Muddle v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Muddle v AAI Limited t/as GIO [2024] NSWPICMP 53
CLAIMANT:	Sharon Muddle
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Robin Fitzsimons
DATE OF DECISION:	2 February 2024
CATCHWORDS:	MOTOR ACCIDENTS – Claimant’s application for review of Medical Assessor (MA) Cameron’s whole person impairment (WPI) assessment; Claimant knocked off her mobility scooter in April 2019 hitting her head and injuring her left ankle; these injuries were conceded; in July 2020, the claimant fell fracturing her right wrist; she says she fell due to a loss of balance or unsteadiness caused by her head injury; MA Cameron assessed head injury at 3% and left ankle at 1%; he found 0% WPI for scarring and that the fall (and the right wrist) was not related to the accident but that the claimant had mobility issues before the accident; Held – possible causes of unsteadiness identified and discussed; Panel satisfied that area of head that was injured was area controlling balance and that this was the cause of the claimant’s unsteadiness and gait and the cause of the fall and the fractured wrist; wrist impairment was assessed at 7%; head injury was assessed on basis of “station and gait” at 6%; left ankle at 3% and scarring at 1%; consideration of Chapter 3 of the AMA4 Guides and range of motion method for left ankle and right wrist, TEMSKI and surgical scarring and Chapter 4 of AMA4 and clauses 6.160 - 6.176 of Guidelines regarding nervous system impairment; certificate of MA Cameron revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Cameron dated 25 September 2022. 2. Certifies that the degree of permanent impairment resulting from the injuries caused by the claimant’s motor accident on 27 April 2019 is greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

On 27 April 2019 Sharon Muddle was involved in a motor accident. Ms Muddle was riding a mobility scooter at an intersection when she was hit by a car.
Ms Muddle says she injured her left ankle and sustained a head injury in this accident. She made a claim for statutory benefits and damages against GIO, the third-party insurer of the car that collided with her and knocked her to the ground.
On 29 July 2020, Ms Muddle fell and fractured her left wrist. Ms Muddle says this fall was caused by her accident-related injuries.
A medical dispute about the degree of the claimant’s whole person impairment (WPI), including causation of the fall and right wrist fracture, has arisen in connection with Ms Muddle’s damages claim and Ms Muddle referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Cameron determined on 25 September 2022 that Ms Muddle did not have a WPI of greater than 10%. Ms Muddle was dissatisfied with that outcome and lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 14 November 2022, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 21 February 2023 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Ms Muddle’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13.[1] Entitlement to non-economic loss damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries caused by the accident.
[1] The current maximum as of October 2022 is $620,000.
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 medical assessment.[2]
[2] See s 4.12 of the MAI Act.
Chapter 7, Division 7.5 of the MA Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron’s, further medical assessments and the Review of medical assessments by a review panel.[3]
[3] Sections 7.20, 7.24 and 7.26 of the MAI Act.
The Personal Injury Commission Act 2020 (the PIC Act) and the Personal Injury Commission Rules 2021 (the Rules) contain provisions relevant to the assessment of medical disputes. Rule 128 of the Rules permits the Review Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 8 which is effective from April 2022.
Due to the nature of the injuries sustained by the claimant, the following chapters of the AMA 4 Guides are relevant:
(a)    chapter 3, the musculoskeletal system;
(b)    chapter 4, the nervous system, and
(c)    chapter 13, the skin.

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron examined the claimant on 13 September 2022 and issued his certificate on 25 September 2022. He says at [2] that he was asked to assess the following injuries:
(a)    head – subdural haematoma, closed head injury with associated dizziness and balance issues;
(b)    left leg – compound left tibia distal fracture requiring open reduction and internal fixation with resultant scarring;
(c)    left ankle – soft tissue injury;
(d)    left wrist – fracture consequential upon a fall due to the head injury and requiring fusion;
(e)    right wrist – soft tissue injury, and
(f)    left leg/lower limb – gait derangement, paraesthesia.
Medical Assessor Cameron had a history of the accident from Ms Muddle who told him she remembered the aftermath of the accident clearly. An ambulance attended but the report from them says she could not recall at that time the events of the accident although her Glasgow Coma Score (GCS) was 15 out of 15.
The claimant was admitted to hospital where she remained until 2 May 2023. She had an open fracture of the left ankle which was fixed in surgery and there was a subdural haematoma discovered.
Mrs Muddle said she had limited mobility for about 12 months after the accident and had not resumed using her scooter.
Mrs Muddle said about 18 months after the accident, the claimant was away from home, using her walking stick when she felt dizzy and fell onto her left wrist sustaining a fracture of the distal radius.
Mrs Muddle current complaints were of:
(a)    left hip pain and pain radiating to her left leg;
(b)    her left ankle fracture has healed;
(c)    her memory is difficult, and her head is not right;
(d)    she uses a stick due to poor balance;
(e)    she has pain in the left wrist, and
(f)    she is on numerous medications.
The claimant was said to be co-operative and gave a clear history with some difficulties with orientation. Medical Assessor Cameron said there was no definite cognitive impairment and Ms Muddle scored 27 out of 30 on a mini mental state examination.
Ms Muddle’s neck movements were mildly and symmetrically reduced with no spasm, guarding or dysmetria present. She had a full range of motion in both shoulders with pain at the extremes.
Left wrist movements were reduced but the right wrist demonstrated a full range of motion.
In the left ankle her measurements were recorded as:
(a)    dorsiflexion 5 degrees;
(b)    plantar flexion 40 degrees;
(c)    inversion 10 degrees, and
(d)    eversion 10 degrees.
At [21] Medical Assessor Cameron found the claimant sustained a mild complicated traumatic brain injury and a left leg malleolar fracture with scarring. The left wrist injury he found not caused by the accident and said there was no evidence on an injury to the right wrist.
He found the head injury was causing permanent impairment. He noted Ms Muddle had a significant impact and brain trauma identified on imaging. The impairment of mental status and integrative function, according to the AMA 4 Guides and cls 6.166 - 6.169 of the Guidelines was 0%. He assessed her emotional and behavioural functioning in accordance with the AMA 4 Guides and cl 6.170 of the Guidelines at 3%.
In terms of the fractured left ankle, he assessed the hindfoot joint using Table 43 of the AMA 4 Guides as having an impairment of inversion at 1%. The claimant also had a 1% impairment for eversion of the hindfoot joint, but as cl 6.185 of the Guidelines did not permit these to be combined only the most severe impairment was counted. As both were assessed at 1%, only one was allowed. The Medical Assessor did not utilise Table 42 in his reasons and assess the ankle joint although it is mentioned in the summary table.
He assessed 0% for scarring of the left hip on the basis of the best fit.
Medical Assessor Cameron therefore found the total WPI was 4%.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant submits there is an error in the calculation of left ankle impairment (dorsiflexion). The claimant notes cl 6.185 of the Guidelines permits only the highest rated impairment per joint but that the Medical Assessor should have included both the hindfoot joint and the ankle joint, that is impairments from both Tables 42 and 43 and not just Table 43.
The claimant says the Medical Assessor erred in finding that the fall, which led to the fractured left wrist in July 2020, was not caused by the accident. The claimant said the Medical Assessor did not refer to the general practitioner (GP) notes, did not take a proper history and assumed that because the claimant used a mobility scooter before the accident, she had mobility issues before the accident and that it was those mobility issues that caused her fall.
The claimant argues that the Medical Assessor was wrong when he said there was no evidence of an injury to the right wrist in circumstances where the notes from Gosford Hospital on the day of the accident refer to “pain right wrist after trauma” and the right wrist was X-rayed.
The Medical Assessor considered the scar on the hip which was not injured in the accident, and he should have assessed the scar on the left ankle.

Insurer’s submissions

In terms of the left ankle dorsiflexion impairment the insurer appears to concede the error in assessment but says it is not material.
In terms of the fall the insurer says the claimant said she had used the scooter because she was having difficulty walking because of lower back pain which is consistent with Medical Assessor Cameron’s finding that Ms Muddle had mobility issues before the accident.
The insurer says about the right wrist that while there was mild left wrist deformity there was a full range of motion at other upper extremity joints (including the right wrist). Therefore, regardless of causation there is no impairment of the right wrist (which was consistent with Dr Patrick and Dr Smith).
The insurer acknowledges there is a typographical error in the assessment of scarring but says the claimant has not established this error is material to the outcome.

Procedural matters

The Panel issued directions on 14 March 2023 for a bundle of documents from each of the parties to ensure the Panel had all relevant material before them.
The claimant provided her bundle[5] on 27 March 2023 and the insurer provided its bundle[6] on 19 April 2023.
[5] Document AD1 in the Commission’s electronic file.
[6] Document AD2 in the Commission’s electronic file.
The Panel met on 24 May 2023 and reported to the parties on 30 May 2023. The parties were advised there would be two separate medical examinations (due to the availability of the Medical Assessors) and up to date records were requested.
The Panel issued further directions after the claimant advised she could not attend one of the examinations. A further medical examination was arranged convenient to both Medical Assessors.
A revised timetable was issued, and the parties were directed to upload the GP and specialist records previously the subject of directions and for the claimant to lodge further submissions by 23 June 2023 and the insurer by 14 July 2023.

Responses and final submissions

The claimant responded to the Panel’s requests for information by letter dated 2 June 2023:[7]
(a)    the claimant says her use of a mobility scooter was because of back pain not because of a result of dizziness or loss of balance;
(b)    the claimant did not obtain the scooter because of medical recommendation or referral. She obtained it herself about three months before the accident because she did not have a car and she wished to access the shops, and
(c)    she submits that she “… did not have mobility impairment at the time of the motor vehicle accident.”
[7] Document AD4 in the Commission’s file.
The insurer responded saying it did not wish to add anything further.
Neither party provided the updated records as requested.
The claimant did advise by way of a message in the portal dated 17 August 2023 that she had no imaging studies. At the re-examination on 3 November 2023 Ms Muddle described to the Medical Assessors an occasion where she had been in a tunnel with music playing at Gosford Hospital. This suggested to the Medical Assessors that the claimant had undergone an MRI scan. The Panel directed the claimant to upload the report from that MRI. By way of a message in the portal on 6 November 2023, the claimant’s solicitor advised the Panel that the claimant had only had CT scans after the accident and that the reports of these were in the documents. The claimant’s solicitor therefore confirmed that the claimant had not had an MRI scan and therefore there was no MRI scan report to provide.

REVIEW OF THE EVIDENCE

The claimant’s bundle of documents[8] comprises 965 pages. The insurer’s bundle of documents comprises 102 pages.
[8] Identified in the Commission’s electronic file as document AD1.

Claim form and claim documents

The claim form dated 17 July 2019[9] lists the injuries as:
(a) “cracked skull – brain bleed”, and
(b) “severe ankle break, requires plates and multiple surgeries”.
[9] Page 477 of AD1.
The claimant said she was discharged from hospital on 2 May 2019.

Treating medical records and reports

Pre-accident

The claimant’s treating medical records include a referral from Dr Ye of Woy Woy General Practice to Woy Woy Physiotherapy dated 14 August 2019 which included the following past history:[10]
[10] Page 73 of AD1.
(a)    2003 chronic pancreatitis;
(b)    2006 seizures investigated with MRI showing multiple hyperintense lesions;
(c)    2007 dysphonia;
(d)    2009 hepatitis C, osteopenia and vitamin D deficiency;
(e)    2009 high cholesterol;
(f)    2011 diabetes;
(g)    2012 exercise stress test and electrocardiogram (ECG);
(h)    2013 severe L3/L4 disc degenerative change;
(i)    2015 lacunar stroke;
(j)    2016 left iliac stenosis, and
(k)    2018 coronary angiogram.
In the referral is a list of 13 medications the claimant was taking for cardiovascular issues, diabetes management, respiratory issues as well as Lyrica and Endone for pain.
The claimant’s team care arrangements note a mild Chronic Obstructive Pulmonary disease (COPD) as at 5 July 2018.[11]
[11] See for example pages 519, 527 and 534 of AD1.
The claimant had what appears to be several mental health plans for significant anxiety and anger management issues and saw psychologist Jennifer Ford. In her report dated 30 June 2010[12] Ms Ford refers to a long history of Ms Muddle’s chronic pain and social anxiety.
[12] Page 159 of AD1.
The claimant’s chronic pain was the subject of a referral to the pain management clinic at Royal Prince Alfred Hospital in February 2011.[13] The documents suggest the claimant was prescribed methadone as part of her pain management medication. This was ceased and Buprenorphine patches prescribed in February 2012 and the claimant advised she wanted to quit smoking and exercise more.
[13] Page 170 of AD1.
On 1 February 2013 is a referral for review, “regarding to chronic lower back pain” and “severe L3/L4 disc degenerative disease”.
On 18 January 2015 the claimant was admitted to the neurological ward of Gosford Hospital and was discharged on 22 January 2015.[14] She presented with “diplopia with unsteady gait since last night.” Mrs Muddle had been advised to go to hospital. She had symptoms the night before, was able to get to the toilet and had no fall. She gave a history that said she had no previous or similar events.
[14] The discharge summary is at page 256.
In the physical examination is a record of a normal GCS, no nystagmus, diplopia, power grade 5, reflexes normal, no dyadedokinesis and on gait examination, she was “able to stand on broad base but tends to fall to left.” She was admitted to the stroke unit and an MRI of the brain showed a small focus of ischaemia in the right anterior midbrain. A CT scan had shown, “possible lacunar infarct in the right head of caudate nucleus”. She was discharged with a diagnosis of cerebrovascular accident.
On 25 January 2015, Scott Lee (the claimant’s son) applied for the carer payment and carer allowance for Ms Muddle on the basis of a temporary (6-12 month) condition (the stroke).
The claimant was referred to Dr O’Brien of the neurology clinic at Gosford Hospital on 28 January 2015.[15] The claimant was reviewed in the clinic and a report provided to the GP dated 17 February 2015.[16] The claimant had undergone a number of tests which were normal, but she reported “pain affecting her left leg” which was constant and burning with associated numbness.
[15] Page 274 of AD1.
[16] Page 294 of AD1.
On 2 March 2016 the claimant was referred for a peripheral arterial blood flow and venous assessment[17] due to “left lower leg pain, strong fhx [family history] of peripheral vascular condition.” There was said to be “give way” weakness of left hip flexion, knee and ankle reflexes were absent on both legs. The claimant was referred for further tests and advised to stop smoking.
[17] Page 293 of AD1.
Dr O’Brien reviewed Mrs Muddle in the neurological unit on 19 May 2015. The claimant had no further stroke events and her left leg function was better. An MRI of spine and nerve conduction studies including EMG of the lower limbs “were unremarkable”. The claimant had reduced her smoking but had not completely quit. He says:
“Overall Sharon is gradually recovering in terms of her function, however she continues with issues of fatigue and gets unsteady with ten to fifteen minutes of walking.”
Medications were adjusted, the claimant was told to stop smoking and “she is taking steps regarding her diet.”
The claimant was reviewed on 24 November 2015[18] with no significant changes. On 22 March 2016 she was again reviewed. Ms Muddle had stopped smoking and had ceased her blood pressure medication. A repeat MRI showed no further changes in the brain. A further referral on 19 September 2016 is in the notes but there are no further documents concerning the stroke or its sequelae.
[18] Page 301 of AD1.
A few years later, the claimant’s cardiac situation was investigated by Dr Wong and his letter to the claimant’s GP is dated 5 June 2018. The claimant was complaining of exertional dyspnoea and peripheral vascular disease, and he was of the view she may have had coronary artery disease and requested further tests. Ms Muddle had the tests which showed “moderate stenosis” in the diagonal branch and the left anterior descending artery (LAD). He arranged an angiogram[19]. The result of that was “mild to moderate disease” but nothing able to be stented and he arranged to have the Claimant undertake a lung function test[20]. The Panel notes there is no mention of dizziness or balance issues in this letter.
[19] Page 388 of AD1.
[20] Page 396 of AD1.

Post accident

The ambulance report[21] from the day of the accident includes the following:
“[On examination patient] states was crossing [road] on scooter near roundabout, a [vehicle] travelling through the roundabout at [approximately] 30 – 40 kms has come through and hit her on the [left hand side], knocking her to the ground and landing heavily on her [right] side …[Patient] is amnesic to event, states she remembers the vehicle coming towards her but does not remember falling from the scooter. On nose to toes assessment large, haematoma present to [right] occipital region, and also hameatoma present to [right] forehead.”
[21] Page 35 of AD1.
The claimant’s GCS was 15 out of 15 and she was noted to be “conversing in good spirits on the way to the hospital”.
Ms Muddle was discharged from hospital on 1 May 2019. The discharge summary[22] notes the open bimalleolar fracture of the left ankle and the blunt trauma to the head. Also in the hospital letter to Dr Ye is a reference to a “small subdural haematoma, which was resolving on repeat imaging.”[23] Ms Muddle was to be reviewed by the neurosurgery clinic at Royal North Shore Hospital and the fracture clinic at Wyong Hospital.
[22] Page 42 of AD1.
[23] Page 48 of AD1.
The notes from Woy Woy General Practice include health provider reports, referrals and test results dated 7 May 2019 when the claimant attended for a post discharge review.[24] Medications including Endone were prescribed.
[24] The post-accident notes are found on page 75 of AD1.
The claimant attended on 30 May 2019 for further review and Endone was prescribed again. On 24 June and 9 July 2019, the records indicated the claimant wanted to apply to the housing commission for ground floor accommodation. The medical certificate issued by Dr Ye[25] and dated 9 July 2019 in support of that application refers to “stroke, peripheral neuropathy, depression” and chronic lower limb pain. The claimant was said to be in financial difficulty, with chronic pain affecting her mobility and social isolation from her dependents.
[25] Page 467 of AD1.
On 14 August 2019 the claimant’s condition was reported as “improved”. She was still using crutches and her left leg was tender and her ankle warm to touch. Further attendances on 4 September, 2 October, 16 October, 4 November and 13 December 2019 concerned the progress of the fracture and further surgery was planned.
According to the note on 18 March 2020, the further surgery was cancelled because the fracture had progressed and was uniting and the pain in both limbs had improved. On this day there is also this note, “she is easy to get dizzy, especially position change only. Nil positional drop today, discuss the safety issues”. The claimant also complained about her memory.
On 17 June 2020, Dr Ye records the claimant was smoking and her reflux was worse. Ms Muddle’s “leg condition is improved lots use the [stick] to control the balance. Her balance and memory is worsen after the MVA.” The claimant was referred to Central Coast Neurosciences for review “regarding unbalanced gait post the MVA accident” on 17 June 2020.[26]
[26] Page 392 of AD1.
On 22 June 2020 the claimant attended on Dr Ye concerned about her weight (80kg) and wanting to reduce it by 20kg. The claimant says she walks for 20 minutes three times a week and walks the dogs for 30 minutes every day and will go back to the pool.
Dr Crimmins, neurologist wrote to Dr Ye on 29 July 2020[27] after a consultation apparently at 8.30am. He was concerned about the head injury and poor balance and had a history that Ms Muddle’s balance and gait was getting worse and persisting. He could not say whether this was due to the head injury, a vestibular problem, or peripheral nerve damage associated with her diabetes and peripheral vascular disease. He notes a wide based slightly unsteady gait at the bedside and wanted a number of tests done including cognitive testing. The claimant was reported to be smoking 10 cigarettes a day. Dr Crimmins noted the claimant reported an MRI scan, but he could not find a record of it and wished to repeat it as well as nerve conduction studies. He was also going to arrange some basic cognitive testing. There are no further records from Dr Crimmins
[27] Page 542 of AD1.
The Central Coast health service[28] wrote to Dr Ye advising the claimant had presented at Gosford Emergency Department on 29 July 2020 with an intra-articular fracture of her left distal radius/ulna.
[28] Page 543 of AD1. This is the discharge summary. The Panel does not appear to have the hospital notes from this admission or any relevant ambulance report.
There is a brief entry in Dr Ye’s records of an attendance on 7 August 2020 after the claimant fell and fractured her left wrist. Endone was prescribed.
On 17 September 2020 the claimant attended the osteoporosis refracture clinic at Gosford Hospital and Dr Joshi wrote to Dr Ye.[29] The claimant’s fall was reported to have occurred while walking on flat ground without a stick and she fell down. Ms Muddle fractured her radius. The claimant reported no previous falls and gave the history of the 2019 car accident with fractured left ankle and head injury. A bone scan had been done and the claimant was diagnosed with osteoporosis. “In view of complaining of dizziness and a previous brain injury I took the opportunity to organise a pituitary profile.” There are no further notes from Dr Joshi or Gosford Hospital.
[29] Page 546 of AD1.
The claimant saw Dr Ye on 20 January 2021. Her left leg pain was improving but her intermittent dizziness continued, and she reported she was losing balance easily.

Radiology

A CT scan of the lumbar spine was undertaken on 30 January 2013[30] with a history of “left lower limb pain. Left leg and thigh pain for days, does not relate to walking, doing lots of swimming. Fhx of vascular condition. Left pedal pulse is good”. The report of that CT scan says there is advanced disc degeneration at L3/4 with stenosis on the right due to osteophytes and a disc lesion.
[30] Page 239 of AD1.
On the date of the accident X-rays were taken of the left ankle (comminuted fracture through the distal tibia and distal fibular shaft), pelvis (not fracture or hip abnormality), chest (small left plural thickening and fluid with adjacent atelectasis) and a right wrist
[31] Pages 54 and 55 of AD1.
X-ray (no fracture).[31]
The CT scan of Ms Muddle’s brain on the date of the accident[32] refers to a large (12mm) right parietal and frontoparietal scalp haematoma with no underlying fracture. A “tiny shallow acute left frontotemporal subdural haematoma” was reported “potentially extending to the lateral aspect of the left tentorium”.
[32] Page 54 of AD1.
The CT scan of the brain on 29 April 2019[33] refers to a large right and left parietal scalp haematoma which had reduced in size since 27 April 2019. It also reports, “there is now a new tiny left occipitoparietal subdural haematoma extending into the lateral aspect of the left tentorium.”
[33] Page 53 of AD1.
A CT scan of the brain and head dated 29 May 2019 compared to 29 April 2019[34] reported that the subdural haematoma was evolving, there was diffuse periventricular deep and subcortical white matter changes suggestive of chronic small vessel disease. And there was “expected evolution of trace subdural haematoma overlying the lateral aspect of the left tentorium cerebelli.”
[34] Page 420 of AD1.

Medico-legal reports

Dr Smith, orthopaedic surgeon provided a report to the insurer’s solicitors dated 22 July 2020.[35] He had limited documentation and in particular did not have any pre-accident records.
[35] Page 2 of AD2.
The claimant attended in a wheelchair. He noted her ankle was stable and the tibial fracture appeared united. Ms Muddle had bilateral knee osteoarthritis and was said to be reluctant to get up and out of the wheelchair. There was no swelling around the ankles and no restriction in the range of movement.
He has a history of Ms Muddle being able to stand but did not get about much. She said she was using her scooter.
The claimant reported ongoing pain and disability in the left ankle. He recommended some follow up X-rays as he had not been given any images. He found no assessable impairment using Table 42 of the AMA 4 Guides.
Dr Patrick provided a report dated 6 May 2021 to the claimant’s solicitors.[36]
[36] Page 16 of AD1.
He has a history that the claimant had not worked for some time before the accident and that she had issues with chronic pancreatitis and stress.
He also has a history of the claimant having “no recollection of the events [of the accident] except remembering a vehicle coming towards her.” Dr Patrick records the claimant’s orthopaedic injuries and her head injury namely a small subdural haematoma and a small temporal subdural haematoma.
Dr Patrick then has a history of the claimant developing problems with her balance, significant dizzy episodes and a number of falls including one on 29 June 2020 when she “lost her balance and fell heavily, shattering her left wrist.”
Dr Patrick has a history of the claimant using a mobility scooter because Ms Muddle had difficulty walking and experienced lower back pain not because of dizziness or balance issues. He confirms the claimant had previous back and sciatic pain and she had a stroke in January 2015.
Dr Patrick noted the claimant’s current complaints include:
(a)    loss of mobility;
(b)    no movement in her left wrist;
(c)    she requires full-time care, and
(d)    she uses a Canadian crutch or one of her sons as support.
The claimant was 68 years of age when examined, 160cm and 76kg (this puts her at the high end of the over-weight range on the body mass index). On examination she had a “definite slight lean to the left.” There were restricted movements in the neck, shoulders, some left elbow instability.
Dr Patrick considered the dizziness was caused by the accident and that the fall in June 2020 was a consequence of that.
Dr Patrick provided a separate WPI assessment[37] of 20% on the basis of the “rarely used gait derangement” method as Ms Muddle now requires the routine use of a cane or crutch or one of her sons to support her.
[37] AD3.
Dr Patrick provided a supplementary report[38] critiquing the report of the insurer’s orthopaedic surgeon, Dr Smith.
[38] Page 30 of Ad1.

Other assessments

Medical Assessor Hong assessed the claimant’s WPI as a result of her psychiatric injury. His certificate is dated 10 November 2022 after a medical examination on 8 November 2022.
Ms Muddle gave a history of her previous stroke, pancreatitis and diabetes and confirms depression and anxiety which was controlled by medication which she still takes.
The claimant told Medical Assessor Hong she goes out with a cane and has limited physical tolerance. She says she does not use her scooter because of anxiety attacks and now catches the bus and train. She said her GP is worried about her falling so she goes out with a carer.
The claimant was concerned about her loss of independence and her poor short-term memory.
Medical Assessor Hong diagnosed a major depressive disorder and assessed her WPI at 4%.

RE-EXAMINATION FINDINGS

Ms Muddle attended a re-examination with Medical Assessors Dixon and Fitzsimons in the Commission’s medical suites on 3 November 2023. The examination took place over a two-hour period.
Ms Muddle was seen on her own. Her son, Scott, who had accompanied her to the appointment, assisted his mother during the course of the physical examination at the request of the Medical Assessors to prevent a fall during the testing of balance.
At the end of the consultation, the medical examiners spoke with him to clarify some points. In the presence of Ms Muddle, and for the purposes of the mental and behavioural assessment, Scott was asked about his impression of his mother’s mental and physical condition.

History

Ms Muddle has been retired for some years. She used to work as a domestic assistant in a nursing home.
Ms Muddle lives in a cabin, surrounded by grassland. Her two sons (aged 38 and 40) live with her, and her surviving brother lives very close by.
Ms Muddle’s past history was confirmed with her and includes (but is not restricted to) pancreatitis, a back injury (with “two squashed discs”) sustained at work, diabetes mellitus, a minor stroke with double vision in 2015, a high serum cholesterol level and respiratory illness. She has also been treated with thyroxine for hypothyroidism.

History of the accident.

Ms Muddle said she was riding her motorised scooter at a traffic intersection. She recalled getting half-way across the road when she saw a car approaching. After the impact, she was “thrown” to the ground but was uncertain whether this recollection of being thrown was a memory or rather what she has been told. She remembers being on the ground at the accident site and thinks she was only unconscious for a couple of seconds.
She remembers police coming and blocking off the road. An ambulance came and took her to Gosford Hospital, where she believes that she remained for four to five days.
Ms Muddle’s major lower extremity injury was a left distal tibia (ankle) fracture which was surgically fixed on 29 April 2019. She was discharged from hospital on 30 April 2019 and arrangements were made for her to attend Royal North Shore Hospital’s (RNSH) neurosurgical clinic on 27 May 2019 and the fracture of her tibia was reviewed at the Wyong Hospital fracture clinic. Ms Muddle said she was in a moon boot for many weeks.
Ms Muddle’s other major injury was a head injury with a large external lump at the back of her head forming soon after the accident. The Panel notes that details of her intracranial injury, including subdural haematoma are well documented in the hospital and radiology records.
Ms Muddle said within a year after the accident she became aware of problems with her balance which she reported to her GP. On 29 July 2020, she lost her balance and fell heavily, fracturing her left wrist. She was taken to Gosford Hospital where she had surgery to reduce and internally fix the wrist fracture.

Clinical course after the accident

Ms Muddle said she had significant difficulty with balance after the accident. She said she was now a lot slower than before the accident and she had to be careful to hang on to rails or seek support when climbing up and down stairs. If she moved her head to the left or right this would sometimes bring on the feeling that she was about to fall.
Although she used a walking stick while she was wearing the Cam Boot (because of her fractured left tibia), she later discarded the stick, until after she fractured her left wrist. She now uses the walking stick when she is out and about.
Some months after the subject accident Ms Muddle said she experienced several episodes of “dizziness”. These would occur when she was hanging the washing out. She recalled one particular episode when she fell backwards on to the ground, without injuring herself. She said if she bent forward towards the ground and then straightened up again, she would feel dizzy. By dizzy she said she meant “light-headed” and, when questioned, she did not describe symptoms indicating a sense of rotation.
Because the dizziness would occur only when she was putting the washing out, one of her sons took over the washing duties. Ms Muddle said this kind of dizzy spell did not continue once she had stopped doing the washing.
About 18 months after the accident, she reported that she just fell down while she was standing and for no apparent reason. She fractured her left wrist. She explicitly stated that she was definitely was not dizzy at the time. The fall was “out of the blue”. She had been walking but was standing still at the time of the fall. Ms Muddle said she did not trip or slip on anything, she just fell down.
In late 2022, Ms Muddle said she had two episodes while she was in the bathroom and Ms Muddle said it was like, “the whole room was spinning”. She thinks each episode lasted about five minutes. She denied having any similar episodes at any time before this, and there have been no such since then. The Medical Members of the Panel are of the view these episodes are, based on her description, rotary vertigo.
Ms Muddle reports no difficulty with sense of smell.
Ms Muddle says she has had no epileptic fits since the accident. She said that she apparently had two seizures while in hospital because of pancreatitis many years ago.
The Panel noted that there was a question of an injury to the right wrist noting the claimant’s submissions and the contents of the hospital notes. Ms Muddle explicitly denied any knowledge of ever having injured her right wrist either in the car accident or in the fall. Noting Ms Muddle’s complaint of memory difficulties the Panel asked her son, Scott about this. He was also surprised to hear that this issue had been raised, as he was unaware of any right wrist injury at any time.

Daily Living

Ms Muddle complains about her memory for recent events. She can forget “what happened yesterday”.
She has always had a bad sense of direction, and never drove a car. She now sometimes walks in a wrong direction which did not happen before. She has no difficulties with orientation in time.
The family (she and her two sons) take turns to do the cooking. However, she said that her sons cannot cook curried chicken properly, so she has to do it. There is no difficulty in choosing ingredients and she said her cooking is better than that of her sons.
She sees her friends, and her brother who lives nearby, and they get on well.
She has actively continued her hobbies since the accident including tapestry, embroidery and making football blankets. However, after the fall and injury to her left wrist she could no longer embroider in the way she used to. She has however continued to make football blankets and has made 10 such blankets in recent times.
Ms Muddle has two small dogs which she pays a lot of attention to, and which keep her busy.
She remembers to look after her own personal care with no restriction.

Relevant past health history

Ms Muddle acknowledged having had a small stroke in about 2015. This affected her with double vision, which largely, but not quite completely, resolved. She says her double vision has become worse since the subject accident. The images are side by side, and the double vision will go if one eye is covered (the Panel notes that organic diplopia almost always does). She knows that more recently she has been developing cataracts, which may need treatment soon. She has seen an ophthalmologist since the accident and will be reviewed again soon.
The Medical Assessors asked her about the reason for her use of a motorised scooter before the accident, as this had been raised by the insurer in its submissions. Ms Muddle said that she used the scooter before the accident because it was a gift from a girlfriend who had a spare scooter. As Ms Muddle did not drive, the said the scooter helped her to get around quickly to places she wanted to visit – for instance going to the shops. She explicitly denied that this use of the motor scooter was due to any medical condition such as poor balance, or the back pain associated with an earlier back injury. She did however acknowledge pre-accident leg pain which could sometimes cause her to be tired when walking and the Panel also noted a reference in the records to respiratory disease with breathlessness which Ms Muddle also said contributed to her use of the scooter.
The Panel noted left leg pain and right leg pain documented in the pre-accident GP notes (for example 28 June 2018) and the records of neurologist, Dr Bill O’Brien (for example on 10 March 2016). Dr O’Brien thought Ms Muddle’s leg pain was neuropathic and her GP was concerned about peripheral vascular disease in the left leg, and refers to 50-75% (arterial) stenosis, although it is not clear what evidence he had to make that diagnosis. Ms Muddle had no balance issues or falls before the car accident as a result of these leg pains.

Additional history from Ms Muddle’s son, Scott.

Scott said that his mother’s balance was a major issue after the accident. He said she “couldn’t walk at all properly” for about a year after the accident and would often have to put her hand against a wall to try to balance. He saw episodes where she looked as if she was going to fall and was trying to “catch herself”.
He accompanies his mother shopping. He remembered an occasion when she walked into a wrong aisle. The Panel notes the significance of this is uncertain as it could be a result of deteriorating vision due to cataracts, but this could also support the claimant’s history of walking in the wrong direction.
Scott also said that “the longer she walks, the worse the wobbles get”. The Panel questioned this and it appears that “the wobbles” are a separate issue from pain and tiredness in her legs.
Asked what else he had noticed, he said that she has difficulty walking up and down stairs and getting on and off trains, and that she has to carefully focus on her feet in terms of what they are doing as she moves. He remembered an episode about five months ago when she reported that her vision had seemed fuzzy as she was getting out of bed, and she had fallen to the floor.
The Medical Assessors asked Scott if he had noticed any change in his mother’s temperament. He mentioned memory lapses, but he was not aware of any particular emotional or behavioural issues and he commented, “She’s still the same Mum”.

Examination (neurological aspects)

Ms Muddle’s mini-mental examination was within normal limits, although her drawing of a conventional clockface was initially a little awry. She was fully orientated in time, place, and season. She did not have a detailed knowledge of news, as she “doesn’t watch it”, but knew there was a war going on in the Middle East.
She accurately subtracted serial 7s from 100, save for one minor error. She had a
7-digit forward recall, and a 4-digit backwards recall, which is normal. She could remember three random objects after five minutes. She copied overlapping pentagons accurately. She had normal sentence-generation. There was no nominal aphasia.
Her standard gait was essentially normal, although her heel-toe gait was awkward and difficult, and the attempt was discontinued due to the Medical Assessor’s concerns over her safety. Romberg’s test (while standing with her eyes closed) was negative. Heel-shin test was normal bilaterally. Finger-nose test was normal. There was no right dysdiadochokinesis. There was no nystagmus.
There were no upper motor neurone signs. Deep tendon reflexes were generally very sluggish. Ankle jerks could not be obtained (consistent with her age and with diabetes mellitus). There was certainly no hyper-reflexia. Plantar responses were flexor. There was no clonus. There was no pyramidal drift of her outstretched arms.

Examination lower limbs

On examination of her left ankle there was stiffness with the following movements recorded:
(a) ankle joint:
(i)plantar flexion 20 degrees (normal is a greater than 20 degrees of movement), and
(ii)dorsiflexion or extension 5 degrees (normal is greater than 10 degrees of movement).
(b) hindfoot joint:
(i) inversion 15 degrees (normal is greater than 20 degrees of movement), and
(ii)eversion 10 degrees (normal is greater than 10 degrees of movement).
Mrs Muddle is conscious of her left leg scar and can easily locate it. It is 13cm in length, pale and longitudinal anteriorly which, while reasonably healed, had a loss of contour proximally with a swollen area. The scar was not adherent to the underlying structures but there was pallor without visible suture marks. The distal part of the scar was mildly tender.
There was a differential circumference of her left calf measuring 27cm, 10cm below the knee when compared to a measurement of 28cm on the right. Below this there was some residual swelling.
On examination of Ms Muddle’s right ankle, the range of movement was:
(a) ankle joint:
(i)plantar flexion 30 degrees (normal is a greater than 20 degrees of movement), and
(ii)dorsiflexion (extension) 15 degrees (normal is greater than 10 degrees of movement).
(b) hindfoot joint:
(i) inversion 15 degrees (normal is greater than 20 degrees of movement), and
(ii)eversion 10 degrees (normal is greater than 10 degrees of movement).
There was a normal range of motion of her knees without retropatellar crepitus. Both knees were stable. There was no wasting of either thigh. There was no neurovascular deficit in the left or right foot.
Ms Muddle was unable to toe and heel walk on her left foot and was using a walking stick at the consultation.

Examination upper limbs

On examination of the left wrist the measurements obtained were:
(a)    flexion 40 degrees (normal is 60 degrees);
(b)    extension 30 (normal is 60 degrees);
(c)    radial deviation 20 degrees (normal is 20 degrees), and
(d)    ulnar deviation 10 degrees (normal is 30 degrees).
Grip strength, thenar power and intrinsic power were grade 5 out of 5.
There was a 5cm scar on the volar aspect of her left wrist with prominence of the distal ulna. The surgical scar had healed well and was non-tender and did not concern the claimant.
On examination of the right wrist was normal with the measurements obtained as follows:
(a)    flexion 60 degrees;
(b)    extension 60;
(c)    radial deviation 20 degrees, and
(d)    ulnar deviation 30 degrees.
There was normal grip strength, intrinsic power and thenar power at grade 5 out of 5.

CONSIDERATION OF THE ISSUES

Consistency

Both Ms Muddle and her son, presented in a very straightforward fashion with no signs of exaggeration. Ms Muddle made appropriate concessions about her earlier medical history and did not embellish her report of the accident or her treatment and post-accident symptoms. She distinguished between the types of balance issues she was experiencing and was co-operative during the examination.
All of the claimant’s movements were measured three times with a goniometer and were consistent. Informal observation was also consistent with her formal presentation on examination. Her symptoms were consistent with the records and injuries.

The claimant’s loss of balance

Does the claimant have a loss of balance?

Both Ms Muddle had her son said that balance has been a major issue since the accident. The claimant has had at least one documented fall (leading to the fracture of the wrist). Although the claimant has reported other falls, these have not resulted in injury and therefore do not feature in the GP records. Dr Ye’s records first note dizziness and memory issues on 18 March 2020. Balance (and memory) was mentioned again in June 2020. The records of Dr Crimmins, neurologist on the day of her fall note a concern with balance and a worsening of the claimant’s gait. He confirmed, at her bedside, “a wide based slightly unsteady gait.”
At the examination, the claimant was observed to use a walking stick for balance and she was unable to toe and heel walk. Her son Scott had to assist at this point in the examination to prevent a fall.
The Panel accepts on the basis of the notes, the history and the Medical Assessors’ examination that the claimant has had difficulty with balance after the accident. The question remains whether this difficulty with balance is a consequence of the injuries sustained in the accident, or whether there is some other cause.

Possible causes of loss of balance

The medical members of the Panel note there are multiple medical causes of impaired balance. Having examined the records of Dr Ye’s practice and the other material, the medical members of the Panel note the possible causes in Ms Muddle’s case could be:
(a)    unsteadiness due to local (tibial fracture) pathology;
(b)    peripheral neuropathy with impaired proprioception due to diabetes mellitus and, or hypothyroidism;
(c)    vertigo (with rotation) due to inner ear vestibular trauma, disturbance or other pathology;
(d)    postural hypotension due to vertebrobasilar insufficiency;
(e)    the previous stroke presumed to be brainstem (posterior circulation) given the history of double vision in 2015 and persisting afterwards, and
(f)    a head injury including cerebellar trauma or else non-specific effects of intracranial injury.
The Medical Assessors considered whether the orthopaedic injuries to her left leg would have been sufficient to explain the impaired balance which Ms Muddle and her son described (and the notes suggest) having its onset after the accident. This may certainly have been the case in the acute phase of injury, particularly while Ms Muddle was wearing the Cam Boot. However, the Medical Assessors note that once she had recovered from her tibial fracture and was not wearing the Cam Boot, Ms Muddle was also able to give up her walking stick (even though some balance symptoms continued) until she had the fall in which she fractured her wrist.
The claimant says she was standing not walking immediately before her fall and that there were no obvious reasons for why she fell.
It is the clinical judgment of the Medical Assessors that the orthopaedic injuries would not be the cause of this reported loss of balance.
Peripheral neuropathy is commonly associated with both diabetes mellitus and hypothyroidism. The medical members of the Panel note that in their clinical experience, the negative Romberg’s sign argues against the unsteadiness being due to a peripheral sensory neuropathy. In any case, there is no collateral evidence for peripheral neuropathy provided to the Panel. While Dr O’Brien, the claimant’s treating neurologist thought in 2016 that Ms Muddle’s leg pain may have been neuropathic, he does not explain why, or refer to the tests and evidence which would indicate it. The Panel therefore is of the view that peripheral neuropathy is not the explanation for the reported loss of balance.
The claimant described two episodes of rotary vertigo in late 2022. Ms Muddle said the room was spinning. She said she had no similar episodes before them and she has had no others since. The claimant’s description of her fall was that she fell down while she had been standing (and after walking) for no apparent reason. There is no record of vertigo being investigated and found in Dr Ye’s notes which supports this history of two isolated episodes. The medical members of the Panel are therefore of the view that the fall was not caused by a vertiginous episode.
Postural hypotension due to vertebrobasilar insufficiency has also been considered. This occurs when there is compression or atherosclerotic irregularity of a vertebral artery in the neck. In essence blood flow to the brain is compromised. There is no evidence of any irregularity in the arteries in the claimant’s neck. If those treating the claimant suspected this was the cause of the claimant’s reported balance issues, the medical members of the Panel would expect it to have been investigated particularly in the light of the claimant’s cardiac investigations in 2018.
The claimant’s past stroke in January 2015 is also relevant. A CT scan at that time identified a possible lacunar infarction in the head of the right caudate nucleus. An MRI scan also from January 2015 showed extensive white matter changes throughout the cerebral hemispheres and brainstem, such that the reporting radiologist raised question of hereditary multi-infarct dementia (CADASIL). The MRI scan explicitly identified a focus of ischemia (with diffusion defect) in the right anterior midbrain. The Medical Assessors note that this is almost certainly the cause of the double vision which was the presenting feature of her stroke as it is within the territory of the posterior circulation. Ms Muddle says that she had minor residual double vision after the stroke, and that this became a bit worse after the subject accident.
Between the date of the stroke and the date of the fall, there is medical evidence of any further transient ischaemic attacks, and the claimant gave no history of any such episodes. The Panel is not therefore of the view that the 2015 stroke or a further stroke is the cause of the balance issues that emerged in early to mid-2020.
Impaired balance became a prominent feature from shortly after the accident according to the claimant and her son, and from March 2020 in the doctor’s notes. The Panel notes that the insurer has not taken the Panel to any of the pre-accident records which suggests a history of this type of unexplained unsteadiness or poor balance. The claimant has explained why she had a mobility scooter at the time of the accident and the Panel is satisfied that this is not because of any dizziness or balance problem.
Although her son said that poor balance improved about a year after the fall, it is still present, based on her history (and his). This poor balance impacts on activities such as walking and coping with grades and stairs. This element of worse symptoms and then improvement suggests that the need to use a stick and hold onto rails cannot be explained by a new visual problem such as the continued development of cataracts.

The sequelae of the head injury

The CT scan report of 27 April 2019 indicated that there might be a tiny subdural haematoma adjacent to the left side of the tentorium (the membrane which covers the cerebellum). CT scanning is not a sensitive modality for imaging the posterior fossa (including the cerebellum) and an MRI is the preferred method of imaging for injuries to the cerebellum.
The recent communication from the claimant through her solicitor suggests that the claimant has not had an MRI since leaving hospital.
The subdural haematoma near the tentorium cerebelli which was reported in uncertain terms on 27 April 2019 was described in more definitive terms in the report of the CT brain scan of 29 May 2019.
This later CT scan reported the “trace residual haematoma overlying the lateral aspect of the left tentorium cerebelli is less conspicuous than in the previous study.” The radiologist further commented that there was, “expected evolution of trace subdural haematoma overlying the lateral aspect of the left tentorium cerebelli”. This implies a definite radiological opinion that there was subdural haematoma adjacent to the cerebellum shown on the first scan taken two days after the accident.
The documents indicate that Ms Muddle hit the back of her head (occiput) in the fall from her scooter and therefore her cerebellum (which is below the occipital lobe and also at the back of the head) could have been traumatised. As the cerebellum is responsible for maintaining balance, the medical members of the Panel are of the view that Ms Muddle’s cerebellar pathology could explain the claimant’s impaired balance and could be the cause of her fall.
Ms Muddle’s history is that her fall was not due to a dizzy turn (either light-headedness or rotary-vertiginous). She repeatedly denied being dizzy on that occasion. She said she did not slip or trip and that she just collapsed to the ground without warning, and fractured her left wrist.
Having excluded sequelae from Ms Muddle’s orthopaedic injuries and other possible medical causes, the Panel are of the view that the claimant’s head injury sustained in the accident is the cause of her overall balance symptoms and difficulties with gait. The Panel is also satisfied having excluded environmental factors (such as a slip or trip) as the cause of her fall, that these balance symptoms were the cause of, or material contribution to, the July 2020 fall and therefore the fractured right wrist.

IMPAIRMENT ASSESSMENT

Left ankle and hindfoot

The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:
(a)    limb length discrepancy (3.2a);
(b)    gait derangement (3.2b);
(c)    muscle atrophy (3.2c);
(d)    manual muscle-testing (3.2d);
(e)    range of motion (3.3e);
(f)    joint ankylosis (3.2f);
(g)    arthritis (3.2g);
(h)    amputations (3.2h);
(i)    diagnosis-based estimates (3.2i);
(j)    skin loss (3.2j);
(k)    peripheral nerve injuries (3.2.k);
(l)    causalgia and reflex sympathetic dystrophy (3.2l), and
(m)     vascular disorder (3.2m).
Each limb is to be assessed and each injury (if there are multiple injuries in each limb) is assessed separately. Clause 6.70 and table 6.5 states which of the above methods can and cannot be combined and table 6.6 provides guidance is selecting the most appropriate method.
The medical members of the Panel are of the view that the range of motion method is the most appropriate method taking into account the nature of Ms Muddle’s injuries and her ongoing symptoms.
The Guidelines at cls 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment including the range of motion method.
There is no dispute that the claimant injured her left lower limb in the car accident and that the injury was a fracture bimalleolar fracture of the left ankle. The medical members of the Panel note that the claimant’s left ankle fracture involved both the ankle joint (to assessed in accordance with table 42, page 78 of AMA 4 Guides) and the hindfoot joint (to be assessed in accordance with table 43, page 78 of AMA 4 Guides).
The measurements obtained by the Medical Assessors at the re-examination translate to the following impairments.

Lower limb measurements

(normal in brackets)

Right

(uninjured)

Left

(injured)

Impairment

(left)

·     Ankle joint flexion (> 20 degrees)

·     Ankle joint extension[39] (> 10 degrees)

·     30 degrees

·     15 degrees

·     20 degrees

·    5 degrees

·     mild 3%

·     mild 3%

·     Hindfoot joint inversion (> 20 degrees)

·     Hindfoot joint eversion (> 10 degrees)

·     15 degrees

·     10 degrees

·     15 degrees

·     10 degrees

·     nil

·     nil

[39] Also called dorsiflexion.

The Panel notes that the claimant’s hindfoot measurements are the same in both the injured and uninjured ankles. Clause 6.72 of the Guidelines provides that if a contralateral uninjured joint has a similar mobility to the injured joint, the uninjured joint can be used as a baseline measure and its impairment subtracted from the impairment assessed in the injured joint.
As the measurements in both hindfoot joints were the same, the Panel is not satisfied there is an accident-related impairment to the left hindfoot joint and will not allow the 1% for a mild impairment suggested by the measurements obtained at the examination.
Clause 6.85 permits the assessment of more than one joint in accordance with Tables 40 to 45 at page 78 of AMA 4 Guides and the combination of motion deficits from each joint. However, “where there is loss of motion in more than one direction/axis of the same joint, only the most severe deficit is rated - the ratings for each motion deficit are not added or combined”.
In Ms Muddle’s case for example the Panel cannot add or combine 3% flexion impairment with 3% extension impairment to come up with a 6% impairment to the ankle joint. Only the higher impairment can be used. As they are equal therefore the impairment to the claimant’s left ankle joint is 3%. As no impairment has been found in the left hindfoot, Ms Muddle’s left lower limb impairment is 3%.

Left wrist

The Panel has earlier found that the claimant’s left wrist was injured in a fall which was caused by balance and gait issues resulting from the claimant’s head injury sustained in the accident.
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides.
The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand and there are several methods of assessment provided:
(a)    amputation (part 3.1b);
(b)    sensory loss of the digits (part 3.1c);
(c)    abnormal range of motion (part 3.1d);
(d)    peripheral nerve disorders (part 3.1k);
(e)    vascular disorders (part 3.1l), and
(f)    other disorders (part 3.1m).

It is the clinical judgment of the medical members of the Panel that in Ms Muddle’s case, the range of motion method is the most appropriate.
The AMA 4 Guides provide for impairment to the wrist to be assessed as follows:
(a)    loss of flexion and extension is measured and added to provide an UEI;
(b)    loss of radial and ulnar deviation is measured and added to provide a figure for UEI;
(c)    the two figures are added to obtain a total UEI for the injured wrist, and
(d)    the total UEI is then converted to a WPI using table 3 at page 20 of AMA 4 Guides.
The measurements obtained by the Medical Assessors at the re-examination translate to the following impairments in accordance with figures 26 and 29 at pages 36 and 38 of the AMA4 Guides.

Left wrist

(normal in brackets)

Measurement

Upper extremity impairment

Flexion (60 degrees)

30 degrees

5%

Extension (60 degrees)

40 degrees

4%

Radial deviation (20 degrees)

20 degrees

0%

Ulnar deviation (30 degrees)

10 degrees

4%

The total UEI is therefore 13% which converts to a WPI of 8% in accordance with Table 3.
The Panel notes that the claimant’s solicitor included in submissions that the right wrist was injured in the accident as it was mentioned in the hospital notes and radiographed. While the claimant and her son were surprised at the inclusion of the right wrist which suggests it was not in fact injured, the Panel notes that if it was injured, any injury has resolved. The measurements obtained at the examination with Medical Assessors Dixon and Fitzsimons did not indicate any restriction of motion and therefore there was no impairment.

Scarring

The claimant says she sustained scarring as a result of the surgical procedures she has had since the accident.
The AMA 4 Guides provide in chapter 13 for the assessment of injuries to the skin. Table 2 identifies five classes of impairment ranging from class 1 which attracts a WPI of between 0-9% and class 5 which attracts a WPI of between 85 and 95%.
It is the Panel’s view that the claimant’s scarring falls within class 1 because:
(a)    there are minimal signs and symptoms in terms of the scars;
(b)    there is no limitation of activities because of the scars, and
(c)    Ms Muddle requires no treatment for the scars.
Because class 1 contains a relatively wide range of percentage impairments, the Guidelines provides a table (6.18) for the evaluation of minor skin impairment. There are 10 criteria as follows:
(a)    claimant’s consciousness of the scar;
(b)    the colour match of the scar;
(c)    the ability to locate the scar;
(d)    trophic changes;
(e)    visible of staple or suture marks;
(f)    anatomical location;
(g)    contour defect;
(h)    effect on activities of daily living;
(i)    treatment, and
(j)    adherence.
The claimant’s scarring is to be assessed in accordance with each of the criteria and a percentage impairment given for each. The table then adopts a “principle of best fit” and says, “a skin impairment will usually meet most, but does not need to meet all, criteria to best fit a particular impairment category”.
Ms Muddle’s scarring, although well healed without contour or trophic defects (0%) has suture marks (1-2%). Ms Muddle is conscious of the scar (1-2%) and was able to readily localise them on her left ankle and her right wrist (1-2%). There was no adherence (0%) and while the colour match with surrounding skin is fair, the scars do contrast and can easily be detected (1-2%). The existence of the scars does not affect the claimant’s activities of daily living (0%) and there is no treatment for the scars (0%).
The assessment of minor skin impairment is not a mathematical exercise of determining medians or averages, and it is the Panel’s view that the best fit is 1% WPI.

Head injury assessment general

The central nervous system including the brain is assessed in accordance with Chapter 4 of AMA 4 Guides and clauses 6.160 – 6.176 of the Guidelines.
Clause 6.160 provides for the following categories of impairment resulting from head and brain injury:
(a)    aphasia and communication disturbances (section 4.1a of AMA 4 Guides);
(b)    permanent disturbances in level of consciousness and awareness (section 4.1d of AMA 4 Guides) such as a coma;
(c)    disturbances of mental status and integrative functioning (section 4.1b of AMA 4 Guides), and
(d)    emotional or behavioural disturbances (section 4.1c of AMA 4 Guides).
The medical members of the Panel note Ms Muddle showed no difficulty with comprehension or communication therefore section 4.1a of the AMA 4 Guides is not relevant to this assessment. Bearing in mind the nature of her injury and current complaints, sections 4.1d of AMA 4 Guides is also not relevant to her impairment assessment because there is no loss of consciousness and awareness.
Clause 6.164 of the Guidelines provides that in order for there to be an assessment of mental status impairment (section 4.1b) and emotional and behavioural impairment (section 4.1c), there must be:
(a) evidence of a “significant impact to the head”, and
(b) one or more significant, medically verified abnormalities such as an abnormal GCS score, post-traumatic amnesia or brain imaging abnormality.
Ms Muddle had a serious motor accident on 27 April 2019. There is no dispute that Ms Muddle had a “significant impact to the head” evidenced by the subdural haematoma demonstrated on brain imaging.
The Panel is satisfied that the claimant satisfies the preconditions set out in cl 1.164 of the Guidelines.

Impairment of mental status and integrative functioning

Clause 6.166 of the Guidelines provides that an assessment of mental status and integrative functioning must be done using the clinical dementia rating (CDR) tool provided for in table 6.9 of the Guidelines.
Table 6.9 provides for six categories of function:
(a)    memory;
(b)    orientation;
(c)    judgment and problem solving;
(d)    community affairs;
(e)    home and hobbies, and
(f)    personal care.
For each of the above there are five impairment levels, with a descriptor for each and a corresponding score:
(a)    no impairment (0);
(b)    questionable impairment (0.5);
(c)    mild impairment (1);
(d)    moderate impairment (2), and
(e)    severe impairment (3).
Clause 1.667 provides that the cognitive function for each of the six functions must be scored independently.
In Ms Muddle’s case, it is the clinical judgment of the medical members of the Panel that impairment as a result of her head injury (and not any psychological or other physical impairment) should be assessed as follows:
(a)    memory = 0.5 due to benign forgetfulness;
(b)    orientation = 0.5 on examination, Ms Muddle was not disoriented in time. There was minimal evidence of small spatial errors. While this could be due to unrelated visual problem it is also likely due to non-dominant hemisphere pathology and the 0.5 impairment is the best fit;
(c)    judgment and problem solving = 0 as there is no evidence of impairment for example, she prepares food without mental difficulty;
(d)    community affairs = 0 as there is no evidence of restriction due to her head injury. Ms Muddle reports she gets on well with family and friends and sees them regularly;
(e)    home and hobbies = 0 she has maintained her interest in hobbies (embroidery, tapestry, making blankets, two little dogs). Her embroidery was only later curtailed because of the left wrist injury and not because of the head injury, and
(f)    personal care (PC) = 0 as Ms Muddle said she was able to care for herself, including remembering to shower and dress appropriately.
Clause 1.167 of the Guidelines states that the memory score is the primary score, and all other categories are secondary scores and that:
(a) if three or more secondary scores are the same as the memory score then the overall rating score is that of the memory score;
(b) if three or more secondary scores attract a score more or less than the primary score then the overall rating score is the majority of secondary categories, however
(i)if three of the secondary scores are less than (and only two more than) the memory score in which case the overall rating score is the memory score or
(i)if two of the secondary scores are more than, and two are less than, and one the same as the memory score then the overall rating score is the memory score.
In Ms Muddle’s case her primary (memory) score is 0.5 as is one of her secondary scores (orientation). Three other secondary scores are 0. Therefore, in accordance with paragraph 171(b) above, Ms Muddle’s overall score is 0 (the majority of the secondary categories) and she does not therefore have an impairment that can be measured in accordance with Table 10.

Emotional and behavioural impairments

There is no evidence of any limitation of Ms Muddle’s social or interpersonal functioning as a result of the claimant’s head injury. Both the claimant and the claimant’s son reported no change in the way the claimant behaves or responds to those around her.
Therefore, in accordance with Table 3 in Chapter 4 of AMA 4 Guides there is a 0% WPI.

Station and gait impairment

Clause 6.161 of the Guidelines provides that section 4.3 “Spinal Cord” in the AMA 4 Guides “must be used for motor or sensory impairments caused by a central nervous system lesion.”
Clause 6.163 acknowledges that most of the Chapter 4 assessments provide a range of WPI from 0-9% for example. The clause says: “where there is a range of impairment percentages listed, the medical assessor must nominate an impairment percentage based on the complete clinical circumstances … and provide reasons.”
As has been stated above there are a variety of neurological conditions involving the brain that can affect a person’s ability to stand and walk safely.
As has also been stated, the Panel has accepted Ms Muddle has balance issues and that it is the claimant’s head injury that is causing the difficulty she has with her ability to stand and walk safely.
Table 13 provides four categories of impairment in station and gait. The Medical Assessors are of the view that the claimant falls within Category 1. This category applies where “the patient can rise to a standing position and can walk, but has difficulty with elevations, grades, stairs, deep chairs, and walking long distances”. As a result of her head injury, Ms Muddle can rise, stand and walk but she is unsteady and requires a walking stick or other aid (handrails) to prevent or help her avoid falls.
It is the clinical judgment of the medical members of the Panel that a 6% WPI would be appropriate.
The overall WPI due to brain injury is therefore 6% made up of 6% due to balance difficulty and 0% WPI due to mental status and emotional behavioural impairment.
There is no deduction for prior impairment, as there is no evidence of a prior balance difficulty due to a brain injury. The Panel accepts the claimant’s evidence that she used the scooter before the subject accident because of issues unrelated to any balance problem.

CONCLUSION

The Panel is of the view that the claimant’s WPI should therefore be assessed as follows:
(a)    right wrist impairment  7%
(b)    head injury and gait derangement            6%
(c)    left ankle impairment  3%
(d)    scarring  1%.
Each of the above must be combined using the combined values chart at page 322 of the AMA 4 Guides as follows:
(a)    7% combined with 6% = 13%
(b)    13% combined with 3% = 16%
(c)    16% combined with 1% = 17%.
As the Panel has come to a different conclusion to Medical Assessor Cameron, it follows therefore that his certificate must be revoked, and a fresh certificate given.

Left wrist (normal in brackets)	Measurement	Upper extremity impairment
Flexion (60 degrees)	30 degrees	5%
Extension (60 degrees)	40 degrees	4%
Radial deviation (20 degrees)	20 degrees	0%
Ulnar deviation (30 degrees)	10 degrees	4%

[2024] NSWPICMP 53

2 February 2024