Insurance Australia Limited t/as NRMA Insurance v Caruso
[2024] NSWPICMP 212
•5 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Caruso [2024] NSWPICMP 212 |
| CLAIMANT: | Tina Caruso |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 5 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review of 14% whole person impairment (WPI) assessment by Medical Assessor (NA) Nair; claimant pedestrian hit by a car on 11 January 2019; claimant alleged injuries to her neck, chest, shoulder, and lower limb; insurer had disputed assessment of 3% for “chronic trochanteric bursitis with abnormal gait” on basis claimant did not limp; medical examination found no abnormality now present in neck, minor restriction in right shoulder motion, chronic right sided trochanteric bursitis (with slow gait, difficulty hopping and some impairment to balance) and no complaints of chest or legs issues other than scarring; Held – no assessable impairment for the neck, right shoulder has 1% on range of motion method and left hip has 3%; claimant’s trochanteric bursitis was chronic (present 5 years after accident) and abnormal gait is not restricted to walking with a limp; Table 64 page 85 of AMA4 considered; when combined with 1% for the scarring impairment, claimant’s total WPI not greater than 10% and certificate of MA Nair revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Nair dated 13 October 2023 in respect of the injuries referred to him for assessment. 2. Certifies that the degree of Ms Caruso’s permanent impairment resulting from all the physical injuries caused by the motor accident on 11 January 2019 is not greater than 10% based on: (a) the Panel’s finding of a 4% WPI in respect of the injuries the subject of these Review proceedings, and (b) Medical Assessor Curtin’s finding on 4 July 2023 of a 1% WPI in respect of the scarring injury referred to him. |
STATEMENT OF REASONS
INTRODUCTION
Tina Caruso was involved in a motor accident on 11 January 2019. Ms Caruso was a pedestrian struck by a car while crossing a road in Hurstville.
Ms Caruso says she injured her neck, chest, upper and lower limbs in the accident and made a claim for statutory benefits and then damages against NRMA Insurance, the third-party insurer of the vehicle that hit her.
A medical dispute about the degree of Ms Caruso’s whole person impairment (WPI) has arisen in connection with that claim and Ms Caruso referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 13 October 2023 Medical Assessor Nair determined that Ms Caruso had a WPI of 14% which is of course greater than 10%.
The insurer has lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 10 January 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On 17 January 2024 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Ms Caruso’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In accordance with the common law as modified by the MAI Act, an injured person can make a claim for damages for both economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s impairment, damages for non-economic loss cannot be awarded and the dispute must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Nair’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
Ms Caruso complains of scarring to her face and lower limbs. The impairment associated with those injuries was assessed by Medical Assessor Curtin on 4 July 2023 at 1% WPI. In accordance with s 7.26(8) of the MAI Act, the Panel must issue a combined certificate if Medical Assessor Nair’s certificate is revoked.
ASSESSMENT UNDER REVIEW
Medical Assessor Nair examined the claimant on 4 August 2023 and issued the certificate on 13 October 2023.
Medical Assessor Nair confirms at [2] that the injuries to be assessed were:
(a) right shoulder clavicular fracture and superior labral tearing;
(b) cervicothoracic degenerative disc disease;
(c) left hip trochanteric bursitis;
(d) ribs;
(e) feet;
(f) right knee, and
(g) left leg.
Medical Assessor Nair takes a history of the accident, the claimant’s transport to hospital by ambulance and her admission to St George Hospital.
The claimant reported pain and stiffness in the left trochanteric region with pain and stiffness in her right shoulder.
On examination of the cervical spine, while rotation and lateral flexion were symmetrical, there was 40 degrees of flexion recorded and only 20 degrees of extension. This is dysmetria in the flexion – extension plane of motion.
There was no loss of reflexes recorded or any other neurological signs in the upper limbs.
The thoracolumbar spine also demonstrated asymmetrical restriction of motion in flexion (40 degrees) and extension (20 degrees) but rotation and lateral flexion were the same on both sides. There was no loss of reflexes noted.
Right shoulder movement was restricted. There was no measurement of hip motion recorded.
Under the heading causation and reasons, the Medical Assessor said:
“Right shoulder clavicular fracture and right shoulder superior labral tearing, cervicothoracic degenerative disc disease, and left hip trochanteric bursitis. Mrs Caruso sustained acute injuries due to high energy motor vehicle accident. She was asymptomatic prior to the subject accident.”
In terms of impairment, he assessed:
(a) cervicothoracic spine 5%;
(b) right shoulder 6%, and
(c) left hip 3%.
He made no allowance for any impairment to the feet, right knee, left leg or ribs.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer’s submissions take issue with the assessment of the cervicothoracic spine noting that the Medical Assessor had found dysmetria in both the cervical and lumbar spine but had not explained why. The insurer also notes that the Medical Assessor has stated his measurements in degrees and not in fractions as the Guidelines require for spinal impairment assessment.
The insurer says the cervicothoracic spine should have been assessed as 0%.
The insurer also says there was insufficient reasoning for the finding of a 3% WPI for the left hip noting that while table 64 of AMA 4 provides 3% for trochanteric bursitis, this can only be awarded if there is an associated abnormal gait and there is no mention in the certificate or reasons of the claimant observed with an abnormal gait during the examination.
Claimant’s submissions
The claimant argues there is no error in the assessment of the cervicothoracic spine as 40 degrees of flexion is 80% of the normal range, and 20 degrees of extension is 33% normal range which is clearly dysmetria in the flexion/extension plane of movement.
The claimant also submits that there is evidence (in a medico-legal report from Dr Bodel) that the claimant has a left sided limp. The claimant notes that Dr Bodel also assessed a 3% WPI for the hip impairment in the same way.
Procedural matters
On 17 January 2024, the Panel issued directions to the parties for an indexed and paginated bundle of documents relied on in the course of the assessment.
The insurer was to provide its bundle by 2 February 2024 and NRMA provided its bundle of more than 320 pages on 1 February 2024.
The claimant was to provide her bundle by 16 February 2024. The claimant did not provide the bundle at the time of the Panel’s preliminary conference on 5 March 2024 and so a further direction was issued. The claimant provided her bundle of nearly 160 pages on
8 March 2024.
The Panel reported to the parties on 5 March 2024. Noting there were seven injuries assessed and impairments found in only three areas (neck, right shoulder and left hip), the Panel asked the claimant to confirm whether she accepts she has no impairment in the other parts of her body. The insurer was asked to confirm there was no issue of causation in relation to the neck, right shoulder and left hip.
The claimant responded with a message in the portal advising that she suffers from scarring to her feet and legs and still suffers from the injuries to her ribs.
The insurer responded by a message in the portal advising there was no issue of causation of the neck, right shoulder or left hip injuries.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claim form was signed and dated 19 January 2019.[5] The claimant says she was waiting to cross the road, the light turned green, and she commenced walking across the road when she was hit by a car.
[5] Page 1 of the insurer’s bundle.
Ms Caruso lists her injuries as:
(a) a fractured collarbone;
(b) four broken ribs;
(c) two black eyes;
(d) lump and bleeding left side of head;
(e) severe graze on left leg, grazed right arm, both feet, right knee;
(f) pain on top right side of back;
(g) swelling left leg;
(h) pain on left side of abdomen, and
(i) numb nose and lip.
The claimant was, at the time of the accident, 38 years of age and she worked at an insurance company.
Treating medical records and reports
The ambulance report[6] confirms the claimant was involved in a vehicle versus pedestrian accident and that at the time the ambulance arrived, the claimant had been moved from the middle of the road to the footpath by a doctor and registered nurse.
[6] Page 68 of the insurer’s bundle.
The hospital’s emergency department assessment[7] notes no loss of consciousness, left iliac fossa pain, right shoulder and lower limb pain (both sides) and a right eyebrow laceration. The neck was examined, and the cervical spine clinically cleared. The pelvis was stable and non-tender with no long bone injuries. The left eyebrow laceration was said to be 2cm long.
[7] Page 25 of the claimant’s bundle.
The hospital discharge summary[8] noted the claimant was discharged home two days after admission and that her left rib fractures (3-6) and right clavicle fracture were treated conservatively and she was prescribed Panadol, Targin and Endone for pain relief.
[8] Page 95 of the insurer’s bundle and page 24 of the claimant’s bundle.
The claimant’s pre-accident general practitioners were at the Randwick Doctors Medical Centre.[9] The claimant first attended there in August 2018 and there is no indication in the records of any relevant pre-accident history.
[9] Page 97 of the insurer’s bundle
The claimant first attended after the accident on 7 February 2019. She was having some pain and discomfort in the right clavicle and shoulder. She had ceased Endone and Targin and was taking Prodeine. Her wounds were reviewed and cleaned.
Ms Caruso was referred for physiotherapy on 14 February 2019 and to Dr Harper on
1 April 2019 and for counselling on 27 May 2019.
Notes have also been provided from Warringah Medical and Dental Centre.[10] The claimant attended twice for wound review on her left lower leg, foot and right knee.
Radiology
[10] Page 129 of the claimant’s bundle.
At hospital
On 11 January 2019, the claimant had an X-ray of her right clavicle while at hospital. The result was:
“Right lateral 1/3 clavicle fracture with mild superior subluxation of the clavicular-acromial joint. The right shoulder remains enlocated.”
Her knees were also X-rayed at hospital revealing no effusion and no fractures.
The claimant’s chest was scanned showing “minimally displaced right posterior 3 – 6 fractures”.
Right shoulder
An ultrasound report of the right shoulder dated 21 March 2019[11] showed no rotator cuff tear but an effusion of the biceps tendon sheath. Adhesive capsulitis was suspected.
[11] Page 83 of the insurer’s bundle and page 108 of the claimant’s bundle.
An MRI of the right shoulder on 31 March 2019 noted glenohumeral capsulitis, mild to moderate subacromial bursitis and an incomplete uniting of the clavicle fracture.
No further imaging reports have been provided.
Left hip
An X-ray of the claimant’s pelvis and left hip was undertaken on 30 March 2019 with no abnormality reported.
An MRI of the left hip was then done on 29 April 2019 which showed signs of quadratus femoris impingement and trochanteric bursitis.
No further imaging reports have been provided.
Medico-legal reports
Dr Mitchell, occupational physician, provided a report to the insurer dated 10 June 2020.[12]
[12] Page 56 of the insurer’s bundle.
Dr Mitchell documents the claimant’s complaints of pain in her neck, right shoulder, right ribs, both legs, right eyebrow and the development of psychological issues.
Dr Mitchell has a history of the claimant being thrown 4 or 5m before landing on her right side, being helped by passers-by and being taken to St George Hospital.
He notes the claimant’s leg wounds became infected, her fractures were treated conservatively and a 2cm scar on her forehead was stitched and dressed.
He notes the claimant had further investigations, physiotherapy and psychological treatment.
The claimant reported current symptoms including pain in the neck, right shoulder and right hip. She was concerned about the scarring over her legs and right eyebrow. She had returned to work and was working her pre-accident duties.
On examination:
(a) Ms Caruso had a normal range of motion in the neck and thoracolumbar spine;
(b) both shoulders were normal;
(c) the right leg was normal other than the scarring, and
(d) the left leg was normal.
After reviewing the radiology, Dr Mitchell noted the claimant had made a good recovery from her injuries but had some ongoing mild neck pain and scars.
He assessed her scarring at 3% WPI which was the only WPI found.
Dr Bodel, orthopaedic surgeon examined the claimant and provided a report to the claimant’s lawyers dated 11 September 2020.[13]
[13] Page 109 of the claimant’s bundle.
Dr Bodel has a history of the accident and early treatment consistent with other histories. He noted treatment by her GP Dr Lim, an ultrasound of her right shoulder and MRI which confirmed adhesive capsulitis. He records she had extensive physiotherapy and psychological treatment and returned to work on 11 February 2019.
Dr Bodel notes the claimant has continuing pain and stiffness at the base of the right side of her neck and in her right shoulder. She has difficulty with some movements.
Dr Bodel also records lower back and left hip pain and that the claimant limps on her left side.
The claimant reported to Dr Bodel no restriction of the chest wall, no abnormality of breathing and her rib fractures have settled.
The claimant was said to be having no ongoing treatment other than gentle exercise.
On examination Dr Bodel notes:
(a) a left sided limp;
(b) reduced neck movements in all directions, dysmetria and guarding;
(c) a normal left shoulder but reduced movements in the right with impingement but no instability;
(d) no abnormality in the chest;
(e) a good range of back movement with no asymmetry;
(f) tenderness in the hip which is chronic, and
(g) scarring to the left knee with some “tethering” to the underlying structures.
Dr Bodel assessed the following impairments:
(a) right shoulder 6%;
(b) cervical spine – DRE II = 5%;
(c) left hip and limp 3%, and
(d) scarring 3%.
Other assessments
Medical Assessor Curtin assessed the claimant’s abrasions and swelling near the left eyebrow, abrasions and minor bleeding of the left cheek and right elbow, abrasion of the left lower leg.
He noted the resultant scars were “barely distinguishable” from the surrounding skin and allocated 1% WPI to them in accordance with the table of minor skin impairment (TEMSKI) found at cl 6.264 of the Guidelines.
Medical Assessor Nagesh issued a certificate on 8 September 2023 determining that the claimant had post-traumatic stress disorder and a major depressive disorder as a result of the accident and that she had a WPI of greater than 10%. The insurer has lodged a review of that decision.
RE-EXAMINATION FINDINGS
The claimant attended the Commission’s medical suites for examination by Medical Assessor Stubbs on 12 March 2024.
History
Ms Caruso said she was 39 years old at the time the accident. She lives with her partner an electrician in a two-story unit.
She gained a high school certificate and took courses in marketing after school. She works at an insurance company as a phone operator doing home security sales and services. She has been in this role for 14 years.
Ms Caruso said before the accident she had a gymnasium membership and that she considered herself in good health and had no regular medications although she did suffer from endometriosis.
She said she was injured while crossing the street on a green light. She was hit by a car and thrown into the air. Passers-by assisted her from the road. She was confused and possibly had a short period of retrograde amnesia. She does not for example recall the make or type of car that hit her, whether it was an SUV or an ordinary saloon.
Ms Caruso said she was taken by ambulance to St George Hospital and admitted with a fracture of the right clavicle, fractures of the left 3-6 ribs and multiple abrasions. She was extensively investigated but managed conservatively. She recalls she was in hospital for three consecutive days.
After discharge she went to stay with her sister for two weeks and then moved to her own home. Her mother came from Jervis Bay to give a further month’s care at home. Ms Caruso convalesced at home and returned to work about three months after the motor vehicle accident initially travelling to and from work by Uber.
Current situation
Ms Caruso is living in a unit in Bexley and working the same job, three days a week. She has a 22-month-old baby who is in childcare on the other days. She is not taking any medication.
Her current complaints are of persistent right supraclavicular pain at the outer end of the right clavicle. There is shoulder stiffness which causes her some problems with activities of daily living such as putting on a tight top or pullover and she now finds it easier to do her bra up at the front and move it around rather than doing it up at the back.
Ms Caruso also complains of persistent pain centred in the left super trochanter region. She says this limits her walking ability and she says she cannot walk long distances. She says she needs to use a handrail on the left side to climb and descend stairs.
The rib fractures occasionally cause minor pain but otherwise she is untroubled by those injuries. There is no interference with her breathing from these rib fractures.
Ms Caruso did not complain of pain or other symptoms in her neck or lower limbs. When asked, she said the abrasions on her feet and legs have healed. She says she needs to use a lotion on them, but she has no other complaints from those injuries.
No further treatment is planned.
Clinical examination
Ms Caruso was a pleasant cooperative lady and undertook all of the examination tests cheerfully.
Ms Caruso was measured as 167cm tall and weighed 73.6kg. She has a normal gait pattern albeit with slow walking. She did not limp. She can heel-toe walk on both legs but does have slight unsteadiness of balance standing on her left leg and her ability to hop on the left side was noticeably poor when compared to the right. The Trendelenburg sign was weakly positive.
Neck
Her neck was examined and there was no spasm, guarding or tenderness on palpation and Ms Caruso made no complaints of neck pain at all. All neck movements were symmetrical and normal range as follows:
(a) flexion and extension – normal;
(b) rotation to the right and left – normal, and
(c) lateral flexion to the right and left – normal.
Right shoulder
The shoulder range of active movement was measured three times with a goniometer and the measurements recorded below:
Measurement
Normal
Right
Left
Flexion
180
170 (1% UEI)
180
Extension
50
50
50
Abduction
180
180
180
Adduction
50
50
50
Internal rotation
90
80 (0% UEI)
90
External rotation
90
90
90
There is specific restriction of the combined movement of internal rotation with extension as one would do with the hands behind the back which accounts with the difficulty in dressing and undressing.
Right hip
On examination there was tenderness over the greater trochanter of the right hip and a weakly positive Trendelenburg sign when standing[14] but there was no obvious limp when walking slowly.
[14] A positive Trendelenburg sign is where the pelvis drops on the contralateral side during a single-leg stand on the affected side. This can also be identified while the patient is walking as compensation occurs by side flexing the trunk towards the contralateral side during the stance phase of gait on the affected leg.
Hip movements were measured three times with the aid of a goniometer and the results obtained were as follows:
Measurement
Normal
Right
Left
Flexion
Greater than 100
120
120
Extension
Less than 10
15 in a Thomas’s test
15
Internal rotation
Greater than 20
30
30
External rotation
Greater than 30
40
40
Abduction
Greater than 25
35
30
Adduction
Greater than 15
25
25
IMPAIRMENT ASSESSMENT
There are no issues with causation raised by the insurer and no evidence of any pre-existing relevant injuries. Ms Caruso has made a substantial recovery and improved on all parameters compared to medical examinations made closer to the time of injuries and is at the point of maximum medical improvement. No further treatment is anticipated.
Neck – cervical spine
Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions, cervical, thoracic and lumbar. If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119). In Ms Caruso’s case she claims injury only to her cervical spine.
There are five diagnostic related categories and a number of indicia provided (see table 7). The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II is relevant noting that Dr Bodel in September 2020 found a DRE category II impairment as did Medical Assessor Nair in October 2023 although Dr Mitchell did not.
DRE category II requires one of the following:
(a) pain with guarding – Ms Caruso did not complain of pain in the neck at the Panel’s re-examination and there was no guarding evident on examination;
(b) non-uniform range of motion (dysmetria) – Ms Caruso’s neck measurements were equal and normal in all three planes of motion when examined by Medical Assessor Stubbs, or
(c) non-verifiable radicular complaints defined in table 6.8 as symptoms (shooting pain, burning sensation, tingling) which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes. Ms Caruso did not complain of any pain in the neck or any non-verifiable radicular complaints when questioned by Medical Assessor Stubbs.
The insurer has not challenged causation of a neck injury and the Panel is satisfied while
Ms Caruso did have a neck injury caused by the accident, her current complaints and examination findings indicate she has no assessable impairment. She does not qualify for a DRE category I as she does not complain of pain and she does not qualify for a DRE category II classification because she has no pain, guarding or dysmetria and no non-verifiable radicular symptoms.
Right shoulder
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment). Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using table 3 on page 20 of AMA 4.
There are several methods of assessment:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
When considering all of the above methods of assessment, the medical members of the Panel are of the view that in the light of the claimant’s injury, the abnormal range of motion method is appropriate.
The fracture of the clavicle has healed very successfully. There is no shortening of the clavicle, the distance between the mid sternal point and the acromioclavicular joint is the same on both sides, there is mild tenderness over the distal clavicle but no palpable deformity.
Ms Caruso has a specific issue of internal rotation in the extension position. There is clearly an injury to the right shoulder girdle causing ongoing albeit mild restriction of motion. An MRI scan was performed of the shoulder after the accident and a diagnosis of adhesive capsulitis was made. Ms Caruso’s post-traumatic adhesive capsulitis has largely recovered but would account for the minor restriction in motion currently evident.
Using the range of motion method, the 10 degree loss of flexion attracts a 1% UEI and the 10 degree loss of internal rotation does not attract any percentage impairment. The claimant therefore has a 1% impairment to her right shoulder which, according to table 3 on page 20 of AMA4 corresponds to a 1% WPI.
Left hip
The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:
(a) limb length discrepancy (3.2a);
(b) gait derangement (3.2b);
(c) muscle atrophy (3.2c);
(d) manual muscle-testing (3.2d);
(e) range of motion (3.3e);
(f) joint ankylosis (3.2f);
(g) arthritis (3.2g);
(h) amputations (3.2h);
(i) diagnosis-based estimates (3.2i);
(j) skin loss (3.2j);
(k) peripheral nerve injuries (3.2.k);
(l) causalgia and reflex sympathetic dystrophy (3.2l), and
(m) vascular disorder (3.2m).
Each limb is assessed and each injury (if there are multiple injuries in each limb) is assessed separately. Clause 6.70 and table 6.5 states which of the above methods can and cannot be combined and table 6.6 provides guidance in selecting the most appropriate method. The Guidelines at cls 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment.
There is evidence of a direct injury from the accident with early complaints of pain and restricted movement. Radiology confirmed the presence of bursitis soon after the accident, and the Panel notes the insurer has not raised any issue of causation.
The claimant appears to have improved although not completely recovered from her left hip injury. There are no up-to-date radiological images or report available to the Panel.
The most appropriate method of assessment table is the diagnosis-based estimates provided for in section 3.2i of the AMA4 Guides. Table 64, page 85 of AMA4 provides a 3% WPI for chronic trochanteric bursitis with abnormal gait.
The claimant’s accident occurred over five years ago, and she has had bursitis symptoms throughout that period. It is the Medical Assessors’ view that complaints over this length of time satisfy the criteria of “chronic” within the meaning of table 64.
There is no definition of “abnormal gait” in section 3.2i or in table 64. Section 3.2b provides a method of assessment based on gait derangement and one of the criteria therein refers to a positive Trendelenburg sign. It is the Panel’s view that the words “abnormal gait” should be given its usual lay as well as medical meaning that is that the claimant’s gait, that is the manner and not just the pattern of her walking is not normal.
When examined by Medical Assessor Stubbs, there was no limp evident, although Ms Caruso had been assessed with a limp by Dr Bodel several years earlier. But table 64 does not require there to be a limp present to satisfy the criteria. There were clinical findings on examination of an impaired ability to hop, a slow walk and the more objective finding of a weakly positive Trendelenburg sign are significant. The Panel has also considered the claimant’s reported history of needing to use handrails when climbing and descending stairs and her difficulty walking long distances. When all of these factors are taken into account the Panel is of the view in this particular case, that the claimant has an “abnormal gait” within the meaning of table 64.
The Panel is therefore satisfied on the balance of probabilities that the claimant has a chronic trochanteric bursitis with abnormal gait which is sufficient to attract a 3% WPI.
Ribs
The claimant says her rib injuries have recovered although she gets mild pain from time to time. She did not describe to Medical Assessor Stubbs (and has not described to other examiners) any difficulty inhaling or breathing. The AMA4 Guides and the Guidelines do not provide an impairment assessment for most chest injuries and cl 6.23 of the Guidelines provides as follows:
“Certain injuries may not result in an assessable impairment covered by these Guidelines and the AMA4 Guides. For example, uncomplicated healed sternal and rib fractures do not result in any assessable impairment.”
Therefore, while the claimant did sustain fractures to three of her ribs in the accident, they do not attract an assessable impairment.
Feet, right knee and left leg
Leaving aside the claimant’s left hip injury, the claimant’s complaints in her left and right leg related to the scarring she sustained as a result of the multiple abrasions caused in the accident.
The Panel notes the claimant’s scarring has been assessed by Medical Assessor Curtin and his assessment of 1% WPI will be included in the combined certificate the Panel will issue.
CONCLUSION
The Panel has found that the claimant’s degree of impairment resulting from the injuries caused by the accident is as follows:
(a) neck - no assessable impairment;
(b) left hip 3%, and
(c) right shoulder 1%.
The total WPI found by the Panel is 4%. As the Panel has come to a different conclusion, it follows that the certificate of Medical Assessor Nair should be revoked.
A fresh combined certification will be issued including a certificate combining the Panel’s 4% WPI with the 1% from Medical Assessor Curtin.
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