Insurance Australia Limited t/as NRMA Insurance v Budek
[2022] NSWPICMP 532
•15 December 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Budek [2022] NSWPICMP 532 |
| CLAIMANT: | Melinda Budek |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 15 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury in a motor accident on 9 March 2016; medical dispute under Part 3.4 about whether the motor accident caused permanent impairment greater than 10%; Medical Assessor (MA) examined and assessed the claimant; assessment of left knee, cervical spine and scarring; assessed with 3% permanent impairment; different outcome because MA was able to perform tests in person; accident did not cause left shoulder condition; MA was able to test for impingement and instability and excluded a Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd nexus with the left shoulder; Held – claimant reassessed at 3% permanent impairment; previous Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | Review Panel Assessment of Degree of Permanent Impairment The Review Panel revokes the certificate dated 7 July 2022 and issues a new certificate determining that The following injuries caused by the motor accident give rise to a permanent impairment which is 3% and IS NOT GREATER THAN 10%: · Left knee · Cervical spine · Scarring |
REASONS
Background
Ms Melinda Budek was travelling home on 9 March 2016 from Burleigh Heads, when an oncoming car heavily impacted the right front corner of her vehicle.
The impact threw Ms Budek about inside her vehicle’s cabin. The accident left her shocked, and she struck her head but did not lose consciousness.
The windscreen wiper lever penetrated the medial side of her left knee from its position on the steering column and she had to lift her left leg off the lever.
Police, ambulance and fire brigade attended the crash. An ambulance took her from the wreck to the Tweed Hospital.
The owner and driver of the motor vehicle were insured for liability to pay to the claimant any damages Motor Accidents Compensation Act 1999 (the MAC Act).
The insurer agreed to accept liability for the accident and the claimant’s injury.
Medical Assessor James Bodel examined Ms Budek via video link on 1 July 2021 and produced a certificate dated 7 July 2021 assessing the following injuries.[1]
(a) left lower extremity (left knee)
(b) cervical spine
(c) left upper extremity (left shoulder)
(d) chest-fractured ribs and left lung pneumothorax
[1] Page 1 insurer’s bundle AD1.
Medical Assessor Bodel assessed Ms Budek’s permanent impairment at 15%, which the insurer disagreed with.
Within 28 days after the Commission issued the original medical assessment certificate the insurer applied to the Personal Injury Commission (the Commission) to refer the medical assessment to a Review Panel.[2]
[2] Section 63(7) of the MAC Act.
On 28 October 2021, the Commission’s Presidential delegate referred the medical assessment to the Review Panel (the Panel) as the delegate was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the application’s claims.[3]
[3] Section 63(2B) of the MAC Act, page 119 insurer’s bundle AD3.
The present dispute between the parties is whether this motor accident caused injuries with a degree of permanent impairment greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[4]
[4] Sections 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act states the State Insurance Regulatory Authority may issue guidelines to assess an injured person’s permanent impairment, known as the Motor Accident Permanent Impairment Guidelines (the Guidelines).
The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). The Guidelines prevail if AMA 4 and the Guidelines differ.[5]
[5] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. At first instance a Medical Assessor determines the issue[6] and a review panel can review the decision under s 63 of the MAC Act.
[6] Section 60 of the MAC Act.
The review
The Panel met on 26 May 2022. The Panel members confirmed they had not been involved previously with this matter or Ms Budek.
The Review Panel considered afresh all aspects of the assessment under review.
Part 5 of the Personal Injury Commission Act 2020 (the 2020 Act) enables the Personal Injury Commission (the Commission) to make rules with respect to the practice and procedure before the Commission. This includes panel proceedings reviewing Merit Reviewers or Medical Assessors’ decisions.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The Panel initially included a cardiothoracic specialist, who had been included because Ms Budek had suffered a pneumothorax injury in the accident. The parties agreed to replace that specialist with a specialist qualified to assess the orthopaedic injuries, because the pneumothorax injury was resolved.
Medical Assessor Grainge recused himself and the Commission added Dr Christopher Oates, who is based in Queensland to a reconstituted panel.
Medical Assessor Oates was chosen for his qualifications and his location. Ms Budek had also expressed that she was reluctant to attend medical appointments in Sydney, as being away from her familiar location caused her distress.
The parties agreed to submit to the Panel that it could adopt Medical Assessor Bodel’s findings and conclusions that the accident caused these injuries:
(a) left lower extremity (left knee)
(b) cervical spine
(c) left upper extremity (left shoulder)
(d) chest-fractured ribs and left lung pneumothorax
The parties accepted Ms Budek has 0% WPI for her chest-fractured ribs and left lung pneumothorax.
The parties also accept that the Panel’s re-assessment be limited to the following:
(a) left lower extremity (left knee)
(b) cervical spine
(c) left upper extremity (left shoulder)
Re-examining the claimant was necessary to reach a decision, because the original assessment was a telehealth examination where the Assessor was not able to test the claimant’s condition to assess permanent impairment validly.
The Panel considered the Court of Appeal’s finding in Sydney Trains v Batshon[9], which does not mandate a re-examination in every motor accident case but talks of the ‘default position’ which ‘generally’ applies. A panel must re-examine if a party objected to an assessment on the papers. The judge’s observation suggests the option of no re-examination should only happen where there is no dispute, ambiguity or uncertainty about findings.
[9] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
The insurer has submitted there is ambiguity and dispute, and makes it clear it objected to the examination proceeding via video.
Accordingly arrangements were made for Assessor Chris Oates to examine the claimant on 16 August 2022 in Brisbane. The Review Panel agreed to reconvene on 27 September 2022 to discuss the matter further.
The Panel directed Ms Budek to take all relevant imaging studies to the appointment.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Under section 58 of the MAC Act a claimant and an insurer may disagree on three distinct matters, which are “medical assessment matters”. This includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows ‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act][10]. In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the CL Act.
[11] [2021] NSWSC 13 (Raina) at [65].
These observations were made regarding a review panel of three medical experts before the MAC Act was amended, as opposed to the present panel composition of two medical experts and a legal Commission Member.
Note Principal Member John Harris’ Review Panels decisions has assisted this Panel in establishing the appropriate statutory framework[12].
[12] for example, see, QBE Insurance (Australia) Limited v Stanisic [2022] NSWPICMP 361
Assessment under Review
Medical Assessor Bodel certified the following:
The degree of permanent impairment as a result of the injuries caused by the motor accident, shown in this table was greater than ten percent
| 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 | Left Lower Extremity (Left Knee) | Table 41 on Page 78 | Yes | 4% | 0 | 4% |
| 2 | Cervical Spine | DRE Cervicothoracic Category II Table 73 on Page 3/110 | Yes | 5% | 0 | 5% |
| 3 | Left Upper Extremity (Left Shoulder) | Figure 38 on Page 43, Figure 41 on Page 44 and Figure 44 | Yes | 6% | 0 | 6% |
| 4 | Chest - fractured ribs and left lung pneumothorax | Current PIC Motor Accident Authority Guideline Clause 6.23 on Page 91 | Yes | 0% | 0 | 0% |
* %WPI = percentage whole person impairment
Assessor Bodel noted Ms Budek's complaints about her lumbar spine. However, because he was conducting a video assessment he could not test for objective signs supporting the nexus between the accident and her complaints.
Assessor Bodel confirmed that he could not carry out objective tests or any of the referred body parts, because Ms Budek was appearing on video. He attempted to measure range of movement (ROM ) by matching Ms Budek on the screen with the goniometer.
Disputes and issues
The insurer disputed the following aspects of the assessment:
(a) The insurer asserts that it objected to a video assessment because it denied the insurer natural justice and that resulted in a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
(b) Further, the insurer asserts that the Assessor has failed to assess the cervical spine injury appropriately. Specifically the Assessor has failed to properly assess permanent impairment of the claimant’s cervical spine as “displacement of the transverse process is required for an assessment of 5% WPI”.
(c) The Assessor’s permanent impairment conclusion do not follow Table 7 of the Guidelines.
The respondent opposed the application on the basis there was no reasonable cause to suspect the assessment was incorrect in a material respect.
Documentation
The Review Panel considered the following documentation:
Assessor Bodel’s certificate dated 7 July 2021.
Insurer's review application with claimant and insurer's consolidated medical reports, witness statements, clinical notes and surveillance marked AD1
Claimant's response marked AD24
The Proper Officer’s Statement of Reasons issued dated 28 October 2021 referring this matter to a Review PanelAll the documents which were provided to Assessor Bodel before the assessment under review.
Submissions
Insurer’s Submissions
The insurer submits that the claimant does not suffer greater than 10% whole person impairment. The submissions on Ms Budek’s physical impairment, with some relevant psychological aspects can be summarised as follows.
The claimant in her statement dated 29 March 2018 (A2) claims that she experiences the following symptoms and disabilities:
"The pain in my neck has been constant since the date of the accident. I have had a lot of physiotherapy and I still suffer every day from neck pain. The neck pain increases with activity and aggravates very quickly."
"I still suffer from daily neck pain and restricted cervical spine movements."
"The injury to my knee has been the most debilitating physical injury. Since the accident I have struggled with the constant pain and restrictions."
"The restrictions and the limitations in my knee injury greatly impacted my functioning in daily activities. I have difficulties getting up from a seated position, my knees swell and if I have been on my feet the whole day, I get a throbbing/aching pain and the intensity of my pain increases."
"I am still unable to squat and traverse stairs. I cannot sit for long periods of time."
"As a result of the accident and my injuries, I can no longer work in any environment with people, I find it very stressful. I know I will suffer from debilitating panic attacks. I can no longer do any of my previous pre-accident roles, due to my physical restrictions (from my knee and neck pain and restricted range of motion), and due to my anxiety and panic attacks."
The claimant in her updated statement dated 4 February 2019 (A3) makes the following specific complaints:
"I continue to suffer from daily pain in my neck and restricted neck movement."
"I continue to have significant pain in my left knee. The pain in my left knee is there all the time."
The claimant in January 2019 told Dr Shaw, orthopaedic surgeon (A15) that she continues to experience significant left knee pain with pain being present most of the time. The claimant told Dr Shaw that she rides for 20 minutes and then gets off the horse to walk for a while given the pain in her knees.
In January 2019 the claimant told Dr Todman, neurologist (A9) about constant daily neck pain averaging approximately 5/10 in severity, with pain extending into the left shoulder girdle and left upper limb.
The doctor advised:
'The examination showed a restricted range of cervical spine movement by 30 degrees to 40 degrees in each direction.'
Dr Liu, treating orthopaedic surgeon reported on 19 February 2018 (A20) that the claimant advised her knee some four months post-knee surgery is 'still a bit stiff and gets a bit sore after riding her horse for an hour or so. On examination she walks without a limp.'
AHC Investigations reported on 3 May 2018 (A21) it had recorded 161 minutes of video on 23, 24 and 25 April 2018. The video showed the claimant moving in and out of view of a shed, bending at the waist and performing unknown activities, carrying a container, lifting and carrying buckets. She also travelled to a hotel in Cowper, was in a garden area and sat on a bench and spoke to people.
AHC Investigations, in a further report dated 30 October 2018 (A22), recorded approximately 102 minutes of video of Ms Budek engaging in activities on 20, 21 and 27 October 2018.
The video showed the claimant attending a paddock and driving a Mitsubishi Pajero, visiting a beach and boarding a boat. She was walking, carrying objects, bending at the waist and talking to various unknown persons.
The video showed her walking from the shed area on a property pushing a wheelbarrow and picking up various items whilst bending at the waist. She also picked up two buckets, one in each hand, and proceeded to a paddock.
AHC Investigations further reported on 31 January 2019 (A23) it recorded 75 minutes of video 26, 27 and 28 January 2019 of Ms Budek attending the Sandon River campground. She was seen talking to a female for approximately 45 minutes and other people. The claimant also proceeded into the water with a child.
A YouTube video (A27) shows the claimant galloping along a beach with a friend on 10 July 2016; some four months after the accident.
A photo was posted on Instagram on 18 June 2016 with the comment 'First ride on my boy in three months!! Happy!! (A26)
It appears that the claimant recommenced riding within slightly over three months after the accident.
Instagram photos uploaded on 31 August 2016, 9 October 2016 and 12 November 2016 (A26) reveal the claimant socialising.
2 Instagram photos posted on 20 November 2016 (A26) reveal the claimant standing on a surfboard catching waves.
Relevantly to the physical aspects, Dr Rowe, psychiatrist reported on 1 August 2017 (R19) that the claimant cleans houses 15 to 20 hours per week. She also does yoga/personal training 3 hours per week with women she has known and trained for a number of years.
The doctor advised it is difficult to predict future work capacity. He noted:
'It depends on her improvement which will be slow, and she may never work fulltime again, but could increase her work, her hours up to say 25 to 30 hours per week once the medicolegal matters have been completed.'
Dr Rowe opined about her cleaning work, that it appears work availability where Ms Budek lives and her physical disability limits her employability, and not her emotional state.
After viewing the surveillance video of Ms Budek from April 2018 Dr Allen reported on 13 December 2018 (A17), that the claimant has no physical incapacity and has full capacity for both sedentary and physical employment.
He considered there is no evidence the claimant needs domestic assistance or any other assistance.
Dr Allen expressed the opinion that given the level of function of her knee as demonstrated on the video, he does not believe treating her knee further could improve her condition.
In the further supplementary report dated 19 February 2019 (A17) Dr Allan comments on the surveillance video taken from October 2018 to January 2019.
Dr Allen confirmed his opinion that Ms Budek’s demonstrated knee and cervical spine function did not match her presentation to him when he examined her.
The doctor further noted that the video in January 2019 showed no significant incapacity and no impediment in the lower extremities, the cervical spine or elsewhere in the musculoskeletal system.
The doctor advised Ms Budek has physical capacity to do her domestic chores and other activities.
The doctor concluded that the claimant's previously reported symptoms are significantly at odds with the observed behaviour in the surveillance footage.
Dr Allen assessed the claimant to suffer 1% whole person impairment relating to scarring.
Ms Power occupational therapist reported on 28 January 2019 (A18) that at Ms Budek’s previous assessment in November 2018, the claimant alleged that she 'always wears her knee brace, indicating that this is more for comfort rather than stability.'
Ms Power noted there was no knee support in any of the April 2018 surveillance videos and she considered that her earlier recommendation of a "one off physiotherapy session and recommendation to facilitate weaning off the knee brace is unnecessary".
Ms Power advised that the claimant's demonstrated movement restrictions with her knee were not consistent with the fluent movements observed in the surveillance video.
Ms Power therefore advised that she does not consider support for annual heavy cleaning to be reasonable or necessary.
Ms Power saw in the video the claimant was able to stand for one hour and 50 minutes to watch an Anzac Day parade and service without guarded neck movements or rubbing her neck.
Ms Power viewed Ms Budek sitting in a garden bar with unsupported seating for over two hours; there was no evidence of neck discomfort despite minimal changing of body position during this period.
Ms M Power acknowledged anxiety triggers may continue to self-limit her tolerance of working with others.
Therefore, she considered support to manage anxiety related to job search and work is necessary
After viewing the surveillance videos from October 2018 and January 2019 Ms Power opined on 18 February 2019 (A18) that Ms Budek does not require further physiotherapy treatment, because she saw no evidence of avoidant behaviour when Ms Budek moved suggesting that the claimant is coping with the claimed pain.
Based on the claimant's capacity to manage work caring for horses and negotiate getting in and out of a boat, Ms Power opined the claimant has the capacity to resume pre-accident work roles in a similar capacity.
Ms Power advised she agrees with Dr Allen's view in his report dated 13 December 2018, and the claimant's functioning in the surveillance videos validates this view.
Ms Power noted that the recent surveillance videos further confirm spontaneous, free and fluid neck movement when adjusting her hair, and turning to talk, and mobilising. Ms Power’s opinion is that Ms Budek’s significant lifestyle changes including moving in with her partner were not related to the accident.
The insurer submits that the surveillance depicts the claimant’s activities are in stark contrast to her allegations that she is basically housebound and incapacitated.
The insurer submits that the claimant's subjective complaints and symptoms should not be accepted unless objective evidence confirms them.
Claimant submissions
The claimant submits in relation to the Review Panel’s direction 11 as follows:
(a) Ms Budek’s permanent impairment from her physical injuries exceeds the 10% threshold. She relies upon Dr Mark Shaw, Orthopaedic Surgeon, Dr Don Todman, Neurologist, and Medical Assessor Bodel (who have all had access to and reviewed the insurer’s material and surveillance);
(b) The insurer’s surveillance does not contradict, nor is inconsistent with, the Claimant’s instructions to her treating providers and/or the medical examiners involved in this claim;
(c) The updated material provided to the Member Panel in the initial bundle was submitted because this material was not prejudicial to the insurer and could assist the Medical Panel to make an informed determination and conduct a proper assessment with all of the relevant material;
(d) The claimant subsequently reduced the bundle of material (at the Insurer’s insistence) in its initial bundle;
The claimant does not press that material if it would delay the re-examining the claimant–considering she has been examined no less than 19 times since the accident.
The claimant seeks the Medical Panel consider the claimant’s physical limitations set out in the following statements:
(a) Statement of Amy Page, Undated;
(b) Updated Statement of Scott Karney, dated 24 January 2019;
(c) Updated Statement of Judy Lamb, dated 30 January 2019;
(d) Statement of Rachael Anne Cook, dated 4 February 2019, and
(e) Statement of Denise De Freitas, dated 25 July 2020
The claimant overlooked submitting this material to the original Assessor.
REVIEW PANEL FINDINGS
Clinical Examination
on 16 August 2022 Ms Budek attended Assessor Oates’ rooms in Brisbane with her mother. Her mother waited in the waiting room during the assessment, so Assessor Oates assessed Ms Budek alone.
Assessor Oates identified Ms Budek with her date of birth and NSW C-class driver’s licence with her current address.
Ms Budek was initially very anxious and agitated. She explained that she rarely leaves her home, and it was a substantial feat for her to attend the assessment in Brisbane today. She progressively calmed during the course of the interview.
Assessor Oates explained that the Commission sought an examination because different examiners had made different findings. Assessor Oates explained to her the importance of demonstrating her best efforts during examination, so that he could assess her permanent impairment validly. He also explained that he was a member of a panel which the Commission directed to review her permanent impairment.
Assessor Oates also explained that the parties had raised the issue of whether Dr Bodel had looked at the video surveillance over the period 25 to 28 January 2019.
Assessor Oates reassured Ms Budek that he was examining her for the Panel which would send a report to the Commission, which would distribute the report to both parties.
Assessor Oates then reviewed Dr Bodel’s Certificate with her.
Pre-Accident History
Ms Budek confirmed before the accident she had not experienced back, neck, shoulders or knees problems and she was very fit and healthy. Ms Budek said she, her former partner (father of their two sons), and her two sons were a very sporting family. She worked as a personal trainer and also worked with horses, consisting mainly of behavioural training. She had been living on the Gold Coast with her two sons, having split from her previous partner. She was independent in all activities of daily living.
History of the Motor Accident
Ms Budek confirmed she was travelling home on 9 March 2016 from work at the Globe Gymnasium in Burleigh Heads and had exited the M1 Motorway on the Kingscliff/Chinderah off ramp, driving a Nissan X-Trail SUV. She had a seatbelt on.
An oncoming utility came around the curved roadway on the two-lane carriageway and appeared to lose control, hitting a guard rail on the side of the carriageway, then fishtailing and heavily impacting with the right front corner of her vehicle, which then swerved with the impact. She was thrown about inside the cab, and she is fairly sure that the airbags deployed. She was shocked after the accident and hit her head inside the cab but did not lose consciousness and was not bleeding from the head.
The windscreen wiper lever had penetrated the medial side of her left knee from its position on the steering column and she had to lift her left leg off the lever.
Police, ambulance and fire brigade attended the scene. They extracted Ms Budek from the wreck. The ambulance took her to the Tweed Hospital.
The hospital medical staff cleaned and dressed the penetrating medial left knee wound, but no investigation was performed. The notes show Ms Budek was diagnosed with a closed head injury. CT trauma series showed Ms Budek had a minimally displaced fracture of left C7 transverse process, large left pneumothorax, but no overlying rib fractures. CT brain was normal. The MRI scan of her cervical spine showed a C4/5 annular tear and confirmed the left C7 transverse process fracture.
An x-ray of Ms Budek’s left knee showed intra-articular air that was due to the accident related compound fracture.
She said she was emotionally distressed in hospital and signed herself out on 11 March 2016, after the intercostal catheter was removed from the left axilla. She went home to her apartment in Palm Beach with her two children. Her then new partner moved in to look after her. She was mainly confined to bed for about three weeks and then progressively tried to mobilise on crutches. She had some physiotherapy.
Her physiotherapist was concerned about the left knee and her GP, Dr Bertsos, Mermaid Beach, organised an MRI scan of the left knee on 9 June 2016 showing subarticular fracture of the anteromedial corner of the medial tibial plateau, which was said to confirm the appearance of a CT scan from 13 April 2016, with moderate associated bone marrow oedema and localised soft tissue contusion.
Dr David Liu, orthopaedic surgeon, Gold Coast began to treat Ms Budek. He performed an open reduction and internal fixation of the tibial fracture with a plate and screws in September 2017. She was non-weight-bearing on crutches for a period and then partial weight-bearing, and then had extensive physiotherapy to get her moving after surgery. Her anxiety state continued and she self-discharged from hospital one day after the internal fixation surgery because of severe anxiety.
Ms Budek returned to work on crutches just four weeks after the date of accident, running a mums and bubs boot camp, which was outdoors. She was unable to return to work at the gym because it was too noisy and busy, and her level of anxiety would not permit this.
Following knee surgery, she continued to be anxious and was having panic attacks. In February 2018, she moved to a rural property at Tynedale, a small village near Grafton, where she started helping people with their horses using behavioural training. She would not see the owners face-to-face but send video feedback to them. She would do irregular 2-4 week sessions with a horse, but the workflow was not consistent. She tried cleaning at the Maclean Hospital doctors’ residence for six months, up until early 2021, but had to leave because of her panic attacks.
Her partner of now seven years moved with her to the rented house on two acres of land and they had access to another 600 acres on the property. She has five horses and a Shetland pony, one sheep and some chickens, two working dogs and one pet dog.
Ms Budek has not been able to keep up with riding horses this winter because of her back pain and knee issues. Her older son, aged 21, lives independently and her younger son, aged 12, lives with his father in Brisbane, with whom she maintains a good relationship.
She has had no subsequent injuries.
Ms Budek had continuing problems of discomfort and stiffness in the left knee and Dr Liu proposed removing the internal fixation. Dr Liu operated on 21 January 2020, and she says there was also a floating fragment of bone removed.
Dr Liu performed chondroplasty of damaged cartilage on the joint surfaces. She was then partial weight-bearing and then did physiotherapy exercises that she had been given following the first operation. She told Assessor Oates that Dr Liu told her she would need a total knee replacement in 10-15 years because the fracture involved the joint surface of the knee.
She tried to attend Dr Liu’s office for a post-operative check-up but could not stay because she had a panic attack, and she had no further follow-up thereafter.
Current Symptoms
Her left knee crunches like there is cement inside. She says it is fine if she is standing upright but bending is restricted at the knee. If she needs to get down on the floor, she keeps the left leg straight out in front and bends on the right knee. She can walk on flat ground but will get a knife-like pain in the medial left knee on uneven ground. She says when outdoors, she watches the ground for irregularity all the time.
There is no locking or give way in the knee, but it swells often, and her knee symptoms are worse in cold weather, interfering with her ability to ride a horse. She can go for 30 minutes maximum then has to take her left foot out of the stirrup. She can’t run. She has back pain extending across the lower back but not radiating to the legs.
She can’t bend at the waist because of discomfort in the back and has to tip forward from her hips. She uses a massage chair when driving. Her back does not affect her ability to walk but she avoids lifting because she gets low back pain afterwards. If she rides without a saddle, she gets knee discomfort for 10 minutes after getting off. She has tingling and numbness in the medial aspect of the left knee.
Ms Budek can climb upstairs and up inclines OK but going down inclines hurts the knee. She can’t drive long distances because of back and neck discomfort. Ms Budek says she can’t push a trolley in the supermarket because of her left knee. She also has to sleep with a pillow between her knees because she can’t stand the pressure of the right knee against the medial left knee. She also cradles a pillow between her arms and lies on her left side. Nightmares disturb her sleep regularly.
She drives her car to feed the horses in the paddock. Her neck feels weak and is restricted with rotation, so she has learnt to use her mirrors more carefully for checking blind spots when driving. She can’t extend her head back, as her head feels too heavy to hold up. She has difficulty walking in soft sand because of her left knee. She can’t lie on her back because of sore neck. Neck discomfort radiates to both shoulder blades and the medial left shoulder girdle area, but not into the arms.
She gets occipital headaches. She uses a ball and roller on the floor to treat this. She notices pins and needles in the fingers of both hands and has to shake the hands to get rid of them. She has a tender trigger point between the left scapula and thoracic spine, and believes she carries her psychological tension in her trapezii to the scapular area. Her back and neck are worse in cold weather. She can’t be as active physically with her two sons ever since the accident.
She has a GP at Maclean but mainly makes contact remotely. She applies ice for her knee swelling.
Surveillance
Assessor Oates asked her about the surveillance between 25 January 2019 and 28 January 2019. Ms Budek said this was only with members of her extended family, so she felt relaxed and not psychologically distressed. She said she was able to get into a small dinghy (tinny) from the shallow water and otherwise she was not engaged in anything strenuous. She commented that her younger son was identifiable in the video, and she was very unhappy about this.
CLINICAL EXAMINATION
She was of tall slim build with height 175cm and weight 64.5kg. She said she was more muscular at the time of the accident and weighed 70kg. She was less anxious by this point of the assessment and declined the offer of a chaperone for the physical examination.
Assessor Oates saw no generalised ligamentous laxity; however Ms Budek was very flexible. She stood erect and walked without a limp. She sat comfortably and could transfer freely out of a chair and on and off the couch.
Lumbar spine
Assessor Oates recorded that lordosis was preserved. Flexion was full range, although movement was from the hips. Extension was one-half normal. Lateral flexion three-quarters of normal bilaterally and thoracic rotation was full bilaterally. Dysmetria of flexion/extension is present. There are no non-verifiable radicular complaints.
Straight leg raise while supine was 90° with negative stretch test bilaterally. Reflexes, power and sensation in the lower limbs were intact, apart from some partial numbness on the medial aspect of the left knee.
Thigh girth: right equals left equals 41cm at 10cm above superior patellar pole. Leg girth: right 33cm, left 32cm at 15cm below the inferior patellar pole. There was no muscle spasm or guarding. There was tenderness over a trigger point in the left scapulothoracic area.
Cervical spine
Normal contour. Flexion and extension were two-thirds normal range. Lateral flexion was to two-thirds of normal range bilaterally. Rotation was three-quarters of normal bilaterally. There was no spasm or guarding. There was tenderness over the occiputs. Reflexes, power and sensation in the upper limbs were normal. No dysmetria, no non-verifiable radicular complaints.
Upper arm girth; right 24.5cm, left 25cm at 10cm above the elbow crease. Forearm girth: right 24cm, left 23.5cm at 5cm below the elbow crease.
Upper extremity
Active ROM measured with a goniometer.
| Shoulder movements | Active ROM measured RIGHT | Active ROM measured LEFT |
| Flexion | 180 | 180 |
| Extension | 50 | 50 |
| Adduction | 40 | 40 |
| Abduction | 180 | 180 |
| Internal Rotation | 45 | 45 |
| External Rotation | 90 | 90 |
Internal rotation was limited to 45° bilaterally with no complaints of pain or discomfort in either shoulder. Assessor Oates concluded that this is a constitutional finding and not related to the accident.
Lower extremity
There was no tenderness. There was no swelling. There was partial numbness on the medial aspect of the left knee. Active range of movement measured with a goniometer.
Both knee joints were stable in mediolateral and anteroposterior directions. There was no patellofemoral crepitus in either knee or pain on patellar compression. Resisted straight leg raising, flexion and extension of knees, was equal bilaterally.
| Knee movements | Active ROM measured RIGHT | Active ROM measured LEFT |
| Flexion | 140 | 120 |
| Extension | 0 | 0 |
Scarring
There were 6cm vertical and 4cm transverse pale scars over the medial aspect of the left knee. Suture marks were visible. There was no adherence, no contour defect and no trophic changes. There was a patch of partial numbness to light touch and pin prick next to the scar over a 6cm x 4cm area. This did not follow a peripheral nerve distribution. It is likely due to local cutaneous nerves being disrupted by surgical incision.
Panel deliberations & decision
Credit
The insurer submitted that the claimant's complaints should not be accepted without support from objective evidence.
The Panel noted Ms Budek was cooperative while Assessor Oates examined her, allowing him to carry out tests to establish the permanent impairment rating. She also addressed the questions about surveillance and inconsistency calmly.
The Panel notes that the claimant provided witness statements, which supported the impact of her injuries on her activities of daily living. This was not relevant to Assessor Oates’ examination outcome as he was able to do objective tests.
Diagnosis and Causation
The Review Panel met on 27 September 2022 to discuss Assessor Oates examination and address the level of permanent impairment.
The Panel agrees with Assessor Oates conclusions and adopts them as evidence in these deliberations.
Left knee – compound tibial plateau fracture – the accident was a cause of this injury. It is referred to in the initial hospital records.
Cervical spine – WAD (whiplash associated disorder) and left C7 transverse process fracture - the accident was a cause of this injury. It is referred to in the initial hospital records.
Left shoulder soft tissue injury – the accident was not a cause of this injury. The contemporaneous medical records do not mention any symptoms. An Xray and ultrasound performed nine months after the accident showed no abnormality of the shoulder. Symptoms of discomfort in the left shoulder girdle were most likely referred from the cervical spine injury. There were no complaints made of left shoulder symptoms at this examination and no complaint that neck symptoms limited Ms Budek’s shoulder ROM.
Chest Injury – the accident was a cause of this injury (pneumothorax and left 1st rib fracture) because the chest injury is referred to in the hospital records, however this injury has resolved.
Lumbar spine – Assessor Oates examined the lumbar spine because Ms Budek complained that she avoided lifting due to pain in that region. The Assessor found dysmetria and a diagnosis related estimate (DRE) that could equate to 5% permanent impairment if that injury had been related to the accident.
A lumbar spine injury was not referred to Assessor Bodel. Ms Budek had not made any complaints at the time of the accident about her lower back and there were no complaints until Dr Bodel's assessment. It is now eight years since the accident and the Panel does not consider there is a causal nexus between the accident and a lumbar spine condition.
Permanent impairment
Left knee - there is an un-displaced tibial plateau fracture for which 2% whole person impairment is assessed. The Panel noted the original Assessor found 5 degrees flexion contracture of the left knee; however, it questions the accuracy of making such small measurements using a goniometer across the video screen. The Panel examination found no evidence of a flexion contracture.
Cervical spine - there is no dysmetria, no non verifiable radicular complaints, no guarding and no radiculopathy. Symptoms are present which is a differentiator for DRE Cervicothoracic Category I which gives 0% whole person impairment.
Left shoulder – The accident was not a cause of a direct left shoulder injury. However, there is bilateral restriction of shoulder active range of motion. On the left side, 45 degrees internal rotation gives 3% upper extremity impairment. This movement was not reported to be restricted by referred symptoms from the cervical spine, therefore the Nguyen[13] principle does not apply.
[13] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351 & for summary see >
The Panel is aware of Bugat v Fox[14], which warns that treating the absence of a contemporaneous complaint or report of injury as determining the causation issue can lead to error. The Panel must address whether the motor accident materially contributed to the injury to the body part in question and consider other relevant evidence. Assessor Oates examined Ms Budek and she did not refer him to any left shoulder symptoms. There were no scans confirming rotator cuff injury, and thus the Panel did not assess impairment in that body part
[14] Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888
On the uninjured right side there was also 45 degrees internal rotation giving 3% upper extremity impairment. When the uninjured joint has a less than average mobility, the impairment value corresponding with the uninjured joint can serve as a baseline. It is subtracted from the calculated impairment for the injured joint if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury.
The finding in this case is the net impairment is 0% upper extremity impairment which converts to 0% whole person impairment.
The Panel notes that its findings are different to those of Assessor Bodel. However, the Panel questions the accuracy of making measurements using a goniometer across the video screen, particularly when there is no photographic evidence to allow a comparison to be made.
Chest – this injury has resolved.
Scarring at left knee – there is some colour contrast with surrounding skin, visible suture marks and partial skin numbness adjacent to the scar. The claimant is conscious of the scar and the scar is visible when wearing shorts. There is no trophic change, contour defect or adherence, no effect on ADL and no requirement for treatment. The best fit under TEMSKI is 1% WPI.
Body part or system AMA guides/ Guidelines references (chapter/page/table) Permanent
(YES/NO)Current percent WPI Percent WPI from pre-existing or subsequent causes Percent WPI due to motor accident 1 Left knee Guidelines CH3, T64, P85 Yes 2 0 2 2 Cervical spine AMA 4 CH3 T73 P110 DRE I Yes 0 0 0 3 Scarring left knee Guidelines T6.18 P136 Yes 1 0 1 The combined WPI is 3%.
Permanent impairment ratings take symptoms into account; however the percentage whole person permanent impairment is not a direct measure of disability. A finding of zero percent whole person impairment indicates the motor accident caused an injury and symptoms may continue. In spite of that, relevant Guides rate the associated impairment at 0% WPI.
Certification
The Review Panel has assessed different degrees of permanent impairment from the accident related injuries compared to Assessor Bodel's assessment in his Permanent Impairment certificate.
The outcome is different because Assessor Oates was able to test Ms Budek’s range of motion and perform tests in person.
In respect of the cervical spine, Assessor Oates was able to assess reflexes and sensory loss, and thus eliminate the possibility of radiculopathy.
Transverse process cervical fractures do not attract an impairment greater than DRE category I unless there is displacement of the fracture fragment, which is not the case here.
Assessor Oates found that accident did not cause the left shoulder condition, which Assessor Bodel rated at 6%. Assessor Oates was able to test for impingement and instability, and with the testing he performed in the cervical region he excluded a Nguyen nexus with the left shoulder.
In respect of the lower extremity, Assessor Oates was able to test the ligaments, which was not available to Assessor Bodel.
Accordingly, the Review Panel has determined that this certificate is to be revoked and the Panel will issue a new Permanent Impairment certificate.
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