Insurance Australia Limited t/as NRMA Insurance v Paul
[2022] NSWPICMP 218
•17 May 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Paul [2022] NSWPICMP 218 |
| CLAIMANT: | Andrew Paul |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL: | Principal Member John Harris Dr Rhys Gray Dr Wing Chan |
| DATE OF DECISION: | 17 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Mr Paul was involved in a motor accident in 2015 when he was riding a motor bike and struck head on by a vehicle travelling in the opposite direction; Mr Paul suffered a serious traumatic right hip dislocation and right acetabular fracture which caused traumatic loss of cartilage; he also suffered a fractured left scaphoid which failed to unite, a TFCC tear and tear of the membranous band of the scapholunate ligament; Mr Paul has undergone various surgical procedures on the left arm, including a medial femoral condyle flap from the left knee to the left wrist in an attempt to stabilise the united fracture; Held- the claimant suffered various scars to the left arm due to the surgical procedures and the left leg due to the translocation of the medial femoral condyle flap; the requirement for the left leg surgery and any consequent scarring is related to the motor accident: Hunter v Insurance Australia Ltd; pursuant to clause 1.263 of the Motor Accident Permanent Impairment Guidelines, the “total effect of the scarring on the organ system” must be assessed. Combined scarring assessed at 2% impairment; claimant reassessed at 15% permanent impairment which included assessments of the right lower limb (5%) and left upper limb (8%). |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 2 June 2021 and issues a new certificate that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%: · right ankle/hindfoot; · right hip;
· scarring, and · low back. |
REASONS
Background
Mr Andrew Paul (the claimant) was involved in a motor accident on 3 March 2015 when another motor vehicle crossed onto the incorrect side of the road. Mr Paul was driving a motorcycle which collided head on with the other vehicle (the motor accident).
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Paul any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
THE REVIEW
The medical assessment the subject of the review was issued by
Medical Assessor Rosenthal and dated 2 June 2021. The Medical Assessor found that Mr Paul sustained a greater than 10% permanent impairment caused by the motor accident.The application for referral of the medical assessment to a Review Panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 29 September 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a Review Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 63(3) of the MAC Act.
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.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
On 17 December 2021 the Panel issued a direction to the parties requesting the provision of respective bundles. The insurer filed a bundle in accordance with the direction.
On 31 January 2022 the Panel noted the claimant had not filed a tender bundle. Submissions were also sought on whether the Panel should also assess the left knee, thumb and scarring.
The parties filed submissions in accordance with the Direction and the claimant included a further seven pages of documents.
On 4 March 2022 the Panel advised the parties the extent of the documentation that was before it.
On 7 March 2022 the Panel issued the following Direction:
“Further to our directions, the Panel notes the medical reports of Dr Stewart (insurer’s bundle, pages 299 – 303) describing the surgery moving the medial femoral condyle flap from the left leg to the scaphoid and the observations of Medical Assessor Rosenthal describing the left leg scar and left knee tenderness resulting from the surgery and the scars on the right wrist from the three surgical procedures on the right wrist.
As this is a new assessment, the parties are on notice that the Panel may consider assessing any further impairment resulting from the surgical procedure performed by Dr Stewart including the assessment of scars in the left leg and otherwise the scarring on the right wrist.
The insurer has leave to file and serve any further submissions in response to this direction by close of business, 14 March 2022. The insurer should also advise whether it is seeking leave to file any further evidence in response to this Direction.”
The insurer’s response to this direction was as follows:
“Upon further review the Insurer will not be submitting any further submissions or evidence with respect to the assessment of scars on the Claimant’s left wrist and left leg, as we have adequately addressed this in our Submissions dated 16 February 2022.
The Insurer highlights that the Direction dated 7 March 2022 incorrectly referred to the right wrist when in fact it should be the left wrist.”
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or 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.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[10]. In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see
s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a Review Panel being constituted by three medical experts as opposed to the composition of the present Panel following the amendments to the MAC Act.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Rosenthal assessed Mr Paul had a 9% impairment of the left wrist and 2% impairment of the right hip. He found no assessable impairment of the lumbosacral spine and right ankle. The Medical Assessor noted left knee tenderness where the bone graft had been removed and a 15 cm medial left knee scar extending medially up the thigh.
The Medical Assessor noted right hip osteoarthritis and deterioration of the hip since the 2017 assessment evident from the MRI scan.
PREVIOUS ASSESSMENTS
Assessor Rosenthal provided an earlier assessment dated 10 June 2017. At that time the Assessor noted later onset of lumbar spine condition due to altered gait stance.[12] He declined to provide an overall assessment as the left wrist was not medically stabilised. The other body parts were assessed at not greater than 10%.
[12] Insurer’s bundle, page 77.
The left wrist was assessed on 26 March 2018[13] at 8% impairment giving rise to a combined impairment of 10%.[14]
[13] Insurer’s bundle, page 84.
[14] Insurer’s bundle, page 91.
MATERIAL BEFORE THE REVIEW PANEL
Claimant’s statement evidence
Mr Paul completed a claim form dated 8 May 2015 detailing the motor accident when he was hit by the insured vehicle “almost head on”[15] and specifying the injuries as lacerations to the right arm, wrist, right thigh, bruising to back and swelling to right ankle and knee.
Canberra Hospital
[15] Insurer’s bundle, page 21.
Mr Paul was admitted to Canberra Hospital on 4 March 2015 and discharged on 11 March 2015.[16] Treatment at the hospital was directed to the dislocated right hip and fracture.
[16] Insurer’s bundle, page 51.
General Practitioner/Clinical notes
A certificate dated 25 March 2015 signed by Dr Kinston referred to a fracture/ dislocation of the right hip.[17]
[17] Insurer’s bundle, page 25.
Dr Timothy Devlin has been the claimant’s general practitioner since 2003 and provided a report dated 10 June 2015.[18] The doctor stated that Mr Paul first presented on 11 May 2015 following the motor accident with right hip dislocation and right acetabular fracture, left fractured scaphoid, right vastus lateralis myositis ossificans, right knee bone bruising and post traumatic synovitis of the right ankle. Dr Devlin stated that the injuries were consistent with the motor accident.
[18] Insurer’s bundle, page 46.
The doctor’s clinical notes are included in the material before the Panel although not the subject of specific submission.[19] They include an MRI scan of the right knee dated 16 May 2008 showing a partial medial meniscectomy[20] and x-ray of the right ankle dated 5 August 2015 noting an old fracture of the medial malleolus.
[19] Insurer’s bundle, pages 269 – 286.
[20] Insurer’s bundle, page 273.
Dr Devlin referred Mr Paul to Dr Nabarro on 12 December 2016 for opinion and management of avascular necrosis of the left scaphoid.[21]
Treating evidence
[21] Insurer’s bundle, page 71.
Dr Davidson
Dr Ian Davidson, orthopaedic surgeon, provided a report dated 19 May 2015.[22] The doctor noted injuries from the motor accident to the right hip and right ankle and recent complaint of left wrist pain where x-rays demonstrated a minimally displaced fracture of the scaphoid.
[22] Insurer’s bundle, page 62.
Dr Davidson provided a report dated 12 November 2015.[23] The doctor noted ongoing complaints of pain in the iliac crest and buttock on the right side.
[23] Insurer’s bundle, page 60.
Dr Davidson opined that the future prognosis of his right hip was uncertain and progression to avascular necrosis and subsequent secondary arthritis appeared likely.
Dr Nabarro
Dr Mark Nabarro, orthopaedic surgeon, initially examined Mr Paul and provided a report dated 15 February 2017.[24] Dr Nabarro noted that Mr Paul injured his left wrist, right ankle and hip in the motor accident and that ongoing left wrist pain was due to non-union of the left scaphoid and possible avascular necrosis of the proximal pole. On review two weeks later, Dr Nabarro recommended open reduction and internal fixation and bone graft of the left scaphoid.[25]
[24] Insurer’s bundle, page 154.
[25] Insurer’s bundle, page 155.
Mr Paul underwent the surgical procedure on 4 April 2017. Findings on operation showed comminuted fracture of the proximal pole with the fracture line extending distally with a hump-back deformity present.[26]
[26] Insurer’s bundle, page 156.
Subsequent post-operative reviews did not show significant improvement in left wrist pain.[27]
[27] Insurer’s bundle, page 160.
On review, Dr Nabarro provided a report dated 8 October 2017[28] noting increasing pain in the left wrist. The doctor then recommended removal of the Speedtip screw from the left scaphoid which was undertaken on 9 February 2018.[29]
[28] Insurer’s bundle, page 80.
[29] Insurer’s bundle, page 162.
Dr Nabarro provided a report dated 26 September 2018 noting ongoing pain, sweeling and tenderness over the left wrist. The scars were reported as soft and non-tender. An updated MRI scan was recommended.
Dr Nabarro reviewed the updated MRI scan which confirmed non-union of the scaphoid and recommended that Mr Paul consult Dr Dave Stewart for an opinion regarding a vascularised medial femoral condyle graft of the left scaphoid.[30]
[30] Insurer’s bundle, page 112.
Dr Leicester
Dr Andrew Leicester, orthopaedic surgeon provided a report dated 4 June 2018.[31] The doctor noted ongoing right hip symptoms and recent MRI scan which showed early osteoarthritis. He opined that Mr Paul was heading towards a hip replacement although recommended a non-operative approach at the moment due to the claimant’s age. A report dated 22 June 2018 is in similar terms.[32]
[31] Insurer’s bundle, page 106.
[32] Insurer’s bundle, page 107.
Dr Leicester provided a further report dated 15 October 2019 relating to the one attendance by Mr Paul on 4 June 2018.[33] The doctor repeated matters expressed in his earlier report. He also opined that the hip osteoarthritis is directly related to the dislocation and suspected that hip replacement surgery will be required in the next 10 years.
[33] Insurer’s bundle, page 295.
Dr Stewart
Dr David Stewart, surgeon, examined with Mr Paul on referral by Dr Nabarro and provided a report dated 4 December 2018.[34] Dr Stewart recommended a vascularised bone graft.
[34] Insurer’s bundle, page 263.
Dr Stewart reviewed Mr Paul and provided a further report dated 3 February 2019.[35] The doctor opined the surgery to improve function in the left wrist.
[35] Insurer’s bundle, page 299.
On 13 February 2019 Dr Stewart stated that the insurer had approved the surgery to move the medial femoral condyle flap from the left knee to the left scaphoid.[36]
[36] Insurer’s bundle, page 300.
Dr Stewart provided a further report dated 15 November 2019.[37] The doctor noted the imaging demonstrated non-union of the waist of the scaphoid and early osteoarthritis at the radial styloid representing an early development of scaphoid non-union advanced collapse. These findings were consistent with a non-union of a scaphoid fracture in keeping with an underappreciated wrist injury in the context of major trauma from the motor vehicle accident.
[37] Insurer’s bundle, page 301.
Dr Stewart noted improvement of pain subsequent to scaphoid reconstruction with some ongoing pain and stiffness with an expectation of good recovery in the short to medium term. Long term prognosis was uncertain as there remained some chance of developing arthritis leading to reduced hand function.
Physiotherapy notes
Physiotherapy progress notes indicate left knee issues possibly related to “putting more load on left leg” and “overcompensation”.[38]
[38] Documents filed by claimant attached to submissions dated 14 February 2022.
Qualified opinions
Dr Max Ellis was qualified by the claimant and provided a report dated 20 May 2016.[39] The doctor stated that Mr Paul sustained a fractured dislocation of the right hip, fractured right ankle, fractured left scaphoid and extensive bruising to the right thigh and forearm. Low back pain commenced about three months after the motor accident. Dr Ellis provided assessments of the lumbosacral spine, right hip left wrist and right ankle totalling 32% impairment.
[39] Insurer’s bundle, page 30.
Dr Scott Harbison, orthopaedic surgeon, was qualified by the insurer and provided a report dated 18 July 2016.[40] The doctor noted onset of lumbar pain of six months duration. The main problem was the right hip.
[40] Insurer’s bundle, page 139.
Dr Harbison opined that Mr Paul sustained a fracture dislocation of the right hip, fracture of the left scaphoid, a haematoma of the right thigh leading to myositis ossificans and possible back strain which was consistent with nature of the accident. The doctor noted no pre-existing conditions.
Dr Harbison assessed Mr Paul at 3% permanent impairment.
Radiology
An x-ray of the pelvis and right hip dated 4 March 2015 showed dislocation of the right femur, fracture involving the right inferior acetabulum with lateral displacement of the fracture fragment medial to the right femoral neck.[41]
[41] Insurer’s bundle, page 36.
A CT scan of the pelvic bones dated 4 March 2015 showed comminuted fracture of the acetabulum with the hip now located. A right elbow forearm x-ray showed a small elbow joint effusion with no obvious fracture.[42]
[42] Insurer’s bundle, pages 37 – 39.
A repeat x-ray of the right hip and pelvis dated 22 April 2015 showed interval callus formation and sclerosis at the comminuted fracture of the right acetabulum and multiple small displaced fragments of the posterior acetabulum.[43]
[43] Insurer’s bundle, page 40.
An MRI scan of the right knee dated 12 May 2015 demonstrated bony bruising and trabecular injury without patellar dislocation.[44] The medial meniscus is described as diffusely thinned and unaltered since 2008.
[44] Insurer’s bundle, page 48.
An x-ray of the left wrist dated 12 May 2015 showed undisplaced fracture of the waist of the scaphoid with slight sclerosis of the proximal pole of scaphoid suggestive of early signs of avascular necrosis.[45] The x-ray of the right ankle showed a medial malleolus suggestive of an old fracture. The ultrasound showed palpable lump in the right thigh.
[45] Insurer’s bundle, page 43.
An x-ray of the left wrist dated 5 August 2015 shows a united scaphoid fracture and no signs of avascular necrosis.[46] X-ray of the right ankle showed deformity of the medial malleolus suggestive of an old fracture.
[46] Insurer’s bundle, page 44.
An MRI scan of the right hip dated 25 September 2015 showed a ruptured teres ligament, degenerative post traumatic loss of cartilage at the anterosuperior hip, complete loss of contour of the acetabular labrum and fibrotic change of the iliofemoral ligament. The scan also showed mild swelling around the acetabulofemoral joint and the femoral head in a slightly subluxed position laterally.[47]
[47] Insurer’s bundle, pages 41 – 42.
An x-ray of the left wrist dated 11 December 2016 showed a moderate displaced fracture through the proximal third of the left scaphoid.[48]
[48] Insurer’s bundle, page 63.
Scans of the left wrist dated 16 August 2017 showed ununited fracture through the waist of the scaphoid transfixed by a surgical screw.[49]
[49] Insurer’s bundle, page 175.
An x-ray of the left wrist dated 8 November 2017 showed internal fixation of the waist of the scaphoid using a compression screw with the fracture line remaining visible consistent with non-union.[50]
[50] Insurer’s bundle, page 83.
An MRI scan of the right hip dated 29 May 2018 showed generalised partial thickness chondral wear in the right hip and a degenerative and macerated anterosuperior labrum which had progressed since the September 2015 scan.[51]
[51] Insurer’s bundle, page 105.
An MRI scan of the left wrist dated 2 October 2018 showed changes in keeping with scaphoid non-union with moderate oedema, chondral loss, TFCC defect tear and tear of the membranous band of the scapholunate ligament.[52]
[52] Insurer’s bundle, page 110.
A CT scan of the left knee dated 6 June 2019 four weeks post bone graft noted fluid collection with no altered vascularity.[53]
[53] Document attached to claimant’s submissions dated 14 February 2022.
An MRI scan of the left knee dated 3 March 2020 showed ongoing mild inflammation at the graft harvest site adjacent to the superior margin of the medial collateral attachment. Moderate sized full thickness chondral loss medial femoral condyle and focal area of full thickness chondral loss medial tibial condyle, with general chondral thinning elsewhere in the medial compartment. Horizontal tear medial meniscus consistent with degenerative medial meniscal tear.[54]
[54] Document attached to claimant’s submissions dated 14 February 2022.
Documents relating to the motor accident
Mr Darron Daly stated that he was riding on the day of the accident and witnessed the other vehicle travelling on the wrong side of the road striking Mr Paul head on.[55]
[55] Insurer’s bundle, page 26.
SUBMISSIONS
The parties have filed multiple submissions in the course of the medical assessments. The following is a summary of the submissions relevant to our determination.
At the outset we observe that this is a new assessment and there are various submissions directed to persuading the President’s delegate[56] that there was error or that the matter should be the subject of further assessment. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error.
Claimant’s submissions dated 27 November 2018[57]
[56] Or the relevant predecessor.
[57] Insurer’s bundle, page 101.
These submissions were filed seeking a further assessment of Assessor Rosenthal’s assessment on 21 March 2018. The claimant relied upon medical evidence showing early osteoarthritis in the right hip and non-union of the left scaphoid.
Claimant’s submissions dated 11 March 2019[58]
[58] Insurer’s bundle, page 288.
The claimant referred to three reports from Dr Stewart from February 2019 which referred to the admission to hospital for a medial femoral chondral flap from the left knee to the left scaphoid. As the surgery was proposed, the claimant asked for the present application to be put on hold.
Claimant’s submissions dated 11 August 2021[59]
[59] Insurer’s bundle, page 317,
The claimant opposed the review noting that the Medial Assessor had found a deterioration in left wrist movement.
The claimant also submitted that the left knee was not listed for assessment and should have been assessed.
Claimant’s submissions dated 14 February 2022
The claimant referred to the Medical Assessor’s findings of loss of thumb abduction which should have been included in any assessment and “ought to be rectified by the Review Panel”.
The claimant referred to the three surgical procedures to the left wrist and the scar on the medial left knee resulting from the surgeries caused by the motor accident. It was suggested that these scars were assessed as a best fit of 3- 4%.
The claimant submitted that there was a consequential injury to the left knee by placing more load which satisfied a commonsense evaluation of causation and that it was “well-established that the threshold requirement to establish a causal link is low”. The claimant also referred to the post-surgical scans of the left knee which indicate ongoing problems at the graft harvest site.
Insurer’s submissions dated 15 February 2019[60]
[60] Insurer’s bundle, page 122.
In these submissions the insurer opposed the application for reassessment asserting the further information did not constitute additional relevant information, would not have a material effect on the outcome and do not convey a deterioration of the injury. Essentially the insurer submitted that the further information was consistent with what was considered by the Assessor previously.
Insurer’s submissions dated 2 April 2019[61]
[61] Insurer’s bundle, page 291.
The insurer submitted that deferring the application for further assessment was “moot” as the further surgery was not new information
Insurer’s submissions dated 13 February 2020[62]
[62] Insurer’s bundle, page 293.
The insurer referred to the reports of Dr Stewart indicating that Mr Paul had undergone “successful left wrist surgery on 8 May 2019” and that in November 2019 Mr Paul had “unrestricted use of his hand and wrist”. Accordingly, the insurer submitted that there had been an improvement in Mr Paul’s condition.
Insurer’s submissions dated 21 July 2021[63]
[63] Insurer’s bundle, page 314.
The insurer submitted that Medical Assessor Rosenthal’s calculations were contrary to the Guidelines as he did not apply the prescribed rounding of particular loss of motions in the wrist. It was submitted, based on the measurements provided by the Medical Assessor, that the permanent impairment of the wrist should have been 8%.
Insurer’s submissions dated 10 February 2022
The insurer opposed the referral of the left knee for assessment. It submitted that the allegation is that this is a new injury first raised seven years after the motor accident. The left knee was not mentioned in various examinations including to Dr Ellis and
Dr Harbison and the initial assessment by Assessor Rosenthal. The left knee was first mentioned in submissions provided in November 2019. However, the claimant did not refer the left knee and scarring for assessment.The insurer submitted:[64]
“Therefore, there has been no indication that the left knee has been affected by the accident, save for the required surgery.”
[64] Insurer’s submissions dated 16 February 2022, paragraph 8(e).
The insurer submitted that it cannot comment on the left knee scar as it has not been provided with any photographs.
The insurer submitted that any loss of thumb impairment was not included in the referral for assessment. In any event, the loss was marginal.
The insurer submitted that Medical Assessor Rosenthal was not asked to assess the scarring and he did not “omit” to assess it. Any failure to assess scarring “lay at the feet of the claimant”.[65]
[65] Insurer’s submissions dated 16 February 2022, paragraph 18.
RE-EXAMINATION
Mr Paul was examined by Medical Assessor Gray and Medical Assessor Chan on 22 April 2022. The joint examination report is as follows:
“Mr Paul is a 54-year-old currently working permanent part time at Milton hospital as a wardsman.
He had been a tiler by trade, and then obtained a fishing license in 2008. However, he said he sacrificed a fishing business to be a carer for his unwell aged parents until they passed away, initially being on a carer’s pension. He started casual wardsman’s work in 2010, becoming permanent part time in 2014.
Past medical history: appendicectomy age 6. Right wrist scaphoid fracture age 12, treated with plaster that then settled fully with no sequel. No history of major illness or surgery.
Medications: Tramal nocte, to help sleep with right hip and left knee pain. Mobic 15mg and two Panadol Osteo each morning, with further Panadol during the day.
Sport/Recreation: still rides his motorbike, mountain bike rides, snorkels, bushwalks and fishes - he uses Panadol osteo symptomatically during the day, particularly for pain from his right hip and left wrist with these activities. Cannot surfboard because of the right hip.
Social: lives on his own since his father died four years ago; he has never married. He does not smoke cigarettes and does not regularly drink alcohol.
History of motor accident: he was riding his motorbike on Araluen Road near Moruya, negotiating a left-hand curve on the dirt road at about 40kmh, when he collided head on with the bullbar of a 4WD that he said was travelling towards hm on the wrong side of the road.
He recalled being thrown into some bushes and the vehicle ran over his motorbike. It was towards evening and a helicopter could not land at the accident site, so an ambulance conveyed him to Moruya Hospital grounds, where he was directly transferred by air to Canberra Hospital with severe continuing pain, mainly in his right hip.
Mr Paul said he was told there was a fracture/dislocation of his right hip; he recalled a delay of about 5 to 6 hours before the dislocation could be reduced in theatre. He was in hospital for seven days and said he was not advised of any other major injury, but said he distinctly recalls pain in his left wrist and right ankle while in hospital.
He was discharged to his brother’s home in Goulburn for eight weeks, initially non-weight-bearing with crutches and said he experienced the onset of localised back pain with mobilising at that stage; he then started to partially weight bear. However, he experienced increasing problems (“giving me hell”) with his right ankle and left wrist during this time.
On return to Ulladulla, his GP x-rayed his foot and wrist, advising him that he had a right ankle fracture and a left wrist scaphoid fracture. He was referred to
Dr I Davison, orthopaedic surgeon who recommended initial conservative treatment.At that stage Mr Paul said he was on sickness benefits and returned to work after about nine months.
With continuing left wrist symptoms, he was referred to Dr M Nabarro, orthopaedic surgeon and underwent pinning and bone grafting of the left scaphoid. Subsequently he was off work for a further five months then returned to his normal duties.
However, he continued to have pain in the left wrist and after further scans, was referred to Dr D Stewart, hand surgeon.
Mr Paul said that in 2019 Dr Stewart undertook a bone graft from his left knee region into the left wrist and he was then off work for a further 8 to 9 months.
Since then, he has returned to normal duties but continues to have problems particularly in the left wrist, right hip and left knee; in the right ankle he has occasional discomfort and notices intermittent pain in the low back.
1. In the low back he experiences intermittent pain located centrally, with no radiation and no radicular symptoms. He said as long as he attends for manipulation on a monthly basis and exercises (pool and yoga), his back symptoms are kept at bay. He said the onset of low back symptoms was in the period after the accident, when he was initially mobilising with crutches, with no former low back problem.
2. With the right ankle he said there is no swelling and no constant discomfort, but intermittent medial pain and feeling of instability with certain twisting movements.
3. In the right thigh there is a residuum from the earlier myositis ossificans but he said this was of no concern and was slowly resolving with time.
4. With the right hip the pain is located in the right gluteal and right iliac crest areas, not constant but increasing and becoming more marked towards the end of the day, then awakening him at night. Awkward movements are difficult particularly precluding surfboard activity and lengthy walking, saying he continually needs to do exercises and yoga. The right knee is asymptomatic.
5. The left wrist is ‘sore’, continually aches and with restricted movements. The wrist worries him particularly when attempting to ride his motor or pushbikes; at work he said he adapts by relying on the right wrist.
6. The left knee has pain related to heavier activity, localised over the medial aspect of the left knee and he said he wondered whether it was due to underlying arthritis. There has been no swelling or giving way of either knee.
He does find the combined left knee and right hip symptoms worry him, particularly at night.
He said none of the symptoms stop day by day or work activity, although walking more than two kms causes significant hip pain and he has difficulty with a full squat.
7. With scarring, he does not notice the small left iliac crest initial bone donor surgical scar at all. The volar scarring on the left forearm is not particularly obvious to him and causes him no particular concern, although he is aware of it and uses a moisturiser intermittently. There is some hypersensitivity and feeling of numbness associated with both left forearm and left knee surgical scars. The left knee surgical scar is not of concern, except that he feels it is obvious in his day to day activities.
Current Treatment: Nil with regard to the right ankle and left knee and no specific treatment for the left wrist.
He has monthly manipulations for the low back and maintains an exercise program that includes yoga for his low back and right hip in particular. He takes analgesia and anti-inflammatories.
No ongoing physiotherapy or other formal treatment. There is no upcoming treatment but he said he has been advised he will require a right total hip replacement in future.
Mr Paul did not acknowledge any further injury post the subject motor accident.
On Examination
Mr Paul was a good historian and cooperative.
He walked without an obvious limp and was in no obvious distress at rest.
He weighed 73kg and was 179cm in height and right hand dominant.
In the upper limbs, both shoulders had a normal contour and a full range of movements, equivalent bilaterally.
The circumference of the right arm measured 30cm and the left 31cm, at 14cm above the tip of each olecranon.
The maximal circumference of the right forearm measured 28cm and the left 27.5cm.
There was no sensory or specific power deficit in the upper limbs.
All upper and lower limb angular measurements were obtained with use of a goniometer and repeated to ensure that the claimant was consistent.
Both elbows measured 140° of flexion and -10° of extension (10°of fixed flexion), equivalent bilaterally.
Pronation measured 70° on both sides and supination 80° on both sides.
Both wrists: stable to clinical examination.
Wrist Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Left % UEI
Flexion
70°
30°
5%
Extension
60°
30°
5%
Radial Deviation
20°
20°
0%
Ulnar Deviation
40°
20°
2%
Total (added)
12% UEI
Thumb movements:
Full adduction both thumbs - no impairment
Radial abduction 500 [0% thumb impairment] on the right and 40° [1% thumb impairment] on the left = 1% thumb impairment
Opposition 6cm [3% thumb impairment] right and 5cm [5% thumb impairment] left = 2% thumb impairment.
Adding 2+1 = 3% thumb impairment = 1% hand = 1% UEI (Tables 1&2 pages 18-19 AMA 4)
Thus, combining thumb(hand) and wrist: 1%UEI & 12%UEI = 13 UEI = 8% WPI (Table 3, p 20 AMA 4)
In the lumbar spine there was normal alignment and a full range of motion without dysmetria. There was no localising tenderness and no guarding. There were no non-verifiable radicular symptoms.
Peripherally, lower limb power, reflexes and power normal and equal both legs. No limitation to straight leg raising.
The circumference of the right thigh measured 46cm on the right and 45cm on the left (10 cm above each suprapatellar border).
The maximal circumference of each calf was equal and measured 34cm.
Findings consistent with DRE Lumbosacral Category 1 = 0% WPI (p102 AMA 4).
There was no tenderness about either hip, with some irritability of right hip movements.
The right lower limb was just less than 1 cm shorter than the left on measurement.
Hip Movements
Active ROM Measured
RIGHT
% WPI
RIGHT
Active ROM Measured
LEFT
Flexion
90°
Mild 5% LEI
120°
Extension
No flexion contracture
0%
No flexion contracture
Adduction
30°
0%
30°
Abduction
60°
0%
70°
Internal Rotation
0°
Moderate 10% LEI
40°
External Rotation
40°
0%
50°
Highest value of impairment
10% LEI
Knees
Both knees were stable with no joint effusion, no patellofemoral crepitus and an equivalent range of movements within normal limits (0° to 130° bilaterally).
In the left knee, there was tenderness around the medial joint; also, tenderness on the medial aspect of the medial femoral condyle subjacent to the distal aspect of the surgical scar used for harvesting the second bone graft.
Ankles
There was no swelling or instability of the ankles, with localised tenderness over the right deltoid ligament.
Ankle Movements
Active ROM Measured
RIGHT
% WPI Impairment
[Injured]
RIGHT
Active ROM Measured
LEFT
% WPI Impairment
[Uninjured]
LEFT
Dorsiflexion
10°
3% WPI
10°
3% WPI
Plantarflexion
25°
0%
40°
0%
Note: no impairment of right ankle movement, as dorsiflexion of the injured right ankle was the same as uninjured left ankle.
Hindfoot Movements
Active ROM Measured
RIGHT
% WPI Impairment
[Injured][
RIGHT
Active ROM Measured
LEFT
% WPI Impairment
[Uninjured[
LEFT
Inversion
5°
Moderate 5% LEI
20°
Mild 2% LEI
Eversion
5°
Mild 2 LEI %
15°
0%
Inversion net impairment (5-2) = 3% LEI for hindfoot movements.
Combining Hip and Hindfoot LEI 13% LEI = 5% WPI (MAG 8.1 Table 6.4)
Scarring: left forearm/hand, left hip & left knee
There was a well healed longitudinal surgical scar on the volar aspect of the left forearm measuring 13cm. There was minor contour change and minor colour change with no local tenderness or adhesion; he is aware of the scar which is easily located.
There was a barely perceptible small surgical scar on the dorsal aspect of the 1st left interspace. Partially visible with normal attire.
There was a small well healed surgical scar of 3cm located over the left iliac crest, the donor site for the initial wrist bone graft. Good colour matching, no contour defect, no adhesion, no treatment required, not visible to normal attire and not concerning.
There was a well healed scar 14 cm long, with slight numbness in the skin adjacent to the distal scar which was located on the medial and distal aspect of the distal third of the left thigh, with good colour matching with the surrounding skin. There was slight contour defect in the scar which required no treatment.
The scars had negligible effect on ADLs. He was conscious of the scars. Minimal trophic changes. No treatment required. No adherence. Scar location of left forearm and left knee usually visible.
Using TEMSKI (Table 6.18) principle of best fit and location – scarring impairment 2%
Thus combining: 8, 5 & 2 = 15% WPI.
Investigations: these were noted.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decisions of the Medical Assessor.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[66] and Insurance Australia Ltd v Marsh.[67]
[66] [2021] NSWCA 287 at [40], [41] and [45].
[67] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the comprehensive joint examination report of the Medical Assessors and adds some short supplementary reasons.
Mr Paul suffered a serious traumatic right hip dislocation and right acetabular fracture. There is no dispute raised in the materials that these were caused by the motor accident. The radiology shows the development of traumatic osteoarthritis due to the fractures and degenerative post traumatic loss of cartilage at the anterosuperior hip. The claimant’s loss of movement of the right hip is entirely consistent with these fractures and cartilage loss.
Mr Paul also sustained a fractured left scaphoid from the motor accident which failed to unite. He also sustained a TFCC tear and tear of the membranous band of the scapholunate ligament. Mr Paul has undergone various surgical procedures to the left arm, including a medial femoral condyle flap from the left knee to the left wrist.
Dr Stewart noted some improvement following that surgery in late 2019 and the insurer relied upon that observation in opposing the further examination. However, we note that the claimant suffered serious left wrist injury where imaging has demonstrated non-union of the waist of the scaphoid and early radial styloid representing an early development of scaphoid non-union advanced collapse.[68] The traumatic arthritis caused by the non-union is likely to deteriorate and explains the claimant’s loss of left arm/wrist function.
[68] See [51] herein.
With respect to the lumbar spine there was a delay of some three months for the onset of pain. Like Medical Assessor Rosenthal, we accept that the cause of the onset of pain was the altered gait associated with the serious right leg/hip injuries. That conclusion is consistent with the history provided to the Medical Assessors by Mr Paul.
In any event, the Panel finds that whilst Mr Paul has symptoms in the lumbar spine caused by the motor accident, that impairment is assessed at 0%.
Mr Paul injured his right ankle including a medial malleolar fracture and soft tissue injury in the motor accident.
Mr Paul underwent surgery to the left knee removing the medial femoral condyle flap to improve function in the left wrist. The requirement for this surgery and any consequent knee impairment is clearly related to the motor accident: Hunter v Insurance Australia Ltd[69]. However, the claimant’s submission that “the threshold requirement to establish a causal link is low” is rejected as not proper legal analysis.
[69] [2021] NSWSC 623 at [16] and [20].
The claimant has had a medial femoral condyle flap harvested from adjacent to the left proximal medial collateral ligament attachment. The donor site is well away from any articular area and not compromising stability; there is minor tenderness in the scar with impairment from the procedure assessed under scarring, with no other material impairment from that surgical procedure under the Guidelines or AMA 4.
The Panel noted on MRI, moderate to marked degenerative (arthritic) changes (patchy full thickness articular lining loss) in the medial compartment of the left knee plus a degenerative medial meniscal tear on MRI, with medial joint line tenderness clinically. The Panel concluded that those changes were long standing and would pre-date the motor accident, and with the established degree of degenerative would be expected to become symptomatic from the natural increase in degenerative change with time, independent of the subject accident. We have assessed no left knee impairment caused by the motor accident.
Pursuant to clause 1.263 of the Guidelines, the “total effect of the scarring on the organ system” must be assessed. Multiple scars must not be assessed individually. The Panel has considered the relevant criteria under Table 18 of the Guidelines noting that we are required to use the principle of best fit. The scars have some characteristics which suggest a lower assessment such as no adhesion. However, the scar on the left forearm and left leg are lengthy, visible when wearing normal clothing, easily locatable due to colour contrast and some contour defect. Accordingly, the total effect of the scars is assessed at 2% impairment.
There is no basis to make any deduction for any pre-existing condition or subsequent injury.[70]
[70] Clauses 1.31 and 1.34 of the Guidelines.
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment. Indeed, given the nature of the extensive fractures which have caused traumatic osteoarthritis in the right hip and the left wrist it is likely that Mr Paul’s impairment will continue to deteriorate over time. Noting that observation, we are satisfied that the impairment assessed by the Panel is permanent.
FINDINGS
The Panel, like Medical Assessor Rosenthal, has concluded that the impairment as a result of the injury caused by the motor accident is greater than 10%. However, our reasons differ on the extent of the impairment. Accordingly, the new certificate is attached at the commencement of these Reasons.
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