Insurance Australia Limited t/as NRMA Insurance v Knox
[2024] NSWPICMP 869
•18 December 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Knox [2024] NSWPICMP 869 |
CLAIMANT: | Nicole Anne Knox |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 18 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; assessment of degree of permanent impairment; left wrist resulting in post-traumatic stiffness; umbilical hernia with palpable defect of protrusion; prior laparoscopic cholecystectomy; no mention abdominal bruising; fractured ulna; small hiatus hernia; small tear in oesophagus; laparoscopic scars; lack of contemporaneous reference to the umbilical hernia; umbilical hernia does not preclude her usual activity; hiatus hernia cause of GORD; whole person impairment 7%; Held – Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Neill Berry dated 8 April 2024 and issues a new Certificate determining that the claimant’s injuries were caused by the motor vehicle accident and give rise to a whole person impairment which is not greater than 10% and is 7%. |
STATEMENT OF REASONS
INTRODUCTION
Nicole Anne Knox (the claimant) is a 52-year-old woman who was involved in a motor vehicle accident on 17 October 2022. The parties agreed that the claimant had sustained non-threshold injuries but, when requested, the insurer declined to concede that the claimant’s injuries exceed 10% whole person impairment. Noting this the claimant made an application for assessment of whole person impairment which was ultimately the subject of a certificate of Medical Assessor Abhishek Nagesh dated 11 April 2024 and, following an assessment on 25 March 2024, a certificate of Medical Assessor Neil Berry dated 8 April 2024.
Medical Assessor Berry found the claimant to have sustained a permanent impairment of 11% consequent on a 5% whole person impairment arising out of the loss of function of the left upper extremity and a 6% whole person impairment consequent on an umbilical hernia.
The insurer sought a review of the determination of Medical Assessor Berry which was considered by President’s delegate Ashleigh Payne who, in a decision dated 24 July 2024, determined that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The Review Panel (Panel) convened on 1 October 2024 at 3.00pm and considered the matter and noted that, in relation to the umbilical hernia, there were limited documents which pertain to the umbilical hernia.
The Panel made directions that the parties to upload any further medical documentation they hold in this matter which was previously provided to the Personal Injury Commission (Commission) in relation to any medical dispute between the parties. Additional material was uploaded from the claimant being radiological reports dated 29 November 2022. The insurer confirmed they held no further documents which had not been previously provided.
Thereafter the Panel reconvened on Tuesday 29 October 2024 at 4.00pm at which time it was determined that there was a requirement to re-examine the claimant so as to make an assessment of the injuries referred for assessment.
(a) wrist – left wrist resulting in post-traumatic stiffness, and
(b) hernia – umbilical hernia with a palpable defect of protrusion.
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 cl 14A(1) of the 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.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The claimant attended at the re-examination with Medical Assessor Oates on 1 December 2024 at the Medical Suites.
Details of who attended the assessment
The claimant attended for Panel re-examination by Medical Assessor Oates on 1 December 2024 at the Commission Medical Suites as arranged. The claimant attended accompanied by her partner. Her partner remained in the waiting room whilst she was assessed. A female chaperone was present during the physical examination.
HISTORY
Pre-accident medical history and relevant personal details
The claimant is right-handed.
After leaving high school at Year 10, the claimant did nursing home work and gained personal care support certificates and then did a nursing degree at university. She was employed with Justice Health as a registered nurse. She said this was her dream job. She was working at Long Bay Jail.
She has four grown-up children from a previous marriage, but is now in a new relationship. She lives in a house. Her 21-year-old daughter lives at home. She goes to work. A 33-year-old daughter moved back in to look after her after her injury, along with that daughter’s two children, three years ago. The daughter was helping her with personal care and cleaning and housework because of her left wrist fracture, and this daughter still does some tasks such as lifting the washing and doing the vacuuming. She can only use the stick vacuum for a short time. She has been off work since the accident, as her employer will not take her back as she is unable to perform cardiopulmonary resuscitation (CPR) because of her left wrist injury, and she also cannot do take-downs for violent or resistive inmates.
The insurer supported the claimant to obtain another job and she did two weeks induction from 8 October 2024 with Family Spirit, and then was given her own caseload. She is working full-time and does home visits to foster children for monitoring, four hours per week, and then returns to the office and does reports. Her work involves a lot of administrative work and keyboard to type the reports, and keyboard work upsets her left wrist, such that she had to recommence Panadeine Forte, one at night, in order to get to sleep. She is currently in her third month of three months’ probation.
She says she had no previous problems with the left wrist or other parts of the body. She had shingles on the right trunk, which settled with anti-virals and has not recurred.
In 2010, she had a hysterectomy for a benign tumour. The ovaries were preserved.
In 2017, she had a laparoscopic cholecystectomy. There was one incision in the right upper quadrant, one through the navel, as well as a drain post-operatively.
She has had asthma since she was a teenager and has regular Seretide aerosol medication twice daily as a preventive, and only needs to take Ventolin as treatment rarely. The medical records of the claimant’s general practitioner (GP), Dr Sadia Hogue, note the claimant suffered from gastro-oesophageal reflux disease on 29 March 2021.
History of the motor accident
The claimant confirmed she was the driver of a Ford Fiesta with no passengers. She was going to a petrol station at Airds, travelling along Greengate Drive, when a P-plate driver pulled out from an intersection on her right, resulting in a T-bone collision to the front of her car. She showed me photographs and there was extensive damage to the front of her car.
She remained conscious and was able to self-extricate through the driver’s door. The airbags deployed. Her vehicle was towed from the scene and written off. Police and ambulance attended and she was conveyed to Campbelltown Hospital.
She does not recall having any specific impact injury, but her left wrist was severely bruised. She was not bleeding. She also had bruising along the line of the seatbelt, with bruise from the sash component across the chest and breasts. Her left wrist was swollen and bruised, and there was bruising to the hand and across the middle abdomen from the lap section of the seatbelt, and bruising to both ankles from contact with the foot airbags.
The ambulance record noted her abdomen was soft and non-tender. No bruise was mentioned.
The claimant was asked this and she said they did not visually examine her abdomen, but palpated her abdomen through her clothes. The wrist was the dominant injury requiring attention at the time.
The hospital notes also did not mention abdominal bruising.
This was put to her and she said that the hospital personnel did not examine her abdomen, so therefore there was no bruising discovered. She was provided with a left forearm backslab plaster for the fractured ulna, in view of the significant swelling, and wore this for 10 days and then was discharged.
History of symptoms and treatment following the motor accident
She was discharged after staying at hospital overnight. After wearing the backslab for 10 days, she went to Camden Hospital and was put in a plaster forearm cast, which she had for almost six weeks. She then had a forearm brace for four or five months.
Her GP, Dr Sadia Hogue, requested physiotherapy but liability was not accepted until January or February 2023.
She had physiotherapy for four or five months, with the aim of treatment to restore range of movement and strength. She then attended a hand therapist and was given a range of different exercises, where she attended for three to four months, once per fortnight. She then passed to the care of an exercise physiologist two weeks after the hand therapist, and attends once a week and has been going there for the last ten weeks. Treatment is confined to the left wrist but in reality, she feels she needs upper body strengthening because of increased pain in the left arm since having to take up daily prolonged periods of keyboard work at her new job.
She says she started vomiting about two or three weeks after the accident when she started eating a bit more, as the pain levels were reducing. Prior to this, she was in too much pain from her wrist to eat a lot. She also could not cut her food up properly and did not want to rely on others to do this.
She would notice vomiting after the first few mouthfuls of food, preceded by pain and a burning sensation in the chest, in the line of the gullet. There was no blood in the vomit and no change in her bowel habits.
She first reported this symptom to her GP about a month after onset at the next regular GP review. At first the doctor thought that the reflux symptom was due to stress. She was prescribed Somac. This reduced the burning pain in the oesophagus area and upper abdomen to some extent, but she is worried about taking this medication regularly because of possible side-effects, including dementia. She had to be especially careful to avoid dry or rough food or spicy food. Most easily tolerate food is well-cooked boiled or steamed vegetables. Provided these are soft with no rough edges, she can keep them down.
She also finds that beverages such as coffee upset her. As a result, she can no longer have dinners or coffees with friends because if she gets a crumb, dry crust or dry piece of cake, it starts the reflux symptoms and then the vomiting. She finds she cannot eat so much now.
When the symptoms continued despite Somac, the GP sent her for a CT scan which was done on 29 November 2022. This reported a small hiatus hernia. There was a previous cholecystectomy. There was also a fat-containing umbilical hernia noted. Endoscopic assessment could further assist.
She says her weight at the time of the motor vehicle accident was 107kg and subsequently she lost weight down to 92kg because she could not eat as much because of these symptoms.
She was never aware of any specific symptoms of the umbilical hernia per se, and did not at any time see a lump or feel a lump or pain at the navel. She commented that this is probable because it is so small.
She was told to increase the dose of Nexium from 20mg to 40mg after the CT scan result was known, and Ondansetron was added for vomiting. She found she had to minimise Panadeine Forte because of a side-effect of constipation. She was sent to Dr Ho, gastroenterologist at Campbelltown Public Hospital as a public patient, and he performed an endoscopy on 9 February 2023. This confirmed a hiatus hernia with a small tear in the oesophagus about 5mm long from her recollection. She was told to watch her diet and continue exercising and to see Dr Sadia for medications. She was advised to keep taking Nexium at 40mg per day, but reduce it if the symptoms improved and she was able to do so.
She did not notice any protruding of the umbilical hernia, but just felt generalised abdominal pain when she was vomiting, which still occurs three to four times a week, even though she is very careful with her diet.
Details of any injuries or conditions sustained since the motor accident
There are no other relevant injuries or conditions which have been sustained since the motor accident.
Current symptoms
She has wrist pain and tingling when using keyboards, and doing gripping, lifting and generalised increased usage of the left wrist and hand. She doesn’t have full range of movement in the wrist. The tingling radiates from the mid inner forearm to all fingertips. When driving, she has to rest her left hand in her lap from time to time.
Her reflux symptoms and at times vomiting continue after eating. She knows the umbilical hernia is there, but is only aware of it when she vomits.
Current and proposed treatment
She is still attending an exercise program with an exercise physiologist. She takes Nexium 40mg daily for reflux. She has over-the-counter analgesics for wrist pain as required and Panadeine Forte at night since starting her new job.
CLINICAL EXAMINATION
General presentation
This was conducted in the presence of a female chaperone who remained for the duration of the examination. Undressing and redressing was not observed.
She was 165cm in height and 110kg in weight. She has thus regained the weight which she lost after the accident.
She was able to sit comfortably and moved about the examination room and transferred out of a chair and on and off the couch without difficulty.
Upper extremity
There was no wrist crepitus and no instability. There was slight swelling at the left wrist with wrist girth at the right measured at 16.5cm and left 17cm. Girth of forearm; right 28cm, left 27.5cm at 5cm below the elbow crease, consistent with stated right-hand dominance. Active range of movement (ROM) of both wrists was measured with a goniometer:
Wrist Movements
ACTIVE ROM
RIGHT
ACTIVE ROM
LEFT
Flexion
70°
70°
Extension
60°
40°
Radial deviation
15°
15°
Ulnar deviation
40°
40°
Supination
80°
60°
Pronation
80°
80°
Left hand showed no hypothenar wasting and motor power of intrinsics was intact. Light touch was intact over the forearm and hand, however careful testing with pin prick showed a Grade 4 sensory loss of the ulnar nerve below mid-forearm, affecting the distal one-third of the ulnar left forearm to the little finger and ulnar aspect of the ring finger of the left hand.
Right forearm and hand were normal.
Abdomen
There was tenderness to palpation in the epigastrium and in the central abdomen in the mid and lower sections. There was no specific umbilical tenderness. There was a very small umbilical hernia present with a mild cough impulse on deep coughing only. There was no incarceration of this hernia. The liver, spleen and kidneys were not palpable. Percussion was normal. Bowel sounds normal.
There were well-healed laparoscopic scars which were slightly paler than surrounding skin of 1cm in the right upper quadrant and 3cm vertically extending distally from the navel, as well as a 1cm drain scar in the right lower quadrant of the abdomen.
There was an additional 6cm scar in the right groin from a prior hysterectomy. The inguinal hernia orifices were clear on coughing.
There was slight protuberance of the abdomen.
No further examination was undertaken.
Comments on consistency
I put some matters of the lack of reference to the umbilical hernia in the file documents to the claimant and she was able to answer me in a straightforward manner. I did not feel any inconsistency was present.
IMAGING
No medical imaging was brought to the assessment.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnosis is minimally displaced spiral fracture through distal left ulnar metadiaphysis with the radiocarpal joint alignment maintained.
There is also evidence of a Grade 4 sensory impairment of the ulnar nerve below mid-forearm.
Based on the history given to me and evidence in the file, I find the motor accident was a cause of the left ulnar fracture and subsequent complication of left ulnar nerve sensory impairment.
The swelling and deformity of the left wrist was noted in the ambulance records, the diagnosis was confirmed by imaging at the hospital, and treatment since has been directed to the left wrist.
There is also an umbilical hernia which is small and not protruding, and was found incidentally on imaging which was performed for symptoms of oesophageal reflux.
There is no reference to umbilical hernia in the contemporaneous medical record and as mentioned, it was noted incidentally in a CT scan which was done for the purpose of investigating oesophageal reflux symptoms.
I put this lack of contemporaneous reference to the umbilical hernia to the claimant, and she gave explanations which are acceptable, as noted above in the report.
It is plausible that the accident could have caused an umbilical hernia because of pressure of the lap section of the seatbelt causing increased intra-abdominal pressure at the time of impact. The claimant stated that there was abdominal bruising around the level of the umbilicus from the seatbelt noted after the accident, but for various reasons it was not noted by the ambulance paramedics or by hospital staff for reasons given by the claimant.
The medical material in relation to the umbilical hernia was scant. The primary document was the CT scan which was performed on account of oesophageal reflux.
It transpires that she was referred for endoscopy, which was conducted in the public hospital system and which did confirm hiatus hernia and a small oesophageal tear, which would be consistent with the symptoms of reflux, and the presence of the small umbilical hernia was noted, however the gastroenterologist report was also not made available to the Panel.
After consideration of the history given by the claimant, the evidence of the small hernia on CT scan and consideration of the mechanical forces involved in the accident, particularly from the lap section of the seatbelt across the middle to lower abdomen, I consider the accident was a cause of a small umbilical hernia.
PERMANENT IMPAIRMENT
There is restriction of active range of movement at the left wrist, which gives rise to an assessable permanent impairment, along with Grade 4 sensory impairment of the ulnar nerve below mid-forearm, which gives an additional impairment.
Supination 60° gives 1% upper extremity impairment, dorsiflexion 40° gives 4%, radial deviation 15° gives 1%. Adding these gives 6% upper extremity impairment.
Note that pronation and supination, although included in the American Medical Association's Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA4 Guides) as an elbow movement, can also be affected by mechanical block at the wrist, such as could occur in this injury under consideration, owing to the rotation movement of the radius over the ulna, which occurs both at the elbow at the proximal end of the bones, and also at the wrist at the distal end of these bones.
Grade 4 sensory impairment of ulnar nerve is 25% of the maximum impairment. Seven percent is the maximum upper extremity impairment for ulnar nerve sensory loss below mid-forearm. Twenty-five percent of 7% gives 1.7% rounded to 2% upper extremity impairment.
Note, there was no motor impairment of this peripheral nerve.
Combining 6 by 2 gives 8% upper extremity impairment, equivalent to 5% whole person impairment.
With respect to the umbilical hernia, it is only mildly symptomatic and very small, approximately 1cm in diameter, with no visible and a barely palpable impulse on strong coughing. As mentioned above, the claimant has a hiatus hernia with its associated was gastroesophageal reflux disease (GORD). This is more significantly symptomatic than the umbilical hernia. The material does not support the hiatus hernia as being an injury arising out of the motor vehicle accident nor was it an injury or condition which was referred to the Panel for assessment. It is this condition, that is the hiatus hernia, which can cause the discomfort and vomiting complained of by the claimant.
This intermittent discomfort is not a consequence of the umbilical hernia. The umbilical hernia per se does not preclude her usual activities.
The umbilical hernia gives rise to a Class 1 impairment, which gives 0-9% whole person impairment. The Panel assesses 2% whole person impairment after consideration of the coincidental finding of the umbilical hernia and, minimal symptoms and minimal effect on activities of daily living and noting that the hiatus hernia does not give rise to the GORD complained of by the claimant.
The Panel assesses combining 5% by 2% gives 7% whole person impairment.
This reflux condition has led to dietary restrictions and continuous treatment.
Conclusion
The Panel assesses the claimant’s whole person impairment at 7%.
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