Isaac v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 585
•10 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Isaac v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 585 |
| CLAIMANT: | Emmanuel Isaac |
| INSURER: | IAG Ltd t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 10 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical dispute about permanent impairment; claimant applied for review under section 7.26; original Medical Assessor Shahzad (MA) assessed less than 11% permanent impairment; issue of causation of injuries involved; incorrect deduction for left shoulder; pre-existing right shoulder condition; re-examined; Held – left shoulder not considered ‘normal baseline’; claimant sustained soft tissue injuries to right shoulder and elbow, with depressed tibial fracture in left knee; using walking sticks aggravated shoulder condition; claimant demonstrated consistency so range of movement measured; permanent impairment 17%; no evidence to support deductions for existing impairment in injured body parts; permanent impairment greater than 10%; previous impairment certificate revoked and replaced. |
| DETERMINATIONS MADE: | Review Panel Assessment of Degree of Permanent Impairment The Review Panel revokes the certificate dated 8 November 2022 and issues a new certificate determining that: · right shoulder – soft tissue injury, and · left knee – soft tissue injury. |
REASONS
HISTORY OF THE MOTOR ACCIDENT
On 20 March 2019 Emmanuel Isaac (the claimant), an old age pensioner, was living in a granny flat. He had walked from his granny flat to the driveway of the block to go to church with his daughters' mother-in-law who was also the insured driver of the vehicle at fault.
While the claimant was waiting on the driveway, the mother-in-law arrived and began to reverse her vehicle onto the driveway so the claimant could get in easily. However, she suddenly accelerated in reverse colliding with the claimant.
The claimant was pushed against the fence before falling on the concrete covered ground. A brick pillar collapsed on him.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages/statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
The insurer disputed Mr Isaac’s claim for non-economic loss and the level of permanent impairment. Mr Isaac applied to the Personal Injury Commission (the Commission) to assess the permanent impairment level.
Mr Isaac made an application to refer Medical Assessor David Shahzad’s Medical Assessment Certificate dated 8 November 2022 to a Review Panel pursuant to s 7.26(1) of the MAI Act, on the basis that Medical Assessor Shahzad’s assessment and determinations on whole permanent impairment (WPI) were incorrect in a material respect.
The application was lodged within 28 days after the parties were issued with the original certificate for the medical assessment.[1]
[1] Section 7.26(10) of the MAI Act.
The President’s delegate Rachel Britliff referred the medical assessment to a Review Panel (this Panel) on 9 February 2023.[2]
[2] Section 7.26(5) of the MAI Act.
Pre-accident medical history and relevant personal details
The claimant reported of a past medical history of being diagnosed with hypertension, ischaemic heart disease, atrial fibrillation, osteoarthritis and hypercholesterolaemia in 2006 and 2011.
He suffered a transient ischaemic heart attack in 2011. He also underwent bilateral inguinal hernia repair in 2007, 2011 and 2016 as well as transurethral resection of the prostate (TURP) in 2008 and 2011.
He was diagnosed with osteoarthritis in a hip and back in March 2012.
In March 2012, he sustained an injury to his back as he fell while trying to put on his shoes. He hit his head and suffered back pain that improved with Panadol.
He also suffered a viral urinary tract infection in September 2014. He was also diagnosed of non-insulin dependent diabetes mellitus in 2014.
He suffered from lower back pain in around August 2015 which was managed conservatively and left hip pain in December 2015.
He experienced haematuria in December 2015.
He started attending physiotherapy for the management of osteoarthritis in his both shoulders and left hip in around December 2016 and later commenced hydrotherapy.
The claimant had a haematoma on the abdominal wall and left hip osteoarthritis in August 2017 and left shoulder haemarthrosis in around October 2017.
In January 2018, he had a shoulder problem which required physiotherapy.
He attended the Liverpool Hospital on 30 May 2018 due to experiencing low blood pressure. He was placed on the waiting list for surgery in the form of left total hip replacement in August 2018.
He suffered from chronic kidney disease (Stage 3a) around May 2018 and iron deficiency anaemia in October 2018.
He was diagnosed with a non-ST-elevation myocardial infarction (NSTEMI) on 15 February 2019 regarding which a drug eluting stent was placed to the LAD and hypomagnesaemia on 1 March 2019.
He had cellulitis and swelling in right elbow in around September 2019.
He enrolled in a cardiac chronic care program in around September 2019. He was again hospitalized in November 2019 due to chronic cardiac failure. He has been undergoing Warfarin management over the past few years.
He has been under the care of Dr Govind Narayan (nephrologist) regarding his kidney disease. He has been managing his condition using medication as well as close monitoring of the renal function.
He is allergic to Keflex which could cause moderate vasculitis.
He has slight hearing defects.
He reportedly suffered from colonic cancer in the past.
Social history
The claimant has been married for more than 54 years and lives with his wife. They have three adult children and several grandchildren. His wife is also on the Aged Care Pension.
He used to go to church and socialise before the subject accident. However, this was disturbed after the accident due to pain symptoms. He manages to keep regular contact with his children and grandchildren and they visited him on the weekends before the Covid 19 lockdown.
He rarely drove. He states he was suffering from anxiety and was cautious due to the fear of having another accident while driving in around 2021.
He experienced some strain on his relationships including loss of friendships following the subject injury.
He does not smoke and imbibes alcohol occasionally. He reportedly quitted smoking around 1970.
Pre-accident employment, education, and work experience
The claimant was born and raised in Iraq. He completed schooling up to year 12 and studied Commerce at university. He performed administrative work for the Iraq National Oil Company for the period 1957 to 2007.
In 1996, he migrated to New Zealand and worked in administration for 12 years. He retired at the age of 65 in 2006 and came to Australia in 2011. At the time of injury, the claimant was on the Aged Care Pension.
STATUTORY PROVISIONS & GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd[3] provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW[4] who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
[3] [2015] NSWSC 558.
[4] [2012] NSWSC 560.
Further, in the recent case of Hunter v Insurance Australia Ltd[5] the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation.”
[5] [2021] NSWSC 623.
The review
The Panel members met 16 May 2023 in a telephone conference and agreed to make the following directions:
The Panel initially considered a re-examination of the claimant was not required for the following reasons:
(a) in respect of the right shoulder the Panel agrees with the claimant’s submission that Assessor Shahzad deducting a portion of the WPI for Mr Isaac’s right shoulder on the basis of restriction in his left shoulder was in error. Although cl 6.51 of the Motor Accident Guidelines Version 9 (Guidelines) allows for a deduction for pre-existing impairment where a contralateral uninjured joint shows restriction, Medical Assessor Shahzad erred in applying the clause in Mr Isaac’s case when there was medical information to show that his left shoulder was injured before the accident but his right shoulder was not.
(b) In assessing the claimant's shoulder injury and the use of the left shoulder as a comparison, several factors need to be considered. Firstly, it is important to note that the claimant had a history of haemarthrosis of the left shoulder in October 2017. This previous shoulder condition raises uncertainty about the extent to which the haemarthrosis completely resolved and allowed the claimant to regain full movement and function in his left shoulder. The lingering effects of the haemarthrosis could have potentially limited the claimant's shoulder motion even before the motor vehicle accident.
(c) Furthermore, although Dr. Adikri's records indicate "no shoulder pain" on January 10, 2019, it is noteworthy that a chest x-ray conducted just nine days later on January 19, 2019, revealed moderate osteoarthritis in both shoulders. This indicates that the claimant had pre-existing shoulder osteoarthritis, which could have impacted his shoulder function and range of motion before the motor vehicle accident.
(d) Moreover, there was a significant delay of approximately five months before the claimant reported a shoulder injury following the motor vehicle accident. This delay raises questions about the direct causation of the reported shoulder injury and whether it could be solely attributed to the accident or if other factors may have contributed to its development. It is important to consider the claimant's change in mobility and reliance on two walking sticks for support after the accident. It is plausible that the increased use of walking aids, such as crutches or sticks, could have aggravated both the claimant's right and left shoulder conditions, leading to further pain and limitations in shoulder movement. This aggravation may have distorted the accurate assessment of the left shoulder as a reliable basis for comparison.
(e) Taking all these factors into account, the Panel considered that a delay of five months before reported right shoulder pain would prevent any reasonable relationship to be established with the subject accident but accepted a right shoulder injury due to reliance on walking aids or support. It is also evident that the left shoulder cannot be considered a suitable reference point for comparison due to the uncertainty surrounding the resolution of haemarthrosis and the potential aggravation caused by the use of walking aids.
(f) The Panel’s conclusion was that the permanent impairment for the right shoulder would be 12% if the left shoulder impairment were not deducted.
(g) For the left knee, for 5 degrees genu valgum, is from Table 64, Page 85, American Medical Association, 1995, Guides to the Evaluation of Permanent Impairment, 4th edition, (AMA 4), for the mild tibial plateau fracture, giving 5% WPI. That for the retropatellar crepitus following the injury to his left knee is from Table 62, AMA 4, 2% WPI. This gives 7% WPI for the left knee, less 4% WPI for the restricted range of movement (ROM) of the right knee, giving 3% WPI.
This gave a total from the Combined Values Chart of 15% WPI for the right shoulder and left knee.
The Panel directed the parties as follows:
The claimant was to provide submissions on the following:
(a)whether the claimant agrees that the Panel provide a decision using the papers already submitted pursuant to PIC Procedural Direction 2;
(b)that the Panel does not re-examine the claimant, and
(c)any further submissions on the course the Panel proposes.
The claimant’s submission was that he consented to the Panel dealing with the review on the papers.
The insurer submitted that a re-examination was necessary to afford procedural fairness to the parties.
The insurer submits it is correct and open to the Review Panel to undertake a fresh assessment of all matters with which the medical assessment is concerned see Sanhueza v AAMI Limited [2010] NSWSC 774.
The claimant’s range of motion may well have changed since the Commission’s Medical Assessor Shazad assessed the claimant’s physical injuries. The insurer submitted the claimant’s injuries should be reassessed to check on causation for the right shoulder condition since there was a delay before the right shoulder condition became apparently linked to the subject accident.
The Panel considered it was necessary to re-examine the claimant. The assessment was eventually set down for 17 October 2023 at the Commission’s examination rooms with Medical Assessor Assem.
The claimant was directed to take all relevant imaging studies to the appointment.
Part 5 of the Personal Injury Commission Act, 2020 (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.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the 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.[7]
[7] Rule 128 of the PIC Rules.
The assessment of permanent impairment under the MAI Act is undertaken in accordance with version 9.1 of the Guidelines.[8] The Guidelines adopt the AMA 4. Where there is any difference between AMA 4 and the Guidelines, the Guidelines prevail.[9]
[8] The Guidelines are issued pursuant to s 10.2 of the MAI Act. Section 10.1 of the MAI Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the Guidelines.
[9] Clause 6.2 of the Guidelines.
Assessment under review
Medical Assessor Shahzad certified on 8 November 2022 the following about the motor accident related injuries:
Permanent Impairment was not greater than 10% based on the following:
· right shoulder – soft tissue injury, and
· left knee – left tibial plateau fracture.
He found that the accident caused the above injuries.
Right shoulder
Impairment was determined using the methodology set out in MAA Guidelines 2007 and the AMA 4, Chapter 3.
Impairment of the right shoulder was determined using range of motion methods, using figures 38, 41 and 44 AMA 4, pages 43, 44 and 45 respectively, as set out in the table below.
Shoulder Movements Active ROM Measured
RIGHT °
Upper Extremity Impairment
AMA Guides (4th Ed)
Flexion
80
7% (Fig 38, pg 43)
Extension 20 2% (Fig 38, pg 43) Adduction 40 0% (Fig 41, pg 44) Abduction 60 6% (Fig 41, pg 44) Internal Rotation 40 3% (Fig 44, pg 45) External Rotation 10 2% (Fig 44, pg 45) Total UE Impairment 20% UEI
There was mild constitutional stiffness at the contralateral, non-injured, left shoulder, which attracts a 14% upper extremity impairment (UEI) rating using the methodology set out above. This range of motion is used as a baseline for assessment of impairment of motion at the injured right shoulder.
The residual impairment arising from the injury equalled 6% UEI.
This upper extremity impairment rating converts to a whole person impairment rating of 4% using Table 3, AMA 4, page 20 to convert upper extremity impairment to WPI.
Left knee
For the left knee condition, impairment was determined using AMA 4, Table 62, Footnote – in a patient with a history of direct trauma, patello-femoral pain and crepitation on physical examination but without joint space narrowing on roentgenograms, a 2% WPI or 5% lower extremity impairment is given. A 2% WPI arose.
Permanent Impairment Table
Body Part or System AMA4 Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident 1 Right shoulder AMA4 Figures, 38, 41 and 44, Pages 43, 44 and 45
YES 4% 2 Left knee AMA 4 YES 2% TOTAL
Disputes and issues identified by the parties
Claimant’s submissions
In relation to Medical Assessor Shahzad’s WPI assessment of the right shoulder, it was submitted that he erred in making a deduction on account of there being restriction of movement in the left shoulder. Guideline 6.51 refers to subtraction in respect to restriction in the "contralateral uninjured joint". In the present case, Medical Assessor Shahzad recorded a history of an earlier injury to (and of consequent impingement in) the left shoulder before the accident. It is submitted that in the circumstances, the claimant's left shoulder was not ''uninjured" within the terms of the Guidelines, so no such deduction should have been made.
It is submitted that this Guideline was inserted to make allowance for restriction of motion occurring naturally and would be expected to occur bilaterally and is not applicable in circumstances such as the present case, where there has been an earlier injury.
Insurer’s submissions
The insurer opposed the claimant’s application and said that the Medical Assessor had adequate reasons for treating the left shoulder as uninjured.
The insurer referred to a summary of the claimant’s general practitioner’s (GP) notes which made references to the left shoulder problems going back to 2011.
The insurer submits the classification of the left shoulder as an uninjured joint was appropriate having regard to prior issues with the left shoulder being temporary, fleeting and unlikely to have caused permanent disability/pain and/or given rise to WPI.
The claimant submitted that the haemarthrosis (bleeding into the joint) demonstrates that the left shoulder could not be classified as uninjured.
The insurer submits this event was for a limited period and related to management/adjustment of the claimant’s medications (namely the management of blood thinners required for treatment of his heart condition). The clinical history made no further mention of this issue after November 2017 (16 months before the subject accident) such that the only inference that can be drawn from the notes is that this condition resolved.
The insurer submits this event could not be considered a separate injury that gave Medical Assessor Shahzad reason not to accept the left shoulder as uninjured. Accordingly, Medical Assessor Shahzad was entitled to accept any impairment in the contralateral uninjured left shoulder as a baseline for the injured right shoulder and appropriately did so.
The claimant submits the incident recorded in the GP notes dated 2 January 2018 should have led Medical Assessor Shahzad to the conclusion that the left shoulder was injured for the purpose of using it as a baseline to be deducted from the impairment in the right shoulder (which was injured in the subject accident).
The insurer accepts there was left shoulder condition recorded in the consultation note dated 2 January 2018, however, that issue resolved and the claimant’s left shoulder returned baseline status well before the accident on 20 March 2019.
Following resolution the claimant was left with his constitutional issue of the left shoulder (documented osteoarthritis). This is logical, because he did not complain to his GP about left shoulder pain after 22 January 2018 and up to his first consultation after the accident in June 2019.
The insurer submits that Medical Assessor Shahzad’s certificate reveals that he gave more than adequate reasons. He accurately recorded the claimant’s pre and post-accident history and complaints during examination and gave thorough consideration to the medical material.
Documentation
The Review Panel considered the following documentation:
· Medical Assessor Shahzad’s certificate dated 8 November 2022;
· application for review and attached documents;
· Reply and attached documents;
· Reasons referring this matter to a Review Panel, and
· all the documents which were provided to Medical Assessor Gorman before the assessment under review.
MATTERS CONSIDERED AND DECIDED BY THE REVIEW PANEL
Review Panel findings
Clinical examination
Medical Assessor Assem examined Mr Isaac at the Commission’s medical suites on Tuesday, 17 October 2023. Mr Isaac was accompanied by his son who was present for the examination and interview.
Pre-accident history
Mr Isaac is an 82 year old gentleman who has history of osteoarthritis affecting both shoulders and the left hip, for which he began physiotherapy in December 2016. He later added hydrotherapy to his treatment regimen. In August 2017, he developed a haematoma on his abdominal wall and was diagnosed with left hip osteoarthritis. On 3 October 2017, he presented to Liverpool Hospital with left shoulder pain and he was unable to move his arm. He was diagnosed with haemarthrosis that was expected to gradually resolve. A plain X-ray on 4 October 2017 showed cortical irregularity of the humeral head and calcification within the subacromial space. The appearances suggest calcific supraspinatus tendinitis.
Despite the history of shoulder pain documented in his medical records, Mr Isaac could not recall any previous complaints involving his right or left shoulder. He did report experiencing pain in both knees but denied having physiotherapy treatment. He was able to ambulate with the support of a walking stick.
History motor vehicle accident and subsequent treatment
On 20 March 2019, the claimant was involved in a motor vehicle accident. While waiting on his driveway to go to church, he was struck by a reversing car driven by his daughter’s mother-in-law. The collision resulted in him being pushed against a fence, falling onto concrete, and being hit by a collapsing brick pillar.
He was initially taken to Fairfield Hospital, where he was diagnosed with multiple injuries, including non-displaced fractures of the left 11th and 12th ribs, intracranial and subarachnoid haemorrhages, a left tibial plateau fracture, and a left olecranon haematoma. He received five stitches on his scalp. He was then transferred to Liverpool Hospital for surgery on his right elbow and was fitted with a splint for two months.
He was transferred to Braeside Hospital for in-patient rehabilitation on 9 May 2019. During his stay, further X-rays revealed persistent issues with his left tibial plateau fracture and severe hip osteoarthritis. He was eventually discharged home after 13 weeks ambulating with the support of two walking sticks.
Despite undergoing extensive treatment and rehabilitation, he reported a gradual deterioration in his condition. As of late 2021, he continues to suffer from chronic pain, particularly in his right shoulder, and has severe mobility restrictions. He began to develop pain in his left shoulder that he attributed to compensatory overuse. He was unable to perform basic household chores and required assistance for personal care tasks from his wife who is 90 years old.
His condition has worsened to the point where he now requires a pickup frame for support, as he becomes short of breath upon exertion. He is wheelchair-bound and needs substantial assistance for transfers. He takes Panamax for pain relief.
Current symptoms
Medical Assessor Assem brought to his attention that there was an apparent delay before his right shoulder symptoms were reported. Mr Isaac explained that while he was hospitalised, he experienced significant issues with his right shoulder. He found it difficult to turn from one side to the other and he was unable to sleep on his right side, leading to frequent interruptions in his sleep pattern. He describes the discomfort in his right shoulder as severe, rating it 10/10 on the pain scale. His left shoulder is also deteriorating, with discomfort rated at 8/10 on the pain scale.
In addition to his shoulder issues, Mr. Isaac experiences constant discomfort in his left knee and is beginning to develop pain in his right knee, which he believes is due to compensatory overuse.
Upper extremity
Mr Isaacs is a frail elderly man. He was wheelchair bound and required a significant amount of assistance to sit on the examination couch. He was unable to lie in a supine position. While standing with support of his son he demonstrated the following shoulder movements, which the Medical Assessor checked several times in accordance with the Guidelines:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 50° 80° Extension 30° 30° Adduction 0° 30° Abduction 40° 80° Internal Rotation 60° 70° External Rotation 0° 0°
Lower extremity
Due to his frailty his knee movements were also difficult to examine while he was in a seated position. He was able to obtain a normal range of knee flexion bilaterally. Knee extension was limited to 20° bilaterally. There are patellofemoral crepitations bilaterally and moderate mediolateral instability of his left knee. It was not possible to test for any muscle atrophy as there is significant swelling of his entire right leg. The circumference of his right thigh was 1cm greater than the left.
Circumference of his right calf was 6cm greater than the left. Medical Assessor Assem was concerned that this should be referred to his GP, because it may indicate a possible deep vein thrombosis.
Discussion
The Panel considered that the biomechanics of the fall on the claimant's right elbow make it entirely plausible that a transmission of force would have impacted his right shoulder. Although the claimant has a history of haemarthrosis in the left shoulder and possibly calcific tendonitis, these conditions generally follow a trajectory of gradual improvement over time. Nonetheless, some residual limitations in shoulder motion are to be expected.
The injuries to the claimant's right shoulder and elbow likely necessitated a greater reliance on his left shoulder for activities of daily living and ambulation, particularly when using two walking sticks for support. This increased demand could reasonably contribute to escalating pain and stiffness in the left shoulder. Consequently, while noting the insurer’s submissions the left shoulder should not be considered as a ‘normal’ baseline for the purpose of medical assessment.
It is also noted that while the claimant has a history of arthritis involving his right shoulder, there was no objective evidence of a pre-existing impairment (MAA Guidelines, paragraph 6.31, pp 88-89).
Furthermore, while there is documented evidence of pre-existing osteoarthritis in the claimant's knees, the presence of a depressed tibial plateau fracture is a significant factor. According to the AMA 4 Guidelines, he has 2% WPI for an undisplaced plateau fracture and 5% WPI if there is 5° to 9° angulation which more accurately reflects the impairment being measured.
Panel Deliberations
The Review Panel’s conclusions on the parties’ issues
The Panel met again on 9 November 2023.
The Panel decided it would adopt Medical Assessor Assem’s examination report as evidence in its conclusions.
INJURIES:
Permanent Impairment
Left knee
There has been a depressed tibial plateau fracture sustained in the subject accident. According to the AMAb4 Guidelines, a depressed tibial plateau fracture with angulation of 5 to 9 degrees give rise to 5% WPI (AMA 4, Table 64, pp 3-85). There was no additional impairment for crepitations or a limitation in knee motion as there were similar findings in his uninjured knee.
Right shoulder
His shoulder movements appear to have deteriorated overtime probably reflecting progression of the underlying pathology and immobility. Nevertheless, during Medical Assessor Assem’s examination he appeared to be cooperating and exerting maximal effort despite his frailty. Given that his movements were relatively consistent on repeated testing, the range of right shoulder motion was used to estimate his level of impairment. Although he had a significant restriction in left shoulder motion, it was not considered to be ‘normal’ (MAA Guidelines, paragraph 6.51, p 91) as he had a previous haemarthrosis and reported that his left shoulder had deteriorated due to compensatory overuse.
According to the limitations observed, Mr Isaac has 22% RUEI (AMA 4, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45) which converts to 13% WPI.
The combined whole person impairment is 13% +5% = 17% WPI.
Shoulder ROM Right / impairment Left/ impairment Normal Flexion 50 9 80 7 180 Extension 30 1 30 1 50 Abduction 40 6 80 5 180 Adduction 0 2 30 1 50 Internal rotation 60 2 70 1 80 External rotation 0 2 0 2 60 Total RUEI 22 Total LUEI 17
Panel decision
The Review Panel found that the motor accident caused the following injuries:
· right shoulder – soft tissue injury, and
· left knee – left tibial plateau fracture.
The Review Panel found that the motor accident did not cause the following injuries:
· not applicable.
The Review Panel considered that the following injuries caused permanent impairment:
· right shoulder – soft tissue injury, and
· left knee – left tibial plateau fracture.
The degree of permanent impairment of the injuries caused by the motor accident was calculated as follows:
Body Part or System AMA Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident 3 Left knee AMA Table 41,62 Yes 13% 0% 13% 4 Right shoulder AMA Table 18,19
MAA Guide 6.24Yes 5% 0% 5%% * %WPI = percentage whole person impairment
Determination regarding the degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident
The total percentage permanent impairment for assessed injuries caused by the motor accident is 17%. The total WPI is greater than 10%.
Permanent impairment ratings take symptoms into account; however the percentage of permanent impairment is not a direct measure of disability. A finding of 0% WPI indicates that the motor accident caused an injury and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI.
Permanent impairment
The Review Panel finds the motor accident caused injuries with a degree of permanent impairment, which is different to Medical Assessor Shahzad’s findings in the Permanent Impairment Certificate dated 8 November 2022. Medical Assessor Shahzad determined that the claimant’s permanent impairment was less than 11%, while this Panel assessed 17% permanent impairment.
The Review Panel has determined that this certificate is to be revoked and the Review Panel will issue a new Permanent Impairment Certificate.
Review Panel Certification
Member O’Riain, Medical Assessor Dixon and Medical Assessor Assem have viewed this certificate and confirmed that they are in agreement.
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