Meroni v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 300
•30 June 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Meroni v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 300 |
| CLAIMANT: | Antonio Meroni |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL: | Member Susan McTegg Medical Assessor Les Barnsley |
| DATE OF DECISION: | 30 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Medical Review Panel; whole person impairment (WPI); Motor Accident Injuries Act 2017 (2017 Act); talar dome osteochondral injury; laceration to right foot with local nerve damage, hindfoot stiffness; right foot/heel dysesthesia; hindfoot impairment; the claimant suffered injury whilst riding a motorcycle; the dispute related to the assessment of WPI; 2017 Act; the claimant suffered a talar dome osteochondral injury to the right foot; Held — reasonable to rate the talar dome osteochondral injury by analogy using Table 64 American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition(AMA 4) page 85-86; condition consistent with diagnosis of avascular necrosis of the talus without collapse 3% WPI; right foot/heel dysesthesia assessed Table 11, AMA 4, page 48 at 1% WPI; combining the two impairments provides a 4% WPI; earlier assessment of 5% WPI for scarring to the right foot, degloving of the right heel and aggravation of psoriasis; total combined assessment 9% WPI; certificate of Assessor Woo affirmed. |
DETERMINATIONS MADE: | 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% Certificate issued under section 7.23(1) of the motor accident injuries act 2017 The review panel affirms the certificate of medical assessor alexander woo dated 17 November 2021 and the combined certificate of medical assessor woo dated 1 December 2021. The panel confirms the combined permanent impairment is 9%. |
STATEMENT OF REASONS
INTRODUCTION
On 13 April 2018 Mr Antonio Meroni (the claimant) was riding his motorcycle to work. He was wearing a helmet and full protective gear. Mr Meroni was travelling in the bus lane on Victoria Road moving slowly uphill when a car moved into the bus lane and hit his right leg (the accident). Mr Meroni managed to keep his motorcycle upright and stopped in front of a tyre workshop. He had an obvious laceration of his right heel. He was assisted to sit on the ground with his right foot elevated on his motorcycle. His right heel wound was dressed before police and ambulance arrived at the scene. He was taken to Royal Prince Alfred (RPA) Hospital.
Mr Meroni was 51 years of age at the date of accident and is now 56 years of age. He was born in Switzerland, worked in Japan and came to Australia with his Australian born wife in 2006. He worked in the finance industry and at the time of the accident worked as a senior fund manager.
Mr Meroni asserts he sustained the following injuries in the accident:
1. (a) injury to the right foot, and
2. (b) injury to the right ankle.
Mr Meroni was admitted to RPA Hospital under the care of Dr Petchell, orthopaedic surgeon. He underwent washout, debridement and primary wound closure of the injury to the right foot and was discharged home on 15 April 2018. He used a wheelchair and then crutches until he was able to fully weight bear in September 2018.
Mr Meroni asserts he developed left foot and heel pain due to overuse during the period when he was using crutches.
Mr Meroni has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Meroni under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Meroni as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].
[1] Section 7.20 of the MAI Act.
Assessor Geoffrey (Paul) Curtin assessed Mr Meroni and issued a Certificate dated 28 November 2021 certifying a 5% whole person impairment (WPI) in respect of scarring to the right foot, degloving of the right heel and aggravation of psoriasis.[2]
[2] Certificate of Medical Assessor Curtin filed in the portal as AD3.
The dispute as to permanent impairment in relation to injury to the right foot and ankle and to the left foot and ankle was referred to Medical Assessor Alexander Woo. Assessor Woo assessed Mr Meroni on 12 November 2021 and issued a certificate dated 17 November 2021 certifying a 4% WPI in respect of right foot dysesthesia and a right talar dome osteochondral injury.
Medical Assessor Woo issued a Combined Certificate dated 1 December 2021 in respect of a total 9% WPI.
Mr Meroni has sought a review of the medical assessment of Medical Assessor Woo.
REVIEW PROCEDURE
An application for review of the medical assessment of Assessor Woo was lodged on 22 December 2021 within 28 days of the date on which both the combined Certificate and the Certificate of Assessor Woo was made available to the parties.[3]
[3] Section 7.26(1)(b) of the MAI Act.
On 28 March 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 7.26 of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission) [5]. Accordingly, the President’s Delegate referred the matter to this Panel to assess.
[5] Section 7.26(5A) of the MAI Act.
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[6].
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 24 May 2022 the Panel issued a Review Panel Report and Directions where the Panel stated inter alia:
“3. The Panel considers a re-examination of the claimant is not required because:
(a)the permanency and physical findings of the right leg were not in dispute, and have been well established by the assessment of Medical Assessor Woo, Dr Lam and Dr Barrett;
(b)the physical findings were of a normal range of movement in the ankle. The range of movements exceeded the thresholds attracting an impairment rating according to tables 42 and 43, page 78 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA4 Guides);
(c)the findings of dysesthesia in the distribution of the sural nerve are not in dispute; and
(d)the impairment at issue is that arising from an osteochondral fracture of the talar dome, which has been rated by Assessor Woo. An assessment of impairment for that injury does not require re-examination, as the examination findings of Assessor Woo have not been disputed.”
On 27 May 2022 the claimant objected to a determination being made without an examination. Accordingly, the Panel agreed an examination was necessary.
RELEVANT LEGAL AUTHORITY
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 (AMA4 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.[8]
[8] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
4. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
5. '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:
6.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
7.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
8. This, therefore, involves a medical decision and a non-medical informed judgement.
9. 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.”
ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Woo for assessment:
(a) injury to right foot;
(b) injury to left foot; overuse of left foot to compensate for right foot injury;
(c) injury to right ankle – soft tissue injury and musculoskeletal injury, and
(d) injury to left ankle – soft tissue injury and musculoskeletal injury.
Assessor Woo reported there was a tender spot over the left Achilles tendon, although the shape and excursion of the tendon were normal. He found the range of motion in the ankle and hindfoot were similar to the left side and considered normal. He found no muscle atrophy of the calves and thighs. Mr Meroni was able to stand on his toes and heels without pain and he found the posterior tibial and dorsalis pedis pulses were normal in both feet.
Assessor Woo concluded Mr Meroni had sustained a crush injury to his right leg causing a laceration in the heel and an osteochondral lesion of the right talar dome.
Whilst he accepted Mr Meroni could have developed symptoms in his left foot when he was required to put all his weight on the left foot in the six months following the accident, he found the left foot symptoms related to overuse had ceased now that
Mr Meroni can put weight equally on both feet. Assessor Woo found the injury to the left foot and left ankle had resolved.Assessor Woo assessed a 1% WPI for foot dysesthesia of the right foot and 3% WPI for a right talar dome osteochondral injury resulting in a total WPI of 4%.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 11 April 2022 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents marked AD1 paginated from pages 1 to 300. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD2 paginated from pages 1 to 85.
Treating medical evidence
The Discharge Summary of RPA Hospital notes admission until 15 April 2018 under the care of Dr Petchell who undertook debridement and repair of the right lower limb degloving injury.[9]
[9] AD1 p 31.
Clinical notes of Sydney Doctors disclose minimal attendances prior to the accident.[10] Mr Meroni consulted Dr Sue Carr on 26 April 2018 when she recorded details of the injury sustained in the accident and attended to wound dressing. Mr Meroni attended for wound care until 12 September 2018. Thereafter, he attended for review and also in respect of his developing psychological illness.
[10] AD1 p 140.
Mr Meroni commenced physiotherapy with Lucia Bang of Sydney Physio Solutions on 29 June 2018. On 19 February 2020 she noted Mr Meroni was reporting intermittent discomfort and spasm like sensation in his ankle with numbness and discomfort on palpation of the trauma site.[11] She felt he would benefit from ongoing gym membership to keep up his rehabilitation and fitness together with physiotherapy review every four to five months.
[11] AD1 p 257.
Mr Meroni was reviewed by Dr David Drynan, orthopaedic registrar on 5 April 2019. He reported on examination Mr Meroni had full range of motion and good power in his ankle with no instability. He noted mild sensory loss over the heel pad. He concluded there was mild cutaneous nerve damage that may improve further over six months.
Dr Drynan discharged Mr Meroni from the RPA Public Clinic.Mr Meroni was reviewed by Dr Peter Lam, orthopaedic surgeon on 13 June 2019.[12] He reported ongoing medial ankle pain and discomfort and altered sensation in the heel. On examination he noted minor restriction of subtalar joint motion and a normal range of ankle movement as compared to the left ankle. He noted the alignment of the right ankle appeared normal. He reported he had right pes planus. Dr Lam was of the view the claimant’s symptoms may be related to post-surgical scarring and suggested he undergo an MRI to exclude any underlying injury. Dr Lam advised the altered sensation is unlikely to improve and the claimant is likely to continue to experience discomfort with activity.
[12] AD1 p 34.
Mr Meroni underwent an MRI of the right ankle on 27 June 2019.[13] The report provides the following conclusion:
[13] AD2 p 40.
13. “● Scarred deep fascia of the postero-medial aspect of the ankle, with moderate fascial thickening and minimal associated oedema. No associated neural scar entrapment or neural pathology. The scar response extends to involve the flexor retinaculum. No retinacular defect. No posterior tibial tendon pathology.
· Chronic medial talar dome osteochondral lesion in the middle third, with non-acute crack in the chondral surface, immature subchondral cystic change, mixed pattern of subchondral bone marrow oedema and sclerosis.
· No associated ankle joint effusion.
· Scarred ATFL and CFL.
· Scarred deep fibres of the deltoid ligament.”
Medico legal evidence
Report of Dr Ian Barrett, 20 October 2020
Mr Meroni was assessed by Dr Barrett at the request of the insurer on 12 October 2020.[14]
[14] AD2 P 12.
Dr Barrett reported Mr Meroni continues to experience altered sensation involving the heel of his right foot. His sleep is disturbed. He can walk up to 10 km, and he can run but not as freely as before.
On examination Dr Barrett found slight restriction of ankle and hindfoot movement. He recorded the following active range of movement of both feet:
16. Plane of Motion
17. ROM – (R) Foot
18. ROM – (L) Foot
19. Dorsiflexion
20. 15º
21. 20º
22. Plantar Flexion
23. 40º
24. 40º
25. Inversion
26. 25º
27. 30º
28. Eversion
29. 20º
30. 20º
Dr Barrett noted the major tendons were functioning normally and the posterior tibial and dorsalis pedis pulses were palpable. He found no measured calf atrophy.
Dr Barrett diagnosed a degloving injury of the right heel pad with residual dyaesthesia in the distribution of the sural nerve.
In undertaking an assessment of whole person impairment Dr Barrett noted Mr Meroni had a Grade 2 sensory deficit affecting his right heel pad. With reference to Table 68, page 89 of AMA 4 he found dysaethesia in the distribution of the sural nerve equates to a 2% WPI. He noted 25% of 2% equates to a 0.5% impairment which rounds up to a 1% WPI.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 9 February 2022. Those submissions address the question to be determined by the delegate of the President and not the substantive dispute as to permanent impairment.
Insurer’s submissions
The insurer provided submissions dated 19 March 2021 in respect of the dispute as to permanent impairment.[15] The insurer relies upon the opinion of Dr Barrett who assessed a 1% WPI based upon range of movement of both feet (as outlined above).
[15] AD2 p 5.
The insurer also provided undated submissions addressing the inclusion by the claimant of additional injuries, namely scarring and psoriasis.[16] Those submissions are not relevant to the medical review before this Panel.
[16] AD2 p 8.
THE MEDICAL EXAMINATION
Mr Meroni attended unaccompanied and was physically assessed by Panel Member, Assessor Alan Home.
History
Pre-accident medical history
Mr Meroni was born and educated in Switzerland. He is married with one non-dependent adult son.
He reports no previous medical complaints. He recalls a high level of pre-injury fitness. He enjoyed skiing, playing golf and jogging.
He has a past history of psoriasis which was of mild severity prior to the subject accident. There is no prior history of ankle or foot complaints.
Pre-accident employment, education and work experience
He completed high school and university in Switzerland before working with Credit Suisse. He confirms subsequent work for a number of financial institutions both in Europe and in Australia. At the time of the accident, he was senior fund manager for Pace Asset Management.
History of the motor accident
Mr Meroni states that he was riding a BMW S1000 motorcycle along the bus lane in Victoria Road at approximately 60 kph. He says that a car in the adjacent lane to his right came into his lane, striking his bike on the right side. He recalls impact with his right leg.
He says that he suffered a laceration to the right posteromedial aspect of the right heel. He was able to maintain an upright position on his motorcycle. He stopped in front of a tyre workshop. He was assisted by the staff at the workshop and his foot was elevated prior to arrival of police and ambulance. He recalls that ambulance arrived approximately 15 minutes later.
He was subsequently transported to RPA Hospital, where he came under the care of Dr Petchell, orthopaedic surgeon. He confirms subsequent surgery performed on 14 April 2018 consisting of washout, debridement and primary wound closure of the deep laceration to his right heel. At the time of his discharge from RPA Hospital, he was using a wheelchair.
Subsequently he was treated at the outpatient clinic at RPA Hospital on four or five occasions. He thereafter attended his general practitioner for further care. He recalls that it was three months before his wound healed. He was also wearing a CAM boot for a period of three months.
He was unable to fully weight bear until September 2018.
Due to persisting hindfoot pain, he attended Dr Peter Lam, orthopaedic foot and ankle surgeon on 13 June 2019. He was referred for MRI scans of the right ankle. No further treatable pathology was found.
He has since remained under the care of his general practitioner, Dr Carr. He recalls a period of physical therapy to strengthen his right leg. This continued until approximately March 2020. He was also provided with advice from his physiotherapist to use hot and cold baths and to exercise with a spiked ball to reduce sensitivity at the right heel.
He has since continued with home exercises. He does not require analgesic medications.
He currently takes anti-depressant medication, Lexapro. He applies ointments to manage a wide-spread psoriatic rash.
He also self-funds attendance with a physiotherapist once every two or three months for further advice regarding exercise.
He wears orthotics. He is less comfortable walking bare foot. Consequently, he wears shoes when at home.
CURRENT SYMPTOMS
He describes current symptoms of constant low grade pain at the right ankle and right heel, average intensity 4-5/10 on visual analogue scale (VAS) with pain present at rest but increased with walking. He describes persisting numbness in the right heel, distal to the scar.
He estimates a walking tolerance of 1 km or 15 minutes before he rests his foot. After a brief period of rest, he can walk again. He avoids running.
He did not return to riding his motorcycle, as he found that the position of his foot on the pedal exacerbated his hindfoot pain.
He moved into an apartment without a garden.
He is right hand dominant. He reports a fair tolerance for sitting, driving 20-30 minutes. He has the use of a rowing machine at his home. He is able to crouch. He is able to perform stair climbing with normal cadence, but he is careful when descending stairs as he suffered a fall approximately nine months ago. He says that he is woken up frequently from his sleep due to hindfoot pain.
He can participate in a share of domestic chores.
He did not return to previous active hobbies of playing golf and motorbike riding.
EXAMINATION FINDINGS
Mr Meroni is 56 years old; he stands 178 cm and weighs 79 kg.
The circumference of the right calf is larger than the left by 1 cm, consistent with right leg dominance.
The circumference of the right thigh is 5 mm larger than the left, also consistent with right leg dominance.
There is a 15 cm transverse scar around the right heel, slightly red in colour with mild contour defect and local sensitivity. The Achilles tendon is of normal contour.
There is reduced sensibility in the heel distal to the scar. There is no vascular abnormality. There are no clinical features of CRPS.
The range of ankle motion on the right side is measured by goniometer methods as follows:
Ankle Movements
Active ROM Measured
Right degrees (°)Plantar flexion
40
Dorsiflexion 20 Hindfoot eversion 5 Hindfoot inversion 40
Motion on the left side is measured as follows:
Ankle Movements
Active ROM Measured
Left degrees (°)Plantar flexion
40
Dorsiflexion 20 Hindfoot eversion 15 Hindfoot inversion 40
There is a reduced range of active eversion at the right hind-foot. There is a full range of active motion at the left ankle and hind-foot.
The feet are otherwise normal to examination.
There is a normal capacity for tandem walking. There is normal balance over the right foot.
Comments on consistency
The claimant was consistent in his clinical presentation.
Comparing the current clinical findings with those set out by Dr Woo, there is restriction of hindfoot eversion at the current assessment. It is plausible that there has been subsequent development of mild stiffness in the hindfoot.
The reduced sensibility over the heel is similar to that recorded by the previous examiners.
There are no complaints at the left foot or ankle.
SUMMARY OF LISTED INJURIES CAUSED BY THE ACCIDENT
Injury to the right foot – talar dome osteochondral injury.
Injury to right foot – laceration with local nerve damage, mild hindfoot stiffness.
ASSESSMENT OF IMPAIRMENT
The panel considers that it is reasonable to rate the identified talar dome osteochondral injury by analogy using Table 64, AMA 4, page 85-86.
The panel rates the condition as consistent with the diagnosis of avascular necrosis of the talus without collapse, 3% WPI.
Right foot/heel dysesthesia is assessed as follows: there is dysesthesia in the distribution of the sural nerve (medial plantar branch) equating to 2% WPI rating. The sensory deficit affecting the right heel pad is rated at Grade 2 in accordance with Table 11, AMA 4, page 48 with a 25% sensory deficit arising. 25% of 2% equals 0.5% impairment, rounded up to 1% WPI.
Combining the two impairments provides a 4% WPI rating.
Whilst at the current assessment, it is possible to rate restricted eversion motion at the hindfoot using Table 43 AMA4 Page 85, for hindfoot impairments - where eversion is 5° attracting a 1% WPI rating – the impairment for restricted motion cannot be combined with that for diagnosis based estimates (by analogy), as set out above, in accordance with the cross-usage table.
The final permanent impairment rating equals 4% WPI.
Pre-existing/subsequent impairment
There is no pre-existing or subsequent impairment.
Apportionment
Apportionment is not applicable.
Effects of treatment
There is no adjustment for the effects of treatment.
COMBINED CERTIFICATE
The Panel notes that more than one assessment has been required to assess the permanent impairment arising from Mr Meroni’s physical injuries.
Using the Combined Values Chart at page 322 of the AMA 4 Guides the combined permanent impairment is 9%.
In accordance with section 7.26(8) of the MAI Act, the Panel has affirmed the combined certificate of Assessor Woo dated 1 December 2021.
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