, three and half months post left lateral meniscus repair. The claimant was reported to be doing reasonably well at that time having been of crutches for the past two weeks with some pain in the knee and ankle. There was a reference to some pronounced hallux valgus more on the left than the right which gives some pain.[28][28] Claimant’s bundle, p 175.
The doctor noted that the claimant was due to see Dr Athreya in October as the fibula physis was growing more slowly than the tibial physis.
The EOS of the whole spine and lower limbs dated 26 October 2022 showed functional results of the legs within 1% (.5cm) and anatomical result within 0.2 cm.[29] An EOS refers to low-dose, weight-bearing X-rays used to accurately assess conditions such as leg length discrepancy.
[29] Claimant’s bundle, p 186.
An MRI scan of the left ankle dated 29 October 2022 demonstrated no physeal fusion with diffuse marrow oedema throughout the distal tibia, hind foot and midfoot regions was non-specific but suggestive of reflex sympathetic dystrophy or chronic pain syndrome related pathology.[30]
[30] Claimant’s bundle, p 188.
In a report dated 21 November 2022, Dr Ling, orthopaedic surgeon, noted the claimant presented with a left-sided limp, flexion deformity of the left knee and lateral foot pain from the motor accident. The history was that the claimant underwent internal fixation which was subsequently complicated by the need for fasciotomy, subsequent infection and a complex meniscal tear of the left knee with subsequent hardware removal from the left leg.[31]
[31] Claimant’s bundle, p 232.
Dr Ling noted that the left knee was held in a flexed posture which accommodated the left leg difference is the left leg was approximately 2 cm longer than the right leg. The left ankle was in valgus with tenderness laterally.
Dr Ling noted that Dr Athreya had planned a distal tibial growth plate ablation to stop the ankle from going into the more valgus. The doctor also recommended the proximal tibial growth plate be ablated in an effort towards evening up the leg length difference and reducing flexion posture of the left knee.[32]
[32] Claimant’s bundle, p 232.
A podiatry report following an assessment on 4 May 2023 noted restricted and limited foot dorsiflexion during gait, bilateral Hallux vulgus with plantar and dorsal foot pain, claw and hammer toes, prominent metatarsal heads and inadequate footwear. The author noted the prominent metatarsal head will develop further foot complications and biomechanical and foot deformity has affected the claimant’s knees and was causing lower back pain.[33] The podiatrist recommended medical grade footwear and subsequent review.
[33] Claimant’s bundle, p 123.
An MRI scan of the knees, undated but a comparison was made with the radiographs dated 26 October 2022, noted a slight valgus alignment of the left knee resulting in the mechanical axis alignment passing through the lateral femoral condyle causing genu varus alignment.[34]
[34] Claimant’s bundle, p 140.
In January 2024 the claimant was assessed by a chiropractor for chronic mechanical neck, mid and lower back pain in the context of severe knee and ankle fractures following a motor vehicle accident in 2020.[35]
[35] Claimant’s bundle, p 272.
Qualified opinions
Dr McGlynn, plastic surgeon, was jointly qualified by the parties and provided a report dated 25 January 2024.[36] The doctor noted that the motor accident caused fractures in the lower leg and the claimant developed compartment syndrome from excessive swelling which required fasciotomies to relieve soft tissue compartment pressure. The claimant developed permanent visible left leg scarring causing disfigurement which restricted social and recreational activities.
[36] Insurer’s bundle, p 28.
Dr McGlynn advised that the scarring is best managed with daily application of moisturiser and protection from excessive exposure to sunlight. The lower limbs scars showed colour contrast, visible indentation and width which made them readily visible. Dr McGlynn recommended consultation with a plastic surgeon with the aim of reducing scarring.
Dr McGlynn noted that the claimant was conscious of the scars, they were easily visible and locatable, there are minimal trophic changes, no suture marks were visible, there was easily visible contour defect, a minor limitation in the performance of a few activities of daily living, no adherence and no or intermittent treatment. Noting that five of the ten scar criteria fall within various assessments, the doctor assessed a best fit of 5% whole person impairment.
SUBMISSIONS
Claimant’s submissions dated 12 September 2023[37]
[37] Claimant’s bundle, p 8.
The claimant noted that the X-rays and hospital records showed comminuted fractures of the left tibia and fibula and an undisplaced medial malleolus fracture which resulted in open reduction and internal fixation surgery of the tibia and fibula fractures and subsequent surgeries including a left knee arthroscopic meniscus repair.
The claimant developed compartment syndrome post operatively and underwent a fasciotomy on 31 July 2020 and later developed bone disease and continues to suffer from chronic pain.
Claimant’s submissions dated 20 June 2024[38]
[38] Claimant’s bundle, p 3.
These submissions were filed seeking leave to review the medical assessment.
The claimant submitted that:
(a) the reasons provided in the medical assessment certificate downplayed the significance of the injuries as the claimant had undergone various surgical procedures, insertion and removal of various metallic implants;
(b) reference was made to the clinical examination by Dr Wallace;
(c) that on discharge from Westmead Hospital sensory deficit was noted in the left foot and there was no assessment by the medical assessor of sensory deficit;
(d) there was no assessment by the Medical Assessor of the meniscus arthroscopic repair, wasting of the musculature in the legs, no assessment of muscle strength and noting that the Medical Assessor observed limping, and
(e) the Medical Assessor failed to consider the multiple assessment methods, to examine and record relevant findings and choose an appropriate assessment in accordance with the Guidelines.
The claimant submitted that the assessment was incomplete because loss of range of motion can be combined with peripheral nerve injury, leg length discrepancy and there was no assessment of sensory impairment in circumstances where there was a 0.5 cm leg length discrepancy found.
The claimant submitted that it may have been appropriate to consider gait derangement as the claimant limped and used orthotics. Furthermore, muscle atrophy would be relevant to such an assessment and could be combined but no such assessment was undertaken.
The claimant submitted that meniscectomy attracted impairment as a diagnosis based estimate and no impairment for the knee was given.
Insurer’s submissions dated 11 July 2024[39]
[39] Insurer’s bundle, p 8.
These submissions were filed opposing leave to review the medical assessment and disputed that the medical assessment was not incorrect in a material respect.
The insurer submitted that the Medical Assessor did not make a diagnostic area of the claimant’s injuries.
The insurer referred to the sensory deficit noted in the discharge summary of Westmead Hospital. It noted that the Medical Assessor was only required to assess impairment at the time of the assessment. There is no contemporaneous evidence which supports a diagnosis of peripheral nerve injury in the foot and there were no findings made by Dr Wallace of any sensory deficit.
The insurer submitted that there was no error with respect to failing to assess muscle wasting and strength. This approach was consistent with that undertaken by Dr Wallace.
The insurer submitted that the findings recorded by the Medical Assessor in respect of any gait arrangement do not meet the criteria in Table 36 of AMA 4.
The insurer notes that the Medical Assessor found a 0.5 cm leg length discrepancy. It submitted that the appropriate table was table 6.5 of the Guidelines and/or Table 35, Part 3.2 of AMA 4. It submitted that up 0.5 cm leg length discrepancy is assessed at 0% lower extremity impairment.
The insurer acknowledge that meniscectomy can be used as a diagnosis based estimate under Part 3.2i of AMA 4. It submitted that the claimant had not undergone a meniscectomy and had got undergone a meniscus arthroscopic repair.
Insurer’s submissions dated 3 October 2023[40]
[40] Insurer’s bundle, p 3.
The insurer noted that the claimant had been assessed by Dr Raymond Wallace, orthopaedic surgeon, who provided a report dated 31 July 2023 and assessed the impairment at 3%. It noted that the claimant had not provided any medical evidence which supported a greater than 10% whole person impairment. It referred to a clinical note that the claimant had been seen by Dr Bodel on 29 April 2022 and no report had been served.
The insurer noted there is no reference in the hospital records to the hips and the only reference to the hip is contained in the chiropractic notes on 22 March 2022 when it was recorded that the claimant’s hip pain was improving. There was no report of hip pain to
Dr Wallace.The insurer accepted that the claimant suffered an injury to left ankle in the motor accident. Treating records showed improvement following further imaging studies and consultation with a physiotherapist. On 26 October 2021 the claimant reported she had suffered a fall and reinjured her ankle although imaging studies at the time were normal. On 26 March 2022 it was recorded that the claimant’s ankle was healing satisfactorily.
The insurer referred to the report of Dr Wallace who assessed 3% permanent impairment for the left ankle as a result of loss of range of movement in that joint. There was no assessment of impairment or complaints of pain in the right ankle.
The insurer submitted that there was no evidence of any injury to the right ankle in the contemporaneous medical evidence.
The insurer noted that the discharge summary from Westmead Children’s Hospital referred to persistent intermittent diminished sensation in the distal toes and/or support. The claimant was examined by Dr Britton on 16 February 2021 where she reported intermittent oedema in the foot that resolved with elevation. Dr Britton noted that the claimant had done very well and had experienced one episode of pain in the foot in January. The doctor noted that the ultrasound was unremarkable and there was minor limitation of flexion and inversion of the foot but otherwise movements were painless with normal power.
Dr Wallace’s report of 31 July 2023 did not record complaints of pain, symptoms, restrictions or impairment in the left foot. The insurer accepted that the claimant had experience symptoms in the left foot secondary to a left ankle injury but submitted that there was no permanent impairment in the left foot.
The insurer noted that there were minor abrasions to the left knee recorded in the ambulance report and there were complaints of pain to the GP.
The insurer referred to the MRI scan dated 14 March 2022 which revealed slightly enlarged lateral meniscus body with a horizontal tear of the lateral meniscus measuring 14 mm. The claimant subsequently underwent a left knee meniscal arthroscopic repair on 9 June 2022.
The insurer referred to the assessment by Dr Wallace which recorded complaints of intermittent aching in the left knee worse on walking long distances or running with complaints of intermittent swelling but no locking or giving way. Dr Wallace’s examination showed active range of movement, no effusion in the joint, no tender areas and no retropatellar crepitus. Calf circumference was measured 29 cm bilaterally and the doctor assessed 0% permanent impairment arising from the left knee.
The insurer did not dispute that the claimant sustained a left knee injury but the injury did not give rise to a greater than 10% whole person impairment.
The insurer acknowledged that the claimant sustained scars to the left ankle in the subject accident, but these do not give rise to a greater than 10% whole person impairment.
RE-EXAMINATION
Ms Hassan was examined by both Medical Assessors on 21 January 2025. The examination report is as follows:
“Miss Hassan attended the medical suites at PIC on 21 January 2025. She was accompanied by her mother, Mrs Hassan and an interpreter, Hafez Assoum, NAATI no XXXX was in attendance for the entire interview. She was examined by Medical Assessors Moloney and Assem.
Pre-accident history
Miss Hassan stated that she was in good health prior to the accident and lives with her parents. She was active with school sport and had no previous injuries to those assessed today. She has changed schools this year due to bullying and starts year 9 shortly.
History of motor accident
Miss Hassan was crossing the road as a pedestrian when she was hit by a car. The initial injury was to her nose, left hip and left foot. The ambulance and police attended the scene of the accident, and she was taken to Westmead Hospital.
History of subsequent treatment
At Westmead Hospital, a fracture of the lower left tibia and fibula was diagnosed and was treated surgically by an internal fixation with plate and screws. Due to the development of a compartment syndrome, a further operation in the form of a fasciotomy was undertaken in the anterior left compartment of the lower leg. There were complications with infections which resulted with further surgical procedures including a debridement of the wound and later cleanup.
Physiotherapy and hydrotherapy was organised as well as chiropractic treatment. One year after the initial surgery plates and screws were removed.
Due to persistent left knee pain a tear of the left lateral meniscus was diagnosed and treated by an arthroscopic repair but no excision of the meniscus.
Due to the fracture and surgical procedures the left lower leg grew longer than the right and in December 2023, Dr Athreya undertook a fusion of the growth plate of the left distal fibula and tibia.
Miss Hassan has had a follow-up with Dr Nicholls, the treating orthopaedic surgeon in March 2024 and is due for another follow-up in March 2025.
Physiotherapy has been undertaken since the initial injury but funding was terminated by the insurance company 6 months ago. However there had been further treatment which has been stopped at present due to her treating physiotherapist being on maternity leave.
There have been no further injuries sustained since the accident.
No radiological studies were available for inspection.
Current symptoms
Miss Hassan states that she has pain in the left hip region with prolonged walking or running which eases with rest. There is an anterior left knee pain which she feels gives way occasionally but no associated swelling. There is constant pain in the left ankle which also increases with prolonged standing or walking. There is loss of sensation below the left lateral and medial malleoli. She also gets pain in the right ankle with excess standing or walking and occasionally in the right knee.
Current treatment
Present medication is Nurofen or Panadol when needed. She is on fluoxetine 25 mg One-A-Day. No manual therapy is being undertaken at present and she consulted her GP when necessary. There is a follow-up in March 2025 with the treating orthopaedic surgeon.
Clinical examination
Miss Hassan walked into the rooms with a normal gait and sat comfortably during the interview. She was accompanied by her mother and the interpreter. She states that she is left-handed, and height was measured at 159 cm and weight of 48.3 kg.
Miss Hassan walked with a normal gait and can stand on her toes but had difficulty raising up on the left heel. Squatting was limited to stiffness in the ankles.
Knees
On inspection of the knees, there was a 5° valgus measured bilaterally. On testing range of movement both knees had a flexion of 150° and 0° extension with no ligament laxity and no crepitation on passive movement. No effusions were apparent.
Hips
There was a full pain free range of movement of both hips with no tenderness on palpation. Straight leg raising was 90° bilaterally and pain free.
On measuring for muscle atrophy, the calves 32 cm bilaterally at the maximum circumference and the thighs were 36.5 cm on the right and 35.5 cm on the left (as measured at 10 cm above the medial joint line) which is a loss of 1 cm.
On measuring leg length, the left leg was 1 cm longer which was entirely in the lower leg/ tibia which was 35.5 cm on the right and 36.5 cm on the left.
Ankles
Ankle Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion
10°= 3% WPI
10°= 3% WPI
Plantarflexion
40°
40°
Hindfoot Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Inversion
30°
30°
Eversion
10°= 1% WPI
20°
There was a small patch of decreased sensation under the left medial and lateral malleoli with a diameter of 4 cm. This was not in a dermatomal or peripheral nerve pattern but secondary to the surgical procedures.
Scarring
There were two large surgical scars. The medial aspect of the left lower leg 14 cm with the maximum with a 2 cm and a fasciotomy scar of 31 cm. Miss Hassan is conscious of the scars and is easily able to locate them. There were trophic changes to touch and suture marks are clearly visible with colour contrast compared to the surrounding skin. The scar is visible with usual clothing. The slight contour defect is visible, and no adherence is detected. There is minimal limitation in the performance ADLs such as protection from sunlight.
Discussion
Left knee
On clinical examination of the left knee the WPI is 0%. However, there is a 1 cm wasting of the left thigh muscles atrophy from the knee injury and subsequent surgery. This is assessed using the MAA guidelines table 6.1 (a) which is a mild impairment and 2% WPI.
Left and right hip
There is 0% WPI for the hips. There was a normal range of movement of both hips with no signs of trochanteric bursitis.
Left foot
There is no separate injury to the left foot except for injury to the left ankle.
Left ankle
There was a fracture to the left ankle which has been treated surgically several operations and a resultant loss of range of movement. This is assessed using table 42 and 43 of AMA 4th edition. Due to a mild loss of dorsiflexion, range of movement impairment is 3% WPI.
Right ankle
At the time of the examination by the Panel there was loss of range of movement in the right ankle. The Panel considers that this was related to treatment for the left ankle. Miss Hassan was several months in a wheelchair and then crutches and she has developed persistent pain in the right ankle since the treatment for the left ankle.
Using table 42 and 43 of AMA 4th edition, there is a mild impairment in dorsiflexion which is 3 % WPI. There is also loss of eversion as a mild impairment of 1 % WPI.
Scarring
Using the Temski chart classification of best fit is 4 % WPI. Miss Hassan is easily able to identify the scars and is conscious of them. There is colour contrast with surrounding skin with evident trophic changes. Suture marks are clearly visible. Scars are usually visible with her usual clothing. Contour defect easily visible. Exposure to sunlight would need to be limited. There is no adherence.
WPI adds to 7 % for both ankles + 2 % for thigh atrophy + 4 % scarring”
FINDINGS
The review is by way of new assessment of all matters with which the medical assessment is concerned.[41] The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[42]
[41] Section 7.26(6) of the MAI Act.
[42] Section 7.26(6) of the Act.
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[43] and Insurance Australia Ltd v Marsh.[44]
[43] [2021] NSWCA 287 at [40], [41] and [45].
[44] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by the Medical Assessors supplemented by the following further reasons.
The left meniscus repair undertaken in June 2022 is not assessable under Table 64 of the Guidelines as there was no partial meniscectomy but repair by way of sutures.
There was decreased sensation in the left medial and lateral malleoli which was not dermatomal and probably due to the scar tissue. This is not assessable.
The claimant otherwise referred to loss of sensory deficit in the left foot referenced in the hospital discharge notes. This sensory deficit was not present in the examination undertaken by the Medical Assessors.
Based on the clinical examination of the Medical Assessors there is no basis to assess the claimant for gait derangement.
The Medical Assessor found loss of movement in the right ankle and hindfoot which was different from other findings although we note that Medical Assessor Cameron did not record assessments of the right ankle.[45] The claimant was consistent on repeated testing within the clinical examination and there was no suggestion of exaggeration. The measurements of the lower extremities were taken with a goniometer and repeatedly tested with no inconsistency. Further, there is no other rationale or medical explanation for the loss of range of movement of the right ankle other than our explanation set out herein.[46]
[45] Claimant’s bundle, p 12.
[46] The minor trauma referred to at [22] herein does not explain the loss of range of motion in the right ankle.
The claimant was wheelchair bound for an extensive period and otherwise required the use of crutches when recovering from the various surgeries undertaken to the left lower extremity.
The prolonged inactivity of the right ankle and disrupted movement caused by limping will cause the tendons and the ligaments in the right ankle and achilles to tighten, contract and shorten. This is common in achilles tendon and calf muscles which can become contracted if not regularly stretched or used. This is exactly what occurred in the claimant’s case with the resultant mild impairment of dorsiflexion and loss of eversion. For these reasons we are satisfied that the loss of movement in the right ankle and hindfoot is casually related to the severe left leg injuries.
In relation to the assessment of the scars and applying Table 6.18 of the Guidelines, the Medical Assessors observed:
(a) the claimant was conscious of the scars (range of 1 % - 9%);
(b) the scars are easily identifiable with colour contrast to surrounding skin (3-4%);
(c) the claimant was easily able to locate the scars (3-9%);
(d) there were trophic changes evident to touch (2-4%);
(e) staple marks are clearly visible (3-4%);
(f) there was contour defect easily visible (3% upwards);
(g) minor limitation on activities of daily living because the scars should avoid sunlight with complications arising if they are burnt (3-4%);
(h) there was a need for intermittent treatment – application of moisturiser, and
(i) no adherence (0-2%).
The Panel must assess the total effect of the scar as an organ and multiple scars are not assessed individually (cl 6.263 of the Guidelines).
We assessed the impairment of the skin on a best fit basis of 4% permanent impairment. These scars are significant and described above. They are due to the original injury and the subsequent operative procedures for the serious fractures and complications to correct the differences in leg length.
There has been sufficient time for the scars to stabilise following previous surgeries and they are unlikely to change.
There are no relevant pre-existing physical symptoms and no objective evidence of impairment at the time of the motor accident. There is no basis to make any deduction for pre-existing impairment.
We are satisfied that the impairment is permanent within the meaning of cls 6.19 and 6.20 of the Guidelines because the condition is well stabilised, the claimant does not require further surgery and treatment in the foreseeable future. This finding is based in part on the claimant’s response to our direction that there is no further surgery anticipated in the next 12 months.
The Medical Assessors’ clinical examination of the claimant is that there is unlikely to be a change greater than 3% impairment over the next year.
CONCLUSION AND ORDERS
The Panel concludes that the degree of permanent impairment of the claimant that has resulted from the injuries caused by the motor accident is 13%. A new certificate is attached at the commencement of these Reasons.
Westmead Children’s Hospital
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