Insurance Australia Limited t/as NRMA Insurance v Higgins
[2024] NSWPICMP 686
•30 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Higgins [2024] NSWPICMP 686 |
CLAIMANT: | Joan Higgins |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Ray Plibersek |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Michael Couch |
DATE OF DECISION: | 30 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was walking across a pedestrian crossing when she was hit by a car resulting in multiple injuries including to her pelvis, right elbow and right ankle; Held – Medical Assessment Certificate revoked; original assessment found the claimant sustained total permanent impairment of 19%; claimant’s injury to the right ankle was assessed at 4% whole person impairment (WPI), pelvic fractures in two locations at 15% WPI and scarring at 1% WPI; Medical Review Panel (Panel) found a total 19% impairment; Panel relied on paragraph 3.4 on page 131 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition; the first pelvic fractures assessed were the left pubic body and pubic ramus with residual displacement and residual signs best fit as item 3(b); the second assessment was of claimant’s sacrum fracture injury best described as item 3(f); total WPI for the pelvis is a combination of 10% for the sacrum into the SI joint fracture, and 5% for the pubic bone fractures, which equals 15% WPI; the remaining assessments were right ankle 4% WPI, right elbow 0% WPI and scarring 1% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Nigel Menogue dated 2. The Review Panel issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a permanent impairment of 19% whole person impairment (WPI): (a) right ankle - Weber C type fracture – 4% WPI; (b) pelvis – multiple fractures - 15% WPI; (c) right elbow -avulsion fracture triceps tendon – 0% WPI, and (d) scarring – 1% WPI. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 18 July 2021 Ms Joan Higgins (the claimant), was walking across a pedestrian crossing controlled by traffic lights on the corner of Millar Street and Amhurst Street Cammeray. She was hit on her left side by a car resulting in multiple injuries including to her pelvis, right elbow and right ankle.
In her personal injury claim form dated 29 July 2021 Ms Higgins listed her injuries as broken pelvis, fractured ankle, elbow injury and two broken ribs.[1]
[1] Insurers bundle R2 pp 27- 32.
Ms Higgins has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited t/as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Ms Higgins under the MAI Act.
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%.
This dispute is in relation to whether the degree of permanent impairment sustained by Ms Higgins 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.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
There is a dispute as to degree of the claimant’s permanent impairment.
Medical Assessor Nigel Menogue assessed Ms Higgins and issued a certificate and reasons dated 8 August 2023.
Medical Assessor Menogue assessed the degree of permanent impairment and found that the injuries caused by the motor accident did result in permanent impairment greater than 10%. Medical Assessor Menogue found that the claimant’s injuries were caused by the subject motor accident and gave rise to a total permanent impairment of 19% whole person impairment (WPI).
There has been an application by the insurer to review this certificate.
This review with its certificate and reasons is a review of the medical assessment of Medical Assessor Menogue. The Review Panel in this case is composed of Medical Assessors David Gorman and Michael Couch and Member Ray Plibersek.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Menogue was lodged within 28 days of the date on which the certificate was made available to the parties.
On 2 November 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 Medical Review Panel (the Panel).
The grounds for review advanced by the claimant and accepted by the President’s delegate included that the Medical Assessor “failed to provide a sufficient path of reasoning for how he has allocated the pelvis injuries to fall under the allocation of ‘Healed fractures with displacement’ from Table 3.4 AMA IV page 131 given his own clinical findings and statement say ‘anatomical alignment has been achieved’.”
RELEVANT LEGAL AUTHORITY
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).
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.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation 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.
2.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.”
The Panel also notes that when considering the issue of causation of injury it had regard to the recent decision in: AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371. When assessing the causation of injuries the Panel has taken into account the whole range of views argued by the parties and it has reached its decision and conclusions based on the whole of the material before it. [3]
ASSESSMENT UNDER REVIEW
[3] Per Elkaim AJ at [45]-[46]. Refer also to Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 and Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41]-[44].
The dispute was referred to Medical Assessor Menogue who assessed Ms Higgins and issued a certificate dated 8 August 2023.
Medical Assessor Menogue also found that the motor vehicle accident of 18 July 2021 caused the injuries to Ms Higgins including fractures to the symphysis pubis, right elbow and right ankle. These required open reduction an internal fixation with resultant scarring.
Medical Assessor Menogue found the right ankle injury would attract 7% lower extremity impairment for reduced dorsiflexion (Table 42) and 2% lower extremity impairment for reduced inversion involving the right subtalar joint (Table 43). This combines to give a 9% lower extremity impairment and converts to 4% WPI.
For the right elbow Medical Assessor Menogue found 0% WPI.
Medical Assessor Menogue found the WPI for the pelvis is a combination of 10% for the sacrum into the SI joint fracture, and 5% for the symphysis pubis fracture, equalling a total of 15% WPI.
For the scarring Medical Assessor Menogue concluded that based on the MA Guideline Table 6.18 (TEMSKI) the scarring best fit was 1% WPI.
This resulted in a total WPI of 19%.
EVIDENCE BEFORE THE PANEL
The Panel issued Directions to the parties on 9 February 2024 requesting the claimant to attend for a re-examination by the Medical Assessors on the Panel. The Panel also directed the parties to file an indexed, paginated bundle of documents. The Panel also directed the parties on or before 5pm Friday 21 February 2024, to send to the Commission physical copies or copies on CD discs of relevant MRI, CT scans, X-rays or other imaging studies of the claimant’s injuries.
The Panel noted that each party had filed an indexed, paginated bundle of documents.
Neither party supplied any physical copies or copies on CD discs of relevant MRI, CT scans, X-rays or other imaging studies of the claimant’s elbow, pelvis or ankle.
Pre-accident medical evidence
There are limited pre- accident treatment medical records available for the claimant.
The Panel notes that the claimant has a long-standing history of treatment for osteoporosis and prior fractures. The Royal North Shore Hospital notes refer to a left fifth digit fracture in approximately 2015, a left forearm 2019 and a right proximal humerus fracture in June 2020.[4]
[4] Insurers bundle R pp 446-449.
Post-accident medical evidence
Application for Personal Injury Benefits
In the Application for Personal Injury Benefits dated 29 July 2021 Ms Higgins listed her injuries as broken pelvis, fractured ankle, elbow injury and two broken ribs.[5]
Ambulance and police reports
[5] Insurers bundle R2 pp 27- 32.
The NSW ambulance report dated 18 July 2021 includes the following description of the motor accident:
“C/T VEHICLE V PEDESTRIAN O/A AS STATED, 68YR FEMALE LYING IN MIDDLE OF ROAD, TWO BYSTANDERS ON SCENE WHO STATE THEY WITNESSED SEEING PT WALKING ACROSS RD AND IMPACTED BY CAR LOW SPEED AND PT THROWN APPROX 3 METRES LANDING ON LEFT SIDE, BYSTANDER 1 STATES PT LOST CONSCIOUSCNES FOR APPROX 2 MINS,…”[6]
[6] Insurers bundle R 11 pp 66 -72.
Hospital reports
The claimant was initially taken by ambulance to Royal North Shore Hospital.
The Royal North Shore Hospital noted the claimant’s injuries included fractured pelvis on her left side, fractured right ankle, avulsion fracture of the right elbow and fractured left 3rd and 10th ribs.[7]
[7] Insurers bundle R 12 pp 73 -88.
The discharge summary from Royal North Shore Hospital notes that the claimant underwent reduction and internal fixation of the left sacroiliac joint. She also had symphysis pubis separation treated by surgery. The claimant’s elbow and ankle were treated by
Dr Moonpanar. The claimant has an open reduction and internal fixation of a Weber C type fracture of her right ankle as well as repair of her olecranon fracture with the reinsertion of her triceps tendon.There is a report from an endocrinologist at Royal North Shore Hospital Dr Eleanor White dated 12 April 2021.[8] This report records that the claimant has a significant history of osteoporosis and fractures. Her treatment history is recorded as Fosamax 2002 - 2010. Restarted in June 2020. Fracture history: left 5th digit approximately 2015 and left forearm 2019. Right proximal humerus fracture June 2020 after fall from standing height.
[8] Insurers bundle R pp 446-449.
On 9 August 2021 the claimant was transferred from Royal North Shore Hospital to Hirondelle Private Hospital to undergo rehabilitation for her injuries.[9]
[9] Insurers bundle R14- 17 pp 454-457.
There are very detailed and voluminous hospital notes from Hirondelle Private Hospital which detail the claimant’s treatment and rehabilitation post-accident from her injuries.
Medico-legal evidence
There are a number of medical legal reports and also reports from the claimant’s treating doctors and surgeons which can be briefly referred to as follows.
Treating general practitioner and physio records
The claimant’s treating general practitioners (GP), Dr Zhangpling Liu, Dr Robyn Napier and Dr Marilyn Uebel provided a number of Certificates of Fitness spanning the period between October 2021 and April 2022.[10]
[10] Insurers bundle R18- 27 pp 458-530.
There are records from Northbridge Medical Centre from 4 August 2021 to 7 August 2022. [11]
[11] Insurers bundle R18- 19 pp 458-498.
There are AHRR physiotherapy referrals to Sports Focus Physiotherapy spanning the period 2 February 2021 through to 4 February 2022.
There are a number of Rehabilitation Management documents spanning the period
22 November 2021 through to 3 June 2022.
Dr Terence Moopanar, orthopaedic surgeon
There is a report Dr Terence Moopanar dated 7 March 2022. At the examination of the claimant he found a full range of movement in the right ankle.[12]
[12] Insurers bundle R39 pp 607-608.
Dr Moopanar wrote that he:
“… saw Joan in my rooms today and she has now done very well from the ankle point of view insofar all has healed and clinically well. The only concern is for hardware which is prominent on the medial aspect and I think that this is migratory due to the tenuousness of the fixation due to the size of fragments. The medial construct that has been used was a tension band wire on the right ankle and I do note that she has returned with her range of movement and her pain is now well settled as well. In particular, she has also had pelvic surgery as well as elbow surgery and that is all done very well. At this point, my plan is to remove the elements of fixation on the medial side which is very-very minor surgery.”
Dr Moopanar also wrote that:
“Joan has come through what was a very traumatic ordeal rather well. She has now regained her independence. She is walking unaided and her range of motion of the ankle is good with no crepitus felt in the joint. Elbow is the same and I do feel she has achieved full range of movement and strength and there are no issues with the wound. There are no issues with the nerve surrounding.”
Dr Bentivoglio, orthopaedic surgeon
There is a medicolegal report dated 26 October 2022 from Dr Bentivoglio.[13]
[13] Insurers bundle R 40 pp 609-618.
Dr Bentivoglio noted the claimant’s treatment history after the accident as follows. She said that her pelvis she was seen by Dr Isaacs. She underwent a reduction and internal fixation of the left sacroiliac joint. She also had symphysis pubis separation treated by surgery. Her elbow and ankle were treated by Dr Moopanar. The claimant reported that she had open reduction and internal fixation of a Weber C type fracture of her ankle as well as repair of her olecranon fracture with the reinsertion of her triceps tendon. The claimant reported that all her fractures healed uneventfully.
Dr Bentivoglio also noted the claimant’s history that she was known to be osteopaenic and was on Fosamax for this prior to the fractures caused by the motor accident.
At the re-examination Dr Bentivoglio noted the following:
“Right Ankle She had exceptionally well healed scars present over both the medial and lateral aspects of her ankle. Each scar measured 8cm in length and was not attached to the underlying tissues. She had about 0.5cm muscle wasting present in her right calf and as she is right-handed this is significant. She had extension to neutral position in her ankle, inversion to less than 20° in her right ankle and eversion to less than 10°. Her ankle was stable. Her peroneal and tibialis posterior tendons were intact. There was no obvious ankle oedema.
Pelvis There was no leg length inequality present. She had a well healed scar measuring 10cm in length transversely just above her pubic symphysis. The scar was not attached to the underlying tissues. There was no leg length inequality present in her lower limbs. There is no pain on compression of her pelvis in either an AP or lateral direction. I was unable to see the scar in the region of her buttock for reduction of the sacroiliac joint. She had a negative Trendelenburg’s test.
Right Elbow She had a well healed scar measuring 10cm in length over the point of her right elbow. It was not attached to the underlying tissues. She had a full range of movement present in her right elbow. She had full rotation present in her forearm. There was no muscle wasting involving her forearm and no evidence of any muscle wasting involving her thenar, hypothenar or interosseous muscle groups.”
Dr Bentivoglio’s diagnosis and opinion is that:
“This lady sustained significant injuries to her person in the motor vehicle accident she described. She would have sustained a separation of her pubis symphysis together with an open book-type injury to her sacroiliac joint causing it to become subluxed superiorly. She has undergone appropriate surgical treatment. The abnormalities present in her pelvis have been reduced anatomically. She still has some residual symptoms, and these will remain with her indefinitely.
Interestingly enough, the plain X-ray taken of her pelvis in June 2022 indicates she has some degree of degenerative osteoarthrosis involving her right hip. This has not been caused by this injury. It is a constitutional abnormality.
This lady also sustained a Weber C type fracture of her right ankle. This has been appropriately treated. The fracture appears to have been reduced anatomically and has united in near anatomical position. I would normally expect she will be at risk of developing degenerative osteoarthrosis especially in her right ankle in the latter stages. She does however have evidence of significant loss of movement present in her right ankle and subtalar joints.
With her right elbow she had a fracture of portion of her olecranon with some of the triceps tendon attached to it. It had to be reduced. She has regained full function present in her right elbow at this point in time. She is not at risk of developing degenerative osteoarthrosis present in her elbow at a later stage.”
Dr Bentivoglio’s assessed the claimant’s injuries of the right ankle, pelvis, elbow and scarring, and considered her injuries were consistent with 27% WPI.
Dr Bentivoglio’s reasoning for his assessment was as follows:
“For her right ankle from Table 42 on page 78, she has a 7% lower extremity impairment as a result of having her ankle extending only to the neutral position. From Table 43 on page 78, she would have a further 2% lower extremity impairment as a result of decreased inversion involving her subtalar joint and a further 2% as a result of decreased eversion involving her right subtalar joints. In all she would have an 11% lower extremity impairment. This converts to a 4% Whole Person Impairment rating. For her pelvis from Section 3.4 on page 131 I would consider a displaced and separated fracture of her symphysis pubis with a 15% Whole Person Impairment rating. For her sacroiliac joint, there is no specific impairment rating for this, but I would consider it to be an equivalent of a fracture of her sacrum into the sacroiliac joint which from the same section gives a 10% Whole Person Impairment rating. Combining all these impairment ratings would give a 27% Whole Person Impairment. She has reached Maximal Medical Improvement and her condition has stabilised.”
Dr Leicester, orthopaedic surgeon
There is a medicolegal report from Dr Leicester dated 10 November 2022.[14]
[14] Insurers bundle R 41 pp 619-624.
Dr Leicester saw Ms Higgins on 30 September 2022. He noted that this is a joint medical report examination with involvement of both the claimant’s legal representatives and the insurer.
On examination Dr Leicester wrote that:
“Ms Higgins walks with a normal gait. The elbow had a healed posterior scar consistent with repair of her triceps. There was a full range of elbow movement with no tenderness to palpation. The power of elbow extension was Grade 5. On examination of the right ankle, there were healed medial and lateral scars. There was 10° restriction of dorsiflexion and 15° of plantar flexion compared to the left ankle. The ankle was stable. There was normal subtalar movements. Examination of the hips revealed a normal range of painless hip movement.”
Dr Leicester’s assessment of the claimant’s WPI is as follows:
“I would estimate that she has 3% Whole Person Impairment of the right ankle using Table 17-11 on page 537 of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th Edition). In regards to her pelvic fractures with sacroiliac joint involvement I would estimate that Ms Higgins has 3% whole person impairment using Table 17-33 on page 546 of the same Guides. I was unable to find evidence of permanent impairment of the right elbow following successful repair of her triceps insertion. Ms Higgins does have skin impairment using the TEMSKI scale on the basis of scarring of both the ankle and the back of the elbow and I would estimate 1% whole person impairment using the TEMSKI scale on Table 14.1 of the NSW Compensation Guidelines to the Evaluation of Permanent Impairment. Using the Combined Values Chart on page 604 of the Guides I would therefore estimate that Ms Higgins has 7% whole person impairment on the basis of her injuries sustained in the motor vehicle accident. She does have osteoarthritis of both hips which does not currently require surgery but is likely to require hip replacement in the longer term. This is likely to have been a pre-existing condition which does not appear to have been aggravated by the motor vehicle accident.”
The Panel notes that Dr Leicester assessed Ms Higgins using AMA Guides 5th Edition.
Dr Isaacs, orthopaedic surgeon
There are treating doctor’s reports from Dr Isaacs dated 13 March 2023.
Dr Isaacs wrote that the claimant will have some capacity for work and normal duties. His prognosis 70 - 80% recovery by two years post injury and operations.
X-ray, CT scan and MRI evidence
On 18 July and 19 July 2021 there is a series of X-rays and other scans from Royal North Shore Hospital including: [15]
·Chest X-ray –Fracture of the left lateral 3rd rib and left 10th rib noted. Pelvis, comminuted and markedly displaced pelvic fractures identified involving the sacrum bilaterally and left pubic body and inferior pubic ramus. Pubic symphysis and sacroiliac joint spaces appear to be preserved. There is associated extra-peritoneal haematoma within the pelvis, worse on the right. No definite intra-peritoneal extension is seen.
·X-ray right ankle –Comminuted fracture of the lateral malleolus which is consistent with a major oblique fracture line extending to the syndesmosis. There is a further undisplaced fracture involving the tip below the level of the syndesmosis, comminuted fracture of the medial malleolus.
·X-ray right elbow –Displaced fracture fragment arising from the olecranon. This is at the site of the triceps tendon insertion.
·CT brain and cervical spine – NAD apart from multi-level degenerative changes noted throughout the cervical spine.
[15] Insurers bundle R 12 pp 73 -88
On 29 July2021 there is an X-ray of the pelvis. This report commented on fixation through the left sacroiliac joint and pubic bones noted. Alignment is improved when compared with the pre-operative study. Ongoing mild displacement of the fracture fragment at the left superior pubic ramus.
On 15 December 2021 there are X-rays to assess pelvis fracture healing and alignment.
On 4 March 2022 there was a CT of the right ankle which described a plate and screws transfixing a united fibular fracture. Wires and a plate transfix a united medial malleolar fracture. There is no diastasis screw. The ankle joint is maintained. The subtalar joint is maintained. There is no significant ankle joint effusion. The sinus tarsi is clear. The calcaneocuboid and talonavicular joints are normal. There is slight non-congruity between the surfaces of the ankle joint on the lateral parasagittal scan. No other abnormality. A united ORIF fracture.[16]
[16] Insurer bundle R 28 pp 531.
On 26 June 2022 there are further X-rays to assess pelvis fracture healing and alignment.
SUBMISSIONS
Insurer’s submissions
The insurer’s solicitor provided two written submissions dated 21September 2023 and
9 December 2022.[17][17] Insurer’s bundle pp 3-5 and 22-26.
In the submissions dated 21 September 2023 the insurer submits that the Medical Assessor has failed to provide a sufficient path of reasoning for how he has allocated the pelvis injuries to the allocation of ‘Healed fractures with displacement’ from Table 3.4 AMA 4 page 131. Noting the Medical Assessor’s own clinical findings and statement which say ‘anatomical alignment has been achieved.’ The insurer contends that it is not clear how the Medical Assessor arrived at his allocation in the Pelvis Table as it appears to be in direct contradiction to the information documented in the rest of the Certificate. Thus the Medical Assessor has failed his obligation to provide a clear path of reasoning as required in the Wingfoot decision.
The insurer submits that both the symphysis pubis and the sacrum meet the criteria for ‘healed fracture without displacement or residual signs’ and therefore should be assessed as 0% WPI.
The insurer contends that if the assessment of the pelvis WPI is made as argued by the insurer the total WPI would be reduced from 19% to 5% which is a material change to the outcome of the assessment.
In the submissions dated 9 December 2022 the insurer submits that it relies on the assessment of WPI of orthopaedic surgeon Dr Leister which finds a WPI of 7%. Based on the evidence and findings of Dr Leister and current return of the claimant to full functioning, the insurer argues that the WPI as a result of physical injury does not surpass the threshold for an award of non-economic loss damages.
Claimant’s submissions
The claimant’s solicitors made submissions dated 19 October 2024.[18]
[18] Claimant’s bundle pp 1-8.
The claimant submits that regarding the pelvis the Medical Assessor has provided adequate reasons for his certificate.
The claimant argues that the insurer has not used the right category in assessing the claimant’s pelvic injury. It is clear that the 2(e) category describes the healed fracture, without separation, given the Medical Assessor noted the open reduction and internal fixation surgery has been successful and there is now a “normal gap”. This category is without residual signs whereas category 3(f) is with residual signs. The insurer’s submissions (“IS1”) lumps both pelvis injuries into one category whereas they have been assessed separately.
The claimant submits that the insurer does not explain the basis for the insurer’s submission that the pelvis injuries should attract a WPI of 0%. The insurer does not reference any expert medical evidence and therefore no basis for the argument.
The claimant refers to the reports of Dr Bentivoglio but notes the insurer has not referred to these reports at all. This is relevant because the Medical Assessor has relied on those reports (as well as all other medical evidence) in explaining his path of reasoning.
The claimant refers to Dr Bentivoglio second report which provides the WPI assessment, he has assessed the pelvis injuries in a similar manner to Medical Assessor Menogue.
Dr Bentivoglio has referred to paragraph 3.4 of the AMA Guides edition 4. He concluded that there is a 15% WPI for the symphysis pubis in accordance with 3(e) rather than 2(e). This led to a higher WPI than the Medical Assessor. The Medical Assessor’s reliance on 2(e) is therefore a more conservative conclusion based on the successful results of surgery and radiological evidence, which cannot be described as a ‘beneficial construction’.The claimant notes that the Medical Assessor has referred to the report of Dr Leicester at paragraph 4 of his Certificate. The insurer relies on that medicolegal report and that
Dr Leicester determined the sum WPI of all injuries at 7%. The claimant’s solicitors also noted that Dr Leicester assessed injuries using AMA 5 rather than AMA 4, which is required by MAS methodology.The claimant notes that the insurer has not challenged the assessment of right ankle, right elbow and scarring in IS1. In any case, the claimant submits that the assessment by Medical Assessor Menogue is correct, and that the degree of permanent impairment is 19%.
The claimant’s solicitors argue that because Medical Assessor Menogue has preferred the opinion of Dr Bentivoglio over that of Dr Leicester this cannot be reason to find Medical Assessor Menogue’s reasons and certificate erroneous. The opinion of Dr Bentivoglio is consistent with the previous reports, clinical notes, and radiological evidence. The claimant was found to be consistent in her presentation and that she had no previous surgeries or major health problems or injuries.
MEDICAL EXAMINATION
On 5 March 2024 Ms Higgins was examined by Medical Assessor David Gorman and Medical Assessor Michael Couch at the Commission’s rooms, at 1 Oxford Street, Darlinghurst.
HISTORY
Pre-accident medical history and relevant personal details
Ms Higgins is a 71-year-old lady who was born in Australia and completed Year 12.
She then worked as a public servant for four years. She worked in HR for seven years before having her family. She returned to the workforce in reception in 2007 and at the time of the subject accident, was working as a receptionist with a law firm –24 hours per week. She was therefore 15 years and retired when 70 years. She was off work for 5-6 months after the accident and returned to work for one year prior to retirement.
She has been married but is now divorced and lives alone.
She is able to drive a vehicle but only short distances. She tells the Panel that she becomes anxious with driving outside her local area or her daughter’s suburb. Otherwise, she will use public transport but has some anxiety when using public transport – she often uses taxis.
She performs her own shopping, cooking, washing and cleaning tasks. She has difficulty cleaning bathrooms, as she has problems with kneeling and scrubbing floors.
Her hobbies include walking, although this has been curtailed as a result of her injuries.
Her past medical history includes a fractured left wrist in 2018, a fractured right humerus in July 2020.
She has had atrial fibrillation and is on metoprolol and Apixaban.
She has been on Fosamax for osteoporosis for five years. It was post-menopausal.
She has had BCCs.
She is also monitored by a Haematologist for MGUS (Monoclonal gammopathy of uncertain significance). It has not caused her problems.
History of the motor accident
On 18 July 2021, she was a pedestrian on a pedestrian crossing. She was hit on the left side by a vehicle and fell to the ground. She ended up lying on her back.
She was taken by ambulance to Royal North Shore Hospital, where assessment revealed fractures to the pelvis, right elbow and right ankle. Two ribs were also fractured.
She was admitted and underwent an open reduction and internal fixation of the fractures to the pelvis (Dr Isaacs). She had two surgical procedures to re-attach the ruptured distal triceps tendon to the olecranon of the right elbow. She also had an open reduction and internal fixation of the Weber C fracture to the right ankle (bimalleolar fracture).
She remained an inpatient at Royal North Shore Hospital until 8 August 2021 when she was transferred for rehabilitation to Hirondelle Private Hospital.
History of symptoms and treatment following the motor accident
She remained in Hirondelle undergoing rehabilitation until 24 August 2021, when she contracted COVID-19. She was transferred to Hornsby Private Hospital on 24 August 2021 and remained there until 6 September 2021. She then returned to Hirondelle Private Hospital and remained there until the end of October 2021 (her rehab physician was Dr Harts).
She commenced physiotherapy in November 2021 and this continued until 24 May 2022. She was also in regular contact with her treating specialists, Drs Isaacs and Moopanar. She was experiencing increasing right ankle pain and as such, one screw was removed from the ankle in April 2022.
Ms Higgins has continued to see her GP but no longer consults with Drs Isaacs or Moopanar. She is also involved in a home exercise program.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
She reports that she is stiff and sore. She does not exercise so much.
She cannot walk so much for exercise – the most is three quarters to 1km slowly.
She can have difficulty with public transport getting on and off.
She is mostly pain-free in regard to the pelvis. If she is lying on a hard flat bed she will experience a localised pressure pain in the sacrum, which feels like pressure on the screw. There is no pain over the pubic symphysis usually. She however, also experiences a tightness and discomfort with rotation of the pelvis, such as getting out of a car.
She commented on (post motor vehicle accident) recurrent urinary tract infection and urinary urgency, as her bladder was ruptured in the accident and required repair. She gets UTIs once a month now and continues on Hipprex and Vagifem. She gets haematuria with the infections and occasionally has incontinence with the urgency. Prior to the accident she would only have an infection once a year.
In the right elbow there is no pain at rest. She states she cannot rest the point of her elbow on a bench and she experiences clicking with repeated flexion extension movements of the elbow. She has a discomfort within the elbow joint on lifting. She cannot carry her 1-year-old grandchild.
In the right ankle she feels a tightness in the ankle joint. She feels uncertain regarding balance and has difficulty going downstairs. She cannot run. She feels awkward.
She is not confident to travel to visit her son in Vietnam.
She has scarring resultant from the accident and surgery involving the medial and lateral aspect of the right ankle, the posterior aspect of the right elbow, and scars over the symphysis pubis (anteriorly) and the left sacroiliac joint posteriorly. None of these scars cause her any discomfort or require active management.
Current and proposed treatment
She does a home exercise program.
She visits to podiatrist and GP.
She has intermittent paracetamol for her musculoskeletal symptoms.
She is also on Apixaban, metoprolol, Fosamax, Caltrate and Hipprex.
CLINICAL EXAMINATION
General presentation
Her height was 156cm and her weight 56kg.
She walked with a slight limp favouring the left side.
Heel-toe walking was slightly unsteady.
Upper extremity
Examination of the upper limbs showed them to be symmetric with no obvious bony joint or soft tissue abnormality. Examination of the elbows demonstrated the bony and soft tissues to be normal. The right upper arm circumference was 27cm and the left 28cm. The right forearm was 22.5cm on circumference and the left 22cm.
There was a well-healed scar over the posterior aspect of the right elbow, which was 15cm in length.
The scar exhibited the following characteristics:
· she was conscious of the scar;
· it was slightly paler;
· it was easily seen;
· any staple marks were barely visible;
· it was slightly depressed;
· there were no effects on activities of daily living and no treatment was required, and
· there was no adherence.
The following elbow movements were obtained (using goniometer):
| ELBOW MOVEMENT | RIGHT (degrees) | LEFT (degrees) |
| Flexion | 150 | 150 |
| Extension | 0 | 10 hyperextension |
| Pronation | 110 | 110 |
| Supination | 80 | 80 |
Examination of the wrists did not demonstrate any bony deformity or soft tissue abnormality. There was no capsular thickening or effusion. There was a full and normal range of flexion extension, radial and ulnar deviation, and power throughout the range was equal.
There were no abnormalities of power, sensation or reflexes in the upper limbs.
Lower extremities
Examination of the lower limbs showed them to be symmetric with no obvious shortening, bony joint or soft tissue abnormality.
Examination of the pelvis did not demonstrate any pelvic asymmetry or tilt. There was mild tenderness over the pubic symphysis.
Faber’s and Patrick’s tests were negative.
Examination of the hips showed a good range of hip movement and power throughout the range was equivalent except for slightly reduced internal rotation of the left hip. This is outlined below.
| HIP MOVEMENT | Right (degrees) | Left (degrees) |
| Flexion | 90 | 90 |
| Extension | 10 | 10 |
| Abduction | 30 | 30 |
| Adduction | 30 | 30 |
| Internal rotation | 30 | 20 |
| External rotation | 30 | 30 |
The right calf had 32cm circumference and the left 32.5cm circumference. The right had 43cm circumference and the left also 43cm circumference.
Examination of the ankle joints did not identify any malleolar expansion, ligamentous or capsular thickening or tenderness. There was moderate tenderness over the right ankle anteriorly.
The following ankle joint and hindfoot movements were obtained (using goniometer) as below:
| ANKLE AND HINDFOOT MOVEMENTS | RIGHT (degrees) | LEFT (degrees) |
| Plantar flexion | 20 | 30 |
| Dorsiflexion | 0 | 20 |
| Inversion | 10 | 30 |
| Eversion | 0 | 20 |
Scarring was noted around the right ankle.
Medially there were two scars: 6cm and 8cm in length which were irregular in nature and slightly discoloured but difficult to see.
On the lateral aspect of the right ankle, there was an 8cm well-healed scar with the following characteristics:
· she was conscious of the scar;
· it was somewhat paler and numb over the scar;
· she was able to locate the scar;
· there were minimal trophic changes;
· suture marks were barely visible;
· anatomical location was not visible if she was wearing socks;
· there was a minor contour affect – it was slightly raised;
· there were no negligible effects on activities of daily living and no treatment was required, and
· there was no adherence.
There was a scar over the lower abdomen over the symphysis pubis which was 8x0.5cm. It was slightly depressed and reddened.
There were also 3 x 0.5cm scars over the left and right sacroiliac joints.
Comments on consistency
She was undemonstrative and there was no inconsistency in her performance.
DETERMINATIONS
Causation and reasons
In the motor vehicle accident of 18 July 2021, Joan Higgins sustained fractures to the symphysis pubis, right elbow and right ankle. These required open reduction an internal fixation with resultant scarring. All were caused by the accident.
Diagnosis and reasons
Pelvis
The imaging undertaken in the immediate post-accident period has identified injuries which have been listed and summarised in the imaging section of this report. The fractures required open reduction and internal fixation. The serial X-rays undertaken of the pelvis were reviewed and the measurements of the symphysis pubis gap was 4mm in both the
15 December 2021 and 26 June 2022 AP films of the pelvis; this is within normal limits. She has sustained fractures to the left sacral ala and pubic body, superior and inferior pubic rami. Anatomical alignment has been achieved from the open reduction and internal fixation procedure with a large screw traversing the sacrum and sacro-iliac joints but with some remaining displacement evident. There is also some residual displacement of the left superior pubic ramus fracture.
Right elbow
She sustained an avulsion fracture to the insertion of the right triceps tendon which required reattachment.
Right ankle
She sustained bi-malleolar fracture of the right ankle with fracture line extending to the distal part of the syndesmosis. The right ankle joint required stabilisation with open reduction and internal fixation.
Scarring
She has required surgical procedures which have resulted in scarring involving the following regions:
• horizontal incision over the symphysis pubis region;
• scarring over the left and right sacroiliac joint region;
• scarring over the right elbow (posteriorly), and
• scarring over the medial and lateral aspects of the right ankle.
Summary of injuries referred by the parties:
The following injuries WERE caused by the motor accident:
· right ankle –Weber C type fracture;
· pelvis – multiple fractures;
· right elbow – avulsion fracture triceps tendon, and
· scarring.
The following injuries WERE NOT caused by the motor accident:
• Nil.
The following injuries caused by the motor accident have resolved:
• Nil.
PERMANENCY OF IMPAIRMENT
Injuries to the symphysis pubis, right elbow and right ankle have reached maximum medical improvement and are considered to be permanent. They are therefore rateable. All scarring is considered permanent and also rateable.
DETERMINATIONS - DIAGNOSIS, CAUSATION AND SUMMARY OF THE PANEL’S OPINION
As a result of the subject motor accident on 18 July 2021 Ms Higgins sustained numerous injuries which were caused by the accident.
Taking into account all of the evidence before the Review Panel together with the results of its re-examination the Panel finds as follows.
PERMANENT IMPAIRMENT
Right ankle
The Panel accepts that Ms Higgins sustained a Weber C type fracture injury to her right ankle caused by or materially contributed to by the accident.
Regarding the right ankle Dr Moopanar wrote that she has now done very well from the ankle point of view insofar all has healed and clinically well. He reported that the claimant is walking unaided and her range of motion of the ankle is good with no crepitus felt in the joint. Dr Bentivoglio recorded that the claimant’s right ankle was stable.
At the re-examination of both ankles, the Panel assessed the range of motion of the right ankle joint and by using AMA Guides Edition Four, Figures 42 and 43 on page 78, would indicate that the right ankle would attract 7% lower extremity impairment for reduced dorsiflexion (Table 42) and 2% lower extremity impairment for reduced inversion involving the right subtalar joint (Table 43). This combines to give a 9% lower extremity impairment and converts to 4% WPI.
Right elbow
The Panel accepts that Ms Higgins sustained an avulsion fracture triceps tendon injury to her right elbow caused by or materially contributed to by the accident.
Regarding the right elbow Dr Moopanar wrote that the claimant has achieved full range of movement and strength. Dr Bentivoglio recorded that the claimant had a full range of movement present in her right elbow.
At the re-examination of both elbows, the Panel found the claimant’s right elbow joint had a slightly reduced range of motion. Referring to AMA Guides Edition Four, Figures 32 and 35 on pages 40 and 41, would indicate that the right elbow would attract 0% WPI from the Panel’s re- examination.
Pelvis
The Panel accepts that Ms Higgins sustained multiple fracture injuries to her pelvis caused by or materially contributed to by the accident.
At the re-examination of the pelvis, the Panel assessed the pelvis using Paragraph 3.4 on page 131 of AMA Guides Edition Four. There are two regions of the pelvis that require assessment. The first is the body and ramus of the left pubic bone, which required open reduction and internal fixation, and this surgery has been successful. The claimant still is somewhat tender over the symphysis pubis but has no other signs.
Measurement of the symphysis pubis has revealed a normal gap. However, the fractures are maintained by a large plate.There was displacement at the time of the fracture and the hardware does not completely remedy this. The Panel notes that the relatively simple Table 3.4 of AMA cannot cover all possible combinations of fractures, displacements and signs. After careful consideration, it considers that the combined fractures of the left pubic body and pubic ramus, with residual displacement and residual signs, best fit item 3.b in Table 3.4. The Panel considers that item 3.a does not adequately describe this injury. Item 3.b gives 5% WPI.
In regards to the sacrum, there is extension of the fracture into the sacroiliac joint requiring open reduction and internal fixation. The claimant is tender over the sacral scars and feels the screw when she lies flat on her back.
The insurer submits that both the symphysis pubis and the sacrum meet the criteria for ‘healed fracture without displacement or residual signs’ and therefore should be assessed as 0% WPI.
The claimant argues that the insurer has not used the right category in assessing the claimant’s pelvic injury. It is clear that the 2(e) category describes the healed fracture, without separation, given the Medical Assessor noted the open reduction and internal fixation surgery has been successful and there is now a “normal gap”. This category is without residual signs whereas category 3(f) is with residual signs. The insurer’s submissions conflates both pelvic injuries into one category whereas they have been assessed separately.
The Panel has carefully considered all the medical records, medico-legal reports including the claimant’s prior history of osteoporosis. It is also considered the conflicting submissions and interpretations from both parties about how the pelvic fractures and injuries should be assessed.
The Panel noted the serial X-ray films and, while the alignment has been considerably improved as is reported, there is still the suggestion of displacement remaining in the sacral fractures. This is not a normal sacroiliac joint with the large screw traversing it. The claimant’s injury is best described as 3(f), which equals 10% WPI.
Therefore, the WPI for the pelvis is a combination of 10% for the sacrum into the SI joint fracture, and 5% for thepubic bone fractures, , which equals 15% WPI.
Scarring
The Panel accepts that Ms Higgins sustained scarring caused by or materially contributed to by surgery resulting from the accident.
At the re-examination the Panel found she had some faint scarring. The Panel notes that other doctors, including Dr Moopanar and Dr Bentivoglio, recorded that the scars were well healed. Dr Bentivoglio noted that he “was unable to see the scar in the region of her buttock for reduction of the sacroiliac joint”. Dr Leicester found that Ms Higgins does have skin impairment using the TEMSKI scale on the basis of scarring of both the ankle and the back of the elbow and he estimated a 1% WPI using the TEMSKI scale.
The Panel find that the claimant’s scarring is described using the TEMSKI chart and the principle of best fit gives her overall scarring as 1% WPI.
Bladder
Finally, with regard to the bladder symptoms secondary to the pelvic fracture, the Panel noted her symptoms would fit into Class 1 impairment noted on page 254 of the AMA 4th Edition Guides (range 0-15% WPI). The Panel estimated her WPI at the mid-point of this class giving her a WPI of 8%. However, this was not referred to the Panel and therefore is not included in the final WPI assessment by the Panel.
Whole person impairment
The WPI for the pelvis, right ankle and skin are combined using the AMA 4 Combined Values Table to give a WPI of 19%, as summarised in the table below:
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Right ankle | Chapter 3; Figures 42 and 43 | Yes | 4% | 0% | 4% |
| 2 | Right elbow | Chapter 3; Figures 32 and 35 | Yes | 0% | 0% | 0% |
| 3 | Pelvis | Chapter 3; paragraph 3.4 on page 131 | Yes | 15% | 0% | 15% |
| 4 | Scarring | TEMSKI scale | Yes | 1% | 0% | 1% |
* %WPI = percentage whole person impairment
CONCLUSION AND CERTIFICATION
As a result of the above findings the Panel revokes the certificate of Medical Assessor Menogue dated 8 August 2023 regarding permanent impairment and issues a replacement certificate in accordance with these reasons.
The total degree of permanent impairment caused by the subject motor accident is 19% WPI which is greater than 10%.
The new certificate is attached at the commencement of these Reasons.
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