Insurance Australia Limited trading as NRMA Insurance v Keneally

[2022] NSWPICMP 266

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited trading as NRMA Insurance v Keneally [2022] NSWPICMP 266

CLAIMANT:

Patricia Keneally

INSURER:

Insurance Australia Limited trading as NRMA Insurance

REVIEW PANEL:

MEMBER:

Susan McTegg

MEDICAL ASSESSOR

Geoffrey (Paul) Curtin

MEDICAL ASSESSOR:

Geoffrey Stubbs

DATE OF DECISION:

20 June 2022

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered serious injury in a motor vehicle accident; the dispute is related to the assessment of permanent impairment; injuries referred for assessment were scarring to right hip following revisionary hip replacement surgery; degloving injury to both thumbs; Held –the subject of the injuries referred for assessment to Medical Assessor Giles was in his capacity as a plastic surgeon; the claimant did not sustain a degloving injury to either thumb; no scarring to either thumb; right hip scarring assessed under table 18 of the Permanent Impairment Guides using the principle of best fit  at 2% whole person impairment; new combined impairment certificate issued certifying a combined permanent impairment of 12%.

DETERMINATIONS MADE:  

MOTOR ACCIDENTS COMPENSATION ACT 1999

Review Panel Certificate issued under Part 3.4 of the Motor Accident Compensation Act, 1999 following a review under section 63 as to

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 Panel revokes the Combined Certificate of Medical Assessor Ian Cameron and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%.

·        right hip – scarring; 

·        right hip - periprosthetic fracture in right femur, shattered; and

·        lower back (lumbar spine)- aggravation of pre-existing scoliosis, aggravation of pre-existing degenerative, soft tissue injury.

The Panel revokes the Certificate of Medical Assessor Giles and issues a new certificate determining that the following injuries were caused by the motor accident and do not give rise to a WPI which is greater than 10%.

Scarring of the right hip·     

REASONS

This is to certify that permanent impairment was assessed by a Medical Review Panel comprising Medical Assessor Geoffrey (Paul) Curtin, Medical Assessor Geoffrey Stubbs and Member Susan McTegg and in a separate assessment by Medical Assessor Kumar.

Details of the assessments and full reasons are given in the following certificates:

Assessment 1

Certificate of the Medical Review Panel dated 15 June 2022

The permanent impairment in relation to the following injuries is 2%:

·        scarring of the right hip.

Assessment 2

Certificate of Medical Assessor Kumar dated 17 April 2020

The permanent impairment in relation to the following injury is 10%:

·        right hip - periprosthetic fracture in right femur, shattered; and

·        lower back (lumbar spine) - aggravation of pre-existing scoliosis, aggravation of pre-existing degenerative, soft tissue injury.

Using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4^th edition, the combined permanent impairment is 12%.

STATEMENT OF REASONS

BACKGROUND

1. Ms Patricia Keneally (the claimant) suffered injury in a serious motor vehicle accident on 17 November 2017 (the accident). 

2. Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).

3. This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]

   [1] Section 57 and 58 of the MAC Act.

4. By way of medical assessment application form dated 28 November 2019, the claimant referred the following injuries for whole person impairment assessment:

   ·        right hip – periprosthetic fracture in right femur, scarring, shattered;

   ·        right thumb – degloving;

   ·        left thumb – degloving; and

   ·        lower back – aggravation of pre-existing scoliosis, aggravation of pre-existing degenerative, soft tissue injury.

5. In its medical assessment reply form dated 16 January 2020, the insurer listed the following injuries:

   ·        right hip – periprosthetic fracture, scarring;

   ·        right thumb – degloving;

   ·        left thumb – degloving; and

   ·        lumbar spine – aggravation of degenerative change, soft tissue injury.

Certificate of Medical Assessor Kumar

1. The following orthopaedic injuries were referred to Assessor Kumar for determination in his capacity as a general surgeon:

   ·        right hip – periprosthetic fracture in right femur, shattered; and

   ·        lower back – aggravation of pre-existing scoliosis, aggravation of pre-existing degenerative, soft tissue injury.

2. Medical Assessor Kumar issued a Certificate dated 17 April 2020 certifying a 10% whole person impairment (WPI).

Certificate of Medical Assessor Giles

1. The following skin injuries were referred to Assessor Giles for determination in his capacities as a plastic surgeon:

   ·        right thumb – degloving;

   ·        left thumb – degloving; and

   ·        right hip – scarring.

2. Medical Assessor Giles issued a certificate dated 11 November 2021 certifying a 14% WPI. He assessed 1% for scarring, 6% WPI for injury to the right thumb and 7% WPI for injury to the left thumb.

Combined Certificate

1. Medical Assessor Cameron issued a Combined Certificate dated 16 November 2021 confirming a total WPI of 23% in respect of the following:

   ·        right thumb – degloving;

   ·        left thumb – degloving; 

   ·        right hip – scarring; 

   ·        right hip: periprosthetic fracture in right femur, shattered; and

   ·        lower back (lumbar spine): aggravation of pre-existing scoliosis, aggravation of pre-existing degenerative, soft tissue injury.

MEDICAL ASSESSMENT UNDER REVIEW

1. It is the certificate of Medical Assessor Giles which is the subject of the application for review filed by the insurer.

2. Assessor Giles reported the accident occurred at Bredbo on 17 November 2017 when another vehicle overtook the claimant’s stationary vehicle on the left, went into the dirt and spun the wheels. In attempting to avoid this vehicle another vehicle hit the claimant’s vehicle on the right side and the airbags deployed.  Ms Keneally was trapped and after release was taken by ambulance to Canberra Hospital where she was admitted with the following injuries:

   ·        a peri prosthetic fracture of the neck of the right femur;

   ·        soft tissue injuries of both thumbs; and

   ·        a closed back injury.

3. On 18 November 2017 Ms Keneally underwent revisionary right hip replacement surgery. 

4. Assessor Giles described a degloving injury as follows:

   “A degloving injury means the skin has been totally ripped off leaving, as would be the case with the thumbs, the bones, tendons, vessels and nerves exposed. Such an injury would require flap coverage, because a split skin graft would not be resilient enough and the thumb would end up totally stiff.”

5. Assessor Giles reported it was alleged Ms Keneally had sustained degloving injuries of both thumbs. However, he found she did not have any surgery on her thumbs and if they had been genuinely degloved she would have had to have them resurfaced, almost certainly with flap coverage. Assessor Giles noted Ms Keneally only had dressings on them for a few days before they healed. 

6. Assessor Giles reported Ms Keneally had recovered satisfactorily although she developed back pain and now walks with the aid of a walking stick.  He also noted since the accident Ms Keneally developed bowel cancer and underwent a laparoscopic bowel resection but was now well.

7. Assessor Giles observed a curved, soft, flat and mobile, fine longitudinal scar 30 cm long on the lateral aspect of Ms Keneally’s right buttock and thigh.  It was slightly depressed and quite sensitive when touched. He did not observe any scarring on either thumb, sensation was intact, but he found a decreased range of movement. He found the scar caused a minor limitation in the normal activities of daily life noting
   Ms Keneally is no longer prepared to wear a swimsuit in public. Under the TEMSKI criteria he assessed a 1% WPI for the scar.

8. Assessor Giles concluded Ms Keneally sustained a partial thickness injury of her skin and diagnosed a soft tissue injury to both the right and left thumb and scarring to the right hip.

9. Assessor Giles proceeded to assess the WPI of the thumbs in accordance with Chapter 3 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4^th edition (AMA 4 Guides) assessing a 6% WPI for the right thumb and a 7% WPI for the left thumb.

10. The basis of the application for review is that as a plastic surgeon Assessor Giles was tasked to assess scarring arriving out of a degloving injury to each thumb.

REVIEW PROCEDURE

1. The present application is a review of a medical assessment pursuant to section 63 of the MAC Act. The relevant medical assessment was conducted by
   Medical Assessor Giles. He issued a certificate dated 11 November 2021.

2. Clause 16.3.3 of the Medical Assessment Guidelines requires an application for review of an assessment by a single Medical Assessor in a permanent impairment dispute assessed by more than one Medical Assessor to be lodged within 30 days after the date on which the combined certificate was sent to the parties.

3. An application for review of the medical assessment of Assessor Giles was lodged   within 30 days after the combined certificate of Medical Assessor Cameron was sent to the parties.

4. On 11 February 2022, the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[2]

   [2] Section 63(2B) of the MAC Act.

5. The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).

6. Under cl 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.

7. Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.

8. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. The President’s Delegate referred this application for review to the Panel.

9. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to section 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the AMA 4 Guides. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[3]

   [3] Clause 1.2 of the Guidelines.

10. 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 Medical Assessor.[4]

    [4] Section 41(2) of the PIC Act.

11. 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.[5]

    [5] Rule 128 of the PIC Rules.

12. The review is by way of a new assessment of all matters with which the medical assessment is concerned.[6]

    [6] Section 63(3A) of the MAC Act.

13. Accordingly, the Panel considered it appropriate for the assessment to review all matters with which the assessment of Assessor Giles was concerned.

MATERIAL BEFORE THE REVIEW PANEL

1. The Panel issued a Direction to the parties on 25 March 2022 (the first Direction) which required each party to file an indexed, paginated bundle of documents.

2. In response to this direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 111 and marked AD1. The solicitor for the claimant filed a bundle of documents paginated from pages 1 to 8 and filed in the portal as AD2.

3. The documents furnished by the claimant in AD2 only include brief submissions, a letter to Moray & Agnew dated 13 April 2021 and photographs of the claimant’s thumbs.

4. The photographs of the claimant’s thumbs are clearly taken whilst Ms Keneally was hospitalised and show bruising to the thumbs but do not evidence a degloving injury as described by Assessor Giles.

5. The Personal Injury Claim form dated 4 April 2018 lists the injuries sustained by the claimant as fractured right femur, shattered right hip, degloving injuries to the right and left thumbs and injury to the back.

Treating medical records

Clinical records of the Canberra Hospital

1. Ms Keneally was in inpatient at the Canberra Hospital from 17 November 2017 until 3 January 2018.[7]   She was diagnosed with a right periprosthetic femur fracture and underwent revisionary right total hip replacement surgery.

   [7]         Claimant’s complete application part 8 p 52

2. The orthopaedic registrar clinical entries and the orthopaedic discharge summary make no reference to thumbs. Similarly, the physiotherapy discharge summary also fails to mention the thumbs [8]. No X-rays were taken of the claimant’s thumbs. However, the Intra-Operative Nursing Care Plan dated 20 November 2017 records “skin tear left thumb, wound right thumb”.[9]

   [8]         Claimant’s complete application part 10 p 1

   [9]         Claimant’s complete application part 8 p 1

Clinical notes of Hawker Medical Practice

1. The clinical notes of Dr Dorothy Monk of Hawker Medical Practice commence on 22 January 2018.[10] The first consultation on 22 January 2018 is a review post discharge from hospital and makes no mention of injury to either thumb. Subsequent consultations address psychological symptoms, but no mention is made of injury to the thumbs.

Medico-legal reports

Moore Rehab Outcomes

[10] Claimant’s complete application part 2 p 13

1. Ms Keneally underwent a domestic needs assessment on 22 February 2019. In relation to fine motor activity, she reported Ms Keneally had nil impairment and there were no ongoing issues reported with her hands despite alleged degloving injuries to both thumbs.

Dr James Bodel

1. Ms Keneally was assessed by Dr Bodel on 13 February 2019. In his report dated 17 March 2019 he reported she sustained degloving injuries to the thumbs, but he did not otherwise examine or assess either thumb. He reported Ms Keneally remained non weightbearing on the right side for about seven weeks and had difficulty with that because of her thumb injuries and she was mostly in a wheelchair.

Associate Professor Paul Miniter

1. The claimant was assessed by Associate Professor Paul Miniter who provided a report dated 15 August 2019. He made the following comment in respect of the thumbs:

   “Another injury that occurred to her at the time of the accident was a degloving injury by way of soft tissue only to both thumbs, but these have not been injured in a bony fashion. This is not the issue that troubles her at this stage”.

2. The claimant provided four photographs of her hands which were apparently taken in hospital following the accident.  The photographs show bruising and possibly laceration to each thumb but do not show a degloving injury as described by Assessor Giles.

RELEVANT LEGAL AUTHORITY

1. Causation of injury is addressed in the Guidelines:

   “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.”

SUBMISSIONS

Claimant’s submissions

1. The claimant provided submissions dated 23 December 2021. The claimant argued that Assessor Giles concluded the thumb injuries were not degloving injuries but otherwise properly assessed the impairment of the claimant’s left and right thumb.

Insurer’s submissions

1. The insurer noted Assessor Giles was responsible for assessing the claimant’s right thigh scarring and alleged bilateral thumb degloving injuries. In other words, he was required to assess scarring of the thumbs due to any degloving injury but not to undertake an assessment of WPI from an orthopaedic perspective.  The insurer submits if bilateral thumb injuries were to be assessed they would have no doubt have been referred to Assessor Kumar alongside the claimant’s other orthopaedic injuries.

EXAMINATION

1. On 27 May 2022 Ms Keneally was examined at her home in the presence of her daughter by Medical Assessor Stubbs on behalf of the panel.

History

1. At the time of the accident Ms Keneally was 74 years old. She was a semi-retired school headmistress who worked casually as a teacher. She lived in her own home on a 1400 m² battle axe block in the northern Canberra suburb of Fraser. She lives in a single-story house by herself. The house has a luxuriant garden and is reached by a driveway of about 70 m in length. Ms Keneally was fully independent and did her own housework, gardening, and shopping, together with handicrafts such as knitting and needlework. She also undertook routine house maintenance including cleaning gutters for both the principal house in Fraser and her holiday cottage.

2. She had a right total hip replacement at the Mater Hospital North Sydney in 2006 with a very satisfactory outcome. She could climb ladders and stairs without difficulty and did not need a walking aid. She had atrial fibrillation and was on digitalis and an anticoagulant agent for this and was essentially asymptomatic. She had developed idiopathic adolescence scoliosis in her early teens and been treated by serial plaster jackets. The scoliosis is the condition reported as a pre-existing back problem by the insurer. However, it had not caused her any back pain and did not lead to any restrictions on her life. She had five children and was physically active.

1. Ms Keneally was travelling to her holiday cottage in the Snowy Mountains and stopped at Bredbo for a break. She was about to re-join the Monaro highway when she had a front quarter barrier impact with a four-wheel-drive making a turn at speed. The impact was with the right front of her small Honda Civic outside the crumple zones. The airbags deployed. Ms Keneally was trapped inside the vehicle and had to be freed. She was taken by ambulance directly to the Canberra Hospital.

2. Her immediate concerns were of pain in the right hip region and painful lacerations to both thumbs resulting from deployment of the airbags. The hands were X-rayed but no fracture or dislocation was recorded. The wounds were dressed and splintered, and the skin went on to heal satisfactorily.  She was told by a nurse she had a degloving injury.  This was incorrect, but the term stuck. Her principal problem was the peri-prosthetic fracture of the right femur. This was treated by revision prosthesis and supplementary cable fixation of the fracture fragments. In all she spent three months in the Canberra Hospital Acute Care and Rehabilitation Service before she was well enough to return to her own home.

3. She finds that there is considerable disability associated with the revision prosthesis. She no longer works casually as a teacher. She needs regular paid assistance with gardening and housework. Her walking distance has gone from unlimited to 50 m, and she struggles to take the garbage bins up the long driveway from her house to the road. She can only climb stairs if there is a handrail and must put both feet onto the same step. She struggles with low chairs. She is particularly concerned that when she walks that her right foot is turned out at 45°. She can drive but becomes very uncomfortable in the low back after about 60 minutes. She relies on her daughters for major shopping, but she will drive locally for medical appointments, small grocery shops and so forth. Her right hand has become very clumsy, and she can no longer do knitting or needlework and there has been a noticeable deterioration in her handwriting.

4. The atrial fibrillation is well-controlled on the present medication. Her idiopathic adolescence scoliosis is a lifelong problem, but scoliosis of this kind is not a cause of back pain or disability unless the scoliosis exceeds 60° of angulation, whereafter the degree of hunchback deformity causes pulmonary restriction. Neither of the pre-existing problems contribute to a level of impairment.

Physical examination

1. Ms Keneally was very articulate and demonstrative. She was entirely consistent in her history and fully cooperative in the physical examination. She now takes analgesics on an as required basis but tries to avoid them. Her physical activity level is much lower than before.

2. Ms Keneally has an obvious antalgic limp. She uses a walking stick on the right-hand side. She finds this more effective than using it on the left. She walks with the right foot turned out at 45°. She can only turn the right foot to the straight-ahead position by rotating the pelvis towards the left. She needs both hands to rise from chair. As this is a single-story house, we could not test her ability on steps.

Right thumb and left thumb -degloving

1. The Panel agrees with Assessor Giles that the claimant did not sustain a degloving injury to either thumb. A degloving injury is a traumatic injury resulting in the top layers of skin and tissue being torn away from underlying muscle, connective tissue or bone. Surgery is usually required.  There is no suggestion from the clinical notes of the Canberra Hospital that Ms Keneally sustained a degloving injury.  It is also apparent from the photographs of the claimant’s hands that whilst her thumbs may have been injured, she did not sustain a degloving injury.

2. The skin lesions produced by the airbag deployment have effectively disappeared. There is no scarring component here.

Right hip scarring

1. There is a 29 cm curvy linear scar on the right hip and buttock. The original posterior approach has necessarily been extended down the thigh. The scar is irregular, spread, raised and puckered. Suture marks are noted. Scar would be obvious in a swimsuit but not in normal wear. The scar is not excessively tender.

2. Ms Keneally is conscious of the scar, some parts have colour contrast, trophic changes are evident to touch, the scar is easily locatable, staple marks are visible, there are contour defects and some adherence. However, the scar is not visible in usual clothing, there is a negligible effect on daily living and no treatment is required.

3. The scarring of the right hip was assessed under table 18 of the Permanent Impairment Guides. Under table 18, the Table for the Evaluation of Minor Skin Impairment (TEMSKI) the Panel, using the principle of best fit, finds the claimant has sustained a 2% WPI.

INJURIES ASSESSED BUT NOT INCLUDED IN THE CERTIFICATE OF THE REVIEW PANEL

1. The dispute the subject of this review was in respect of injuries referred to Medical Assessor Giles in his capacity as a plastic surgeon, that is degloving injures to each thumb and scarring to the right hip.

2. Medical Assessor Stubbs undertook a thorough medical examination not limited to the injuries the subject of the dispute.

3. Whilst the Panel proposes to outline the findings of Medical Assessor Stubbs in respect of injuries not the subject of the dispute those findings will not be included as part of the Panel’s certificate.

Left and right thumb

1. Medical Assessor Stubbs also examined the claimant’s left and right thumb.

2. Both hands show extensive Heberden’s nodes and distal interphalangeal joint deformity. Despite the lack of full extension of the interphalangeal joints and the wrist the left hand is fully functional with good strength of grip and good opposition of the thumb. The right hand has a different posture to the left. The fingers are the same with mild flexion contracture of the digits, but the metacarpophalangeal joint of the thumb is extremely stiff and obviously different in appearance to the left. The car park-metacarpal joint is also thickened and there is weakness of interphalangeal flexion. No recent X-rays are available, but palpation would suggest that there has been the development of the swan neck deformity in the right thumb since the motor vehicle accident. The head of the metacarpal is unduly prominent dorsally and the base of the proximal phalanx is displaced volar wards.

3. It is possible that there has been a rupture of the volar plate of the metatarsophalangeal (MTP) joint. The net effect is to leave the thumb without any effective radial abduction and no useful ability to oppose the thumb to the ulnar side of the hand. Flexion/extension and abduction and adduction at the finger MTP and interphalangeal (IP) joints is on par with that of the left side and of reasonable strength. As noted, there is evidence of osteoarthritis in both hands and wrists but there is a clear difference in the movements of the right thumb compared to the left. The bone is seen not only to displace to palpation but there is painful crepitus present on the right side which is not seen on the left and there is limitation of opposition.

4. Whilst the Panel finds there was no degloving injury or scarring to either thumb the Panel considers the claimant has sustained injury to the right thumb which is causally related to the accident.

5. Whilst not referred for assessment and not included in the certificate
   Medical Assessor Stubbs undertook an assessment of the permanent impairment of the right thumb.

6. Table 6 page 28 AMA4 would give a 9% thumb impairment due to the loss of abduction and table 7 figure 16 a 22 % due to lost opposition. A combined 29% impairment of function of the thumb 12% impairment of the right hand compared to the left. Note
   Ms Keneally has no commands to make about function in her left hand, thumb is mobile and although the interphalangeal and other joints are stiff this is the consequence of pre-existing osteoarthritis. The left thumb and hand is painless. The upper extremity impairment from table 2 is 11% % which table 3 converts to a 7% WPI.

Cervical spine

1. Ms Keneally has no complaints to make about her cervical spine. She can move this freely in all directions. There is no spasm or guarding and little tenderness. The shoulders and elbows show normal range of movement on both sides. Neurological examination is normal.

Thoraco-lumbar spine

1. In the thoraco- lumbar spine there is a long-established thoracic scoliosis and kyphosis convex to the right and a shorter lumbar scoliosis concave to the right and probably compensatory in origin. The overall balance of the spine is clinically reasonable as the base of the skull centres over the sacrum when sitting. There is no radiology available to analyse this but very likely this would show the primary thoracic curve and secondary compensatory curves in cervical and lumbar spine. Rotation is unequal in the thoracic spine but that is the effect of the scoliosis which has a rotary component to the sideways curvature. There is no tenderness to palpation or guarding. Neurological examination of the lower limbs shows equal brisk reflexes and no sensory loss. Girth measurements are highly unreliable in view of the right revision hip replacement.

Hips and lower limbs

1. Ms Keneally’s leg length was measured on blocks. The AMA 4 Guide was placed under her right foot. The AMA 4 Guide is 29 mm thick when under compression. The wing of the pelvis was easily palpated on both sides and was noted to be level. There is a functional leg length inequality of 3 cm. The length from knee to heal was measured lying supine with the knees flexed. There is no difference in leg length below the knee. The leg length discrepancy is a mixture of fixed flexion contracture at the hip and true shortening of the femur.

2. Hip range of motion:

Right	Left
Flexion	90º	110°
Extension (contracture	-20°	0
Abduction	15°	45°
Adduction	-10°	30°
External rotation	110°	50°
Internal rotation	-20°	40°
Internal rotation in 90° hip flexion range	70°	80°

1. The right hip has a fixed external rotation deformity in extension such that the right foot can point slightly backwards and does not reach a forward swing position of neutral rotation. The hip flexion contracture probably contributes a little to the leg length inequality measured above.

2. Using table 65 of the AMA 4 Guides page 87 the rating hip replacement results are as follows:

   (a)    Pain – Ms Keneally has a slight but continuous discomfort in the right posterior buttock and sacroiliac region. She does not use regular analgesics for this but must change position after 60 minutes. Ms Keneally describes this as back pain, but the pain and tenderness does not extend proximal to the wing of the pelvis. Pain gives rise to a rating of 30 points;

   (b)    Function – there is a moderate limp which equates to 5 points,
   Ms Keneally requires continuous use of a cane which equates to 3 points, and she has a walking distance of around 50 metres, which is effectively indoors, equating to 2 points;

   (c)    Activities – Ms Keneally uses a railing to climb stairs equating to 2 points. She can put on shoes and socks with difficulty equating 2 points.
   Ms Keneally is unable to sit comfortably which equates to 0 points and she is unable to use public transport which also equates to 0 points;

   (d)    Deformity – Ms Keneally attracts 1 point for fixed adduction, 0 points for fixed external rotation, 0 points for flexion contracture greater than 15° and 0 points for leg length discrepancy greater than 1.5 cm; and

   (e)    Range of motion – Ms Keneally attracts 0 points for 90°flexion, 0 points for abduction 15°, 0 points for adduction less than 15°, 1 point for external rotation greater than 30°, and 0 points for internal rotation less than 15°.

3. Pursuant to table 64 of the AMA 4 Guides at page 85 any result less than 50 points equates to a poor outcome and would result in an assessable permanent impairment of 30%.

4. Any assessment of permanent impairment of the right hip would be subject to a deduction of 15% for the previous hip replacement which had an excellent outcome.

PANEL DECISION

1. The Panel has found that the accident was a cause of the following injuries which give rise to a permanent impairment of 2%:

   ·scarring to the right hip.

Pre-existing/subsequent impairment

1. There is no pre-existing or subsequent impairment. The scaring to the right hip arises out of the accident-related surgery. 

Apportionment

1. Apportionment is not applicable.

Adjustments for effect of treatment

1. There is no adjustment for the effects of treatment.

COMBINED CERTIFICATE

1. The Review Panel notes that more than one assessment has been required to assess the permanent impairment arising from the injured person’s physical injuries.

2. Using the Combined Values Chart at page 322 of the AMA 4 Guides the combined permanent impairment is 12%     

3. In accordance with section 7.26(8) of the MAI Act, the Review Panel has issued a combined certificate combining the result of this review with the results of the other assessments issued in determining this dispute.