Insurance Australia Limited t/as NRMA Insurance v Azzam
[2025] NSWPICMP 228
•2 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Azzam [2025] NSWPICMP 228 |
CLAIMANT: | Nourham Azzam |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 2 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment dispute; claimant was pedestrian when she was hit by a car causing her to fall and land on her back; claimant sustained fractures to both knees and a right shoulder rotator cuff tear; claimant had significant pre-existing symptomatic knee and right shoulder conditions; there was no dispute that the accident-related right knee fracture was 5% whole person impairment (WPI); Held – Review Panel found the left knee fracture was not present in the radiology before the motor accident; left knee undisplaced tibial plateau fracture therefore caused by the motor accident and assessed at 2% WPI; pre-accident shoulder radiology showed a partial rotator cuff tear while post-accident showed a complete tear; right shoulder injury also causally related to the motor accident; consideration of pre-existing impairment deduction was difficult as claimant had a fall four months before motor accident and injured her right shoulder; hospital notes detailed restricted motion in flexion, extension, and abduction; no recordings in relation to adduction, internal, and external rotation; no indication of goniometer used or reliability of measurements for impairment evaluation; Review Panel concluded data not reliable and cannot be used for pre-existing impairment deduction; right shoulder assessed as 4% WPI; surgical scarring was 2% WPI; therefore total impairment was 13% WPI; Medical Assessment Certificate revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Robert Kuru dated (a) The Review Panel certifies the following injuries were caused by the motor accident: · Right knee: Fracture · Left knee: Fracture · Right shoulder: Rotator cuff tear · Scarring/TEMSKI: Right knee surgical scarring. (b) The Review Panel finds that the above injuries result in a whole person impairment of 13% which is greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
Nourham Azzam (the claimant) was involved in a motor accident on 8 June 2018. She had parked her car outside her home and was removing some items from the rear seats when her car was struck by a vehicle. The impact caused her car to knock her over and she sustained injuries to both her legs and right shoulder.
An ambulance took the claimant to hospital and initial scans revealed a fracture of the right tibial plateau. She underwent surgery to repair the fracture and had plate and screws inserted.
Radiology also revealed a fracture of her left knee and a full-thickness tear of the supraspinatus tendon in her right shoulder. The claimant later underwent an arthroscopic surgery to her left knee in September 2021 and then to her right shoulder in October 2022.
The claimant made a claim for personal injury benefits with the insurer (NRMA), the third-party insurer of the vehicle that she says caused the accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. This is important because if there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination.
[1] See Division 4.3 of the MAI Act.
On 7 June 2024, Medical Assessor Robert Kuru assessed the claimant’s injuries (including post-operative scarring) as having a WPI of 18% which results in a WPI of greater than 10%.
NRMA lodged an application with the Commission seeking a review of Medical Assessor Kuru’s assessment.
On 28 August 2024, a delegate of the President accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.
MEDICAL ASSESSMENT UNDER REVIEW
Assessor Kuru found that the following injuries were caused by the motor accident:
· right knee: Fracture of the right tibial plateau;
· left knee: Fracture of the proximal fibula;
· right shoulder: Rotator cuff tear, and
· scarring/TEMSKI: Scar on the right knee, left knee, right shoulder.
Assessor Kuru provided his assessment of the claimant’s WPI in the below table:
| Body Part or System | AMA4 Guides/Guidelines References (Chapter/page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Right lower extremity (knee) | Page 3/85 Table 64 | Yes | 5 | 0 | 5 |
| 2 | Left lower extremity (knee) | Page 3/78 Table 41 | Yes | 4 | 0 | 4 |
| 3 | Right upper extremity (shoulder) | Page 3/43 Fig 38 Page 3/44 Fig 41 Page 3/45 Fig 44 | Yes | 7 | 0 | 7 |
| 4 | Scarring/TEMSKI | Page 58 Table 18 | Yes | 2 | 0 | 2 |
* %WPI = percentage whole person impairment
Assessor Kuru assessed the claimant’s total combined WPI as 18%.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer’s original submissions state that the claimant had a significant pre-accident history of pathology and symptoms in her left knee, right knee and right shoulder before the motor accident. The insurer submits that the claimant’s right tibial plateau fracture caused by the motor accident results in WPI of 5%. It is contended that all other conditions to the claimant’s left knee, right knee and right shoulder are pre-existing and should be deducted from any current WPI.
The insurer’s review application states that Assessor Kuru failed to consider or provide adequate reasons regarding the medical evidence that went to pre-existing conditions/impairment present in the claimant’s right shoulder and bilateral knees before the motor accident.
Claimant’s submissions
The claimant submits that there was no error in Assessor’s Kuru’s assessment and that the claimant had an WPI of greater than 10%.
The claimant says the accident was a vehicle vs pedestrian event and was quite capable of resulting in serious injury, which has in fact resulted and supported by the early medical evidence. There was no requirement for Assessor to mention every document on file, particularly given the voluminous bundles of documents.
Causation of the bilateral knee injuries is supported by Dr Fox’s reports. With respect to the right shoulder rotator cuff, the claimant states that the partial thickness tear present before the motor accident had developed to a full thickness tear, as evidenced by the ultrasound of 2 November 2018.
The claimant notes that the surgery to the right knee and right shoulder were paid for by the insurer and this can constitute evidence of an admission of liability of injury.[2]
[2] ADP Snack Foods Pty Ltd v Vuic (Supreme Court of NSW (CA) Hutley AP, Glass and Mahoney JJA – 5 July 1984; Sydney Ports Corporation v Collins [2003] NSWCA 28.
Lastly, in relation to Assessor Kuru’s examination range of motion differences between the left and right shoulder, the claimant says such differences in ROM do not correspond to degrees of impairment and deducting one set of shoulder motions from the set for the other does provide an impairment loss.
REVIEW OF THE EVIDENCE
General observations
The Panel was originally provided with only a copy of the application for review, the reply and a copy of the decision of the President’s delegate.
On 1 September 2024, the Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. The Panel stated that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents. The parties duly responded with the insurer’s bundle comprising of pages 1-1153 and the claimant’s 1-156.
Both parties refer extensively to the pre-and-post accident treating records, radiology reports and qualified reports in support of their respective positions. The relevant documentation is summarised below.
Pre-accident clinical notes and radiology
Centrelink job assessment on 2 June 2011 – Reported osteoarthritis of the left knee. A job capacity report of 9 November 2011 stated that the claimant reported that a specialist recommended she have surgery on both knees (which the claimant refused).
Dr Neuhauser at Triple 333 Medical Centre (May 2015) – Difficulty weightbearing on left knee, ataxic gait, distinct difficulty with knee extension and flexion was slightly painful. It was noted the claimant most likely required an arthroscopy.
MRI left knee 26 May 2015 – Incomplete radial tear at the posterior horn root attachment of the medial meniscus and full thickness chondral loss through the weight bearing aspect of the medial femoral condyle. There was moderate joint effusion and mild synovitis.
X-ray right knee 11 November 2016 – Mild to moderate medial joint space narrowing of the medial compartment of the tibiofemoral joint and moderate joint space narrowing at the patellofemoral junction.
Discharge transfer 2 January 2017 – Noted 3-week history of bilateral leg swelling. Some associated worsening lower limb pains, similar to osteoarthritis pains, not focused on calves. Likely weight gain as cause for increasing lower limb size.
CT right knee 23 February 2017 – Presence of a foreign body, osteoarthritis and a subcutaneous oedema.
Ultrasound right knee 28 February 2017 – Presence of a loose body.
Dr Majeed Excelsior Medical Centre (February/March 2017) – MVA on 9 February 2017. Left knee noted as very painful and needing urgent orthopaedic attention including “clean up” surgery. Right knee painful like the left. Mr Charles Said noted ongoing right and left knee pains.
Dr Celi Excelsior Medical Centre (June 2017) – 2-day history of right knee pain. Pain in medial joint margin. Presented to ED but did not get investigated. Right knee locks and claimant is able to squat but cannot stand back up. Entry dated 19 June 2017 knee pain much improved with Panadol osteo.
Dr Majeed Excelsior Medical Centre (July 2017) – Referral for knee pain with right knee getting worse
Dr Majeed Excelsior Medical Centre (January 2018) – Bilateral knee pain which was getting worse. Claimant considering an early release of her super in order to undergo knee surgery.
CT both knees 8 January 2018 – Right knee effusion and left knee loss of medial joint space. Moderate osteoarthritis noted.
Discharge referral Auburn Hospital 28 February 2018 – Presenting with 5 days of worsening right leg pain (9/10), numbness and cold feeling from knee down. Knee meniscus tear – has seen orthopaedic surgeon for same. Power 5/5 bilaterally in lower limbs. Light sensation intact. Reflexes intact (knee and ankle).
Auburn Hospital 28 February 2018 – Attendance due to right shoulder pain following a fall. Right shoulder still tender on 18 March 2018 needing physiotherapy (consultation with Dr Majeed on that day).
Westmead Hospital 1 June 2018 – Pain in right shoulder. Reduced range of motion. Claimant unable to adduct or flex shoulder over 90 degrees and extension limited to 30 degrees. Claimant was mildly tender on palpation, weakness with resistance against shoulder abduction.
Ultrasound right shoulder 2 June 2018 – Bursitis with shoulder impingement, partial thickness tear of supraspinatus tendon on the background of tendinosis.
Dr Majeed 3 June 2018 – Noted imaging studies evidenced severe right shoulder damage and the claimant needed to see a specialist.
Post-accident clinical notes and radiology
Westmead Hospital 8 June 2018 – On the day of the motor accident, right shoulder was tender on examination and right knee was tender with limited range of motion. No mention of bruising, redness or swelling over the right shoulder consistent with a new injury. Claimant reportedly fell onto her buttock after being hit on her right knee.
Westmead Hospital (final report) – Says the “Clinical History” of the left knee was “four weeks post MVA, as pedestrian, with fibular head fracture, for evaluation…” Findings were “There is evidence of an avulsion-type injury to the fibular head including the styloid process and a portion of the more inferior fibular head…”
X-ray right femur – Fracture at right proximal tibia. Claimant underwent open reduction and internal fixation on 12 June 2018. Alignment satisfactory in x-ray dated 2 July 2018.
X-ray left knee 10 July 2018 – Fracture of indeterminate age at fibular head.
MRI of left knee 12 July 2018 – Demonstrated an avulsion injury at the proximal fibula. Left knee injury was managed conservatively.
X-ray right shoulder 11 July 2018 – Normal.
Ultrasound right shoulder 31 July 2018 – Full thickness tear. Insurer submits this was not diagnosed until over 6 weeks after the motor accident.
Dr Majeed Excelsior Medical Centre (August/September 2018) – Can’t walk, nearly crippled, unable to move after MVA.
X-rays 30 August 2018 – Dr Fox. Fracture of left fibula had healed and right tibia was excellent. Claimant cleared to weight bear fully on both legs and did not need a knee brace. Hardware removed on 20 November 2019.
Ultrasound 2 November 2018 – Full thickness tear of rotator cuff.
20 November 2019 – Claimant had surgical removal of the plate from her right proximal tibia and an arthroscopy of her knee revealing medial compartment osteoarthritis.
15 September 2021 – Claimant had left knee arthroscopy paid for by the insurer.
17 October 2022 – Claimant had right shoulder arthroscopic rotator cuff repair and biceps tenodesis surgery by Dr Alan Deo, approved and funded by the insurer.
Medico-legal reports
Dr Peter Gray, orthopaedic surgeon:
- Report dated 17 June 2019: Found that the claimant sustained a fracture of the right lateral tibial plateau necessitating open reduction and internal fixation and fracture of her left fibular head treated non-operatively. There was also a further aggravation of a prior right shoulder injury.
- Report dated 30 July 2019: Considered that the majority of the claimant’s lower limb pain relates to osteoarthritis in both knees which was symptomatic and in evidence before the accident. Noted that resolution of knee pain may require total knee arthroplasties. Did not consider maximal medical improvement to be reached until three to six months following removal of plate and screws from the claimant’s right tibia.
- Report dated 20 August 2019: Opined that the claimant’s current knee pain relates to previously present osteoarthritis which had been aggravated to some extent by the quadriceps muscular deconditioning associated with the aftermath of the injuries sustained in the accident.
- Report dated 28 April 2023: Confirmed the previous diagnoses.
Right knee impairment – Medial compartment arthritis of the right knee with a 3 mm medical joint space was assessed under Table 62, page 83 of the AMA 4 at 3% WPI. The displaced tibial plateau fracture with 5º of valgus angulation is 5% WPI. Combined impairment is 8%WPI. A deduction of 10% was made for pre-existing condition and therefore 7% WPI was related to the motor accident.
Scarring of the right leg, under TEMSKI, was assessed at 1% WPI.
Left knee impairment – Radiological evidence of arthritis with a 2 mm medial joint space is 8% WPI. A deduction of 70% was made for pre-existing condition and therefore 2% WPI was related to the motor accident.
Utilizing the Combined Values Table on page 322 of the AMA 4, the claimant’s total impairment as a result of the motor accident was 10% WPI.
Dr Robin Mitchell dated 20 June 2023: Found the fracture to the right knee requiring internal fixation surgery to be causally related to the motor accident and assessed 5% WPI. The surgical scar was considered to be well healed and did not attract any additional impairment. The left knee and right shoulder conditions were pre-existing at the time of the motor accident. Dr Mitchell noted that the claimant’s right shoulder was not aggravated by the motor accident but rather, developed in February 2018 following a fall after which she had significant changes in the rotator cuff soft tissues. The total WPI related to the motor accident was therefore 5%.
Dr Frank Machart dated 26 April 2022: Found the injuries to be causally related to the motor accident. The Panel notes the insurer’s submissions regarding Dr Machart seeing the claimant before her right shoulder surgery, the absence of any detailed consideration of pre-existing symptoms and the alleged errors in the impairment methodology. Assessment of impairment was right leg 6%, left leg 4%, right shoulder 4% and scarring 2% with a combined WPI of 16%.
Other PIC medical assessments
Assessor Bodel dated 27 May 2021 – Noted previous problems with the left knee but found that the mechanism of injury caused bruising of the left knee. Concluded that the left knee arthroscopic surgery requested by Dr Fox dated 20 February 2020 relates to the injury caused by the motor accident and is reasonable and necessary.
Assessor Rikard-Bell dated 18 July 2024 – diagnosed major depressive disorder as a result of chronic pain and restrictions to the claimant’s legs as a result the motor accident. WPI was assessed at 6%.
RE-EXAMINATION REPORT
At the preliminary conference on 19 November 2024, the Panel determined that the claimant be re-examined. The re-examination report of Medical Assessor Kenna is as follows:
Who attended the assessment
Ms Azzam was seen on 6 March 2025.
An Arabic interpreter was in attendance (NAATI No. CPN8J505R).
HISTORY
Pre-accident medical history and relevant personal details
Ms Azzam is a 60-year-old female who has been in Australia some 30 years and currently resides in Parramatta.
She describes her pre-accident health as reasonably good, but noted straight off that as a result of the injuries, she has since become a diabetic type 2 and requires a walking stick for mobility.
She denies any prior history of motor vehicle accidents previously or indeed since the motor vehicle accident in question on 8 June 2018, a period now of over 6½ years ago.
It is to be noted that the injuries in this motor vehicle accident (details discussed later) substantially relate to both knees and the right shoulder.
In that respect, pre-accident medical history, she has a history of pre-accident bilateral knee conditions and that she has experienced symptomatology from both knees for a number of years prior to the accident.
In an earlier Centrelink job assessment report, this dates back to June 2011 where it is reported that the claimant had osteoarthritis of the left knee. Similarly, a treating GP in 2015 referred to both knees as having been arthritic with most likely requiring arthroscopy.
That an MRI was taken of the left knee on 26 May 2015 which evidenced an incomplete radial tear at the posterior horn where it attaches to the medial meniscus, as well as a full-thickness chondral loss through the weight-bearing aspect of the medial femoral condyle.
Her GP noted in May 2015 that she had difficulty weight-bearing on her left knee. There was an ataxic gait (limp) and distinct difficulty with knee extension and flexion being slightly painful.
Similarly, an x-ray of the right knee taken on 11 November 2016 also evidenced mild to moderate medial joint space narrowing of the medial compartment of the tibiofibular joint and moderate joint space narrowing of the patellofemoral junction. This was followed up by CT of the right knee on 23 February 2017 which evidenced osteoarthritis, subcutaneous oedema, with an ultrasound demonstrating a loose body in the joint space.
There were further consultations pertaining to the knees in 2017 and early 2018, pre motor vehicle accident, in which there was a complaint of ongoing bilateral knee pain which was getting worse and pre-accident she underwent in January 2018 a CT scan of both knees which evidenced right knee effusion, i.e. loss of medial joint space in the left knee.
Similarly pertaining to the right shoulder, the claimant fell on 28 February 2018, pre-accident, attending Auburn Hospital. She had right shoulder pain following the fall with the claimant seeing her GP and then subsequently attending physiotherapy.
She also attended one week prior to the accident to Westmead Hospital with right shoulder pain, with reduced range of movement, noting she was unable to abduct or flex the shoulder over 90°, with extension also being limited.
An ultrasound at that point in time on 2 June 2018 evidenced significant pathology of the right shoulder, as well as a partial-thickness tear of the supraspinatus tendon, with imaging studies demonstrating severe right shoulder damage with the claimant needing to see a specialist.
History of the motor accident: 8 June 2018
The accident occurred on 8 June 2018. She was a pedestrian at the time. The accident occurring in the early evening between 7.00 – 8.00pm. It was dark and raining at the time when she was crossing Woodville Road at Guildford.
She herself was getting out of the passenger side of a car which was parked outside her home, but subsequent to this she had to cross the road, when she was hit by a motor vehicle, resulting in falling to the ground.
This incident occurred in part as she got out of the car, she had stumbled in a pot hole on the footpath whilst on her way to cross the road. This incident occurred right beside her car in front of her house, with the vehicle in question actually hitting her car and then evidently striking her on the footpath. In that respect, a neighbour heard the accident and came to assist.
The history, as related to the accident seemed a bit confusing so I have also included Dr Gray’s version as he saw her on several occasions.
In respect to such, she has been seen on a number of occasions by Dr Peter Gray, orthopaedic surgeon, with an initial assessment in June 2019. In further detail, he noted that the accident occurred on 8 June 2018. She had parked her car outside her home. She was removing boxes from the rear passenger seat of a parked car, i.e. the door was open, when her car was hit from behind by a vehicle travelling in the extreme left-hand lane. After impact with her vehicle, the vehicle deviated onto the footpath and again hit Ms Azzam and knocked her some 5 metres distant from the point of impact, landing on her back and she states that she became immediately aware of bilateral knee pain, no head injury, no loss of consciousness. An ambulance was called and she was transported to Westmead Hospital.
History of symptoms and treatment following the motor accident
Both ambulance and police attended and she was transported to Westmead Hospital, where examination confirmed fractures to both knees, right being much worse than the left.
X-ray confirmed displaced tibial plateau fracture on the right. This required an open reduction and internal fixation which was performed by Dr John Fox, orthopaedic surgeon, and although there was a tibial plateau fracture on the left, it was considered to be mild, undisplaced, although there was extensive bruising of the left knee and this was treated conservatively. Associated with that was a fracture of the fibula.
Initially she remained in hospital for a week or so and then was discharged home but she had the initial surgery on the right knee at Westmead Hospital and then was subsequently transferred to St Vincent’s Hospital for a period of six weeks, as there was simply no home support. This occurred due to the fact that she lived on the third floor but now she subsequently lives with new arrangements on the ground floor.
Current symptoms
With regards to her current symptoms, these primarily relate to both knees, localised knee pain, right more significant than the left, and associated some right shoulder discomfort.
CLINICAL EXAMINATION
General presentation
Findings on clinical examination including specific measurements of ROM (where applicable) of each of the injuries assessed.
It is to be noted immediately that at 155cm, she was 107kg. She is right-handed.
Cervical spine
No muscle guarding or muscle spasm present, full range of motion and no asymmetry present.
No neurological deficit evident in either upper limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
On formal examination of range of movement there was full range of movement as follows:
| MOVEMENTS | RANGE EXHIBITED |
| Flexion | 100% full |
| Extension | 100% full |
| Rotation to the right | 100% full |
| Rotation to the left | 100% full |
| Lateral bending to the right | 100% full |
| Lateral bending to the left | 100% full |
NEUROLOGICAL TESTS:
REFLEXES:
| REFLEX | LEFT | RIGHT |
| TRICEPS JERK | Normal | Normal |
| BICEPS JERK | Normal | Normal |
| BRACHIORADIALIS | Normal | Normal |
SENSATION: Normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
MUSCLE WASTING
| LEFT (cm) | RIGHT (cm) | |
| UPPER ARM | 36 | 35 |
| FOREARM | 30 | 30 |
MUSCLE POWER
| LEVEL | MOTOR POWER | LEFT | RIGHT |
| C4 | 5/5 | NORMAL | NORMAL |
| C5 | 5/5 | NORMAL | NORMAL |
| C6 | 5/5 | NORMAL | NORMAL |
| C7 | 5/5 | NORMAL | NORMAL |
| C8 | 5/5 | NORMAL | NORMAL |
| T1 | 5/5 | NORMAL | NORMAL |
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
DURAL TENSION TESTS:
| TEST | RIGHT | LEFT |
| PASSIVE NECK FLEXION | Normal | Normal |
| BRACHIAL PLEXUS STRETCH | Normal | Normal |
Upper Extremity
Right Shoulder
| Measurement | Reference (4th ed.) | Normal | Upper Extremity Impairment | |
| Flexion | 130° | Figure 38 (43) | 180° | 3 |
| Extension | 50° | Figure 38 (43) | 50° | 0 |
| Adduction | 50° | Figure 41 (44) | 50° | 0 |
| Abduction | 90° | Figure 41 (44) | 180° | 4 |
| Internal Rotation | 90° | Figure 44 (45) | 90° | 0 |
| External Rotation | 70° | Figure 44 (45) | 90° | 0 |
| Total | 7 |
Goniometer measured
7% UEI x 0.6 = 4% WPI
Left Shoulder
| Measurement | Reference (4th ed.) | Normal | Upper Extremity Impairment | |
| Flexion | 180° | Figure 38 (43) | 180° | 0 |
| Extension | 50° | Figure 38 (43) | 50° | 0 |
| Adduction | 50° | Figure 41 (44) | 50° | 0 |
| Abduction | 180° | Figure 41 (44) | 180° | 0 |
| Internal Rotation | 90° | Figure 44 (45) | 90° | 0 |
| External Rotation | 90° | Figure 44 (45) | 90° | 0 |
| Total | 0 |
Goniometer measured
Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.
Lower extremity
Knees
She used a walking stick in her right hand. There is clearly significant alteration of gait. She was measured at 63cm both thighs (10cm above the superior pole of the patella) and 54cm maximum circumference of the calves.
Range of movement of the right knee was reduced to 90° (i.e. less than 110°) with a 19cm fine scar over the lateral aspect over the right upper tibia and knee.
For the left knee, she was able to flex past 110°.
She has a 5° valgus deformity of the right knee.
There is possibly no muscle wasting but this can’t be easily defined due to level of obesity.
Measurement of the involved calf and thigh are symmetrical with the contralateral side.
| Right/ Knee | |
| Extension 0° ¯ Flexion 135° | 0 ¯ 90° |
Normal motion
Scars yes
Quadriceps Wasting Nil
Swelling Nil
Collateral Ligaments Intact
Cruciate Ligaments Intact
McMurray’s Test Normal
Patello-femoral joint Normal
Lateral patellar tilt Nil
Lateral drift (with quadriceps contraction) Nil
Gait Normal
Short leg Nil
Atrophy Negative
Weakness Negative
Range of movement Normal
Osteoarthritis Nil
Amputation Nil
Neurological deficit Nil
Reflex sympathetic dystrophy Nil
Vascular Normal
Scarring
| 0% WPI | 1% WPI | 2% WPI | 3-4% WPI | 5-9% WPI | |
| Description of the scars and/or skin condition(s) (shape, texture, colour) | Claimant is not conscious or is barely conscious of the scar(s) or skin condition | Claimant is conscious of the scar(s) or skin condition | Claimant is conscious of the scar(s) or skin condition | Claimant is conscious of the scar(s) or skin condition | Claimant is conscious of the scar(s) or skin condition |
| Good colour match with surrounding skin and the scar(s) or skin condition is barely distinguishable | Some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes | Noticeable colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes | Easily identifiable colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes | Distinct colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes | |
| Claimant is unable to easily locate the scar(s) or skin condition | Claimant is able to locate the scar(s) or skin condition | Claimant is able to easily locate the scar(s) or skin condition | Claimant is able to easily locate the scar(s) or skin condition | Claimant is able to easily locate the scar(s) or skin condition | |
| No trophic changes | Minimal trophic changes | Trophic changes evidence to touch | Trophic changes evident to touch | Trophic changes are visible | |
| Any staple marks or suture marks are barely visible | Any staple marks or suture marks are visible | Any staple marks or suture marks are clearly visible | Any staple marks or suture marks are clearly visible | Any staple marks or suture marks are clearly visible | |
| Location | Anatomic location of the scar(s) or skin condition is not clearly visible with usual clothing/ hairstyle | Anatomic location of the scar(s) or skin condition is not usually visible with usual clothing/ hairstyle | Anatomic location of the scar(s) or skin condition is usually visible with usual clothing/ hairstyle | Anatomic location of the scar(s) or skin condition is not usually visible with usual clothing/ hairstyle | Anatomic location of the scar(s) or skin condition is not usually visible with usual clothing/ hairstyle |
| Contour | No contour effect | Minor contour effect | Contour defect visible | Contour defect easily visible | Contour defect easily visible |
| ADL/treatment | No effect on any ADL | Negligible effect on any ADL | Minor limitation in the performance of few ADL | Minor limitation in the performance of few ADL AND exposure to chemical or physical agents (for example, sunlight, heat, cold etc) may temporarily increase limitation | Limitation in the performance of few ADL (IN ADDITION TO restriction of grooming and dressing) AND exposure to chemical or physical agents (for example, sunlight, heat, cold etc) may temporarily increase limitation |
| No treatment, or intermittent treatment only, required | No treatment, or intermittent treatment only, required | No treatment, or intermittent treatment only, required | No treatment, or intermittent treatment only, required | No treatment, or intermittent treatment only, required | |
| Adherence to underlying structures | No adherence | No adherence | No adherence | Some adherence | Some adherence |
Best fit: 2%WPI
The claimant was asked about the scarring. The claimant was conscious of the scar as it was quite long measuring approximately 19cm in length. There was no substantive colour contrast but the scar was easily identifiable. Suture marks are clearly visible with a slight contour defect seen and mild trophic changes. The scar was non-tender but the claimant would often modify her attire by wearing a dress to hide the scar. There is no adherence and no treatment required. On best fit, the claimant’s scarring is 2% WPI as bolded in the table above.
DISCUSSION
Bilateral knees
The claimant sustained the injuries to the lower extremity in a motor vehicle accident on 8 June 2018 when a car impacted her right knee, causing a right tibial plateau fracture. The incident was stated to be a vehicle versus pedestrian event.
X-ray at Westmead confirmed a right tibial plateau fracture which required operative repair involving a fixation plate and screws which were inserted by way of treating the right tibial plateau fracture. This operation occurred on 12 June 2018.
Further x-rays post-accident demonstrating the fracture being internal fixed and alignment appeared satisfactory.
The left knee was also x-rayed around 10 July 2018 while she remained in Westmead Hospital. This was four weeks post motor vehicle accident which confirmed a fibular head fracture with evidence of an avulsion type injury to the fibular head, including styloid process. Nevertheless, in view of the fact that the fracture was largely undisplaced, although it was acknowledged she was complaining of left knee pain post-accident, it was considered that her left knee could be treated conservatively, i.e. non-surgically. Associated with this was a fracture to the fibula.
Hence and in summary, in the initial 12 months following the motor accident, for the right knee the claimant needed open reduction and internal fixation for the tibial plateau fracture. For the left side, the tibial and fibular fractures were treated conservatively.
She was seen by Dr Grey on several occasions. In his initial assessment some 12 months post motor vehicle accident, she was experiencing bilateral knee pain. She required two crutches for walking with distance being significantly limited to about 10 minutes, with stated extreme difficulty with stairs that she avoided. Dr Grey acknowledged that she sustained fracture of the right lateral tibial plateau necessitating open reduction and internal fixation. She also sustained to the left knee undisplaced tibial plateau fracture and fracture of the fibula,
At that point in time, she was living in a motel room, as her previous apartment on Housing Commission was on the third floor, and used taxis for transport.
She then underwent further operative procedure on 20 November 2019 for the right knee involving surgical removal of a plate from her right proximal tibia and had an arthroscopy of the right knee. This was followed up in September 2021 involving an arthroscopy of the left knee.
Dr Grey then reviewed her extensively in a report dated 28 April 2023. He noted at that point in time she did not require any walking aids (at the time of my assessment she used a walking stick in the right arm) and similarly to my assessment, there was a 20cm well-healed hockey stick incision over the lateral aspect of the right knee and proximal tibia, i.e. well-healed, non-tender. It is to be noted in that report there was no examination of the shoulders and examination and comments focused on the knees.
With regards to the right knee, the open reduction and internal fixation of the right tibial plateau was necessary and well performed with a good outcome, with subsequent removal of plate and screws. All this was directly related to the motor vehicle accident. Nevertheless she continued to experience pain and substantial disability in relation to the right knee.
In relation to the left, there was an undisplaced tibial fracture as noted with significant pre-existent osteoarthritic wear and tear and clinical symptomatic history. Nevertheless, she sustained the injuries as noted to the left knee and she subsequently did undergo an arthroscopic surgery for significant pre-existent osteoarthritic wear changes which were considered by Dr Gray as not related to the motor vehicle accident per se.
Nevertheless, his considered opinion that surgical treatment to date had been ineffective in relieving the pain in the knees and she had a substantive level of ongoing symptomatology with significantly reduced activity tolerance limits.
Right shoulder
X-ray of the right shoulder at the time on 11 July 2018 indicated no fracture was identified.
In relation to the right shoulder radiologically, it is to be noted that an ultrasound on 2 November 2018 post-accident confirmed a full-thickness tear of the rotator cuff. An earlier ultrasound pre-accident had confirmed a partial-thickness tear indicating therefore that as a result of the accident, the right rotator cuff had developed from a partial to a full tear.
However, in view of the persistence of her symptoms pertaining to the right shoulder, with a confirmed full rotator cuff tear, she underwent a right shoulder arthroscopic rotator cuff repair on 17 October 2022 performed by Alan Deo, which was approved and funded by the insurer, as the disability and symptomatology had continued over the four years post motor vehicle accident.
At that point in time, there appeared to be possibly a reduction in left shoulder mobility as evidenced on a number of reports, but that was not the case at the time of the Panel examination, as she had full range of movement of the left shoulder in contrast to the right.
Dr Grey, in his initial assessment 12 months post-accident, acknowledged a further aggravation to the right shoulder and the right shoulder partial rotator cuff tear now being a full-thickness tear.
That the accident had had a very substantive impact on her quality of life and capacity with regards to activities of daily living. It was Dr Grey’s considered view that it was most unlikely that she would ever be able to return to her pre-injury level of activity.
DETERMINATIONS
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[4]
[4] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessor Kenna and adopts the findings in their entirety. The Panel reconvened on 27 March 2025 and discussed the re-examination report findings before collectively making the below determinations.
Causation and diagnosis
Causation is dealt with at cls 6.5-6.7 of the Guidelines. An abridged form of the requirements is contained in cl 6.7 which states:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
The Panel accepts that the claimant was symptomatic with pre-existing pathology in the right shoulder and bilateral knees. The claimant’s knees were symptomatic as early as 2011 with what appeared to be a steady progression of symptoms with the need for radiological scans up until a few months before the motor accident.
Similarly, the right shoulder was injured in a fall in February 2018 with the claimant being admitted at Westmead Hospital on 1 June 2018, a week before the subject motor accident. Here the claimant had an ultrasound which showed a partial thickness tear with Dr Majeed stating that there was severe right shoulder damage.
While there were clear pre-existing issues, the Panel noted the claimant’s involvement in the motor accident was essentially that of a pedestrian, having exited her vehicle. There was then an impact of a vehicle against the claimant who landed on her back in the footpath area. There were immediate complaints of right shoulder pain and right knee pain, the latter of which was repaired surgically in hospital. Radiology was obtained for both the right shoulder and right knee and left knee about a month after the motor accident. This showed a complete tear of the right shoulder and fractures in both the right and left knees. Previous radiology only showed a partial tear of the right shoulder and no fractures of the knees.
The Panel therefore concluded that the mechanism of the accident and the early medical documentation suggest that it is more likely than not that the claimant could have and did injure her right shoulder and bilateral knees at the time of the motor accident.
The injury diagnoses are:
· right knee: Fracture;
· left knee: Fracture;
· right shoulder: Rotator cuff tear, and
· scarring/TEMSKI: Right knee surgical scarring.
Permanent impairment
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
[5] See section 7.21 of the MAI Act.
Version 9.3 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.
It was noted that the reason for a Review Panel was that following an initial assessment by Medical Assessor Robert Kuru of 15 February 2024, this was on the basis that it was stated by the Medical Assessor that the claimant’s left shoulder was uninjured but had an impaired range of movement and that the Medical Assessor should have deducted the impairment from the uninjured shoulder (left) for the impairment of the injured one (right) and that he failed to give reasons for choosing not to make a deduction for the left shoulder.
However, as noted above in the Panel’s examination findings, the claimant had full range of movement of the left shoulder. Hence the question of any deduction to be made under the contralateral joint provisions[6] did not come into play.
[6] Cl 6.51 of the Guidelines.
Hence, the permanent impairment was assessed as follows:
· Right knee - Tibial plateau fracture 5° angulation (AMA4, Table 64, Chapter 3, page 85) = 5% WPI.
· Left knee – Undisplaced tibial plateau fracture (AMA4, Table 64, Chapter 3, page 85) = 2% WPI.
· Scarring – 2% (relates to right knee surgical scarring).
· Right shoulder – 4% (no deduction for left shoulder as now full range).
| Body Part or System | AMA Guides/ The Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Right knee | AMA4, Table 64, Chapter 3, Page 85 | Yes | 5 | 0 | 5 |
| 2 | Left knee | AMA4, Table 64, Chapter 3, Page 85 | Yes | 2 | 0 | 2 |
| 3 | Right shoulder | ch3, 3.1, pgs15-74 T 1-32 The Guidelines | Yes | 4 | 0 | 4 |
| 4 | Scarring | TEMSKI | Yes | 2 | 0 | 2 |
* 13%WPI = percentage whole person impairment
Pre-existing impairment
The Panel noted the provisions for apportionment of current WPI due to pre-existing injuries or conditions are contained in cls 6.31 and 6.32 of the Guidelines:
6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): ‘For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.’
There is no dispute that the right knee tibial plateau fracture was caused by the motor accident and resulted in a permanent impairment of 5% WPI.
With respect to the left knee, the Panel acknowledges that the claimant had pre-existing osteoarthritis which was symptomatic as early as June 2011. This was confirmed in subsequent radiology performed in May 2015 (MRI) and January 2018 (CT). The claimant however sustained an undisplaced tibial plateau fracture (avulsion fracture) as a result of the motor accident which is assessed as 2% WPI.
Regarding the right shoulder, the Panel discussed the issue of apportionment at great length. The Panel acknowledged that measurements of flexion 90º, extension 30º and abduction 90º were obtained at the claimant’s presentation at Westmead Hospital on 1 June 2018, just one week before the subject motor accident (8 June 2018).
While such readings are significant, in the sense that they could be used as data in an impairment evaluation, the Panel noted that other planes of shoulder joint motion namely adduction, external rotation and internal rotation were absent in the Westmead Hospital notes. The absence of which, in the Panel’s view, could not be cured by assuming that such planes of movement “were likely similarly restricted” as suggested by the insurer.[7]
[7] Paragraph 2.3 of the insurer’s original reply submissions dated 7 August 2023.
In the Panel’s view, the preferable way to measure upper extremity range of motion requires measurements from all planes of motion, whether restrictions are present or not, which is reflected in the upper extremity template in Figure 1 of the AMA 4 Guides (pages 16-17) and referred to in clause 6.53 of the Guidelines. This template requires measurements from all six planes of motion with respect to the joint being assessed.
The reliability of the measurements was also considered by the Panel. The Panel did not know whether the measurements contained in the Westmead Hospital clinical notes were obtained using a goniometer and whether the figures comprised of active or passive measurements. Furthermore, the Panel did not know whether the examiner could be and was satisfied that the three measurements were reliable to be used in the calculation of impairment.
Such matters are relevant not only for the proper assessment of the upper extremity under the Guidelines but go towards ensuring the data is accurate for the purposes of making any deduction under the apportionment provisions.
In the present matter, the claimant was a pedestrian when she was struck by a motor vehicle. The force of the impact was significant enough to cause the claimant to fall to the ground. Subsequent radiology showed that her pre-existing partial rotator cuff tear had become a full thickness tear.
In such circumstances and for the above reasons, the Panel could not accept the limited data from Westmead Hospital could be used to estimate any pre-existing impairment. As such, the Panel was of the view that the possible presence of any pre-existing impairment should be ignored.[8]
[8]Cl 6.31 of the Guidelines.
CONCLUSION
The claimant’s WPI as a result of the motor accident is 13% and is greater than 10%. The Panel’s impairment percentages are different to that assessed in the medical assessment under review. As such, the Panel revokes the certificate of Medical Assessor Kuru dated 7 June 2024.
A new certificate is issued at the front of the Panel’s determination.
0