Insurance Australia Limited t/as NRMA Insurance v Caillon

[2023] NSWPICMP 393

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Caillon [2023] NSWPICMP 393

CLAIMANT:

Florian Caillon

INSURER:

Insurance Australia Limited trading as NRMA Insurance

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Neil Berry

MEDICAL ASSESSOR:

Geoffrey Stubbs

DATE OF DECISION:

15 August 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 10 September 2019: the dispute related to the assessment of whole person impairment (WPI); crush injury to right ring finger with fracture to base of proximal phalanx; comminuted fracture DIP joint of right little finger leading to arthrodesis; right knee injury; tear of the right posterior cruciate ligament; tear of the medical meniscus and stress fracture medial tibial plateau; review of certificate of Medical Assessor (MA) Menogue; error where assessment of little finger exceeded the level of impairment for amputation of the finger; MA assessed 5% WPI for right knee injury; 5% WPI for right ring finger, 9% WPI for injury to right little finger and 1% for scarring; total combined assessment of 19% WPI; Held – certificate of MA revoked; Panel assessed 12% WPI for injury to right lower extremity finding severe cruciate ligament laxity; 5% WPI for injury to right upper extremity; 1% WPI for scarring; applying Combined Values Chart total WPI of 17%.

DETERMINATIONS MADE:  

MOTOR ACCIDENT INJURIES ACT 2017

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%

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate of Medical Assessor Menogue dated 4 December 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which is greater than 10% WPI and which is 17% WPI:

·        right hand – crush injury to the right ring finger with a fracture to the base of the proximal phalanx and comminuted fracture to the DIP joint of the right little finger resulting in arthrodesis;

·        right knee – complete tear of the right posterior cruciate ligament, tear of the medial meniscus and stress fracture of the medial tibial plateau, and

·        scarring to the right knee and right hand.

STATEMENT OF REASONS

INTRODUCTION

1. On 10 September 2019 Mr Florian Caillon (the claimant) sustained injury was riding his motorcycle when a vehicle travelled across the path of the motorcycle causing the claimant to be thrown off the motorcycle across the bonnet of the insured vehicle before landing on the roadway (the accident).

2. Mr Caillon sustained injuries to the right hand and the right knee.

3. Mr Caillon has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).

4. Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Caillon under the MAI Act.

5. Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

6. This dispute is in relation to whether the degree of permanent impairment sustained by Mr Caillon as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.

7. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]

   [1] Section 7.20 of the MAI Act.

8. The dispute as to permanent impairment was referred to Medical Assessor Menogue.

ASSESSMENT OF MEDICAL ASSESSOR MENOGUE[2]

[2] AD1p 280

1. The following injuries were referred for assessment:

   ·        hand – injury to right hand;

   ·        hand – right hand crush injury and arthrodesis;

   ·        knee – injury to right knee;

   ·        knee – complete tear of right posterior cruciate ligament and tear of medial meniscus requiring surgery, and

   ·        skin - arthroscopic scars right knee, one medially, one anteromedially, one upper medial tibia, and one anterolaterally.

2. Mr Caillon reported cramp like discomfort over the scar on the dorsum of the right ring finger and of the right little finger aggravated by gripping and typing. He also experiences sharp discomfort in the little finger with gripping. He has sensory changes over the dorsum of the ring and little finger in the vicinity of the scar. Mr Caillon described an ache over the anteromedial aspect of the right knee aggravated by bouncy activity and by going downstairs.

3. Medical Assessor Menogue measured the following range of movement of the knees:

RIGHT	LEFT
Flexion	115°	140°
Extension	0°	0°

1. On examination Medical Assessor Menogue did not observe any condylar or patellar expansion, synovial hypertrophy or effusion. He did not observe any sustained crepitus.

2. He noted power was equivalent, but non-specific discomfort on palpating the anteromedial aspect of the right knee. He also noted 5° increase in posterior lag consistent with ongoing right posterior cruciate ligament laxity.

3. In assessing WPI for the right knee Medical Assessor Menogue assessed 3% WPI for mild laxity of the posterior cruciate ligament and 2% WPI for the undisplaced tibial plateau fracture.

4. Medical Assessor Menogue noted the Lachman and McMurray test were both negative.

5. He found no abnormal patellar mobility, and no pain on retropatellar pressure.

6. Medical Assessor Menogue measured range of movement of the right ring and little fingers as follows:

Ring Finger Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§  MP joint ·     Flexion ·     Extension	90° 0°	90° 0°
§  PIP joint ·     Flexion ·     Extension	60° -20°	90° 0°
§  DIP joint ·     Flexion ·     Extension	30° 0°	70° 0°

Note:      MP joint refers to the metacarpophalangeal joint.

PIP joint refers to the proximal interphalangeal joint.

DIP joint refers to the distal interphalangeal joint

.Little Finger Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§  MP joint ·     Flexion ·     Extension	90° 0°	90° 0°
§  PIP joint ·     Flexion ·     Extension	40° -30°	100° 0°
§  DIP joint ·     Flexion ·     Extension	Ankylosed 10° Not applicable	Not applicable Not applicable

1. Medical Assessor Menogue also assessed the scarring to the right hand and right knee using the Table for the evaluation of minor skin impairment (TEMSKI )chart.

2. Medical Assessor Menogue assessed Mr Caillon on 17 November 2022 and issued a certificate dated 4 December 2022 certifying a permanent impairment greater than 10% for the following injuries caused by the accident:

   ·        right hand – crush injury right ring finger with fracture to the base of the proximal phalanx; comminuted fracture DIP joint of the right little finger – with arthrodesis to the DIP joint of the right little finger, and

   ·        right knee – complete tear of right posterior cruciate ligament, tear of the medial meniscus and stress fracture medial tibial plateau.

3. Medical Assessor Menogue assessed a 5% WPI for the right knee injury, a 5% WPI for injury to the right ring finger, a 9% WPI for injury to the right little finger and 1% WPI for scarring, resulting in a combined WPI of 19%.

REVIEW PROCEDURE

1. An application for review of the medical assessment of Medical Assessor Menogue was lodged on 22 December 2021 within 28 days of the date on which the certificate of Assessor Menogue was made available to the parties.[3]

   [3] Section 7.26(1)(b) of the MAI Act.

2. On 1 February 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]

   [4] Section 7.26 of the MAI Act.

3. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.

4. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission) ^[5]. Accordingly, the President’s Delegate referred the matter to this Panel to assess.

   [5] Section 7.26(5A) of the MAI Act.

5. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]

   [6] Section 41(2) of the PIC Act.

6. 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.[7]

   [7] Rule 128 of the PIC Rules

7. The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.

RELEVANT LEGAL AUTHORITY

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).

2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[8]

   [8] Clause 1.2 of the Guidelines.

3. Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

   “6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   'Causation means that a physical, chemical or biologic 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.

   1.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

   This, therefore, involves a medical decision and a non-medical informed judgement.

   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.”

EVIDENCE BEFORE THE REVIEW PANEL

1. The insurer uploaded to the portal an indexed bundle of documents marked AD and paginated from page 1 to 364.

2. The claimant uploaded to the portal an indexed bundle of documents marked AD2 paginated from pages 1 to 112.

3. Mr Caillon is now 23 years of age and was 19 years of age at the date of the accident.

Treating medical evidence

1. Following the accident on 10 September 2019 Mr Caillon was transported by ambulance to St Vincents Hospital.[9] It was reported he was T-boned by a car at 20kmph on a motorbike. He presented with lacerations and deformity to the right 4 and 5 phalanges and deformity to the mid right lower limb.

   [9] AD1 pp 50 and 152.

2. Mr Caillon underwent a chest X-ray, pelvis X-ray, right wrist X-ray, right hand X-ray, right knee X-ray, right tibia and fibula X-ray and right ankle X-ray at St Vincents.

3. The claimant sustained an open fracture of the distal interphalangeal joint (DIP) of the right little finger and a laceration over the right ring finger. He underwent an open reduction and internal fixation of the middle phalanx of his little finger on 11 September 2019 under the care of Dr Damian Ryan.[10]

   [10]AD1 pp 210 and 211.

4. The K wires were removed on 10 October 2019[11] and Dr Ryan recommended a splint to address some deviation of the finger.[12]

   [11] AD1 p 58.

   [12] AD1 p 214.

5. Subsequently, on 6 February 2020 the claimant underwent fusion of the DIP joint of the little finger on the right hand.[13]

   [13] AD1 p 63

6. On 6 March 2020 Dr Ryan noted the fusion was stable but the claimant had wrist stiffness.

7. On 26 June 2020 Dr Ryan noted ongoing discomfort around the proximal interphalangeal joint of the little finger and discomfort with firm gripping with the right hand.[14] Dr Ryan thought the persistent discomfort related to the soft tissue injury more proximally.

   [14] AD1 p 219

8. The claimant underwent treatment with North Shore Hand Therapy from 13 September 2010 until 13 November 2020.[15]

   [15] AD1 p 223

9. The claimant also sustained a musculoligamentous injury to the right knee. He was treated with the use of Zimmer knee brace and subsequently a range of motion brace. He also attended physiotherapy with ProTherapy Maroubra.[16]

   [16] AD1 p 65

10. Mr Caillon saw Dr Gavin Soo, orthopaedic specialist on 9 September 2020.[17] He reported ongoing instability to the right knee and noted the latest scan showed the posterior cruciate ligament (PCL) had reattached itself to a non-anatomical position and was not providing enough stability to prevent the femur subluxing anteriorly on the tibia. He recommended surgical reconstruction of the PCL.

    [17] AD1 p 66

11. On 22 September 2020 the claimant underwent an arthroscopic reconstruction of his posterior cruciate ligament (PCL).[18]

    [18] AD1 p 330

12. On 19 May 2021 Dr Soo reported some ongoing laxity to the knee.[19]

    [19] AD1 p 220

13. On 13 July 2021 Dr Soo noted the claimant had “an excellent range of motion” of the knee but continued to have feelings of instability.[20] Dr Soo noted a recent MRI showed:

    “•      PCL graft in situ and intact. Some hererogenous soft tissue around the graft have the appearance of arthrofibrosis;

    ·        ACL intact;

    ·        Complex tear of the posterior horn of the medial meniscus;

    ·        Tiny Baker’s cyst.”

    [20] AD1 p 70 and 343

Imaging

1. X-ray of the right hand and wrist, 10 September 2019[21]

   “Acute avulsion fracture of the base of the proximal phalanx of the middle finger noted (ulnar side).

   Comminuted fracture around the DIPJ of the right little finger with marked volar subluxation of the distal phalanx noted.

   No acute carpal or metacarpal fractures. No acute fracture of the right distal radius or ulna.”

   [21] AD1 p 52

2. X-ray of the right knee, 10 September 2019

   “Small curvilinear hyperdense focus lateral to the lateral femoral condyle just superior to the tibiofemoral articulation may represent an acute avulsion fracture. A donor site is not appreciated.
   There is the suggestion of a small lipohaemarthrosis in the suprapatellar bursa.

   No acute fracture of the right patella, proximal tibia or fibula.

   Overall bony alignment is anatomical.”

3. X-ray of the right knee, 17 September 2019

   “Lateral femoral condyle fracture at the level of the groove of the popliteus tendon.”

4. MRI of the right knee, 20 September 2019

   “Torn PCL (posterior cruciate ligament)

   Bony avulsion from the femoral attachment of the popliteus tendon

   Intact ACL and menisci.”

5. X-ray of the right wrist and fingers, 27 September 2019[22]

   “At the wrist, the radioscaphoid and radiolunate joints appear normal. No abnormality of the intercarpal or carpometacarpal joints identified.
   No scaphoid fracture is seen.
   There has been internal fixation of the little finger DIPJ. There are avulsion fractures of the dorsal base of the distal phalanx and possibly also the dorsal head of the middle phalanx. These are minimally displaced.
   

   [22] AD1 p 212

   No definite avulsion fracture is seen at the 4th finger.”

6. X-ray right hand, 14 February 2020[23]

   “There has been interval fusion of the DIP joint of the right little finger. The joint space is still visible.
   

   [23] AD1 p 217

   Alignment appears satisfactory with no hardware complication demonstrated. No significant soft tissue swelling is identified.”

7. MRI right knee, 31 August 2020[24]

   “Impression:

   Oedema in the medial tibial plateau surrounding curvilinear hypointensity is suggestive of a stress fracture.

   The anterior and the posterior cruciate ligaments remain largely intact.”

   [24] AD1 p 327

8. MRI right knee, 7 June 2021[25]

   “The PCL graft is in situ. Changes withing and adjacent to the graft have the appearance of arthrofibrous.

   There is a complex tear in the posterior horn and posterior root insertion of the medial meniscus. There is a small suprapatellar joint effusion. A tiny intact Baker’s cyst is seen in the popliteal fossa.”

Medico-legal reports

[25] AD1 p 341

Dr Eugene Gehr, orthopaedic surgeon

1. Dr Gehr assessed the claimant and provided a report dated 11 October 2021.

2. Noting Dr Gehr has not been an active authorised health practitioner since 22 August 2021 and having regard to s 7.52 of the MAI Act and clause 8.4 of the Guidelines the Panel has not had regard to the opinion of Dr Gehr.

Professor William Cumming, orthopaedic surgeon

1. Professor Cumming assessed the claimant and provided a report dated 14 December 2021.[26] He reported investigations confirmed the fracture of the lateral condyle of the right knee and the posterior cruciate ligament lesion. He also had a fracture of the right little finger DIP articulation with comminution.

   [26] AD1 p 27

2. Professor Cumming reported Mr Caillon lacked wrap up of his right ring finger which had 30° only of flexion of the DIP articulation. He also noted the scar on the dorsal aspect of the ring and little fingers. He noted a passive full range of movement of the DIP and MCP joints of his ring finger. He noted a lack of movement of the little finger, with 90° of flexion at the PIP articulation, full extension and fusion of the DIP in 10° of flexion. He also noted normal sensation in the right hand.

3. He reported Mr Caillon had a feeling of instability in his right knee precluding him from activity. He noted the potential for future knee surgery and concluded the knee condition was not stable.

SUBMISSIONS

Insurer’s submissions

1. The insurer provided submissions dated 22 December 2022.[27] The insurer asserts Medical Assessor Menogue erred in his assessment of WPI.

   [27] AD1 p 10.

2. The insurer notes pursuant to Figure 17 (p 24), Table 1 (p 18), Table 2 (p 19) and Table 3
   (p 20) of the AMA 4 Guides, amputation of the little finger at the DIP joint would amount to 4% WPI (8% of the hand, and 7% of the upper extremity).

3. Amputation of the little finger at the MP joint would amount to 5% WPI (10% of the hand and 9% upper extremity impairment (UEI)).

4. The level of impairment assessed in respect of the claimant’s little finger injury cannot exceed the level of impairment for amputation of the finger as that is considered 100% impairment of the digit.

5. The insurer notes that Medical Assessor Menogue reported the following ranges of motion of the claimant’s right ring finger:

Finger and joint	Flexion	Extension
PIP joint	60º	-20º
DIP joint	30º	0º

1. The insurer notes that Medical Assessor Menogue reported the following ranges of motion of the claimant’s right little finger:

Finger and joint	Flexion	Extension
PIP joint	40º	-30º
DIP joint	Ankylosed 10º	N/A

1. Based upon the ranges of motion noted and using Figure 19 and Figure 21 of the AMA 4  Guides the insurer calculates the following:

   Ring finger – PIP joint equivalent to 31% impairment of the finger.

   DIP joint equivalent to 21% impairment of the finger.

   Total – 52% impairment of the ring finger, which equates to 5% impairment of the hand, 5% impairment of the upper extremity and 3% WPI.

   Little finger – PIP joint equivalent to 47% impairment of the finger.

   DIP joint equivalent to 33% impairment of the finger.

   Total – 80% impairment of the little finger which equates to 8% impairment of the hand, 7% impairment of the upper extremity and 4% WPI.

2. The insurer also submits Medical Assessor Menogue had regard to inadmissible evidence, namely the report of Dr Gehr dated 11 October 2021. The insurer notes Dr Gehr has not been an active authorised health practitioner since 22 August 2021.

3. Pursuant to s 7.52 of the MAI Act and clause 8.4 of the Motor Accident Guidelines a health practitioner needs to be authorised at the time the evidence was given (if they were not a treating practitioner or jointly instructed) in order for the report to be relied upon at the Commission.

Claimant’s submissions

1. The claimant provided submissions in reply to the review application.[28] The claimant submits Medical Assessor Menogue provided his path of reasoning and did not misapply the Guidelines.

   [28] AD2 p 4.

THE MEDICAL EXAMINATION

Background history

1. Mr Caillon attended unaccompanied for the examination. He was examined by Medical Assessor Berry at his rooms at Fairfield on 22 May 2023.

2. Mr Caillon stated he was 23 years of age and dominantly right-handed. He is a single man and at the time of the motor accident on10 September 2019 he was employed as a retail assistant at Reiss, a clothing outlet at Bondi Junction.

History of the accident

1. Mr Caillon was the rider of a motorcycle wearing a helmet on his way to work. He was travelling along a road when a vehicle came through a stop-sign and collided with him. He hit the bonnet of the vehicle and then landed on the ground. Mr Caillon was not knocked unconscious but was shaken and dazed by the accident and he sustained injuries to his right hand and right leg.

2. He was transported by ambulance to St Vincent’s Hospital where after X-rays the right leg was put in a brace. He was noted to have a crush injury to the right hand involving the little and ring fingers. Accordingly, he was referred to Dr Ryan at the Sydney Hand Hospital and underwent surgery to both fingers and was discharged the same day.

3. He subsequently underwent two further operations. He had a distal interphalangeal fusion of the right little finger. He then came under the care of another orthopaedic surgeon, who operated on his right knee at Westmead Hospital and performed a reconstruction procedure. Since that time, Mr Caillon has had physiotherapy and is currently attending a rehabilitation/exercise physiologist.

4. He is currently in full-time permanent employment working as an Acquisitions Officer for a property development company.

Current symptoms

1. His current complaints are a feeling of instability in the right knee and cramping in the right hand.

Current treatment

1. His current treatment is occasional Nurofen if his pain is severe, otherwise he avoids medications and apart from attending the exercise physiologist he is not receiving any other treatment.

Previous history

1. There is no history of prior accident, injury or claim for compensation.

General health

1. Mr Caillon informed Medical Assessor Berry that his general health was good.

Physical examination

1. Mr Caillon moved with normal posture and gait. He was 172cm in height and 79kg in weight.

Cervical spine

1. Normal in all respects.

Thoracolumbar spine

1. There was no tenderness to palpation and there was a full range of movement. There was no muscle spasm and no alteration of spinal contour.

Upper extremities

Left upper extremity

1. Normal in all respects.

Right upper extremity

1. The shoulder, elbow and wrist movements were normal. There was no scarring and no sensory disturbance.

2. Examination of the right hand revealed scars on the dorsum of the right and little fingers. The thumb, index and middle finger were normal with a normal range of movement.

3. Examination of the ring finger revealed a normal range of movement. At the metacarpophalangeal joint flexion (MP) was to 90 degrees and extension was 0 degrees. At the proximal interphalangeal joint (PIP) flexion was 60 degrees and extension was 0 degrees. The distal interphalangeal joint (DIP) flexion was 30 degrees and extension was 0 degrees.

4. Examination of the right little finger revealed that there were scars on the dorsum of the finger. There was no evidence of any nerve disturbance and no obvious wasting. At the MP joint, flexion was 90 degrees and extension was 0 degrees. At the PIP joint, flexion was 40 degrees and extension was minus 10 degrees. The DIP joint was fixed in 10 degrees of flexion.

5. No other abnormality was noted in the upper extremities.

Lower extremities

Left lower extremity

1. Normal in all respects.

Right lower extremity

1. Mr Caillon was tender over the medial and lateral sides of the joint. The arthroscopic scars were concealed by the claimant’s natural hair growth.

2. Examination of his knee movement was 110 degrees of flexion and 0 degrees extension. With the knee flexed, there was approximately 1.5cm of forward slip which the Panel interprets as a positive anterior draw sign of 1.5cm. The Panel considers this means Mr Caillon has severe cruciate ligament laxity.

3. There was no medial or lateral movement. The measurements were 44cm for the left and right thighs, 10cm above the upper pole of the patella and 36cm, 10cm below the lower pole of the patella. There was no crepitus on flexion/extension movements and no other joint disturbance.

DIAGNOSIS AND CAUSATION

Right knee

1. The Panel finds the claimant sustained the following injuries caused by the accident:

   ·        right hand – crush injury to the right ring finger with a fracture to the base of the proximal phalanx and comminuted fracture to the DIP joint of the right little finger resulting in arthrodesis;

   ·        right knee – complete tear of the right posterior cruciate ligament, tear of the medial meniscus and stress fracture of the medial tibial plateau, and

   ·        scarring to the right knee and right hand.

PERMANENT IMPAIRMENT

Injury to the right knee

1. In accordance with clause 6.95 of the Guidelines it is permissible to combine impairments from Table 64 for diagnosis–based estimates with other injuries using the Combined Values Chart.

2. Mr Caillon reported symptomatic instability causing his knee to give way. The Panel has been persuaded by the persistent symptoms to assess the cruciate ligament instability as severe.

3. Applying Table 64 on page 85 of the AMA 4 Guides the claimant has a 25% lower extremity impairment (LEI) for the severe cruciate ligament laxity and 5% LEI for the undisplaced fracture of the medial tibial plateau a total of 29% LEI under the Combined Values chart. Under Table 6.4 of the Guidelines 29% LEI converts to 12% WPI.

4. The Panel finds the claimant has sustained a 12% WPI for injury to the right lower extremity by reason of the injury to his right knee.

Injury to the right hand

1. Attached to these reasons is the Upper Extremity Impairment Evaluation Record. Combining the impairments of the DIP, PIP and MP of the ring finger gives rise to an IMP (impairment) of 25 which converts to a hand impairment of 3% under Table 1 on page 18 of the AMA 4 Guides. Combining the impairments of the DIP, PIP and MP of the little finger gives rise to an IMP of 57 which converts to a hand impairment of 6%. The hand impairments are added to give rise to a total 9% hand impairment which converts to a UEI of 8% under Table 2 on page 19 of the AMA 4 Guides. In accordance with Table 3 on page 20 of the AMA 4 Guides 8% UEI equates to a 5%WPI.

2. Accordingly, the Panel finds the claimant has sustained a 5% WPI for injury to the right upper extremity by reason of the injury to the right hand.

Scarring

1. The claimant has arthroscopic scars on his right knee, one medially, one anteromedially, one on the upper medial tibia, and one anterolaterally.

2. The scars to the claimant’s right knee were concealed by Mr Caillon’s natural hair growth. As a result, Mr Caillon is barely conscious of those scars, they are not readily visible, not easily located, there are no obvious staple or suture marks, no obvious contour defect, no effect on any activity of daily living and no adherence. No treatment is required. Under the Table for the evaluation of minor skin impairment (TEMSKI) found at page 132 of the Guidelines the Panel assesses 0% WPI for the scarring to the right knee.

3. The claimant also has scarring to the dorsum of the right ring finger and of the right little finger.

4. Mr Caillon confirmed the complaints recorded by Medical Assessor Menogue in respect of scarring. That is, he reported cramp like discomfort over the scar on the dorsum of the right ring finger and of the right little finger aggravated by gripping and typing. He also experiences sharp discomfort in the little finger with gripping. He has sensory changes over the dorsum of the ring and little finger in the vicinity of the scar.

5. Mr Caillon is conscious of the scarring to the right ring finger and the right little finger. There is a colour contrast with the surrounding skin and Mr Caillon can locate the scars. There are minimal trophic changes with minor contour defect. No treatment is required but there is some limitation in the performance of activities of daily living with gripping and typing. Applying the principle of best fit under the TEMSKI scale the Panel assesses 1% WPI for scaring to the right ring finger and the right little finger.

CONCLUSION

1. Applying the Combined Values Chart the claimant has sustained a total WPI of 17% caused by the motor accident.

2. There was no pre-existing condition so there is no deduction or apportionment required.