Insurance Australia Limited t/as NRMA Insurance v Axford
[2024] NSWPICMP 356
•31 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Axford [2024] NSWPICMP 356 |
| CLAIMANT: | Ryan Axford |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 31 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review of 14% WPI assessment by Medical Assessor (MA) Dixon; claimant injured on 12 November 2019 when right thumb almost completely severed; thumb reattached and five surgeries in total including fusion of the interphalangeal (IP) joint; no issue of causation of thumb injury but MA had assessed a 6% upper extremity wrist impairment and insurer argued no evidence of a wrist injury in the accident or consequentially; Held – frank wrist injury could have occurred in the accident due to forces involved or as a result of long-time immobilisation of the hand in a hard splint; Nguyen v Motor Accidents Authority of NSW & Anor applied in inclusion of 5% upper extremity wrist impairment in overall WPI; complicated assessment of thumb impairment required consideration of amputation (no part of thumb amputated therefore no impairment); loss of sensation over 80% of the thumb and 23% loss of motion; conversion to 20% upper extremity impairment; total arm impairment of 14% combined with 2% for scarring impairment; certificate revoked and fresh certificate issued for 16% WPI. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate issued by Medical Assessor Dixon dated 26 October 2023. 2. Certifies that the degree of the claimant’s whole person impairment that has resulted from the injuries caused by the motor accident on 12 November 2029 is greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Ryan Axford was involved in a motor accident on 12 November 2019. He had his right hand on a partially opened car door, when the tailgate of a passing car came into contact with his hand and the partial amputation of the thumb occurred.
Mr Axford made a claim for damages against NRMA, the third-party insurer of the vehicle that Mr Axford says caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Mr Axford referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 26 October 2023, Medical Assessor Dixon determined Mr Axford had a WPI of 14% which is, of course, greater than 10%.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 19 February 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on
22 February 2024 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Mr Axford’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Dixon, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B)).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, FourthEdition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant in particular s 3.1 “The Hand and Upper Extremity”.
ASSESSMENT UNDER REVIEW
Medical Assessor Dixon examined the claimant on 24 October 2023 and issued his certificate two days later. He confirmed at [2] that the injury that was referred to him was a “right hand injury - hand crushed and right thumb severed and had to be reattached via surgery.”
Medical Assessor Dixon takes the following histories from the claimant:
(a) he has an office job with credentials in carpentry and marketing;
(b) he is married with children;
(c) he has difficulty with the gardens and lawns with vibration affecting his right hand;
(d) he has difficulty with other domestic tasks;
(e) he has stopped going to the gym and he no longer goes motor cross or dirt bike riding, he has difficulty getting dressed;
(f) he is right-handed but writes with his left hand;
(g) he has had a previous knee operation and a back injury;
(h) he describes the accident as occurring when he was delivering a package and had his hand on the car door as he was getting the package out of the car. The tail gate of a passing truck jammed his thumb against the car door, and
(i) he sustained a sub-total amputation and was taken to Westmead Hospital.
The Medical Assessor noted that Mr Axford’s thumb was reattached with “k wires” and microsurgery on 12 November 2019, and he has had four further surgeries – the last on
21 June 2021.
The claimant reported pain and stiffness in his right thumb and difficulty with abduction and adduction to the palm. He reported difficulties with grip and has persisting dysthesia (abnormal pain) and difficulty using tools. His wrist aches and his thumb is always painful.
The scars on his thumb and at the base are tender.
Medical Assessor Dixon undertook measurements of the right thumb and wrist and when compared to the left side there were deficits in all movements.
He found the right thumb injury was caused by the accident and that the WPI of the thumb was 18% upper extremity impairment (UEI) and the wrist was 7% UEI making a total of 24% which translated to 14% WPI.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer argues there are a number of errors in the assessment of Medical Assessor Dixon as follows:
(a) failure to explain how the claimant’s wrist impairment is related to the accident. The insurer says there is no evidence supporting a wrist injury and that in any event when examined by the insurer’s expert, wrist movement was normal;
(b) a calculation error in the right thumb impairment and misapplication of the Guidelines. The insurer says the Medical Assessor has referred to pie charts and commentary, but there are no pie charts in the Guides. The insurer also says the Medical Assessor has referred to table 9 which concerns the index, middle and ring fingers and is irrelevant to a right thumb impairment;
(c) failure to explain whether there is a scarring impairment, any sensory loss and failure to allow for a 1cm shortening of the thumb, and
(d) not included the UEI evaluation record “as recommended” in the Guidelines.
The insurer’s submissions in the original assessment[5] documented at [2] the claimant’s five surgeries on 12 November 2019, 9 March 2020, 20 July 2020, 29 March 2021 and
21 June 2021. The insurer says the claimant’s physical therapy ended in early 2022 and he now takes pain killers only.
[5] Dated 25 January 2023, at page 19 of the insurer’s bundle.
At [3] the insurer notes the claimant works full time and is independent in self-care and is cooking, cleaning and caring for his home without paid assistance.
At [4] the insurer noted issues with Dr Lee’s examination being done by electronic means and that Dr Lee had not cited the 10 criteria of the TEMSKI when assessing 2% impairment.
The insurer deals at [5] with Dr Stephenson’s assessment of WPI and documents the errors it says are in the report. In particular the insurer says there is no evidence of amputation and thumb shortening, a lack of description of altered sensation and no assessment of scarring.
The insurer also says in relation to the wrist that the medical records do not mention any issue with the right wrist and note the absence of any left wrist measurements for comparison do not fulfil the requirements of the Guidelines.
The insurer relies at [5.3] on the alternate report of Dr Keller which assessed WPI at 4% for the thumb and that his examination of the wrist revealed no abnormality.
Claimant’s submissions
The claimant’s lengthy submissions address matters relevant to the President’s delegate’s decision stating that in all respects the insurer “has failed to discharge its onus with regard to demonstrating that Medical Assessor Dixon” has erred and in particular argues:
(a) the insurer’s own expert finds causation established in respect of the right hand and right thumb injury;
(b) the case of Nguyen should be applied, and that the wrist impairment is clearly related to the crush injury of the right hand, and
(c) there is no error in the assessment of impairment and the worksheet does not have to be used or attached.
The claimant’s submissions in the original assessment matter[6] noted the claimant had the near total amputation of his right thumb in the accident and had three separate sets of surgery. In the last, an arthrotomy and osteotomy with fusion was performed with a bone graft arthrodesis.
[6] Dated 22 November 2022, page 8 of the claimant’s bundle.
The claimant noted that his expert, Dr Lee in October 2021 and the insurer’s expert,
Dr Stephenson in November 2022 assessed the claimant as having an impairment of greater than 10%.
Procedural matters
On 23 February 2024, the Panel issued directions to the parties noting that the Panel had the application, submissions and 800 pages of documents from the insurer but only submissions in reply from the claimant. The Panel directed the claimant to upload his bundle of documents by 14 March 2024. The claimant provided his bundle of documents comprising 555 pages on 12 March 2024.
The Panel met on 11 April 2024 and reported to the parties the next day.
The Panel observed that:
(a) it did not appear to be disputed by the insurer that the claimant had sustained a right hand and thumb injury on 12 November 2019;
(b) what was disputed is the assessment of a right wrist impairment. The claimant has referred to the decision in Nguyen v Motor Accidents Authority of New South Wales and Anor[7] and the Panel noted that this decision would support the inclusion of a wrist impairment in the total WPI if the Panel determines there was an impairment that results from the right hand and thumb injury;
(c) the assessment of the impairment of the thumb was also disputed which the Panel notes would include the combined values of range of motion, amputation and sensory loss, and
(d) it may be necessary to add an additional impairment for scarring to the claimant’s thumb and hand. As the claimant’s alleged injury to the hand and thumb includes the severing and reattachment of the thumb, the Panel noted scarring is an inherent part of that injury and the Panel intends to include an assessment of scarring in the final assessment.
[7] [2011] NSWSC 351.
The Panel asked the parties to confirm that the Panel’s understanding of the real issues in dispute between the parties has been accurately captured.
Submissions from the parties
The claimant agreed in submissions dated 23 April 2024 that:
(a) there is no dispute about causation of the right hand and thumb injury;
(b) the wrist impairment results from the hand and thumb injury;
(c) wrist motion, amputation and sensory loss should be assessed and combined, and
(d) scarring and disfigurement should be included in the assessment.
The insurer in submissions dated 26 April 2024 said:
(a) the insurer disputes there was any wrist injury or that the claimant’s injury to his right thumb and hand caused a “consequential injury” to the right wrist, and
(b)
Dr Lee does not refer to wrist injuries or symptoms in December 2020 or
October 2021.
The insurer does not appear to dispute that the assessment of scarring should be included and relied on Dr Keller’s assessment suggesting scarring should not be more than 1 or 2%.
REVIEW OF THE EVIDENCE
The parties have lodged over 1,300 pages of documents in a matter where there is no dispute about the primary (right thumb and hand) injury.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[8] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation … The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[8] [2022] NSWSC 1079.
The above words, in the Panel’s view, apply equally to a Panel. Noting the limited matters in dispute between the parties, the Panel does not intend to refer to all of the documents comprising the 1,300 pages but only those documents that relate to the real issues in dispute between the parties.
Claim form and claim documents
The claim form is dated 27 November 2021 and includes details of the accident and lists the injury as “crushed right hand, severed right thumb”.
The claimant provided a statement[9] dated 9 November 2022 documenting his employment history, his family situation and pre-accident statement of health. He also provided great detail of the circumstances of the accident noting at [28] that he felt excruciating pain when the accident happened. He documents at [30] and [31] his immediate treatment.
[9] Page 9 of the claimant’s bundle.
Mr Axford lists at [33] his injuries which in addition to the right hand and right thumb lists “right arm” and “scarring”. At [34] he documents the disabilities noting “pain, discomfort, stiffness and restricted movement in the right arm”.
The claimant lists his surgeries suggesting he has had five procedures in total as well as the injection of stem cells into his thumb.
The claimant describes the difficulties he has with his thumb and his hand, including right hand weakness and difficulty lifting, gripping, holding and carrying things and that his right hand is “becoming less and less useful every day”. He says he uses his left hand more than his right and that it is now getting uncomfortable. He mentions the scar which he is aware of.
The claimant has provided photographs of his hand[10] which have been useful for those members of the Panel not present at the medical examination. The photographs clearly show shortening of the claimant’s right thumb (when compared to the left), the position of the fusion and the significant scarring on it.
[10] Page 515 of the claimant’s bundle.
Within Dr Laniewski’s records there are photographs of the claimant’s arm[11] showing a hard splint encasing almost all of the forearm and all of the thumb. There are also photographs of Mr Axford’s right hand taken at other times showing the scarring and colour of the thumb.
[11] Page 222 of the insurer’s bundle.
Treating medical records and reports
The general practitioner (GP) notes reveal no significant relevant pre-accident conditions and his post-accident treatment.
The hospital notes have been produced (more than 150 pages) by both the claimant and the insurer as have the records of three medical centres and Dr Laniewski. In total there are nearly 500 pages included in both the claimant and the insurer’s bundles.
The hospital notes (Westmead on initial admission and Lakeview Private Hospital for subsequent admissions) document the claimant’s immediate post-accident treatment and subsequent procedures.
The Westmead Hospital operation report from 12 November 2019 notes there was:
(a) subtotal amputation of the right thumb;
(b) comminuted fracture of the top joint (the interphalangeal (IP) joint);
(c) intact flexor pollicis longus (FPL) but complete rupture of the EPL;
(d) radial digital nerve intact but lacerated radial digital artery, and
(e) ulnar neurovascular bundle intact but contused.
The details of the five surgeries performed since the accident are:
(a) 12 November 2019 - revascularisation of right thumb, thumb extensor tendon (EPL) repair and insertion of K wires;
(b) 9 March 2020 - removal of K wires;
(c) 20 July 2020 - right thumb tenolysis, neurolysis and removal of plates and screws;
(d) 29 March 2021 - IP joint fusion (stem cells injected into thumb), and
(e) 21 June 2021 - right thumb IP joint fusion.
Dr Laniewski, plastic surgeon treated the claimant and his records have been produced. There are a number of letters from him to Dr Li, the claimant’s GP some of which are reported below:
(a) 2 February 2021 – there was concern about non-union of the repaired bone;
(b) 29 March 2021 – the operation report indicates fat was harvested from the claimant’s abdomen and the stem cells prepared. There was much scaring of the thumb “encasing all the soft tissue structures”;
(c) 25 May 2021 – the claimant was experiencing intractable pain with the use of his thumb preventing him from using his hand and the fusion surgery was proposed;
(d) 14 July 2021 - Dr Laniewski noted the claimant’s “range of motion of the injured hand” had not returned to pre-accident levels, and
(e) 6 October 2021 - says the claimant “is able to do most things” but he had trouble with fine motor skills, and he was having pain with heavy work.
In a questionnaire completed by Dr Laniewski on 14 July 2020 and sent to IPAR rehabilitation[12], the doctor notes “the amputation was subtotal, but was managed and treated as if it was complete.”
[12] Page 189 of the insurer’s bundle.
Medico-legal reports
Dr Lee, orthopaedic surgeon provided a report to the claimant’s solicitors dated
15 December 2020. The claimant was back to work but was still attending the hand clinic. He assessed WPI at 10% including 2% for scarring.
The second report of 18 October 2021[13] was seen following a telehealth consultation due to COVID-19.
[13] Page 332 of the claimant’s bundle.
Dr Lee noted the fusion surgery has improved the function of his hand but “doing fiddly work was, however, difficult” and he had to be careful that he did not injure his wrist while operating a drill. He considered the impairment permanent and assessed WPI for the thumb only at 10% and 2% for scarring. There was no other hand impairment or wrist impairment noted.
Dr Stephenson’s report of 7 November 2022 is relied on by both the claimant and the insurer although it was commissioned by the insurer and the insurer has pointed out errors in it.
Dr Stephenson noted the claimant was left-handed for writing only. Dr Stephenson undertook an examination and impairment assessment of the right thumb calculating a 28% UEI.
Dr Stephenson also says, “there is measurable restriction of range of motion of the right wrist associated with the injury” and assessed its associated impairment at 7% UEI.
Dr Stephenson combined the two UEI findings to come to a 33% UEI which converted to 20% WPI. He attached his upper extremity worksheet from the AMA 4 Guides.
Dr Stephenson expressed the view that Dr Lee’s assessment was invalid as it had been done by video link.
Dr Keller, occupational physician provided a report dated 18 January 2023[14] to the claimant’s solicitors. He records complaints of symptoms of pain and hypersensitivity only in the right thumb and hand and documents a normal examination of neck, back, shoulders, elbows, wrists and lower limbs, although no test results or measurements are recorded.
[14] Page 51 of the insurer’s bundle.
In a supplementary report dated 9 March 2023 Dr Keller answers questions from the insurer saying:
(a) there was an increase in sensitivity not a loss;
(b) the thumbs was significantly scarred but he did not measure the length to assess amputation, and
(c) he did not observe restriction of motion in the right wrist which was symmetrical with the left side (the Panel notes he does not appear to have measured with a goniometer the range of motion of the wrists).
The claimant was seen by Dr Porteous, occupational physician for his solicitors who provided a report dated 9 February 2023. He notes the claimant had a “large thermoplastic splint” on the forearm after the first surgery and that he now has “ongoing chronic pain in the right thumb, reduced movement and reduced strength and function”.
Dr Porteous examined the thumb, noted the scars and confirmed a right wrist restriction of movement.
Dr Porteous assessed the thumb impairment at 19%, which is a UEI of 17% and a 6% right wrist UEI which, when combined with 2% for scarring resulting in a WPI of 15%.
RE-EXAMINATION FINDINGS
The claimant attended a re-examination with Medical Assessor Stubbs at the Commission’s medical suites on 15 May 2022.
History and current functioning
Mr Axford presented with a very straight forward history. There are no issues of causation in respect of the accident. He was in a builder’s yard in his vehicle. He was in the process of closing the driver’s door after stepping into the cabin. A truck turned into a parking place and the overhanging tray the truck struck the door. The door was torn from the utility and the claimant’s right hand was injured, mostly the thumb.
Mr Axford was taken to hospital with a fracture dislocation that the level of the IP joint with an extensive wound on the volar aspect of the thumb involving both radial and ulnar digital nerves. He underwent what amounted to reimplantation / re-vascularisation surgery. In all, five operations were carried out in the following two and a half years.
He worked when he could, full or part time, between operations and is now working in a clerical / stores position for the firm he worked with at the time of the accident.
He has significant ongoing issues with the thumb, principally stiffness and disordered sensation with both numbness and hypersensitivity. It is nearly three years since his last surgery and more than two years since his last physical therapy and he is the point of maximum medical improvement. He takes over the counter pain killers when his pain is more severe.
Mr Axford said he was in excellent health before the accident and apart from his right upper limb injury his health has otherwise remained the same.
Mr Axford confirmed on direct questioning that the right thumb and hand injury was the only injury he sustained in the car accident.
Mr Axford did not complain of any symptoms of pain in his wrist and was unaware of any great restriction of movement in his wrist. He said he has been focussed on his thumb and hand injury. The Panel notes that the restriction in daily use of the thumb would tend to mask or limit awareness of restriction of movement in the wrist.
Clinical examination of the upper limb
The claimant co-operated fully, and the clinical examination was straightforward.
The thumb consists of two joints, the joint toward the tip of the thumb is the IP joint and the joint closer to the hand is the metacarpophalangeal (MCP) joint but identified in the AMA4 Guides as the MP joint.
Appearance
The right thumb is shorter than the left due to the fusion surgery performed at the IP joint and not the partial amputation that occurred in the accident. The right thumb is noticeably discoloured, and capillary return is sluggish as one would expect from this kind of injury.
There is a long scar from the fused IP joint to and over the MP joint with other scars around the joint. Suture marks are visible. Mr Axford is conscious of the scars. There are no trophic changes or adherence to underlying structures. There is wasting of the digit in part due to a loss of muscle tone from lack of use but also due to the surgeries and scarring.
The remaining fingers and the forearm generally have a normal colour and appearance and normal sensation. These areas were normal to examination but with some loss of motion and grip strength consistent with the restricted use of the right hand.
Sensation - thumb
While the radial digital nerve was documented as intact on the day of the accident, the ulnar digital nerve was noted as contused. The medical members of the Panel have considered all of the hospital notes and are satisfied that there have been severe traction injuries to both the radial and ulnar digital nerves of the thumb.
Two-point discrimination testing reproduced a loss of sensation over the volar (underside) aspect of the thumb from just distal to the MP joint crease (80%) and dorsally (top side) from the distal IP joint (4%). This loss of sensation follows the normal anatomical distribution of both digital nerves of the thumb. The return to totally unimpaired sensation was measured at just distal to the MP crease (20% of the thumb was unimpaired).
Range of motion - thumb
The MP joint is complex and moves the thumb across and away from the little finger, and towards and away from the palm of the hand. This movement is termed circumduction but AMA4 measures the components separately.
The claimant has had his IP joint fused, and he has no motion in that joint at all.
Left
Right
IP joint
1. flexion
2. extension
Normal
Fused at 20 degrees
MP joint
1. radial abduction
2. adduction
3. opposition
Normal
30 degrees
2cm
4cm
Range of motion - wrist
The claimant’s wrist measurements were measured using a goniometer and the results are reproduced below.
Motion (normal in brackets)
Left
Right
Flexion (60 degrees)
60
40
Extension (60 degrees)
60
60
Radial deviation (20 degrees)
20
20
Ulnar deviation (30 degrees)
20
20
CONSIDERATION OF THE ISSUES
Diagnosis and causation
The description of injury in the application for medical assessment was “right hand injury – lacerated right thumb severed and had to be reattached via surgery”. Causation of the right thumb injury and injury to hand has not been questioned by the insurer.
Dr Stephenson for the insurer and Dr Porteous for the claimant identified and measured an impairment associated with a loss of wrist motion (7% UEI and 6% UEI respectively). Medical Assessor Dixon also identified a loss of motion in the wrist which he assessed at 7% UEI. None of these examiners have explained (to the satisfaction of the insurer) how the impairment to the claimant’s wrist is related to the hand and thumb injury caused by the accident.
The mechanism of Mr Axford’s right thumb injury was the forcible hyperextension of the whole of the thumb including the metacarpal carpal joint where the bone in the hand (metacarpal) connects with the bone of the thumb (the first phalanx). At the other end of the metacarpal is the wrist. There was a cascade of injury from the IP joint fracture dislocation through to injuries to the metacarpophalangeal joint. These are all clearly relate to the accident.
It is the clinical judgment of the medical members of the Panel that the force of the impact which tore the claimant’s thumb from his hand, could have affected the radioulnar joint at the wrist. If there was no direct injury to the wrist joint proper in the accident, then the Medical Assessors note the long-time immobilisation in a hard splint and extensive surgery required for the primary injury, has led to the impairment of wrist function.
While there is no mention of wrist symptoms in the records, this does not surprise the medical members of the Panel in particular. The claimant has had very severe injuries to his right thumb and both he and his treating doctors have been focussed on that injury. The claimant has had multiple surgeries and long-term hand therapy. Mr Axford is unaware of the restriction of motion in his wrist but is aware of problems in his thumb and hand generally which impacts on his functionality.
The Panel is satisfied that while the claimant may not have sustained a frank or direct injury to his wrist in the accident, the impairment to his right wrist function is a result of the hand and thumb injuries caused by the accident.
The Panel notes the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351. In that case a neck injury had caused a loss of motion and impairment of shoulder function. It was determined that the shoulder impairment must be assessed, and its value included in the determination of the claimant’s total WPI. Permanent impairment is expressed “as a result of the injury caused by a motor accident”.[15]
[15] See s 4.11 and schedule 2(2)(d) of the MAI Act.
Impairment assessment of the upper limb generally
The assessment of UEI is governed by Chapter 3, section 3.1 of the AMA 4 Guides. Clause 6.47 of the Motor Accident Guidelines notes:
“It is a complex section that requires an organised approach with careful documentation of findings.”
The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments and adding others.
Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4.
Wrist impairment is provided for in section 3.1h or AMA4 (age 35) and there are two methods of assessment provided:
(a) amputation, and
(b) abnormal range of motion.
IMPAIRMENT OF THE THUMB
The assessment of impairment in the thumb is provided for in section 3.1f of AMA4 (page 24) as follows:
(a) amputation;
(b) sensory loss, and
(c) abnormal motion.
Each of the three is assessed and the impairments combined.
Amputation
While the claimant’s right thumb was almost totally severed, the top of the thumb including the nail and the nail bed remain. The shortening of the thumb is due to the removal of bone and joint space and the fusion of the IP joint.
It is the Medical Assessors’ view that no allowance should be made for an impairment due to amputation in this case.
Sensory loss
As both of the claimant’s digital nerves are involved, impairment is calculated using figure 7 on page 24 of AMA 4, “impairment of thumb due to … total transverse sensory loss”.
Two-point discrimination testing revealed transverse sensory loss involving 80% of the thumb resulting in 40% digit impairment.
Abnormal motion
The AMA 4 Guides at page 25 identify five functional units of motion in the thumb contributing to a total of 100% range of motion as follows:
(a) flexion and extension of the IP joint (15%);
(b) flexion and extension of the MP joint (10%);
(c) adduction (20%);
(d) radial abduction (10%), and
(e) opposition (45%).
Flexion and extension of the IP joint
As Mr Axford’s right IP thumb joint has been fused, impairment is assessed in accordance with figure 10 on page 26 of AMA 4 utilising the scale for anklyosis. Fusion was achieved in the optimal position of 20° which was the measured angle at examination and leads to a 7% impairment of the thumb.
Flexion and extension of the MP joint
Range of motion in Mr Axford’s MP joint was restricted to 30 degrees of flexion which, according to figure 13 on page 27 of the AMA 4 Guides leads to a 3% impairment of the thumb.
Adduction of the MP joint
The claimant’s ability to adduct the MP joint to take the thumb toward the base of the little finger was impaired. He was only able to move it 2cm. Utilising the scale in figure 14 and table 5 on page 28 of AMA 4, this equates to a 1% impairment of the thumb.
Radial abduction
Mr Axford’s ability to move his thumb towards his index finger was also impaired. The loss of radial abduction was measured by Medical Assessor Stubbs at 30 degrees. Using figure 15 and table 6 pages 28 and 29 of AMA 4 this translates to a 3% loss of thumb function.
Opposition
Again, Mr Axford’s thumb opposition (the distance that the thumb can be lifted above the plane of the palm) was impaired at 4cm (normal is 8cm). Figure 16 and table 7 on page 29 of AMA 4 suggest this is a 9% impairment of the thumb.
UPPER EXTREMITY IMPAIRMENT
Total thumb impairment
According to page 29 of AMA 4, the impairments of the thumb due to range of motion impairment are added which in this case are as follows:
(a) flexion and extension of the IP joint – 7%;
(b) flexion and extension of the MP joint - 3%;
(c) adduction – 1%;
(d) radial abduction – 3%, and
(e) opposition – 9%.
This suggests a 23% impairment of the thumb due to loss of motion. That percentage must then be combined with the impairment due to sensory loss (40%) in accordance with the combination table on page 322 of AMA 4 to produce a total thumb impairment of 54%.
AMA 4 methodology then uses tables one, two and three to derive the degree of WPI as follows:
(a) 54% of the thumb becomes 22% of the hand, and
(b) 22% of the hand becomes 20% of UEI.
A 20% UEI would be on its own a 12% WPI but it must first be combined with the wrist impairment.
Wrist Impairment
Medical Assessor Stubbs also recorded restriction in right wrist movement documented at paragraph 86 above. The left wrist was normal.
Using Figures 26 (for flexion and extension) and 29 (for radial and ulnar deviation) at pages 36 and 38 of AMA 4 the Panel is satisfied the claimant has a 5% UEI of his right wrist.
Unit of measurement
Degree
UEI
Flexion (60 degrees)
40
3
Extension (60 degrees)
60
0
Radial deviation (20 degrees)
20
0
Ulnar deviation (30 degrees)
20
2
Total upper extremity impairment
When 20% UEI for the thumb is combined with 5% UEI for the wrist (also using the combination table at page 322) to produce a total UEI of 24%.
Using table 3, this translates to a WPI of 14%.
SCARRING IMPAIRMENT
Clause 6.48 notes that the relevant part of the AMA 4 Guides for the physical evaluation of an upper limb injury does not include the cosmetic evaluation which is done pursuant to Chapter 13 of the AMA Guides and the “other body systems” part of the Guidelines.
The AMA 4 Guides chapter for the assessment of injuries to the skin includes table 2 which identifies five classes of impairment ranging from class 1 which attracts a WPI of between 0 and 9% and class 5 which attracts a WPI of between 85 and 95%.
It is the Panel’s view that the claimant’s scarring falls within class 1 because of the:
(a) signs and symptoms associated with the scars;
(b) the lack of limitation of activities because of the scars, and
(c) no current treatment of the scars is required.
Because class 1 contains a relatively wide range of percentage impairments, the Guidelines provide at 6.18 a table for the evaluation of minor skin impairment (TEMSKI).
There are 10 criteria to be applied as follows:
TEMSKI CRITERIA as per the table The examination Rating Consciousness
Mr Axford is extremely conscious of the scars and the shortening of his thumb when compared to the left
2%
Colour Match
There is easily identifiable colour contrast of the right thumb compared to the other digits of the right hand
2%
Ability to locate
The claimant can easily locate the scars
2%
Trophic changes
There are no trophic changes
0%
Visibility of staple or suture marks
The suture marks are clearly visible.
2%
Anatomical location
The location of the scar, on the upper side of the thumb on the right hand are clearly visible with usual clothing and could only be hidden with gloves.
2%
Contour defect
Mr Axford’s thumb appears wasted in part due to lack of use of muscles and also in part due to deformation following the injury and surgery
2%
Effect on any activities of daily living
The scarring does not affect the claimant’s activities of daily living.
0%
Treatment
The claimant is having no treatment for the scars.
0%
Adherence
There is no adherence to underlying structures.
2%
The TEMSKI table uses the principle of best fit. In determining the best fit this does not require the Panel to adopt the mean, median or average.
The Panel is satisfied that the best fit for the claimant’s right hand scarring is 2% WPI.
CONCLUSION
The claimant’s total WPI is assessed as follows:
(a) right upper extremity – 14% WPI being a UEI of 24% comprising:
(i)thumb / hand UEI of 20% combined with;
(ii) wrist UEI of 5%, and
(b) scarring - 2% WPI.
The 14% WPI for the upper limb when combined with 2% for the scarring gives a total of 16% WPI.
The Panel notes that Dr Stevenson for the insurer included an assessment of the wrist joint for a total WPI of 20% but does not appear to have assessed the thumb correctly. The Panel’s assessment of wrist impairment was similar. The Panel’s assessment is higher than the impairment made by Dr Keller also for the insurer. Dr Keller does not appear to have accounted for the significant contribution from impaired sensation in the thumb. The impairment assessment by Medical Assessor Dixon was 14%. Medical Assessor Dixon included the wrists as part of the estimate but did not include a figure for scarring.
As the Panel has arrived at the same outcome as Medical Assessor Dixon (WPI is greater than 10%) ordinarily the Panel would confirm the certificate. However, as the Panel has assessed a different degree of WPI (16%) and Medical Assessor Dixon has included the figure of 14% in his certificate, it follows that the Panel must revoke his certificate.
0
2
0