Insurance Australia Limited t/as NRMA Insurance v Anand
[2024] NSWPICMP 863
•17 December 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Anand [2024] NSWPICMP 863 |
CLAIMANT: | Vikramjit Anand |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Geoffrey (Paul) Curtin |
DATE OF DECISION: | 17 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 23 May 2021 when the insured motor vehicle struck him as he was about to board his stationary vehicle; assessment of permanent impairment for injuries to the left leg, lumbar spine and subsequent scarring; claimant re-examined by Review Panel; Held – original assessment of 18% revoked and replacement certificate issued for different reasons. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under ss 7.26 (7) and (9) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is 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%. Determination
· left leg – soft tissue injury – open fibular fracture; · lumbar spine – musculoligamentous injury, and · skin scarring – left thigh, right thigh and left lower leg. |
STATEMENT OF REASONS
BACKGROUND
On 23 May 2021, the claimant, Vikramjit Anand, was involved in a motor accident when he was struck by a motor vehicle (insured by NRMA), as he was about to board his stationary motor vehicle.
The claimant claimed that as a result of the accident, he sustained an injury to his left leg and his lumbar spine. He also claimed that he developed psychological injury (although this aspect of his injuries is not the subject matter of this dispute).
The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of his claim for damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the degree of permanent impairment of the claimant’s physical injuries caused by the accident exceeded 10%.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
The Commission referred the matter to Medical Assessor Farhan Shahzad for assessment.
On 13 October 2023, the Medical Assessor issued a certificate finding that the claimant’s physical injuries, referred for assessment, gave rise to a permanent impairment of 18%.
THE REVIEW APPLICATION
On 15 November 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review. The review application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being 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.[1]
[1] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According 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 Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Drew Dixon, Medical Assessor Geoffrey (Paul) Curtin and Member Maurice Castagnet (the Panel).
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.[2]
[2] 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. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
RELEVANT LEGISLATION AND GUIDELINES
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).[5]
[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.2.
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.[6]
[6] Clause 6.2 of the Guidelines.
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]
[7] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“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.”
These observations were made in the context where the review panel was constituted by three medical assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of 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.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]
MEDICAL ASSESSMENT UNDER REVIEW
[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Medical Assessor noted that as the claimant was opening the door of his vehicle, putting his jacket to get into his vehicle, the insured vehicle travelling at high speed, struck him and his vehicle door. As a result of the collision, the claimant was crushed for a moment by the high-speed passing insured vehicle.[9]
[9] Page 14 of the insurer’s bundle.
The Medical Assessor diagnosed that as a result of the accident, the claimant sustained a left fibula fracture and left thigh laceration with soft tissue injury and a musculoligamentous injury to the lumbar spine.
The Medical Assessor noted that the claimant subsequently developed deep vein thrombosis and a pulmonary embolism for which he was placed on blood thinners.
The Medical Assessor noted that the claimant underwent surgical debridement and repair of a large wound in the left thigh and that this was followed by repeat surgical debridement with excision of necrotic soft tissue. There was a subsequent split-skin graft repair of the left thigh skin defect with a skin graft harvested from the right anterior thigh. There was a loss of muscle strength on the left lower extremity with sensory irritation on the skin and the muscle was sensitive. There was sensory loss in the left leg distal to the scar below the knee. There was swelling, tenderness and irritation over the graft site and extensive swelling and disfigurement on the thigh.[10]
[10] Page 14 of the insurer’s bundle.
In his certificate, the Medical Assessor found that the following injuries referred for the assessment, were caused by the motor accident:
· left leg – soft tissue injury open fibular fracture;
· lumbar spine – musculoligamentous injury, and
· skin scarring – left and right thigh and left lower leg.
MATERIAL BEFORE THE PANEL
The claimant submitted a paginated and indexed bundle of documents comprising 1,413 pages, and the insurer submitted a paginated and indexed bundle of documents comprising 127 pages.
The Panel considered all the material filed by the parties.
SUBMISSIONS
Insurer’s submissions
The insurer’s submissions may be summarised as follows:
(a)the insurer was unable to discern how the single medical assessor came to the conclusion that the lumbar spine fits the criteria for diagnosis-related estimate (DRE) category II when his clinical examination did not reveal any significant muscle guarding or spasm, asymmetric loss of range of motion or non-verifiable radicular complaints of radicular pain or any alternation of the structural integrity, as required by the lumbar spine DRE category II criteria;
(b)in relation to the left knee, the Medical Assessor did not consider that the clinical records from the treating physiotherapist and Dr Suttor’s report of 14 September 2022 do not show that the claimant had any loss of movement in the left knee;
(c)the clinical records of Dr Suttor do not indicate that, there was distinct colour contrast of scar or skin condition, it was easily located, tropic changes were visible, colour defect were easily visible and there was limitation in grooming or dressing and exposure to chemical or physical agents may temporarily increase limitation or restrictions, as required for the evolution of minor skin impairment, and
(d)the single Medical Assessor erred in his calculation relating to the sensory loss at the left thigh. The Medical Assessor has stated that the lower extremity impairment (LEI) for the sensory was 2% and 1% for dysesthesia, where it should be 7%. This means using a grade II, the impairment for sensory loss would be 1% (rounding up 0.5) and 2% (rounding up from 1.75) for dysesthesia. This would equate to 3% LEI. Therefore, the total range of movement (ROM) impairment from the left knee would be 3% combined with 10% = LEI, which is converted to 5% whole person impairment (WPI).
Claimant’s submissions
The claimant’s submissions may be summarised as follows:
(a) in coming to the conclusion for an assessment of DRE category II for the lumbar spine injury, the single Medical Assessor clearly provided his path of reasoning on page 12 of his report when he states that the history and his findings are compatible with a specific injury, and clinical signs of a lumbar spine injury are present with asymmetry of movement and guarding but no clinical sign of radiculopathy;
(b) the single Medical Assessor had no obligation to identify or refer to every document provided to him for the purposes of the assessment (see Allianz Insurance v Cervantes [2012] NSWCA 244);
(c) the single Medical Assessor determines what weight is to be accorded to the evidence and he is required to apply the gamut of his experience to conduct the assessment having regard to the available medical evidence and his clinical findings or examination, to apply his clinical judgment. He is not required to adopt the findings of another Medical Assessor;
(d) in any event, Dr Suttor’s report of 14 September 2022 refers to “obvious long term and permanent scarring” which is consistent with the single Medical Assessor’s findings. His findings are also consistent with the findings of Dr McGlynn, plastic surgeon who assessed WPI of 10% in respect to scarring;
(e) the clinical records of Dr Suttor and the physiotherapist record limitations to the left knee, and
(f) the claimant agrees with the insurer’s submission in paragraph 30(d) above that there has been an obvious error by the single medical assessor in his calculation relating to the sensory loss at the left thigh.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel that is directly relevant to the matters under review, may conveniently be summarised as follows.
Pre-accident medical records
There was nothing in the available evidence before the Panel or in the parties’ submissions to suggest that there were any pre-accident conditions or injury to the lumbar spine and the left leg.
The claimant’s statement
In his Application for personal injury benefits dated 17 June 2021, the claimant described his injuries in the following terms:
“Fractured Left leg, large open wound the size of a palm on left leg, Skin grafting on left leg and brusing [sic] psychological injury”.[11]
Post-accident medical records
[11] Page 36 of the claimant’s bundle.
Clinical notes of Westmead Hospital
The clinical notes of Westmead Hospital recorded the following:
(a) the claimant was admitted for treatment on the day of the accident and discharged on 4 June 2021. He was under the care of consultant orthopaedic surgeon, Dr Sean Suttor for the management of a left open fibula fracture and left thigh laceration.[12]
(b) There was a washout and debridement procedure performed on 24 May 2021 involving the left thigh and left leg wound, a further wash out and debridement procedure performed on 2 June 2021 involving the left thigh and “VAC Dressing”.[13]
(c) An X-ray of the left tibia and fibula performed on 23 May 2021 showed a non-displaced fracture involving the midshaft of the fibula. An X-ray of the chest performed on 23 May 2021 revealed no rib fractures or pneumothorax.
(d) Appointments were made for follow-ups, VAC changes and removal of sutures at the Plastics Clinic.[14]
(e) There was a review and dressing of the left thigh wound in the outpatient department on 7 June 2021 with an aim for a skin graft on 11 June 2021.[15]
(f) There was an attendance at the Plastics Clinic on 10 June 2021 when the left thigh wound was cleaned and re-dressed.[16]
(g) The claimant was admitted on 16 June 2021 and a left thigh debridement and Split Skin Graft (SSG) performed on that day. The SSG was harvested from the right thigh with “4-inch dermatore and meshed Kaltostat/Kerlex/Combine/Hypafix to donor site”.[17] The claimant was discharged on 21 June 2021.
[12] Page 361 of the claimant’s bundle.
[13] Page 363 of the claimant’s bundle.
[14] Page 362 of the claimant’s bundle.
[15] Page 628 of the claimant’s bundle.
[16] Page 635 of the claimant’s bundle.
[17] Page 727 of the claimant’s bundle.
An Ultrasound and X-ray of the left leg was performed on 24 June 2022 on a background of post-injury swelling and pain, concluded that there was no concerning abnormality demonstrated and showing a “possible old healed fibular fracture”.[18]
[18] Page 984 of the claimant’s bundle.
Living Waters Family Medical Practice
The clinical records of the general medical practice of Living Waters Family Medical Practice show that there were follow up visits with general practitioners from July 2020 to at least August 2022. The recommended treatment was to continue with physiotherapy.[19]
[19] Pages 762-771 of the claimant’s bundle.
There was a complaint of numbness in the left leg (consultation on 2 December 2021),[20] left leg pain (consultations on 3 February 2022 and 10 March 2022)[21] and swelling, numbness and pain in the lower leg and tender thigh (consultation on 23 June 2022).[22]
[20] Page 766 of the claimant’s bundle.
[21] Page 764 of the claimant’s bundle.
[22] Page 763 of the claimant’s bundle.
There was a referral to Dr Suttor for further management on 23 June 2022.
Following a review by Dr Suttor on 14 September 2022, he concluded that one year post trauma, the claimant has had a successful reconstruction of the skin defect over the left thigh but there is obvious long term and permanent scarring there.[23]
[23] Page 976 of the claimant’s bundle.
Dr Suttor noted that the claimant was concerned about lower back pain which was a new onset since the accident. An MRI was requested.[24]
[24] Page 976 of the claimant’s bundle.
Dr Suttor believed that there was no sign of any functional impairment as the scarring related to his left lower leg and reassured the claimant that there are no limitations in terms of his activities.[25]
[25] Page 976 of the claimant’s bundle.
Physiotherapy records
From the available evidence, the Panel notes that the claimant has underwent an extensive program of physiotherapy treatment from 20 July 2021 to 26 May 2023 to help with the management of quadriceps/patellofemoral pain syndrome, skin grafting, healing, increase lifting capacity, restoring ability to squat and to increase knee stability.[26]
[26] Pages 1,332-1,413 of the claimant’s bundle.
Medico-legal evidence
The Panel notes that there was a ‘Peer Conferencing Report’ provided by occupational physician, Dr Chris Walls on 14 November 2021, at the request of the insurer for the purpose of assisting the claimant’s rehabilitation.[27] Dr Walls noted that the fracture to the left fibula had healed and the degloving/laceration injury to the left thigh and left knee was “now resolving”.[28]
[27] Pages 258-262 of the claimant’s bundle.
[28] Page 259 of the claimant’s bundle.
The claimant was assessed by orthopaedic surgeon, Dr James Bodel at the request of his lawyers.
In his report dated 10 June 2022, Dr Bodel expressed the opinion that as a result of the accident, the claimant sustained a deep laceration to the left thigh anterolaterally, a fracture of the fibula and adjacent musculoligamentous injuries to the rest of that left and the lower back. He noted that the claimant required extensive treatment on the wounds and split skin grating on the thigh.
Dr Bodel assessed WPI of 4% for the left knee injury and WPI of 5% (DRE category II) for the lumbar spine injury. He noted that there was extensive scarring which he believed should be assessed by a plastic surgeon as it is well beyond the Table for the Evaluation of Minor Skin Impairment (TEMSKI) scale.[29]
[29] Page 295 of the claimant’s bundle.
Plastic surgeon, Dr Michael McGlynn was qualified by the claimant’s lawyers to examine the claimant and assess scarring. He assessed the claimant on 25 July 2022 for that purpose and provided a report of the same date. In his opinion, there was a WPI of 10% attributable to the scarring. He also assessed a WPI of 4% for the left lower extremity.[30]
[30] Pages 284-285 of the claimant’s bundle.
The claimant was assessed by orthopaedic surgeon, Dr Stephen Rimmer at the request of the insurer on 31 May 2023. His diagnoses were an extensive soft tissue injury with subsequent disfigurement of the left thigh and a resolved fracture of the left fibula.[31]
[31] Page 109 of the insurer’s bundle.
Dr Rimmer was of the opinion that these injuries are directly related to the accident. He assessed 0% WPI for the left knee, 0% WPI for the lumbar spine (as DRE category I). He was of the view that given the extensive nature of the scarring, WPI should be assessed by a plastic surgeon.[32]
[32] Pages 110-111 of the insurer’s bundle.
RE-EXAMINATION
The claimant was re-examined by Medical Assessors Dixon and Curtin on behalf of the Panel on 2 May 2024.
Brief background
At the time of the re-examination, the claimant was 41 years of age.
There is no controversy that the claimant was involved in a severe motor accident on 23 May 2021 when his Toyota Prado was hit by a Mazda 3 sedan while he was opening the door to put on his jacket to get into the car.
He sustained a crush injury with a compound fracture to his left fibula and a deep left thigh laceration and a back strain injury.
The clinical notes of Westmead Hospital indicate that the original injury to the left thigh was largely an open degloving wound with a partial laceration of the underlying quadriceps muscle. Elsewhere the fascial layer was largely intact. The wound on his thigh was contaminated and required repeated surgical debridement on 24 May 2024 and 2 June 2021 with excision of the necrotic skin and underlying necrotic soft tissue before skin grafts could be applied three weeks later.
The lacerations to the left lower leg appear to have been largely superficial with one 2cm wound requiring suturing.
His fibula fracture was managed in a splint. He was discharged on 4 June 2021.
His recovery period was complicated by a deep venous thrombosis and pulmonary embolism.
He has had physiotherapy treatment and an exercise program, and he has been able to return to work as a certified financial planner.
The Medical Assessors’ brief was to review the claimant’s left lower extremity, his lumbar spine and scarring.
Symptoms
The claimant complained of pain in the lower lumbar region with radiation to the left lumbosacral facet joint region with stiffness of his lumbar segment but no sciatica.
He reported weakness in his left thigh and was conscious of the scarring at his left thigh and lower leg, as well as the donor site of his right thigh.
He said that he was embarrassed about the disfigurement to his legs. He said that he always kept the areas covered by his clothes when out and about in public. He said that the scarring on his left thigh was quite sensitive if knocked or bumped, and that it could wake him up at night if he accidentally rolled onto it during his sleep. He said that for the same reason, the scarring had contributed to a loss of sexual intimacy with his wife. He was aware of some tightness in the scarring on his thigh during some movements and felt that this was a factor in the loss of his mobility that had occurred since the accident.
Examination
The claimant was 158cm tall and weighed 95kg. He walked with a mild limp on the left and was unable to toe or heel walk and had restriction on attempting squat testing.
There was stiffness of his lumbar segment with flexion decreased by one third with slow and jerky recovery with left sided erector spinae muscle spasm and pain on back extension which was decreased by one half. Lateral flexion was decreased by one third bilaterally. His straight leg raise on the left was 60 degrees and the sciatic nerve root stretch test was negative. Straight leg raise on the right was 70 degrees and his sciatic nerve root stretch test was negative.
Apart from skin grafted areas, there were no radicular sensory loss in his lower extremities. His distal power was grade 5 out of 5. His quadriceps power was grade 4 out of 5 which could be reasonably attributed to the muscle loss that was evident in his left thigh and his knee flexion was grade 5 out of 5. There was 1cm of wasting of his left thigh measuring 52cm, compared with 53cm on the right, and there was 2cm of swelling of the left leg below the knee, measuring 44cm on the left and 42cm on the right.
The range of motion of the right knee was restricted 0 degrees to 90 degrees. There was a full range of motion of his right knee. Both knees were stable. There was a full symmetrical range of motion of both hips.
He had a satisfactory range of motion of his left ankle and subtalar joint. His Babinski signs were negative. There was a probable muscle hernia in his left leg anterolaterally.
On the anteromedial aspect of the left thigh, there was an irregular area of scarring extending for 18 x 10cm. The scarring had a purplish coloration and part of it appeared to be lying directly over the underlying muscle to which it was attached. There was therefore a significant loss of the normal contour of the thigh. The scarring itself was generally soft and flat, but the skin graft had been meshed, resulting in a regular patterned appearance. The claimant permitted the scar to be gently palpated, but it appeared to cause him some discomfort, and this discomfort extended slightly beyond the lateral and medial borders of the scarring.
On the medial aspect of the left lower leg there was an area of scarring extending over
18 x 8cm which included two oblique scars running into a vertical scar. The scars had widened but were soft and flat. The scars were not a good colour match with the surrounding skin being alternately quite pale or purplish, and none of these scars were tender to palpation. Anterior to the scarring was an area of swelling (10 x 5cm), probably due to an underlying muscle hernia.
Skin grafts have been harvested from the anterior surface of the right thigh leaving a rectangular area of faint soft, pale flat scarring extending for 20 x 11cm. Normal body hairs had not regrown in this area.
Causation and diagnosis
The Panel accepts that as a result of the accident, the claimant sustained a compound fracture of his left fibula which is now healed, and a degloving laceration injury to his left thigh which has healed with split skin grafting, taken from his right thigh. The Panel accepts that he has sustained a lower back injury when he was crushed by the offending vehicle when boarding his vehicle.
PERMANENT IMPAIRMENT
The lumbar spine
His lumbar spine is classified as DRE category II from Table 72, page 110 of the AMA 4, which equates to WPI of 5%, based on the asymmetry of movement and left sided erector spinae muscle spasm with guarding and no sign of radiculopathy.
The left lower extremity
For the loss of range of motion of the left knee the applicable assessment is from Table 41, page 78, AMA 4, 10% LEI which equates to WPI of 4%.
This gives a total from the Combined Values Chart of 9% WPI.
Skin/scarring
At paragraphs 6.258-6.266, the Guidelines[33] indicate that Table 2 page 280 AMA 4 provides a method for assessing impairment due to skin disorders. The table provides five classes of impairment based on whether signs and symptoms of the skin disorder are present either intermittently or constantly, the extent to which activities of daily living (ADLs) are restricted, and lastly, the extent to which treatment for the skin disorder is required.
[33] at pages 130-131.
The Guidelines also require that multiple scars should not be assessed individually but the assessment should consider the total effect of the scarring on the skin as a separate organ.
The scarring in this instance falls into the Class 2 category of skin disorder in Table 2 because there is limitation in the performance of some of the activities of daily living (ADLs). AMA 4 provides a list of ADLs in the glossary on page 317.
The scarring has resulted in some restriction of physical activity, although this restriction is largely accounted for in the assessment of the associated orthopaedic injuries. There is altered sensory function in the left thigh which is sensitive to knocks and bumps. The sensitivity in turn has resulted in some disturbance of his sexual functions, as well as interfering with a restful nocturnal sleep pattern.
The scarring has resulted in some interference also with his social and recreational activities because of his need to keep the scarred area covered at all times.
The Class 2 category offers a range of WPI of 10-24%.
The clinical records of the general practitioner shed little light on the issue of persistent pain following the accident. The physiotherapy reviews, however, do make regular reference to thigh pain rather than pointing to sensitivity of the scarred area, but possibly the two are related.
The view of Medical Assessor Curtin is, and the Panel accepts, the impairment falls towards the lower end of the range available in this category. AMA 4 provides some examples to guide the Medical Assessor in reaching conclusions about the level of impairment in the Class 2 category. Example 2 refers to a man who had sustained an irritable scar on his neck and the assessment reached in that case was WPI of 10%.
There are similarities in this case to the findings detailed above regarding the claimant who is assessed as having sustained 10% WPI. As the sensory losses and dysaesthesia have been considered in reaching this assessment, a separate assessment of the peripheral nerves supplying the thigh is not required.
Combining WPI of 9% for the lumbar spine and left lower extremity with WPI of 10% for post traumatic and post-surgical scarring on the Combined Values Chart, gives a final total of 18% WPI.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination findings of Medical Assessor Dixon and Medical Assessor Curtin in relation to the injuries to the left leg, lumbar spine and subsequent scarring.
CONCLUSION
Although the combined WPI assessed by the Panel is the same as the combined WPI assessed by the single Medical Assessor, the Panel has come to that result by reaching different conclusions in their individual assessments of WPI for the left lower extremity and for scarring.
Accordingly, it is appropriate for the Panel to revoke the certificate of the single Medical Assessor and issue a new certificate. The new certificate of the Panel is attached at the commencement of these reasons.
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