Insurance Australia Limited t/as NRMA Insurance v Awasthi
[2024] NSWPICMP 214
•9 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Awasthi [2024] NSWPICMP 214 |
| CLAIMANT: | Richa Awasthi |
| INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 9 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant was injured as she was travelling along the Princes Highway at Fairy Meadow when the insured vehicle came from the left, impacting her vehicle on the passenger side; insurer admitted liability; claimant suffered multiple fractures; claimant underwent open reduction and internal fixation of left tibial fracture; medical dispute as to extent of whole person impairment (WPI); Medical Assessor Home found 4% WPI; issue whether pelvis fracture was displaced; Review Panel required further diagnostic scan; MRI assessed at 10% including 2% for hip; Held – certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel revokes the certificate dated 28 February 2023 and issues a new certificate determining that: (a) The following injuries caused by the motor acident give rise to a permanent impairment of 10% and IS NOT GREATER THAN 10%: · left ankle – 4%; · left knee – 3%; · scarring – 1%, and · left hip – 2%. The referred injury to the cervical spine has been assessed and determined not caused by the motor accident. An assessment of the degree of permanent impairment of that injury is therefore not required. |
STATEMENT OF REASONS
INTRODUCTION
Richa Awasthi (the claimant) was 19 years of age at the time of the motor accident. The claimant was the front seat passenger in a small car driven by a friend. She was travelling along the Princes Highway at Fairy Meadow when the insured vehicle came from the left, impacting her vehicle on the passenger side, causing compression of the left side of the vehicle. The claimant was wearing her seatbelt. She did not lose consciousness and was cut from the vehicle by emergency services. The claimant was transferred by ambulance to Wollongong Hospital for assessment. Investigations identified multiple fractures being:
· fracture of the left tibial shaft;
· fracture of the left acetabulum, managed conservatively;
· fracture of the left and right inferior and superior pubic rami, managed conservatively;
· fracture of the left sacrum, manage conservatively, and
· fractures to the left first, third, fourth and fifth ribs, managed conservatively.
The claimant underwent open reduction and internal fixation of the left tibial fracture.
NRMA (the insurer) indemnified the owner and/or the driver of the vehicle at fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 and Schedule 2, s 2(a) of the MAI Act, the claimant was referred for assessment by Medical Assessor Alan Home who certified under s 7.23(1) of the MAI Act as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 11% and IS GREATER THAN 10%:
· Chest: left first rib fracture. There is also documented fractures to the third, fourth and fifth ribs.
· Hip: multiple pelvic fractures including left sacrum and bilateral upper and lower pubic rami fractures. Further fractures in the left acetabulum of the hip.
· Left knee: soft tissue injury. Early imaging excluded boney trauma. There is mild patellar-joint crepitus at examination.
· Left leg: tibial shaft fracture – healed. There is residual stiffness of the left ankle and hindfoot.
· Scarring: left knee; left leg; left ankle scarring.
Medical Assessor Home found 4% whole person impairment (WPI) for the left hip, 2% WPI for the left knee, 4% WPI for the left ankle/hind foot and 1% WPI for scarring, giving a combined 11% WPI.
Medical Assessor Home found there was a left sacral fracture which, based upon the reports, he thought was comminuted but not displaced. He also found undisplaced pubic rami fractures. He awarded 0% WPI for those fractures in accordance with s 3.4 at page 131 of the AMA4 Guides. He assessed 4% WPI for the fracture of the left acetabulum using the range of motion method prescribed by Table 64, pages 85 to 86 of the AMA4 Guides and
s 6.154, page 114 of the Motor Accident Guidelines.
THE REVIEW
The insurer sought a review of Medical Assessor Home’s Certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the MAI Act, in a number of material respects.
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 Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 – 130 of the Personal Injury Commission Rules 2021 (the 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 based solely upon the written application.[2]
[2] 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.[3]
[3] Section 7.26(6) of the MAI Act.
ASSESSMENT UNDER REVIEW
The insurer submitted that Medical Assessor Home erred in relation to causation of the left knee injury and WPI resulting from that injury. It submitted that Medical Assessor Home failed to expose his path of reasoning concerning his findings relating to the left knee. The insurer submitted that the medical evidence does not contain any contemporaneous evidence of injury to the left knee, nor any complaints/symptoms of left knee injury, following the motor accident and up until the time of the Commission’s assessment.
In the alternative, if the left knee was injured in the motor accident, which the insurer is not conceding, the insurer submits that Medical Assessor Home failed to assess the uninjured right knee, to serve as a baseline, in order to determine if subtraction is applicable under cl 6.72 of the Guidelines. Without assessment of the right knee, it is unclear if there is crepitus in the uninjured knee. In the event there is crepitus in the uninjured right knee, it would give rise to 2% WPI. Using this as a baseline and subtracting it from the calculated impairment for the injured left knee, so the insurer contends, will result in 0% WPI.
The claimant was seen by Dr Robin Mitchell, occupational physician, on 22 June 2023, at the instigation of the insurer’s solicitors. Dr Mitchell accepted that the claimant suffered an injury to her left knee and made assessments identical to those made by Medical Assessor Home. After certain queries were raised by the insurer’s solicitors, Dr Mitchell revised his assessment downwards to 6% WPI, including 0% WPI for the left knee. That was because there was a normal range of movement in the left knee and no other abnormality noted clinically. The Panel notes that Dr Mitchell did not mention left knee crepitus. Nor did
Dr Davis who was qualified by the claimant’s solicitors.The insurer’s application for review was opposed by the claimant. The claimant refuted the insurer’s submission that there was no contemporaneous evidence of injury to the left knee caused by the motor accident. The claimant referred to the clinical notes and discharge summary from Wollongong Hospital which recorded direct injury to the left knee. The claimant further submitted that Medical Assessor Home’s approach to the assessment of the left knee impairment, using the Table 62 Arthritis, was the correct approach and also an exercise of his clinical judgment, based on his interpretation of the AMA 4 Guides and Guidelines.
President’s delegate Golnaz Mojtahedi issued a Determination of an Application for Review of a Medical Assessment on 6 May 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that Medical Assessor Home’s assessment was incorrect in a material respect. The basis of that decision was stated to be as follows:
“The insurer has outlined various particulars in the Application which it says result in reasonable cause to suspect that the medical assessment of the left ankle was incorrect in a material respect. One of these particulars is that the medical assessor failed to give consideration to the available evidence and failed to provide clear path of reasoning on how he arrived at the determination that the left knee injury is causally related……”
It is to be noted that the reference by the President’s delegate to the left ankle was itself incorrect.
The following injuries have been referred to the Panel for assessment:
“Body area: leg Injury description: left tibial shaft fracture
Body area: ribs injury description: left first rib fracture
Body area: cervical spine Injury description: orthopaedic injury, aggravation and acceleration of degenerative changes
Body area: hip Injury description: pelvis fracture, broken pelvis socket
Body area: knee Injury description: left orthopaedic injury, aggravation and acceleration of degenerative change
Body area: skin – scarring Injury description: scarring to the left knee, left leg, left ankle”
The Panel considers that it will need to review any hard copy original diagnostic scans relating to the above accident-related injuries.
MATERIAL BEFORE THE REVIEW PANEL
The Panel considered that it would be assisted by reviewing any hard copy original diagnostic scans relating to the injuries referred for assessment. The Panel received a CT scan of the chest, abdomen and pelvis (plus IV contrast) performed on 9 September 2019 which showed:
( ) an undisplaced fracture of the left first rib medially;
(a) fractures of the superior and inferior pubic rami on the right and medial end of the left superior pubic ramus;
(b) a minimally displaced fracture of the left inferior pubic ramus, and
(c) a comminuted fracture of the sacrum.
The Panel also reviewed a pulmonary angiogram performed on 26 September 2019 which showed healing fractures of the left posterior third, fourth and fifth ribs.
The claimant relied upon the following material:
( ) the submissions which have been summarised;
(a) Certificate of Capacity/Fitness dated 11 September 2019 which references an operation on the left tibial nail, ongoing physiotherapy and follow-up in the Wollongong Hospital Fracture Clinic;
(b) Wollongong Hospital clinical notes (comprising some 280 pages) which commenced on the date of the accident. There is reference to rib, pelvic and left tibial shaft fractures. A left intramedullary tibial nail was inserted to stabilise the fracture. There also are references to fractures if the superior and inferior pubic rami on the right, left inferior pubic ramus fracture, left sacral fracture and dressing of the left knee. The claimant was transferred to Port Kembla Hospital. Radiology reports accompany the Clinical and Progress Notes. It is not necessary to summarise that material as there is nothing that is contentious, and
(c) there is a report dated 17 March 2022 by Dr John Davis, occupational medicine physician, who was qualified by the claimant’s lawyers. Dr Davis notes that the claimant suffered a fracture of her right ankle in 2018 and an episode of depression prior to the subject accident. He lists the fractures suffered by the claimant and describes the circumstances of the accident. He observes that the claimant is now planning to study Business Management, instead of Culinary Management, due to difficulty with prolonged standing. He notes that the claimant walked with an antalgic gait and used a single stick in her right hand.
Under the heading EXAMINATION, Dr Davis notes nothing abnormal in the cervical spine and a full range of movement. In the thoracic spine, there was some right sided muscles spasm and tenderness centrally at T4/T5. Left rotation was 40 degrees and right rotation 30 degrees. Nothing abnormal was found in the shoulders where there was a full range of movement bilaterally. There was tenderness over the left hip and a positive hip compression test. At different range of movement in the left hip is tabulated. There was no obvious deformity around the left knee. There was an obvious scar over the patellar tendon. There was a scar over the anteromedial proximal tibia. Both scars were obvious. There was probable deformity of the mid leg at the fracture site which was tender. There was good stability of the left knee. Range of movement was zero to 135 degrees without crepitus. There was no assessable loss of range of movement of the left ankle or hind foot which was a little stiff. There was 2.5 centimetres wasting of the left thigh. In the pelvis, there was pain with pelvic springing and tenderness over both rami, although greater on the right.
Under the heading DIAGNOSIS, Dr Davis lists all of the claimant’s fractures. As to the left acetabular and left sacral ala fracture, he notes there were no investigations or reports as to whether or not the sacral fracture extended into the joint. Dr Davis then comments in relation to work capacity, future earning capacity, further treatment and activities of daily living. None of those comments are relevant for the Panel’s consideration.
In a separate report of the same date, Dr Davis assesses 5% WPI for each of the thoracic and lumbar spine, 1% WPI for scarring and 4% WPI for left thigh wasting. He attributes no permanent impairment to the left hip. That gives a total WPI of 15% combined.
The insurer relied upon the following material:
( ) review submissions which have been summarised;
(a) certificate dated 28 February 2023 by Medical Assessor Alan Home which has been summarised;
(b) report dated 27 June 2023 by Dr Robin Mitchell, occupational physician, to the insurer’s lawyers. That report has been referenced and summarised earlier in these reasons;
(c) supplementary report dated 28 July 2023 by Dr Mitchell to the insurer’s lawyers. That report was prepared in response to various queries made by the insurer’s lawyers regarding Dr Mitchell’s assessment of WPI arising from injuries to the left hip, left knee and left ankle. Dr Mitchell reduced his overall assessment to a total of 6% WPI in response to the referral letter dated 19 July 2023. That letter was not provided to the Panel, and
(d) letters from the treating orthopaedic surgeons, Dr Keely and Dr Punjabi, to the general practitioner, relating to their treatment of the claimant’s fractures in the two months post-accident.
RE-EXAMINATION
Joint assessment report from Medical Assessors Dixon and Rosenthal is as follows:
“Medical Assessors Dixon and Rosenthal assessed Ms Awasthi on 13 October 2023.
HISTORY & TREATMENT
She reconfirmed the history provided to Assessor Alan Home noting the motor vehicle accident which occurred on 8 September 2019 and resulted in treatment at Wollongong Hospital where she was diagnosed with a left 1st rib fracture, multiple pelvic fractures, fractured left hip socket (acetabulum) and left tibial shaft fracture. There was also a left sacral fracture and all the pelvic fractures were treated conservatively. She required surgery with a tibial nail inserted into the tibia which impacted on her left knee and left ankle. The left knee became painful following the surgical procedure.
Despite extensive rehabilitation, she has been left with ongoing pain and reduced mobility with left hip pain, left knee pain and left ankle pain. She uses a stick to mobilise. The rod and plate that had been inserted by the surgery still remain in situ and have not been removed.
She reports that her left knee locks up in hyperextension when she walks. She favours her left leg with left hip pain, knee pain and ankle pain. She also has trouble putting weight on her right leg due to a previous right ankle deltoid ligament injury that occurred in 2018. Her left knee occasionally gives way. She cannot jog or run. Both hips are painful and she has bilateral groin pain. She still has pain around the pelvic region where the fractures occurred.
She is not receiving any treatment. No medication or physical treatments are currently occurring.
She has modified many of her activities of daily living. She currently shares a studio apartment with a flatmate. She is able to do some cooking which is a hobby and passion. She uses a shower chair in the shower.
The scars from her accident are not receiving any treatment but she is conscious of the scars.
PHYSICAL EXAMINATION
She walked with an antalgic gait. She was using a stick to steady herself and to mobilise.
She weighed 43kg and was 155cm tall.
Scars were present – a 2cm scar over the medial and 3cm scar over the anterior knee and two 2cm scars over the medial malleolus, one was covered with a tattoo. The scars had discoloration, slight elevation and trophic changes, particularly over the proximal leg overlying the proximal tibia. There was no adherence. The scars were not affecting her activities of daily living.
The left and right ankle movements were measured with a goniometer and recorded in the table below:
There was a vertical scar over the anterior aspect of the right side of his neck approximately 10cm long which had healed well.
Her neck was normal to examination. There was a full range of motion, no spasm or guarding, no non-verifiable radicular complaints and no radiculopathy. The claimant did not report any ongoing neck symptoms. There is no evidence of injury to the cervical spine caused by the subject accident.
Both shoulders exhibited a full range of movement with negative impingement signs. Range of motion measured with a goniometer is recorded in the table below:
Ankle Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTDorsiflexion 20° 10° Plantarflexion 40° 20°
Hindfoot Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTInversion 30° 15° Eversion 20° 20° Range of motion of the knee was 0° to 110° of flexion on the left and 0° and 120° of flexion on the right. The left knee slightly hyperextended on pressure but passively extended to 0°.
There was evidence of subluxation laterally of the left patella but there was no evidence of tenderness or crepitus over the patellofemoral joint. Ligaments were intact. Alignment was normal. The anterior drawer and McMurray’s test were negative.
Hip range of motion measured with a goniometer is recorded in the table below:
Hip Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 130° 110° Extension 0° 0° Abduction 30° 30° Adduction 20° 20° Internal Rotation 35° 20° External Rotation 30° 30° The left hip was very irritable. There was tenderness over the greater trochanter.
Thigh measurements were 34cm on the right and 33cm on the left, 10cm above the superior patellar pole. Calf measurements were 24cm on the right and 22cm on the left, 10cm below the inferior patellar pole.
There was tenderness generally around the pelvis.
IMPRESSION
The Panel reviewed the clinical findings to assess whole person impairment.
Impairment is found at the ankle in reference to Table 42, 20° of plantar flexion and 10° of extension results in 3% whole person impairment. Table 43, 10° of inversion results in 1% whole person impairment. The total for the left ankle is 4% whole person impairment.
The hip range of motion, 30° of external rotation under Table 40, results in 2% whole person impairment.
At the left knee, under Table 64, patellar subluxation or dislocation with residual instability results in 3% whole person impairment.
For scarring, under the TEMSKI table, the claimant is conscious of the scars. There are some colour and pigmentary changes. She can locate the scars. There are no trophic changes. Suture marks are not clearly visible. The anatomical location is visible with some clothing. Very minor contour defect. No effect on ADLs. No treatment. No adherence. Using the best fit principle, she gets 1% whole person impairment.
The further contentious issue is in regard to the sacral fracture which was not assessed separately by Assessor Home but was included with the hip fractures. The pelvic fractures, however, can be assessed under the pelvis paragraph 3.4, page 131 of the AMA 4 Guides.[4] The issue is if there is a healed fracture with displacement of the sacrum, she would be allocated 5% whole person impairment and that needs to be determined.
Review of the existing radiology reports indicates there are bilateral pubic rami fractures minimally displaced. The scan was taken on the day of the accident. There is no follow-up radiology to confirm displacement persisted after healing. The CT scan shows fractures of the superior and inferior pubic rami on the right and medial end of the left superior pubic ramus. There also is a minimally displaced fracture of the left inferior pubic ramus. There is a comminuted fracture of the sacrum.
To fully inform its deliberations, the Panel indicated to the parties that it would be assisted by the provision of further diagnostic imaging, as follows:[4] Clause 6.96 of the Guidelines.
· Plain X-Rays of the pelvis to include both hips, from the anterior and lateral views, including weight bearing.
· A CT scan of the pelvis.
The Panel asked to be provided with the original hard copy films. This would assist the Panel in determining if the fractures are healed with displacement, deformity and with/without residual signs. The inquiry as to displacement is to be undertaken at the time of assessment.[5] The parties were invited to make further submissions in relation to whole person impairment arising from the acetabular, pelvic and sacral fractures.
No such submissions were received.
A CT scan and X-ray of the pelvis were performed on 29 February 2024 at the request of the Review Panel. The report by Dr James Black, radiologist, is as follows:
'Findings
X-ray:
Single frontal view. Femoral heads unlocated. No dysplastic bone change.
No arthritis seen.
Sacroiliac joints are normally aligned and unremarkable.
I do not see evidence for prior fracture.
CT Scan:
Ormal sacroiliac joint alignment. No sacral fracture.
The pelvic bones ae intact. Normal alignment at the symphysis.
Femoral heads articulate normally at the hip joints. There is no obvious arthritis.
No intrapelvic abnormality.
No significant trochanteric fluid collection.
No soft tissue hematoma identified.
Comments:
No significant bone or soft tissue abnormality identified.’
The medical assessors have reviewed the actual films and agree with Dr Black’s reported findings. There is no evidence of persisting displacement and thus pelvis fractures are 0% WPI in accordance with page 131 of the AMA 4 Guides.”[5] Clause 6.21 of the Guidelines.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Review Panel adopts the reasons of the examination findings of Medical Assessor Dixon and Medical Assessor Rosenthal.
[6] Section 7.26(6) of the MAI Act
The Review Panel is not required to choose between competing medical opinions and is require to form its own opinion.[7] The Medical Assessors have explained the basis of their assessment which, to some extent, are different to those provided by other medical specialists. The medical assessment of permanent impairment is undertaken at the time of examination. In that respect, previous assessments are outdated and do not reflect current symptomatology.
[7] Insurance Australia Group Ltd v Keen [2021] NSWCA 287.
The Review Panel notes the references in the clinical notes and discharge summary from Wollongong Hospital which recorded direct injury to the left knee. The Review Panel also notes the details provided by the claimant concerning the affects of the insertion of a tibial nail which impacted on her left knee and left ankle. The left knee became painful following that surgical procedure.
The Review Panel finds that the accident could have caused injuries to the left hip, left knee and left ankle as a matter of medical determination.
The Review Panel further concludes that the accident did cause injuries to the claimant’s left hip, left knee and left ankle as a matter of factual non-medical determination.
The Review Panel finds that an injury to the cervical spine was not caused by the accident.
CONCLUSION
For these reasons, the Review Panel concludes that the certificate issued on
28 February 2023 by Medical Assessor Alan Home should be revoked. The new certificate appears at the commencement of this reasons.
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