Meriton v AAI Limited t/as GIO
[2022] NSWPICMP 261
•4 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Meriton v AAI Limited t/as GIO [2022] NSWPICMP 261 |
| CLAIMANT: | Jesse Clause Meriton |
INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL: | Member Belinda Cassidy Medical Assessor David Gorman Medical Assessor Tai-Tak Wan |
| DATE OF DECISION: | 4 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (1999 Act); medical assessment of Whole Person Impairment (WPI) and insurer’s review under section 63 of the 1999 Act; claimant involved in serious single vehicle accident with multiple roll-overs; claimant alleged injuries to neck, lower back, upper limbs and lower limbs; claimant also alleged head injury and scarring due to surgery to repair fractured ulnar and radius and severe ankle ligament damage; Held- claimant had recovered well; neck and back Diagnosis Related Estimate (DRE) I; ankle and wrist had restriction of motion equal to 4% and 1% respectively; scarring assessed at 1% according to the table for the evaluation of minor skin impairment (TEMSKI); while Panel satisfied claimant sustained a head injury in the accident the Panel was not satisfied that a brain injury had occurred; total WPI 6%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Ian Cameron 2021. 2. Certifies that the degree of Jessie Meriton’s permanent impairment resulting from the injuries caused by the motor accident on 12 August 2017 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
On 12 August 2017, Jesse Meriton was involved in an accident with tragic consequences. After a night out with friends, he was asleep in the back of a car when the driver lost control on a corner and the car rolled at least three times. Mr Meriton’s girlfriend Sarah was killed, and another occupant of the vehicle was thrown from the car and catastrophically injured[1].
[1] There is reference in some of the records to this person having sustained a significant head injury, resulting in brain damage and him requiring lifetime support.
Mr Meriton was injured and taken first to West Wyalong hospital and then to Orange Base Hospital.
In time he made a claim for compensation against GIO, the third-party insurer of the vehicle he was travelling in at the time of the crash. Mr Meriton sought damages for non-economic loss asserting he had a whole person impairment (WPI) of more than 10%. GIO did not agree and an application for medical assessment of that dispute was lodged with the Dispute Resolution Service (DRS).
Upon the abolition of DRS, the resolution of the dispute fell to the Personal Injury Commission (the Commission) to be determined.
On 27 November 2021, Associate Professor Ian Cameron, a Medical Assessor with the Commission, issued a certificate with reasons determining that the claimant did not have a WPI of greater than 10%.
Mr Meriton was dissatisfied with that result and sought a review of that decision. On 13 January 2022, the delegate of the President of the Commission determined that there was reasonable cause to suspect a material error in Assessor Cameron’s decision and allowed the review to proceed. The President then convened the Medical Review Panel (the Panel) made up of one Member of the Commission and two Medical Assessors.
Both the claimant and the insurer have had the claimant examined by medico-legal experts. In order to better understand the dispute between the parties and the application for review, the following table summarises the WPI findings of the experts and Assessor Cameron.
Area of the body assessed[2]
Dr Bodel (claimant)
24/10/2019
Dr Meakin
(insurer)
11/03/2020
Assessor
Cameron
27/11/2021
Head
0
0
0
Cervical spine
0
0
0
Thoracic spine
0
0
0
Left arm STI
0
0
0
Left leg STI
0
0
0
Lumbar spine
5%
0
0
Right wrist STI and fracture
3%
4%
1%
Right leg STI and ligament surgery
5%
4%
4%
Scarring
1%
1%
0
Total combined WPI
13%
9%
5%
[2] STI -= soft tissue injury.
LEGISLATIVE FRAMEWORK
Statutory Provisions
Mr Meriton’s claim for damages is made under the Motor Accidents Compensation Act 1999 (the MAC Act). The entitlement to, and the amount of damages that can be awarded to the claimant is subject to the provisions of Chapter 5 of that Act.
Damages for non-economic loss are limited and restricted by the provisions in Part 5.3. For example, entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[3].
[3] See section 132 and s (as written in [8] above) 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment such as Assessor Cameron’s, further medical assessments and the review of medical assessments by a review panel[4].
[4] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
Head injury impairment
[5] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
A head injury can involve injuries to anatomical parts of the head such as the nose, ears, eyes and mouth. There are separate chapters in the AMA4 Guides and parts of the Guidelines dealing with parts of the head such as the ear nose and face as well as impairment to vision.
The Panel understands from the submissions lodged by the claimant that he alleges an injury to the brain. Brain injuries are assessed under chapter 4 of the AMA4 Guides and the Nervous System section of the Guidelines.
There is no suggestion in the material before the Panel that the claimant sustained an injury to the brain stem or the spinal cord and therefore only Part 4.1 of chapter 4 is relevant being “The Central Nervous System – Cerebrum or Forebrain”.
Clause 1.160 of the Guidelines provides that in assessing any impairment to the nervous system under chapter 4, the Panel must consider:
(a) aphasia and communication disorders;
(b) disturbances of mental status and integrative functioning;
(c) emotional or behavioural disturbances, and
(d) disturbances of consciousness and awareness.
For an assessment of mental status impairment and emotional and behavioural impairment clause 1.164 provides that there must be:
(a) “evidence of a significant impact to the head or a cerebral insult, or that the motor accident involved a high-velocity vehicle impact”, and
(b) “one or more significant, medically verified abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or post‑traumatic amnesia, or brain imaging abnormality”.
Spinal impairment
Impairment to the spine in assessed by considering each of the three areas of the spine (cervicothoracic / neck, thoracolumbar / mid-back and lumbosacral / lower back). The Guidelines provides that the Diagnostic Related Estimates (DRE) Model is to be used and there are categories I – VIII for each area of the spine (see Table 7 and clause 1.117) and a separate impairment for each area is allowed and the impairments are to be combined. Table 8 includes a series of definitions which helps to determine which of the eight categories is the applicable category.
Wrist impairment
The Guidelines provide for the evaluation of upper limb impairment as follows:
(a) The maximum impairment for an upper limb is 60% (clause 1.49).
(b) Range of motion is the suitable method of evaluation impairment and should be assessed using a goniometer in respect of active range of motion measurements (clause 1.50).
(c) The hand and upper extremity are divided into regions being the thumb, fingers, wrist, elbow and shoulder. Measurements for each region are added or combined according to the AMA4 Guides (clause 1.54).
(d) Measurements of radial and ulnar deviation in the wrist joint must be rounded to the nearest 5 degrees in accordance with figure 29 (clause 1.55).
(e) Once the upper extremity impairment (UEI) is calculated table 3 (page 20 AMA4 Guides) is used to convert that figure to a WPI (clause 1.56).
The AMA4 Guides provide for the assessment of wrist impairment at 3.1h (page 35) by way of abnormal motion of the wrist. The wrist itself is 60% of the upper limb’s function and has two units of motion: flexion / extension and radial / ulnar deviation.
(a) Flexion and extension are measured (normal is presumed to be 60 degrees) then added to produce a UEI (figures 24 and 26 page 36).
(b) Radial and ulnar deviation are measured (normal is presumed to be 20 and 30 degrees respectively) then added to produce another UEI (figures 27 and 29 pages 37-38).
(c) The two UEI measurements are added then converted to WPI using Table 3 (page 20).
Ankle impairment
The ankle is part of the lower extremity and there are 11 methods for assessing impairment of the lower limb provided for in the AMA4 Guides. The Guidelines provide restrictions and limitations as to which method can be used and how they are to be used.
The maximum WPI for the lower limb is 40% (clause 1.73).
Skin impairment
There is no dispute that the claimant has two scars as a result of the accident, one on the wrist and one on the ankle. These scars are as a result of surgery. In accordance with the AMA4 Guides, scarring is assessed within the skin chapter and the skin section of the Guidelines.
Relevant provisions of the Guidelines are as follows:
25.“1.261 A scar may be present and rated 0% WPI.
26.1.262 Table 2 (page 280, AMA4 Guides) provides the method of classifying impairment due to skin disorders. Three components - namely signs and symptoms of skin disorder, limitation of activities of daily living and requirement for treatment - define five classes of impairment. Determining which class is applicable is primarily dependent on the impact of the skin disorder on daily activities … All three criteria must be present ...
27.1.263 When using Table 2 (page 280, AMA 4 Guides), the medical assessor is reminded to consider the skin as an organ. The effect of scarring (whether single or multiple) must be considered as the total effect of the scar on the organ system as it relates to the criteria in Table 2 … Multiple scars must not be assessed individually. The medical assessor must not add or combine the assessment of individual scars but assess the total effect of the scarring on the entire organ system.
28.1.264 The TEMSKI (Table 18) is an extension of Table 2 (page 280, AMA4 Guides). The TEMSKI divides class 1 into five categories of impairment. When a medical assessor determines that a skin disorder falls into class 1, they must assess the skin disorder in accordance with the TEMSKI criteria. The medical assessor must evaluate all scars either individually or collectively with reference to the five criteria and 10 descriptors of the TEMSKI. The medical assessor should address all descriptors.
29.1.265 The TEMSKI must be used in accordance with the principle of best fit. The medical assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. The skin disorder should meet most, but does not need to meet all, of the criteria within the impairment category in order to satisfy the principle of best fit. The medical assessor must provide reasons as to why this category has been selected.”
In summary, Table 280 of the AMA4 Guides provides a method of assessing WPI due to skin disorders and defines five classes of impairment. The first class ‘minor impairment’ provides for a range of 0-5%. The Guidelines include a Table for the Evaluation of Minor Skin Impairments (TEMSKI), Table 18 which the Panel must apply.
ASSESSMENT UNDER REVIEW
Assessor Cameron was required to assess the following injuries:
(a) traumatic brain injury – head / brain injury, loss of conscious, amnesia;
(b) cervical spine – soft tissue injury and radiculopathy;
(c) thoracic and lumbar spine – soft tissue injury;
(d) right upper extremity from the right shoulder to the fingers and thumb;
(e) left upper extremity from the left shoulder to the fingers and thumb or, in the alternative left shoulder impairment due to cervical spine injury;
(f) right wrist and ankle – scarring and deformity;
(g) right lower extremity including the right hip, right knee and right ankle, and
(h) left lower extremity including the left hip, left knee, left ankle and foot and impairment due to overuse of left limb to compensate for injured right limb.
Assessor Cameron took a history of the accident noting that the claimant remembered the noise of the crash and that he thought he “may have lost consciousness”. The Assessor records that Mr Meriton was trapped in the vehicle but found his phone and called emergency services. Assessor Cameron notes Mr Meriton’s major injury was a fractured right wrist which was put in a cast for six weeks. The claimant reported significant ongoing symptoms and surgery on his wrist about 12 months after the accident followed by considerable physiotherapy.
The claimant reported ongoing pain in the right wrist when lifting, gripping or doing heavy work with symptoms “in the ulnar distribution”. The claimant also complained of pain in his right ankle with reduced strength and difficulty with heavy work.
The claimant had returned to water-skiing, hunting and fishing and was working 30-50 hours a week in his farm building and maintenance work. At the time of the assessment, the claimant was not taking any medication or seeing any doctor.
Assessor Cameron said the claimant was well-oriented in time and place and with no cognitive impairment. He scored 29/30 on a mini-mental test.
In the three parts of the spine, Assessor Cameron recorded mild, symmetrical reduced range of motion (to 80%) with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints. Nerve tension signs were negative in the cervical and lumbar spines. Movement of the shoulders was full, with pain at the extremes of movement. Other upper extremity movements were reported as normal as were the lower limbs.
Assessor Cameron describes a scar on the wrist and another at the right ankle as “inconspicuous”.
Measurements of the right wrist compared to the left showed restriction of motion in all planes of movement and there was also restriction of motion in the right ankle (although no comparison was made with the left).
Assessor Cameron found the claimant may have had a head injury and that otherwise he had suffered soft tissue injuries to the other body parts with fracture of the ulnar styloid and surgical scarring to the wrist and ankle.
Assessor Cameron was of the view that while the claimant may have had a head injury it did not result in permanent impairment because the criteria set out in cl 6.164 of the Guidelines was not satisfied.
He considered the claimant’s neck, thoracic and lumbar spine injuries were rated as DRE I. While the claimant had signs and symptoms there was no radiculopathy which would rate as DRE III and no non-verifiable radicular symptoms which would rate as DRE II.
The loss of wrist movement was assessed as 1% and the wrist scar assessed separately under the TEMSKI as 0%.
The loss of ankle movement was assessed at 4% and the scar on the ankle also assessed separately under the TEMSKI at 0%.
The final WPI was 5%.
SUBMISSIONS RECEIVED
Other assessments undertaken in respect of Mr Meriton’s injuries and impairments
The claimant’s alleged tinnitus and hearing loss were the subject of a certificate issued by Medical Assessor Scoppa on 27 January 2022 following an assessment on 18 November 2021. Mr Meriton gave a history of hunting with firearms a couple of times per year and was well before the accident. The claimant said he sustained hearing loss in both his ears and was experiencing tinnitus.
Assessor Scoppa found no reference to hearing loss or tinnitus in the records (apart from mention of in in Dr Bodel’s report) and he undertook an audiogram which showed “normal hearing bilaterally”. He referred to paragraph 1.180 of the Guidelines noting that tinnitus is only assessable in the presence of hearing loss. In the absence of any hearing loss this meant a WPI of 0%.
The Panel understands this assessment is not disputed.
Medical Assessor Samuel assessed the claimant’s psychiatric injury in an assessment on 18 August 2021 issuing a certificate on 1 September 2021.
Assessor Samuel noted no pre-accident psychiatric history and took a detailed history of the accident and its immediate aftermath. He noted the claimant saw a psychologist for 10-15 consultation and took pain killers for a while.
Assessor Samuel noted “His cognitive functioning was normal at a clinical level”. Mr Meriton reported having nightmares and had symptoms of anxiety although these had improved but Assessor Samuel thought the claimant’s symptoms would continue and were permanent. He diagnosed post traumatic stress disorder and found 1% WPI.
The Panel understands this assessment too is not disputed.
Claimant’s submissions
Claimant’s submissions in support of original medical assessment
The submissions lodged in reply to the insurer’s submissions[6] deal with the claimant’s alleged psychiatric injury and argue that the claimant is not bound by his own expert, Dr Rickard Bell who had assessed WPI at 7%.
[6] Document A75 in the claimant’s bundle dated 25 March 2020.
The claimant argued that while Dr Bodel had assessed a greater impairment at an earlier point in time than Dr Meakin, this did not mean the claimant’s condition had improved and that there was “less than 4 months” between the two examinations. The claimant also said that it was not a matter for an assessor to weigh up competing medical assessments but to make their own decision, based on their examination.
The insurer had submitted that the claimant did not have a head injury and the claimant argued that Dr Knight had, on 31 October 2017, in a medical certificate said the claimant’s injuries included a “head injury with possible loss of consciousness” and that the claimant’s tinnitus and hearing loss were a result of a “significant injury to his head”.
Claimant’s submission in support of the review
The claimant submits[7] that Assessor Cameron did not give due regard to all the evidence, was not provided with or overlooked the claimant’s evidence[8]. The primary thrust of these submissions is that nowhere in the Assessor’s reasons was there any reference to Dr Bodel’s opinions.
[7] Document A77 in the claimant’s bundle dated 9 December 2021.
[8] Some had been provided as additional documents.
The claimant notes that Dr Bodel assessed the claimant at 13% and Dr Meakin at 9% yet the Assessor only assessed 5%.
The claimant argues Assessor Cameron did not address the claimant’s arguments concerning a head and traumatic brain injury. The claimant also submits that Assessor Cameron incorrectly assessed scarring by assessing the individual scars within the assessment of the area of the body assessed and not the scarring as a whole. And the claimant also suggests Assessor Cameron did not explain why he found 0% when the experts from both sides had assessed the claimant’s scarring as 1%.
Insurer’s submissions
Insurer’s submissions in response to original application
The insurer’s submissions[9] argued that there was no dispute about the WPI arising from the claimant’s psychological injury because Dr Rickard-Bell for the claimant had assessed WPI at 6%.
[9] Page 11 of the insurer’s bundle dated 19 March 2020.
The insurer had also objected to the claimant’s brain injury being assessed as there was no evidence of injury, the claimant was studying for his pilot license and there was no evidence of a loss of consciousness.
The insurer relied on the evidence from its expert, Dr Meakin whose report was dated March 2020 and more recent than the claimant’s report from October 2019 and said:
(a) Back – Dr Bodel DRE II had recorded asymmetry of movement and guarding but no radiculopathy. Dr Meakin had recorded full range of motion indicating improvement.
(b) Right wrist – Both Dr Bodel and Dr Meakin had found slight restriction, the former assessing WPI at 5% and the latter 4% again showing some improvement.
(c) Right ankle – Both doctors were in agreement at 4%.
(d) Scarring – Both doctors were also in agreement about the scarring.
Insurer’s submissions in response to the application for review
The insurer argued[10] that the assessor was required to undertake his own assessment and outline his path of reasoning in coming to his conclusion and he did not have to explain why he did not agree with the experts.
[10] The insurer’s submissions are not signed or dated and have not been included in the insurer’s bundle. They are identified as document R1 having been uploaded to the portal on or about 23 February 2022.
The insurer refers at length to clause 6.21 of the Guidelines which requires an assessment of the claimant’s impairment at the time it is assessed.
In relation to the scarring, the insurer does not suggest that Assessor Cameron incorrectly assessed the impairment but seems to be saying that if there was an error that a 1% impairment is not a material error.
Procedural matters
The Panel first met by telephone on 23 March 2022 and on 24 March 2022 issued to the parties a report of that teleconference and directions to the parties.
The Panel provided the table of assessments and noted that there had been no impairment found in respect of the head injury and injuries to the cervical, thoracic left arm and left leg and that, subject to any further submissions the Panel did not intend to consider these areas of the body. The Panel indicated that it would consider the claimant’s lumbar spine, right wrist and right leg and scarring.
The Panel directed the parties to provide a complete bundle of all the documents the parties wished to rely on in the assessment.
The Panel advised the parties of the examination by Assessor Gorman and requested the claimant attend with all relevant imaging studies.
The Panel received bundles of documents from each party but no further submissions from either party.
REVIEW OF THE EVIDENCE
There were 80 documents in the claimant’s bundle of documents and three in the insurers. Some of the documents were not relevant to the matters in issue before the Panel (for example the newspaper articles concerning the death of Sarah Lloyd[11]). There were other documents relevant but not necessary for example the letters requesting a concession as to WPI and the insurer’s response[12].
[11] Documents A8, A9, A10 (newspaper articles).
[12] Documents A11 and A12 in the claimant’s bundle.
Many of the other documents (including some referrals to specialists[13]) are not strictly relevant to the matters in issue before the Panel because there is no issue that the claimant was injured and there is no dispute that he has ongoing issues with his wrist and ankle. The Panel does not therefore intend to cover in detail every single document but, the Panel wishes to assure the parties that they have all been read and considered.
[13] Document A22 is a referral to a psychologist and A24 is a referral to Dr Howard
The claim form was completed by the claimant on 31 October 2017[14] noting the accident occurred at Ungarie near Wagga Wagga at about 5.00am on 12 August 2017. There is a lengthy list of injuries attached to the claim form and the certificate completed by Dr Peter Knight general practitioner (GP) records multiple soft tissue injuries, fractured right wrist, head injury with possible loss of consciousness and post traumatic stress disorder.
[14] Document A1 in the claimant’s bundle with the medical certificate being document A2.
The Orange Hospital records[15] include the ambulance record for the claimant which is difficult to read, and the triage information suggests a fracture to both the right radius and the right ulna. The claimant had a Glasgow coma scale score of 15 (out of 15) and there is a note in the “consultation information” section of the notes that the claimant woke up just before the car rolled, he remembered the incident and had not lost consciousness.
[15] Document A13 in the claimant’s bundle. Also relevant are the West Wyalong notes (Document A19) where the claimant was taken after the accident before being discharged after the x-ray revealed the fractured wrist.
Notes have been provided from:
(a) Riverina Hand Therapy[16] suggesting the claimant’s last consultation was on 10 January 2018.
(b) Dr Anthony Bradshaw[17] (ankle) where the last communication recorded was in November 2018.
(c) Dr James Masson[18] (Riverina Hand Therapy) which noted improvement of pain after the accident followed by an increase in pain which led to the right wrist surgery.
(d) Dr Knight and others from the Peter Street Medical centre[19]. These detail pre-accident accidents including one in May 2007 (painful left knee), October 2014 (painful sternum), October 2015 (painful finger), November 2015 (twisted left ankle at work). This also documents the extensive history of treatment following the accident.
(e) Western NSW Medical Imaging[20] X-ray on the day of the accident and CT scan noting a “mildly displaced non-angulated distal radial intra-articular fracture and mildly displaced ulnar styloid fracture”.
(f) MRI of the right wrist dated 21 September 2017[21] showing a “complex but minimally displaced fracture” of the distal radius and an avulsed tip of the ulnar styloid.
[16] Document A14 in the claimant’s bundle.
[17] Document A15 in the claimant’s bundle.
[18] Document A17 in the claimant’s bundle.
[19] Document A18 and updated A74 in the claimant’s bundle.
[20] Documents A20 and A21 in the claimant’s bundle.
[21] Document A25 in the claimant’s bundle.
The claimant was treated by Dr Matthew Howard[22] orthopaedic surgeon in September 2017 after the development of “quite marked wrist and forearm pain”. On the second visit (and with the MRI) the claimant was reassured but he was advised he may also have had “a massive soft tissue injury to go with the fractures” which explained his pain. He was advised to have physiotherapy. After some therapy (by Riverina Hand Therapy) and further imaging[23], the claimant returned to Dr Howard with “quite significant pain around his forearm” and Dr Howard thought he had developed some form of pain syndrome and he was again encouraged to move more and pursue therapy. Dr Howard’s final letter of 21 December 2017 noted that the claimant had a “massive wrist injury” and that the original MRI shows “the articular surface of the radius is completely crazed. None of the fragments are particularly displaced but there are many fragments. This is a massive compression injury and I am sure that this is the original of his pain”.
[22] Documents A26, A27, A28, A31 and A35.
[23] Documents A29 and A30 in the claimant’s bundle.
A second opinion was sought from Dr Masson at the Riverina Hand Centre on 15 December 2017[24] and he replied to the GP recommending injection into the affected area and when that relieved the pain[25], surgery to excise the ulnar styloid was proposed and the surgery took place at Wagga Wagga Base Hospital on 15 March 2019[26]. There is a further referral to Riverina Hand Therapy dated 1 April 2020[27].
[24] The referral is document A32 and letters from Dr Masson include A30, A33, A34,
[25] Document A36 (the injection), A37 (Dr Masson), referral to Dr Hatfield (A38).
[26] Document A67 in the claimant’s bundle.
[27] Document A70 in the claimant’s bundle.
Nerve conduction studies done by Dr Martin Jude at Riverina Neurology in March 2018 revealed “mild carpal tunnel syndrome” in the right wrist but no ulnar neuropathy.[28]
[28] Referral document is A39, the nerve conduction study is A42.
In April 2018 the claimant was referred to Dr Bradshaw due to ongoing pain in his right ankle. It was noted that until that time focus had been given to the fractured right wrist. An MRI showed ligamentous injuries[29]. Dr Bradshaw wrote to GIO informing them of the claimant’s ongoing right ankle instability and requesting permission to undertake a right ankle arthroscopy with other procedures designed to improve stability of the ankle[30]. The operation was performed at Calvary Private Hospital on 29 October 2018.[31] A series of letters from Dr Bradshaw detailed the improvement[32].
[29] The referral is document A45 and the MRI is A44.
[30] Document A46 in the claimant’s bundle.
[31] The operation report is document A47 in the claimant’s bundle.
[32] Documents A48, A49, A50, A51, A52, A53, A54 in the claimant’s bundle.
Mr Meriton was cleared to return to work with physiotherapy to improve function. There is another referral to Dr Bradshaw in April 2020 for “persistent pain and limited range of movement” and a further referral on 8 June 2021 (after an exacerbation of right ankle pain) and advice concerning the development of an impingement syndrome[33]. Mr Meriton was treated by way of a right ankle steroid injection[34].
[33] Documents A55, A71 and A72 of the claimant’s bundle.
[34] Document A57 in the claimant’s bundle.
There are further referrals for nerve conduction studies by Dr Jude dated 30 October 2019[35] regarding ongoing issues with the ulnar part of the right hand – reduced motor function and again on 8 June 2021.
Medical-legal reports
[35] Document A69 and A73 in the claimant’s bundle.
Dr Bodel - 24 October 2019
Dr Bodel was asked to examine the claimant and, from his review of the hospital notes and taking a history from the claimant, he identified injuries to Mr Meriton’s neck, back, a fracture of ulnar styloid at the right wrist and a lateral ligament injury to the right ankle. He also noted contusions to both knees and tinnitus.
Dr Bodel notes the claimant had a history of no previous problems.
The claimant had nine months off work, and he left the district having now returned. He is a carpenter and experiences problems with working on sloping roofs. Mr Meriton complained of pain in the right wrist and reduced grip, pain and instability in the right ankle and calf and intermittent neck and back pain aggravated by bending, twisting or lifting.
He considered the claimant had a lumbar spine injury categorised as DRE II with a WPI of 5% due to there being dysmetria and guarding but no radiculopathy. He noted restricted right wrist movements measured as corresponding to a 5% impairment and restriction of movement in the right ankle at 4% with 1% for the scars.
Dr Rickard-Bell - 19 November 2019
Dr Rickard-Bell took a history from the claimant of the accident, him leaving the Wagga Wagga area and living interstate but then returning to his pre-accident employer.
The claimant’s cognitive function was assessed, and Dr Rickard-Bell says this appeared normal and his thoughts logical with reasonable insight and judgment.
Dr Ricard-Bell has a history from the claimant of “no head injury or loss of consciousness”.
The claimant said his right wrist still caused discomfort with heavy lifting and while his ankle had also improved it still caused pain.
In terms of mental health, the claimant was having fortnightly nightmares and he was irritable and anxious.
Dr Meakin - 11 March 2020[36]
[36] Document R2 in the insurer’s bundle.
While Dr Meakin recorded that, at the time of his accident, the claimant had no pre-existing symptomatic disorder, he did have a record of the claimant’s previous work injury to the left elbow in 2016 (resolved), a twisted left ankle at work in 2015 (resolved and a painful left knee following a fall onto concrete at in 2017 (resolved).
Dr Meakin has a consistent history of the car accident and the immediate treatment. He notes the claimant had a distal wrist fracture right with treatment in the Wagga Wagga area until December 2017.
The claimant complained of continuing discomfort in the right wrist particularly when gripping. Mr Meriton also complained of low grade intermittent discomfort in the neck and lower back and discomfort in the right ankle.
Dr Meakin recorded that the claimant had nine months off work then he went to work in Queensland before returning to Wagga as a carpenter working full time.
Dr Meakin records Mr Meriton walking without a limp. On examination of the neck there was full symmetrical range of motion with no spasm or guarding. The shoulder movements were full, with no muscle wasting, no significant difference in circumference and reflexes present and equal.
The claimant’s right and left wrist were stable with the right grip slightly greater and there was no wasting. There was mild restriction of motion.
There was no wasting of right or left thigh and calves. Deep tendon reflexes were symmetrical present and equal and there were no abnormalities of tone or sensation.
There was slight restriction of motion of right ankle with scarring over the ankle.
Dr Meakin diagnosed soft tissue injuries to the neck and lower back as well as a significant ligamentous injury to right ankle and a fractured radius and ulnar with some ongoing impairment to range of motion.
EXAMINATION REPORT
Mr Meriton was reviewed by Assessor Gorman in his rooms on 20 April 2022.
Mr Meriton gave a history of the accident and his treatment which was consistent with the documents. There were no changes reported in Mr Meriton’s work duties and no subsequent injuries or conditions have arisen since the examination with Assessor Cameron.
Current symptoms
Mr Meriton continues to have pain in the right wrist mainly over the centre of the dorsum of the wrist. This pain is worse on extension of the wrist and when gripping. Mr Meriton reported that using a hammer for any length of time is hard.
In his right ankle Mr Meriton gets some pain posteriorly over the ankle. There can also be a shooting pain up “from the centre of the ankle”. On occasions he reported walking with a mild limp. He said when working on the [sloping] roof of a building he has difficulty, and he needs to externally rotate his foot because of the limitation in dorsiflexion. Mr Meriton said that he used to go hunting and fishing but because of his ankle he cannot walk on uneven ground or up hills.
Mr Meriton says he only has mild lumbar discomfort after driving long distances.
The claimant reports that he feels his memory is not so good as before and that he occasionally slurs words.
Current treatment
Mr Meriton still attends Riverina Hand Therapy in Wagga Wagga for treatment of his right wrist every few weeks.
He is not having any ongoing therapy for his ankle.
The claimant has ceased most medications taking occasional Nurofen or Panadol.
Examination
Mr Meriton looked well and moved easily around the examination area. He had a mild but intermittent limp favoring his right ankle.
His height was 175cm with his weight being 97kg.
Cervical spine
The claimant had symmetrical and normal range of movement in all planes.
There was no muscle spasm or guarding observed.
In the upper limbs there was no atrophy nor any abnormalities in power, sensation or reflexes and Mr Meriton did not have any referral of any radicular complains in his upper limbs.
Thoracic spine
There was no tenderness over the thoracic spine. Rotation to the right and left, flexion and extension were all normal.
There was no muscle spasm or guarding observed.
There were no sensory symptoms around the chest area.
Lumbar spine
The lumbar spine had a normal and symmetrical range of motion in all planes. On full flexion, with his fingertips 15cm from the ground, Mr Meriton had some mild mid-line lumbar spinal discomfort.
There was no muscle guarding or muscle spasm observed.
In the lower limbs, there was no atrophy and power, sensation and reflexes were normal and Mr Meriton did not have any referral of radicular complaints in his lower limbs.
Upper extremity
There was a fine 2.5cm scar over the distal right ulnar which was not easily seen by Assessor Gorman. There were two other fine 2 and 3cm scars on the dorsum of the right hand which were not from this injury.
There were limitations in wrist range of motion measured using a goniometer as follows:
Wrist Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 50° 70° Extension 60° 70° Radial Deviation 20° 20° Ulnar Deviation 30° 40°
Pronation and supination were equal and normal in both upper limbs.
There were no limitations in range of motion in other joints of the upper limbs.
Lower extremity
On occasions Mr Meriton limped, favoring his right foot, during the examination.
There was arthroscopy portal scarring and a 3cm scar from the lateral ligament repair over the lateral malleolus. The scars did not have significant colour difference and they were in positions not easily seen. There was no adherence and no tenderness of the scars.
There were limitations in the right ankle and hindfoot movements measured using a goniometer as follows:
Ankle Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTDorsiflexion 0° 15° Plantarflexion 40° 50°
Hindfoot Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTInversion 20° 30° Eversion 10° 20°
Head injury
Mr Meriton’s speech was normal, and he gave a clear account of his history. He could repeat “no ands ifs or buts” clearly and accurately (suggesting no communication disturbance).
Mr Meriton scored 30/30 in the Mini Mental State Examination (suggesting no cognitive impairment).
There were no cranial nerve abnormalities and the power, sensation and reflexes in the upper and lower limbs were normal (suggesting no motor or sensory disturbance).
PERMANENT IMPAIRMENT ASSESSMENT
Head injury
The claimant’s application for assessment says Mr Meriton sustained a head injury with amnesia and memory loss as a result of the accident.
The claimant told Assessor Gorman that he felt his memory was not as good as before the accident and that he sometimes slurs his words. The Panel notes the mechanism of the accident was what appears to be a high-speed roll-over in which one person died and another was catastrophically injured. The Police report[37] suggests that the pre-accident speed of the car was 100 kmph and that the car rolled “multiple times”. It is therefore possible that the claimant hit his head on some part of the car during the collision.
[37] Document A3 in the claimant’s bundle.
The Panel notes that Dr Knight who completed the medical certificate attached to the claim form said the claimant’s injuries included a “head injury with possible loss of consciousness” and that the claimant’s tinnitus and hearing loss were a result of a “significant injury to his head”. The Panel notes the claimant’s tinnitus and alleged hearing loss were assessed by Assessor Scoppa.
The Panel notes that the various histories of the accident recorded suggest Mr Meriton found his mobile phone after the accident, and he was the one who apparently rang the emergency services. This suggests to the panel that if there was any loss of consciousness, it must have been a momentary or brief loss of consciousness.
The Panel notes the assessment of Assessor Samuel who recorded Mr Meriton had normal cognitive functioning. The Panel also notes the history obtained by Dr Rickard-Bell that there was no head injury or loss of consciousness that the claimant recalled.
Mr Meriton had no abnormalities in the Glasgow Coma Score recorded in the hospitals where he was taken after the accident. No post traumatic amnesia is recorded in the hospital or other contemporaneous notes and no brain trauma is indicated on imaging.
Clause 1.160 of the Guidelines provides that in assessing any impairment to the nervous system under chapter 4, the Panel must consider:
(a) aphasia or communication disorders;
(b) mental status and integrative functioning abnormalities;
(c) emotional and behavioural disturbances, and
(d) disturbances of consciousness and awareness.
A review of the documents and the examination by Medical Assessor Gorman did not indicate any aphasia or communication disorders and no permanent disturbance in consciousness and awareness as a result of the accident.
When assessing impairment due to mental status and integrative functioning abnormalities and emotional and behavioural disturbances, clause 1.164 of the Guidelines requires there to be:
(a) evidence of a significant impact to the head, cerebral insult or the accident was a high-velocity impact, and
(b) one or more significant and medically verified abnormality such as an abnormal Glasgow Coma Scale (GCS) score, post traumatic amnesia or brain imaging abnormality.
While the first criteria set out in clause 1.164(a) may have been satisfied, the criteria set out in (b) are not met. The Panel is therefore of the view that no assessable impairment results from the claimant’s head injury.
Spinal impairment
Clause 1.111 of the Guidelines provides that only the DRE method of assessment is to be used when assessing spinal impairment. The categories are summaries in Table 7. Each of the three areas of the spine (cervico-thoracic, thoraco-lumbar and lumbo-sacral) is considered separately.
DRE category I requires there to be pain or symptoms present.
There is no suggestion of any vertebral body compression or fracture in Mr Meriton’s case. For his spinal injuries to be categorised as DRE II there must be:
(a) pain,
(b) guarding, or
(c) non-uniform range of motion – dysmetria, or
(d) non-verifiable radicular complaints which is defined in Table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(i)which follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
Cervico-thoracic (neck)
On examination by Assessor Gorman, there was no dysmetria, muscle spasm or non-verifiable radicular complaints found and there was no radiculopathy.
The Panel is of the view that Mr Meriton’s neck injury is categorised as DRE I, giving 0% WPI based on Table 73 on page 110 of AMA4 Guides and Tables 7 and 8 of the Guidelines.
Thoraco-lumbar (mid-back)
On examination by Assessor Gorman there was no dysmetria, muscle spasm or non-verifiable radicular complaints and no radiculopathy present.
The Panel is satisfied that Mr Meriton’s mid-back injury is categorised as DRE I, giving 0% WPI based on Table 74 on page 111 of the AMA4 Guides and Tables 7 and 8 of the Guidelines.
Lumbo-sacral (lower back)
Assessor Gorman’s examination revealed no dysmetria, muscle spasm or non-verifiable radicular complaints.
Mr Meriton had mild midline pain in the lumbar spine at the limit of flexion. His symptoms were only prominent intermittently such as after a long period of driving. There was no radiculopathy.
The Panel finds that Mr Meriton’s lower back injury falls within the category of DRE I which equates to 0% WPI based on Table 72 on page 110 of the AMA4 Guides and Tables 7 and 8 of the Guidelines.
While Dr Bodel found dysmetria and guarding when he examined the claimant in October 2019, three subsequent examinations (by Dr Meakin, Assessor Cameron and Assessor Gorman) have found none. This in the Panel’s view reflects the usual progress of soft tissue injuries such as that sustained by Mr Meriton.
Right upper extremity
The claimant sustained multiple soft tissue injuries in the accident from which he appears to have recovered. There is no issue between the parties and the medical records supports that Mr Meriton sustained a fracture of the right wrist involving the distal radius and ulnar styloid. The Panel notes that the examination by Assessor Gorman confirmed this injury is still causing pain and restriction of movement.
The wrist is restricted in flexion and using Figure 26 on page 36 of AMA4 Guides this gives a 2% upper extremity impairment (UEI). There is 0% impairment due to wrist extension. Using Figure 29 on page 38 the wrist radial deviation results in 0% UEI and the ulnar deviation a 0% UEI. These figures are added to give 2% UEI – this is equivalent to a 1% WPI based on Table 3 on page 20 of AMA4 Guides.
Left upper extremity
Mr Meriton did not complain of symptoms in the left arm or shoulder and there were no abnormal signs on examination.
The Panel is of the view there is no impairment as a result of any injury to the claimant’s left upper limb.
Right lower extremity
There is no dispute that the claimant injured the lateral ligaments of his right ankle in the accident which led to surgery.
Ankle impairment is assessed using Table 42 on page 78 and hindfoot movement is assessed using Table 43 on page 78 of the AMA4 Guides.
There is a 3% WPI for the restricted range of ankle movement and a 1% WPI for the restricted hindfoot movement.
The Panel is satisfied that the claimant has a total WPI of 4% for his right lower limb.
Left lower extremity
Mr Meriton did not complain to Assessor Gorman of any symptoms in his left leg and no abnormal signs on examination.
The Panel is not satisfied that any left lower limb injury sustained in the accident has resulted in any permanent impairment.
Scarring
The claimant’s accident-related scarring on the right ankle was from the lateral ligament repair and arthroscopy. His left wrist scarring relates to surgery treating his ulnar and radius fractures. In accordance with clause 1.263, the Panel has considered these scars together as an impairment to the skin as a whole.
The medio-legal experts for each party assessed the claimant’s scaring as minor and attracting a 1% impairment. The Panel has therefore proceeded on the basis that it is not disputed that Mr Meriton’s scarring is a ‘minor [skin] impairment’.
The TEMSKI provides five criteria and 10 descriptors to guide assessors in determining impairment. The descriptors are listed below with Assessor Gorman’s examination results.
TEMSKI DESCRIPTOR
EXAMINATION FINDINGS
Awareness of scars
1 - Mr Meriton is conscious of the scars
Colour match with surrounding skin
1 - While the colour match of the scars to the surrounding skin is good, the scars can still be identified
The ability to locate the scar
1 - Mr Meriton is easily able to locate the scar
Trophic changes
0 - There are no trophic changes
Visibility of staple marks or suture marks
1 - Mr Meriton’s staple and suture marks are visible
Anatomic location and visibility of the scars.
2 - The claimant’s ankle scar would be visible in particular in summer with sandals, thongs or low-cut shoes. The wrist scar is particularly visible with short sleeves.
Contour defect
0 - There is no contour defect
Effect on any activities of daily living
0 – There is no effect on activities of daily living
Treatment required (for the scars)
0 – No treatment is required
Adherence to underlying structures
0 – there is no adherence
Clause 1.265 requires application of the principle of “best fit”. There are only two of the five criteria including a score of more than zero, however there are five descriptors scoring zero, four scoring one and one scoring two. In the Panel’s view, when considering the evidence, the examination of Mr Meriton and the whole of the TEMSKI, the best fit for Mr Meriton’s scarring is 1% WPI.
CONCLUSION
A summary of the Panel’s finding is included below:
Body Part or System %WPI* due to motor accident Head – possible mild traumatic brain injury 0% Cervical spine – soft tissue injury 0% Thoracic spine – soft tissue injury 0% Lumbar spine – soft tissue injury 0% Right upper extremity – multiple soft tissue injuries, fracture of the ulnar styloid, surgical scarring 1% Left upper extremity – soft tissue injury 0% Right lower extremity 4% Left lower extremity – soft tissue injury 0% Scarring 1% TOTAL WPI 6%
It follows from the Panel’s findings that the claimant does not have a WPI of greater than 10%.
The claimant was involved in a serious accident in which one person, his partner at the time, was killed and another sustained a catastrophic brain injury. Mr Meriton sustained numerous injuries including a fractured wrist and a significant right ankle ligament injury. While he still has symptoms, he appears to have made an excellent recovery returning to work and moving forward with his life.
0
0
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