Insurance Australia Limited t/as NRMA Insurance v Samuel
[2024] NSWPICMP 512
•29 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Samuel [2024] NSWPICMP 512 |
CLAIMANT: | Alham Samuel |
INSURER: | Insurance Australia Ltd t/as NRMA |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Ian Cameron |
DATE OF DECISION: | 29 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; claimant injured by car reversing in driveway; contemporaneous notes support laceration to left lower limb and sacral fracture; normal MRI scan not inconsistent with X-ray and CT scan which showed bony injury; no radiological evidence of left ankle fracture; no assessable impairment of shoulders, neck and lumbar spine; examination showed some loss or range of left ankle/foot assessed at 1%; scar assessed at 1%; sacral fracture (displaced) assessed at 5%; Held – claimant sustained permanent impairment assessed at 7%; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment 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% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Review Panel revokes the Medical Assessment Certificate dated 23 October 2023 and certifies that the following injuries caused by the motor accident give rise to a permanent impairment not greater than 10%: (a) sacral fracture, (b) soft tissue injury to left lower leg with scarring, and (c) soft tissue injuries – resolved. |
REASONS
BACKGROUND
On 11 January 2020 Ms Alham Samuel (the claimant) was hit by the insured vehicle. The claimant was standing outside when the vehicle reversed and impacted the claimant.
Insurance Australia Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Samuel any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms Samuel’s “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 MAI Act.[1]
[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. 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 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Dixon and dated 23 October 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to 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.[4]
[4] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]
[5] 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 proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[8] In Raina v CIC Allianz Insurance Ltd[9] 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.”
[8] See s 3B(2) of the Civil Liability Act 2002.
[9] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor concluded that the claimant had sustained a musculoligamentous strain of cervical and lumbar spines, fracture of the sacrum, musculoligamentous strains to both upper extremities and a fracture of the subtalar joint of the left ankle with scarring.
The Medical Assessor assessed reduced range of motion in the right shoulder which was assessed at 3% whole person impairment. Neurological examination of the upper and lower limbs was normal. The Medical Assessor found reduced range of movement of the left ankle.
The Medical Assessor assessed the sacral fracture at 5% (Table 3.4, p 131 of AMA 4), the right shoulder at 3%, the left ankle and subtalar joint at 4% and the scarring at 1% resulting in an overall impairment of 14%.
OTHER MEDICAL ASSESSMENT
Medical Assessor Sidorov provided a medical assessment certificate dated 23 August 2023.[10] That Medical Assessor diagnosed the claimant with post-traumatic stress disorder with no assessable permanent impairment.
[10] Insurer’s bundle, p 360.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
The pre-accident medical records of the general practitioner (GP) dated 26 August 2015 referred to lumbar back pain from lifting the previous day.[11] A note dated 29 August 2016 included lumbar facet joint disease as a reason for the consultation.
[11] Insurer’s bundle, p 41.
The lumbar spine X-ray dated 29 August 2016 showed mild anterior wedging at L1 and L2 and osteophyte formation at L1.[12] At that time the GP noted “spinal movements brought pain to the lower bilaterally”.[13]
[12] Insurer’s bundle, p 24.
[13] Claimant’s bundle, p 524.
We otherwise observe that there were numerous materials tendered by the claimant’s solicitors about the claimant’s health which were irrelevant. We have not summarised this material.
Medical records post-accident
The ambulance report dated 10 January 2020 noted the claimant was standing next to the vehicle when the “car rolled backwards over L ankle, Pt right side body compressed against brick wall”.[14] The claimant was reported to have fallen to the ground with no head strike. Abrasions were noted to the right shoulder, right lower back, left knee and left ankle.
[14] Insurer’s bundle, p 148.
Ms Samuel was admitted to hospital where the left ankle was washed and devitalised tissue removed.[15] Progress notes referred to multiple grazes and a laceration along the left ankle. Elsewhere the notes referred to abrasion over right buttock and left lateral thigh[16] however there was a denial of cervical spine pain.[17]
[15] Insurer’s bundle, p 167.
[16] Insurer’s bundle, p 203.
[17] Claimant’s bundle, p 162.
A photograph shows a deep laceration above the left ankle[18] and significant bruising to the right hip and left thigh.[19]
[18] Claimant’s bundle, p 674.
[19] Claimant’s bundle, pp 676-677.
The hospital discharge referral noted “multiple injuries” with a principal diagnosis of left ankle.[20]
[20] Insurer’s bundle, p 93.
The X-ray of the left ankle dated 12 January 2020 showed soft tissue injury around the distal left lower leg with no acute fracture seen.[21]
[21] Insurer’s bundle, p 18.
The X-ray of the spine and coccyx dated 21 January 2020 showed a fracture of the S5 segment of the sacrum with anterior displacement and a small step deformity.[22]
[22] Insurer’s bundle, p 15.
Dr Khalil referred the claimant to Dr Dave on 23 January 2020.[23] The doctor noted that the claimant suffered a severe left ankle laceration which needed wound excision and repair and “multiple bruises to the right side of the lower back adjoining the right buttock, left thigh and right ankle and scattered smaller bruises on the arms”. The doctor noted that the claimant also had “back pain upper and lower and had pain on sitting in lowermost part of the back”.
[23] Claimant’s bundle, p 496.
The claim form dated 28 January 2020 recorded that the motor accident caused injuries to the neck, left ankle, bilateral shoulders, bilateral arms and legs, hip on the right side, lower back and multiple body lacerations.
The police report notes that the motor vehicle reversed, and the claimant was trapped between the vehicle and the brick retaining wall.[24]
[24] Claimant’s bundle, p 39.
On 30 January 2020 Dr Dave, orthopaedic surgeon, noted the left ankle wound seemed healthy and was healing. The claimant was reported as symptomatic with pain on sitting due to the sacral body fracture.[25]
[25] Insurer’s bundle, p 60.
On 10 February 2020 Dr Arslan noted the claimant was “dragged by reversing car with the door open” and noted injuries to the left ankle, lower back and S5 fracture.[26]
[26] Insurer’s bundle, p 91.
The CT scan of the lumbar spine dated 11 February 2020 showed a minimally displaced S5 sacral fracture and minimal pathology in the upper lumbar spine. The X-ray of the left ankle showed soft tissue swelling.[27]
[27] Insurer’s bundle, p 16.
The GP note dated 12 February 2020 recorded severe soft tissue injury to the left ankle, low back pain and “multiple limb bruises”.[28]
[28] Insurer’s bundle, p 46.
An assessment by Marie Belger, occupational therapist, dated 23 March 2020 noted:[29]
- full neck movement with no pain;
- upper back pain when elevating shoulders;
- bilateral pain in both shoulders, and
- reduced range of left ankle movement and unable to weight bear.
[29] Insurer’s bundle, p 235.
On 6 April 2020 Dr Dave noted stiffness of the ankle with some limitation of dorsiflexion and recommended physiotherapy.[30] The doctor noted that the claimant was still complaining of symptoms in the lumbosacral area.
[30] Insurer’s bundle, p 109.
Certificates of capacity dated 14 February 2020, 9 March 2020, 15 April 2020 and 5 June 2020 referred to the S5 fracture, deep lacerations to the left ankle, bruises to the left thigh and lower back.[31]
[31] Insurer’s bundle, pp 115-136.
Dr Darwish, neurosurgeon, examined the claimant on 27 April 2020. The doctor noted tenderness over the coccygeal with normal power in both lower limbs. The doctor recommended conservative treatment.[32]
[32] Insurer’s bundle, p 245.
The bone scan with SPECT CT dated 3 August 2020 showed multi-general changes in the lower thoracic and lumbosacral spine.[33]
[33] Insurer’s bundle, p 19.
The MRI scan of the lumbar spine sacrum dated 12 August 2020 showed mild pathology at T12/L1, no neural foraminal narrowing in the lumbar spine and no evidence of a fracture of the lumbar spine and sacrum.[34]
[34] Insurer’s bundle, p 20.
On 24 September 2020, Dr Darwish, neurosurgeon, reviewed the recent lumbosacral scans which showed an absence of nerve root or spinal cord compression and no indication for surgery. The doctor recommended physiotherapy and prescribed Mobic.[35]
[35] Insurer’s bundle, p 110.
The MRI scan of the left ankle dated 2 July 2021 was reported as normal.[36]
[36] Insurer’s bundle, p 22.
Qualified opinions
Dr Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 10 August 2021.[37] The claimant was examined by telehealth.
[37] Insurer’s bundle, p 276.
Dr Bodel assessed both shoulders with some loss of range of movement (2%) and the left ankle at 4%. The cervical and lumbar spine were each assessed at diagnosis-related estimate (DRE) Category II and the scarring at 1% resulting in an overall impairment of 19%.
Dr Charles Allen, orthopaedic surgeon spotlight by the insurer and provided a report dated 31 May 2022.[38] The doctor noted that the claimant’s ongoing symptoms included pain while sitting for more than an hour and left ankle swelling when standing for a few hours.
[38] Insurer’s bundle, p 294.
Examination of the cervical spine demonstrated a full and free range of motion and neurological examination of the upper limbs was normal. Full range of movement was shown in both shoulders in all planes.
Examination of the back revealed symmetrical range of motion with no muscle tenderness or spasm, normal neurological assessment and no wasting. There was full range of motion or both hips, knees and ankles. There was no whole person impairment other than the scar which was assessed at 1%.
The claimant referred to the various treatment that had been obtained following the motor accident, referred to the opinion of Dr Bodel and submitted that the impairment was greater than 10%.
SUBMISSIONS
Claimant’s submissions dated 10 August 2022[39]
[39] Claimant’s bundle, p 25.
The claimant alleged injuries to the cervical spine, lumbar spine, fracture of the sacrum, injury to the bilateral upper extremities, injury left lower extremity including a fracture of the subtalar joint and scarring.
Claimant’s submissions dated 4 December 2023[40]
[40] Claimant’s bundle, p 724.
These submissions opposed the application by the insurer to review the medical assessment.
The claimant submitted that the Medical Assessor not only found that a fracture of the subtalar joint but also a musculoligamentous strain. She submitted that the assessment was not solely based on the fracture per se particularly as “fractures heal”.
The claimant submitted that the assessment was based on the physical examination and did not depend on the existence of the fracture.
Insurer’s submissions dated 5 September 2022[41]
[41] Insurer’s bundle, p 5.
This was a single vehicle incident when the applicant was trapped against the wall and allegedly suffered injuries to the neck, shoulders, arms, legs, left ankle, right hip and lower back. The claimant was taken by ambulance to hospital with a principal diagnosis of left ankle lacerations.
The insurer noted the voluminous documents from Liverpool Hospital. The relevant documents were the discharge summary, triage notes, general neurosurgical assessment, and operation report for repair of ankle lacerations.
The claimant was attending her general practitioner, Dr Khalil, (GP) from October 2013 to November 2021. The claimant is also attended Dr Arslan from February 2020 to April 2021.
The insurer noted that the X-ray of the claimant’s lumbar spine and coccyx dated 21 January 2020 and the CT scan of the lumbar spine dated 11 February 2020 both showed a minimally displaced S5 vertebrate fracture. An X-ray of the left ankle showed no recent bone injury and only soft tissue swelling.
In April 2020, Dr Dave, orthopaedic surgeon recommended conservative treatment.
Dr Darwish, neurosurgeon, examined the claimant in April 2020 and September 2020 and noted the sacral fracture was stable and mildly displaced with no nerve root or spinal compression. The doctor recommended conservative treatment.
The insurer noted the competing opinions of the qualified doctors of the parties.
The insurer noted that the cervical spine was cleared by the ambulance officer and nil cervical spine tenderness was noted in the triage hospital notes. There was no mention of neck pain in the post-accident attendances of the GP and in consultations with Dr Arslan.
The claimant’s neck movements were within normal movements and no pain was reported by the claimant when assessed by outpatient therapist, Marie Bolger on 3 March 2020.
The insurer otherwise relied on Dr Allen’s opinion.
The insurer accepted that the claimant suffered a soft tissue injury to the lumbar spine that has since resolved. It noted the clinical notes of Dr Marceline and the lack of ongoing complaint. There was no reported back pain in the clinical notes of Dr Khalil. The insurer referenced the findings of Dr Darwish and Dr Allen. It also noted that the claimant had a pre-existing history of lumbar spine pathology and submitted that any ongoing symptoms, if they exist, are due to pre-existing pathology.
The insurer referred to the clinical notes of the GP dated 26 August 2015, 29 August 2016, 19 July 2017 and the x-ray dated 21 January 2020.
The insurer accepted that the claimant suffered a minimally displaced S5 fracture which has healed which does not of itself attract an assessment of permanent impairment. It referred to the bone scan dated 3 August 2020 and the MRI scan dated 12 August 2020 which showed no evidence of a fracture in the sacrum.
The insurer noted that the claimant may have suffered an abrasion to the right shoulder which has since resolved. It referred to a reference to shoulder pain on 23 March 2020 with no other references including an absence of reference in the clinical notes of Dr Khalil.
The insurer noted that Dr Allen assessed the claimant in May 2020 and found a full range of motion in the shoulders.
The insurer submitted that there is no evidence that the claimant sustained a fracture of the subtalar joint and refer to the X-ray of the left ankle dated 12 January 2020, hospital discharge notice notes which refer to a laceration only, Dr Dave’s report dated 30 January 2020 which reported that the wound was healing, the X-ray dated 11 February 2020 which showed no fracture and the MRI scan of the left ankle dated 2 July 2020 which describe the left ankle as normal.
Dr Allen in May 2022 found no wasting in the left ankle.
The insurer noted that Dr Bodel and Dr Allen assessed the scar at 1% and submitted that a “PIC Medical Member would not assess the claimant’s scarring at any more than 1% WPI.”[42]
Insurer’s submissions dated 28 November 2023[43]
[42] Insurer’s bundle, p 10.
[43] Insurer’s bundle, p 12.
These submissions were filed seeking leave to review the medical assessment.
The insurer submitted that the finding by the Medical Assessor that there was a left ankle fracture was incorrect and referred to the X-ray dated 12 January 2020, X-ray dated 11 February 2020 and MRI scan dated 2 July 2021 which were reported as showing no fractures. It also submitted that there was no reference in the hospital notes to a left ankle fracture.
RE-EXAMINATION
Ms Samuel was examined by Medical Assessor Gibson on 12 July 2024. The examination report is as follows:
“The claimant was accompanied to the assessment by an Arabic interpreter.
PRE ACCIDENT MEDICAL HISTORY
The claimant had sustained a laceration to her forehead at the age of 7 or 8 years when she had fallen down a drain. There were no other injuries at the time, but she has been left with a scar.
There was no other relevant history of accidents, injuries or medical or surgical issues.
RELEVANT PERSONAL DETAILS
The claimant had worked as a supervisor in a hotel prior to arriving in Australia in 1995.
She had then worked as a housekeeper for a hotel but ceased work up until she fell pregnant with her first child. She hasn’t worked in any capacity since then.
She lives with her husband and 20-year-old son and 20-year-old daughter in a two-storey house. She is the registered carer of her aunt who she visits for 2-3 hours three times a day. For the aunt, she would assist with showering. She would cook and clean and dispense medications. She would drive her out as required. The aunt does not require wheelchair or walking frame. She has been in receipt of carer benefit over the last three years. Her husband is the registered carer for his father.
ACTIVITIES AND RESTRICTIONS POST SUBJECT ACCIDENT
The claimant said that over the last three years her husband and daughter have assisted with the housework. She feels she can’t manage as much of the housework as she could previously.
Her husband accompanies her shopping and carries the heavier items. Her husband does the outdoor chores. She is independent in ADL. She would walk for exercise, about half an hour a day.
HISTORY OF THE SUBJECT ACCIDENT
The claimant had been at home on the day of the accident and was resting upstairs when her daughter and a friend asked if she could take them out to buy some doughnuts. Both the daughter and the friend were 15 years of age. As she was waking up, the daughter's friend picked up her car keys from a table. Then, despite being asked to put the keys down she had run out to the car and started the engine and locked the car doors. The claimant had frantically knocked on the window to tell the girl to open the door. Eventually, the door was unlocked, and the claimant opened it, however by that stage the car engine was on. As the claimant leaned into the vehicle to try and turn off the engine the car started to reverse. She was struck by the door and flipped over and the wheel of the car had rolled over her left ankle. She fell against the gate and then onto the ground. She added that the force of the impact had been so great, there was an imprint of the gate design on her back. There was no loss of consciousness. Her husband arrived and was so shocked that a neighbour had to assist with the ambulance call. The neighbour had also rendered first-aid whilst they waited for the ambulance to arrive as this had taken about 45 minutes.
The police report dated 27 April 2020 had noted that the claimant had approached the vehicle and as the girl was leaving the car, her foot had hit the accelerator, causing the car to move backwards as the gearshift was in reverse and the handbrake was down and ‘as the vehicle began to move, the victim has become trapped between the vehicle and the brick retaining wall next to her. The victim tried to move her left leg, became trapped between the vehicle and the retaining wall.’
The claimant was transferred to Liverpool Hospital. She was found to have a displaced S5 sacral fracture and deep lacerations to the left ankle. She remained in the hospital for two days before being discharged. Over this period the ankle injury was debrided and sutured. Whilst at the hospital the ankle was x-rayed, and no fracture was identified.
After discharge from the hospital, she had initially visited Dr Khalid, her regular general practitioner, but as the doctor did not do compensation matters, she had then come under the care of a different general practitioner, Dr Aslan.
She was prescribed medication for pain and advised to purchase a doughnut cushion. She had taken Mobic and Panadeine Forte for pain.
She had physiotherapy for about three-months with therapy including massage, manipulation, acupuncture and compression. She said it had been problematic attending the physio due to the fact that it was during the Covid epidemic.
She said she had been using crutches for six weeks after the accident and had been fitted with a Cam boot. She had visited orthopaedic surgeon, Dr Dave regarding her ankle on two or three occasions
The claimant was later referred to neurosurgeon, Dr Darwish, who she saw on 27 April 2020. The doctor referred her for a bone scan and a CT-SPECT scan and MRI scan lumbar spine and left ankle. The left ankle scan was performed 2 July 2021 and revealed no abnormalities. She said she had seen Dr Darwish on two or three occasions.
She visited a psychologist, Dr Richa Rastogi, on 10-12 occasions.
She had subsequently continued under the care of her general practitioners.
CURRENT TREATMENT
The claimant said she would sometimes take some paracetamol, for instance if she had done a lot of cleaning at home.
There was no other current treatment and no treatment planned.
CURRENT COMPLAINTS
The claimant is still troubled with left ankle pain. She said she struggles with prolonged standing, so over 2 hours, when the ankle can swell and become painful, and she finds she has to rest and elevate the leg.
She said she avoids wearing certain footwear and clothing that allow the ankle scarring to be visible.
There is pain felt over the sacral region, particularly when seated, and she finds she has to regularly shift her position to maintain comfort.
There is discomfort over the posterior aspect of her right shoulder and in a similar distribution over the other shoulder, but not as severe. She finds her shoulder hurts when she performs heavier activities.
When asked whether there had been any imaging performed of the right shoulder, she said there hadn’t been as there had only been ‘bruises and scratches’ over the shoulder.
There is interval intermittent pain in the neck and at times stiffness. There had been no imaging of the cervical spine.
PHYSICAL EXAMINATION
The claimant was well presented. She engaged easily with English and only occasionally required the assistance of the Arabic interpreter.
She had a normal gait and was 158cm tall and weighed 65kg, BMI 26.
On examination of the cervical spine, pain was localised to the right side of neck and right trapezius region where there was mild tenderness. There was full normal range of movements with no asymmetry, muscle spasm or guarding.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. There was normal power, sensation and reflexes.
On examination of both shoulders, she had a normal range of movement bilaterally, but she noted her shoulder movements could be less at times, particularly after performing heavier chores at home. This wasn’t the case today. Active movements were as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
180 °
180 °
Extension
50 °
50 °
Internal Rotation
80 °
80 °
External Rotation
80 °
80 °
Abduction
170 °
170 °
Adduction
50 °
50 °
On examination of the low back, there was tenderness over the lower sacrum. There were some pale linear marks which were hardly visible. Forward flexion and extension were to three-quarters normal, lateral flexion and rotation were to normal range. There was no asymmetry, muscle spasm or guarding.
On examination of the lower limbs, there was normal power, sensation and reflexes. Thighs measured 43cm, calves measured 38cm.
Movements of the ankle and feet were as follows:
Ankle Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion
30 °
15 °
Plantarflexion
45 °
30 °
Hindfoot Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Inversion
30 °
20 °
Eversion
20 °
15 °
There was a 7cm slightly depressed and pigmented scar over the medial aspect of the left lower leg. There were no suture marks visible and no adhesion.
On examination of both knees, flexion was 120° bilaterally, extension was full. There was no crepitus or instability demonstrated.
SUMMARY AND OPINION
The claimant was involved in the subject accident on 11 January 2020 when she had sustained a deep laceration to her left lower leg, soft tissue injury to her left ankle, displaced sacral fracture and abrasions to her lower back.
Cervicothoracic Spine DRE Category I, 0% Whole Person Impairment in accordance with the descriptors in Table 6.7 on Page 104 of the Motor Accident Guidelines Version 9.2 10 November 2023. There was no asymmetry, muscle spasm or guarding.
Lumbosacral Spine DRE Category I, 0% Whole Person Impairment rating in accordance with the descriptors in Table 6.7 on Page 104 of the Motor Accident Guidelines Version 9.2 10 November 2023.
Scarring
The impairment due the scarring was assessed with reference to the TEMSKI scale for the evaluation of minor skin impairment. The most appropriate assessment, applying the ‘best fit’ principle, is 1% whole person impairment. This conclusion is based on the following criteria:
·The claimant can easily locate the scars.
·The scars have no effect on ADL
·The scars are visible with usual clothing.
·There is minor colour contrast with the surrounding skin.
·Staple and suture marks are not a major feature.
·There is no significant contour defect.
·No treatment for the scars is required.
·Adherence of the scars is not present.
Left ankle
There was no gait derangement or muscle atrophy. No diagnosis-based estimates were applicable [Chapter 3, AMA 4, Table 64, p85]. Foot and ankle movements were assessed with reference to Tables 42, 43, 44 [Chapter 3, AMA 4, p78] and gave rise to 1% WPI.
Sacrum
In reference to AMA4 paragraph 3.4, p131, displaced sacral fracture yields 5%WPI.
Combined impairment 5%WPI for sacrum, 1%WPI ankle and hindfoot, 1%WPI scarring. Thus, a total of 7%WPI due to the subject accident.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[44]
[44] Section 7.26(6) of the MAI Act.
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[45] and Insurance Australia Ltd v Marsh.[46]
[45] [2021] NSWCA 287 at [40], [41] and [45].
[46] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by Medical Assessor Gibson supplemented by the following further reasons.
The nature of the motor vehicle accident is unclear given the precise history taken by the ambulance officer and the version provided by the claimant to the Medical Assessors. However, we are satisfied that the injuries occurred when the vehicle moved either throwing the claimant to the ground or pinning her against a wall.
The insurer correctly submitted that there was an absence of contemporaneous complaint in the cervical spine. The absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[47] and AAI Ltd v McGiffen.[48]
[47] [2021] NSWSC 548 (Norrington).
[48] [2016] NSWCA 229 at [64]-[66].
An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[49] It is noted that the claimant referenced the cervical spine in the claim form only 10 days after the motor accident. There may have been a soft tissue injury to the cervical spine which would explain the absence of complaint to several practitioners. However, we are not convinced that the motor accident caused anything other than a soft tissue injury and the examination findings do not show symptoms other than consistent with a finding of DRE Category I.
[49] [2014] NSWSC 888 at [31]-[32].
We are not satisfied that there was a fracture to the left lower limb. There is no radiological report supporting such a finding. We are satisfied that the motor accident caused a significant soft tissue injury evidenced by the contemporaneous complaints, scarring and the ongoing residual symptoms.
We are satisfied that the claimant suffered a soft tissue injury to the lumbar spine in the context of pre-existing symptoms. The clinical findings from the recent examination show that this is assessed as DRE Category I.
There is contemporaneous complaint of shoulder pain. Recent clinical examination did not show any assessable loss of range of movement. It is otherwise noted that there is no relevant radiological findings showing any pathology caused by the motor accident.
The displacement of the sacral fracture is evidenced by the X-Ray dated 21 January 2020 and the CT scan dated 11 February 2020.The fact that the MRI Scan did not report a fracture is explicable on the basis that the MRI scan is chiefly looking for soft tissue trauma. The X-ray and CT scan is more reliable and the preferred investigation for determining bony injury.
There is no basis to make any deduction for any prior or subsequent injury.
The impairment is stabilised and permanent within the meaning of cls 6.19 and 6.20 of the Guidelines due to the duration of and the consistency of symptoms over an extended period. There is no suggestion of treatment in the future that would affect our findings. Based on the clinical experience of the Medical Assessors on the Panel, we do not expect any change in impairment over the next 12 months.
CONCLUSION AND ORDERS
The Panel has concluded that the motor accident has caused a 7% permanent impairment. The medical assessment certificate of Medical Assessor Dixon is revoked. A replacement medical assessment certificate is attached at the commencement of the Reasons.
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