Pechimuthoo v AAI Limited t/as AAMI
[2024] NSWPICMP 753
•4 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Pechimuthoo v AAI Limited t/as AAMI [2024] NSWPICMP 753 |
CLAIMANT: | Krishnan Pechimuthoo |
INSURER: | AAI Limited t/as AAMI |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Rhys Gray |
DATE OF DECISION: | 4 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review of certificate of Medical Assessor (MA) Home dated 26 February 2024 which assessed that claimant had 0% whole person impairment; accident 17 June 2020 when insured car rear-ended the claimant’s car; claimant alleges upper and lower limb injuries with thoracic and lumbar spine injury; claimant already had left ankle condition requiring operations and with further ankle surgery proposed; re-examination with both medical assessors; left foot, leg arm and hand, no accident related documented complaints; accident was capable of injuring thoracic and lumbar spine; DRE 1 with 0% permanent impairment; accident-related scarring barely visible; subject accident exacerbated left ankle symptoms; Medical Review Panel (Panel) found medicolegal ankle assessment in 2018 and subsequent treating information made it possible to calculate pre-accident permanent impairment at 5%; subject accident related ROM 4% permanent impairment resulting in 0%; same outcome as original assessment but different clinical findings; Held – different clinical findings to original assessment; Panel revoked original Medical Assessment Certificate. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of Permanent Impairment Replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The subject accident on 17 June 2020 caused injuries with total percentage permanent impairment of 0%. The total permanent impairment is not greater than 10%. 2. The Review Panel assessed that the accident caused injuries with the same permanent impairment but with different clinical findings to Medical Assessor Home’s assessment and certificate issued on 26 February 2024. 3. Accordingly, the Review Panel revokes the earlier certificate of Medical Assessor Home of 26 February 2024 and issues a new permanent impairment certificate. |
REASONS
BACKGROUND
This is a permanent impairment dispute under the Motor Accident Injuries Act 2017 (MAI Act).
The claimant, Krishnan Pechimuthoo, was injured on 17 June 2020 when he was driving his vehicle along Guntawong Road in Schofields. He was commencing a right turn onto Tallawong Road, when the insured vehicle struck the claimant in the rear.
The insurer insured the owner and/or driver of the subject vehicle for liability to pay to the claimant any damages/statutory compensation under the MAI Act.
The claimant referred a permanent impairment dispute to the Personal Injury Commission (Commission) to assess:
·arm–soft tissue and/or cardiovascular injury to left arm;
·hand–soft tissue injury to left hand;
·leg–soft tissue injury to left leg (soft tissue injury), and
·foot–injury to left foot (musculoligamentous/soft tissue injury).
· thoracic spine–injury to thoracic spine (musculoligamentous injury);
· lumbar spine–musculoligamentous injury to lumbar spine;
· ankle–injury to left ankle (musculoligamentous/soft tissue injury), and
· skin–scarring to the left ankle.
Medical Assessor Home assessed the claimant and issued a certificate dated
26 February 2024, which determined the claimant had a whole person impairment of 0%.The claimant submitted that the assessment was incorrect and applied for review stating that the Medical Assessor failed to provide a path of reasoning as to why the accident did not injure the claimant’s left arm and hand.
The President’s delegate Melinda Drew referred the medical assessment to a Review Panel (this Panel) on 4 June 2024.[1]
[1] Section 7.26(5) of the MAI Act.
STATUTORY PROVISIONS
The statutory provisions, authorities on causation and the applicable Motor Accident Guidelines (Guidelines) are set out at Appendix A.
Assessment under Review
Original Medical Assessor’s findings
These are set out in Appendix B
Matters considered and decided by the Review Panel
The Review Panel considered all aspects of the assessment under review.
The Panel met on 16 July 2024 to discuss how this review should proceed.
The Panel considered the parties’ submissions which are set out at Appendix C.
The Panel were certain that the claimant’s submissions regarding Dr Endrey-Walder’s assessment and the submission that there is no restriction in combining the assessed ranges of motion of the ankle joint were not correct.
The Guidelines state where there is loss of motion in more than one direction/axis of the same joint in the lower extremities, only the most severe deficit is rated - the ratings for each motion deficit are not added or combined.[2]
[2] Paragraph 6.85 Guidelines.
There was discussion about apparent inconsistencies with accounts in some of the supporting material about the claimant’s ankle injury before and after the accident.
The Panel noted there was medical support for the claimant suffering psychologically as a result of his injuries before and after the subject accident. The notes and reports informed the Panel the claimant has experienced separation from his wife and family, among other deprivations and this could impact on how he may present to the Panel.
There is ample legal authority about considering the evidence of witnesses, or in this case claimants giving evidence in those circumstances.
It could be reasonable in this case to hypothesise that if there were inconsistencies these could have been influenced by Mr Pechimuthoo’s psychological and pain conditions from before and after the accident rather than attempts to mislead.[3]
[3] Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 and Richelmann v McCabe [2024] NSWCA 37 [134]-[141].
The Panel decided re-examining the claimant was required. Medical Assessors Moloney and Gray would examine Mr Pechimuthoo and write the report on behalf of the Panel.
REVIEW PANEL FINDINGS
Documentation
The Panel considered the documentation set out in Appendix D.
Re-examination
Medical Assessors Gray and Moloney re-examined Mr Pechimuthoo at the Commission’s rooms on 2 October 2024.
The Panel’s medical members outlined the reasons for requiring re-examination to Mr Pechimuthoo, as Medical Assessor Home’s Certificate had been successfully challenged. The Panel confirmed with Mr Pechimuthoo that they would assess the body areas of thoracic spine, lumbar spine, left arm, left hand, left leg, left ankle, left foot and scarring. The claimant advised that he was under a lot of mental stress dealing with these issues.
Mr Pechimuthoo is now 51, born in Malaysia and migrated to Australia in 2007. He said that he had normally been working as an auditor, which required about 70% of his time travelling and moving about different business sites auditing and about 30% at his desk.
However, he said that he is now not working as an auditor because of pain in the left ankle, sleeplessness at night and finding it hard in the morning to get going. He said that although his back is also painful, his main problem is the left ankle.
Mr Pechimuthoo said he is divorced, lives by himself and currently has no paid work. His medications include: Palexia 150 mg twice a day, Mobic anti-inflammatory and Zoloft antidepressant daily, plus intermittent paracetamol. He also applies gel to his ankle and uses a heat pack intermittently.
Past history
Mr Pechimuthoo said before the subject accident, he had slipped on an oily surface at Bunnings in 2016. The ankle had required an operation on the left ankle about five years ago with, “reconstruction of the ATFL” under Dr Milne, with no history of other surgery. He said that he also had a clot in the left arm related to the anaesthetic cannulation during the ankle surgery in 2018; the clot was treated with observation and an anticoagulant, then a haematologist arranged progress ultrasounds at Westmead Hospital for a period. He said that by six months after the reconstruction, the left ankle had essentially, “fully recovered”.
Mr Pechimuthoo acknowledged that his left arm is currently satisfactory, “okay at present.” He was re‑questioned on this in detail, and he said that his current minor left forearm symptoms are essentially the same as before the accident, being some discomfort in the proximal aspect of the volar forearm with no functional problem.
He said that before the ankle surgery and after his 2016 fall at Bunnings, he had difficulty mobilising at all because of instability and pain in the left ankle. He had also attended a pain clinic to manage this.
After that surgery he was improved and was able to return to full-time work before the subject accident. Dr Riley reviewed the claimant about a year later for follow up, because of intermittent discomfort in the left ankle after the accident. Dr Riley then performed an arthroscopic debridement of the left ankle.
Mr Pechimuthoo denied any back problem or injury before the subject accident.
History of the motor accident
On 17 June 2020 he was driving to work in the morning alone in the car. He was moving slowly and about to turn right when his vehicle was hit from behind by another vehicle. He recalled his body impacting the right side of his vehicle in the collision. He also recalled a specific twisting injury to the left ankle, describing a forced plantar and rotatory movement of the left ankle.
Someone helped him out of the vehicle and a friend picked him up and took him to his regular general practitioner (GP) clinic. The police and ambulance did not attend.
He said at that stage he had some back pain, pointing directly to the lumbar area, and discomfort/pain in the left ankle. He said his GP prescribed analgesics and organised an X-ray.
To direct questioning, Mr Pechimuthoo recalled no specific injury to either arm, there were no injuries to either hand. He did report some flare of symptoms in the left forearm after the second ankle surgery but said that the flare up of symptoms had resolved.
He did not have any primary thoracic spine symptoms until the end of August 2020 and his GP referred him to have a CT scan when the GP found the thoracic spine was tender and there was swelling.
With regard to the low back, he described pain in the lumbar spine soon after the accident. Later, there was shooting pain, “up the back” from the lumbar area. He said that the shooting pain up his back started within a week of the injury causing him difficulty with sleeping at night and with lengthy sitting.
Mr Pechimuthoo said that after the accident he was referred to Dr Riley who did an arthroscopy in the left ankle in September 2020, but he still had ankle pain, saying that arthroscopy did not really help. Subsequently, his GP referred him to a foot and ankle surgeon, Associate Professor Kuo. A/Prof Kuo advised the claimant that he required further surgery but apparently the insurer declined to pay for this treatment. Associate Professor Kuo last reviewed him in April 2024.
Current symptoms
At present, he experiences intermittent localised low back pain in the central lumbar area, that then can become more generalised, and his lumbar spine feels stiff. He said he has pain with sitting for any length of time, problems with lengthy standing and his walking is restricted to about 15 minutes. He also describes some pins and needles, and numbness localised to the lumbar area. There has been no peripheral radiation of pain/paraesthesia.
There are no symptoms primarily in the thoracic spine. However, he said that intermittently he experiences some radiation of pain from the lumbar spine, “shooting up the spine”. He described this referred pain extending as far as the interscapular region, particularly after sitting or standing for a lengthy period.
At home he said he is, “not cleaning much”. He does not do any regular cooking and generally orders takeaways. He spends much of his time at home watching TV and YouTube.
With regard to the left ankle, he describes pain over the lateral aspect with intermittent swelling. The left ankle awakens him at night with difficulty turning over. He said he uses a stick in the right hand to mobilise and uses a Tubigrip support. He described the onset of pain every 15 minutes or so and that pain over the lateral aspect of the ankle inhibits walking and he feels stiff, with no literal instability.
The Panel asked Mr Pechimuthoo about other injuries to his lower limbs. He told the Panel there was no injury to the rest of the left lower limb (left leg and left foot), apart from the twisting injury to the left ankle.
Currently he has no physiotherapy but was formerly having physio weekly, which was stopped in February 2024. He said he has had no recent specific psychiatric referral.
Examination
On examination Mr Pechimuthoo mobilised with the use of a stick in the right hand.
Height was 168cm and weight 67kg (BMI = 24).
He became visibly upset and teary at one stage during the interview process.
Left upper limb
There was no clinical abnormality detected apart from a poorly defined area of minimal tenderness over the proximal aspect of the volar left forearm that Mr Pechimuthoo said had been long term and the same as before the subject accident; there was no swelling, stiffness, or induced pain with movement.
Thoracic spine
On inspection, normal contour with a normal range of flexion/extension and rotation, with no dysmetria. No guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints.
Lumbar spine
On inspection, normal contour. On testing range of movement, flexion/extension 80% of expected range as was side bending with no dysmetria. No guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints.
Lower limbs
There was no limitation of straight leg raising. There was no obvious sensory loss. The circumference of each thigh was equal measuring 38cm (10cm above each suprapatellar border). Maximal circumference of the left calf was 34cm and the right calf 33.5cm.
He displayed normal power and reflexes.
In the left ankle there was evidence of barely visible arthroscopic portals with negligible scarring. The scarring from the surgery from before the subject accident consisted of a 5cm curvilinear surgical scar centred on the lateral malleolus that was well healed and asymptomatic. Left ankle movements were irritable.
| Ankle Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion | 30 | 10 = 7% LEI |
| Plantarflexion | 50 | 20 = 7% LEI |
| Hindfoot Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Inversion | 30 | 15 = 2 % LEI |
| Eversion | 20 | 10 = 2 % LEI |
Summary of relevant documentation and clinical notes
On 16 January 2018, Dr Wahid GP noted a diagnosis of chronic regional pain syndrome.
On 4 May 2019 noted ankle pain persisting and arthroscopy left ankle had been recommended.
On 20 May 2019 Dr Wahid noted the claimant was using a walking stick.
There had been medical documentation of low back symptoms before the accident that was insufficient to assess a diagnostic related estimate.
On 26 June 2019, GP Dr Thevarajan noted left upper limb thrombophlebitis and clot before the subject accident.
Dr Soliman GP noted on 10 February 2020 that the claimant had pains on the lateral side of the left ankle reconstruction from June 2018. The GP prescribed analgesia.
On the day of the accident 17 June 2020 GP Dr Soliman, noted the claimant complained of left ankle pain. The GP noted that his left ankle was swollen with tenderness on the lateral side but no deformity, no restriction but a painful range of movement. He supplied the claimant with Tubigrip and simple analgesia.
On 23 June 2020, Dr San GP noted, “hurt his left ankle and lower back – his car was hit from the back”. Left ankle complaints and a requirement for a CT lumbar spine for lower back symptoms. The claimant described onset of lumbar symptoms immediately after the subject accident.
The GP also noted investigations were non-contributory. The claimant still felt pain in the lateral malleolus and left ankle. Simple analgesia was prescribed to take as necessary for the diagnosed left ankle pain.
On 26 June 2020 GP Dr Thevarajan noted the pain was worse. Investigations showed no convincing fracture. Note: Lateral reconstruction intact. Reason for visit: Left ankle pain. No reference to lumbar spine or other back symptoms.
The Panel noted the following GP entries, 1 July 2020 (Dr San) and 11 July 2020 (Dr T Thomas), which referred to left ankle symptoms. Notes were made requesting a bone scan and to speak to a specialist. There were no references to spinal symptoms or signs.
Multiple GP entries until 6 August 2020 did not refer to continuing lumbar spinal symptoms or signs.
On 14 August 2020, GP Dr Thevarajan noted there was pain in the foot and lower back. The GP noted a request for psychological referral, and prescribed analgesia.
A GP noted on 31 August 2020, being two and a half months after the accident, that the claimant had pain and stiffness persisting in the back. The GP organised a CT of the thoracic spine, and noted the claimant had tenderness at T5/7 area and surrounding swelling. Palexia SR medication.
Dr Assem assessed the following AROM in 2018.
| Ankle Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion | 30 | 10 = 7% LEI |
| Plantarflexion | 50 | 30 = 0% LEI |
| Hindfoot Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Inversion | 30 | 8 = 5 % LEI |
| Eversion | 20 | 15 = 0 % LEI |
Dr Assem calculated lower extremity impairment as follows: 7 combined with 5 = 12% LEI.
Recent submissions
The Panel considered the claimant’s submissions dated 26 September 2024.
Addressing item 4 in those submissions the claimant advised the Panel during the examination that he did not sustain any injury to the left arm, left hand or left forearm in the subject accident. He described some symptoms arising in the left forearm after he had subsequent arthroscopic surgery with those new symptoms now resolved; he said that the minor residual symptoms currently in the left forearm are equivalent to what they were before the subject accident.
Mr Pechimuthoo was adamant, when the Panel asked him, that there had been no direct injury to the left upper limb in the subject accident. There were symptoms related to the subsequent anaesthesia in the left upper limb, but these had resolved.
There was no medical documentation of a left upper limb injury soon after the subject accident. If there were an injury, there is no residual physical impairment.
The Panel concluded the subject accident did not cause any left upper limb injury.
Item 6 in those submissions addressed treating ankle surgeon A/Prof Kuo’s opinion in his reports and also the associated X-rays and MRI scan reports, with some potential impingement of the internal fixation being documented.
The Medical Panel felt that the ankle was stable, but that consideration should be given to a further arthroscopic procedure to remove surgical implants from the left ankle, as these may possibly be impinging between the ankle joint. Independently of the permanent impairment question, the Panel agrees with A/Prof Kuo’s evidence on this point, because the subject accident’s impact exacerbated the claimant’s left ankle symptoms and accelerated the need for this surgery.
Panel deliberations
There have been no further accidents or injuries since the date of the subject accident.
In respect of the injuries claimed for the left foot, leg arm and hand, the Panel questioned the claimant about those claims. Apart from some discomfort in the left arm there were no documented complaints. The pain in that body part was related to a graft taken from that arm before the subject accident.
The claimant had not sought treatment for those body parts, and currently there is no assessable permanent impairment to assess. If the claimant had injured those body parts any symptoms resolved soon after the subject accident.
The Panel decided the thoracic spine was injured in the accident. The mechanism of the accident was capable of injuring that body part, although the diagnosis was delayed, the tenderness and swelling detected by his GP on 31 August 2020 was probably caused by the subject accident. The Panel assessed the thoracic spine as DRE category I yielding 0% permanent impairment.
The Panel accepted the lumbar spine was injured in the accident and assessed the condition as DRE category I yielding 0% permanent impairment.
The scarring related to arthroscopy portals was barely visible (Temski Table 18 = 0% WPI: not conscious of scarring, good colour match, no trophic changes, no contour defect, no effect on ADL, no treatment or adherence). There was a 5cm well-healed scar from the earlier ankle surgery.
The Panel found the subject accident exacerbated symptoms from the left ankle; however, clinical notes confirm the ankle was symptomatic and surgery had been recommended before the subject accident.
The Panel also noted Dr Assem's 2018 report assessing the left ankle ROM. Considering that report, Dr Frank Machart’s report dated 3 April 2019 and the ankle’s symptomatic state shortly before the subject accident, the Panel found there was sufficient objective information to calculate permanent impairment before the accident at 5%.[4] The Panel opined that the available evidence established what was, on balance, probably the claimant’s left ankle impairment at the time of the accident.[5]
[4] Clause 6.31 Guidelines.
[5] NRMA Insurance v Brown [2019] NSWSC 1236.
The Panel noted Dr Assem's 2022 report opines that the claimant's ankle was worse since the accident. However, the Panel’s examination found the ROM had now improved and was now 4% permanent impairment caused by the subject accident, based on table 6.4 of the Guidelines. This results in 0% permanent impairment for that body part.
Although, the Panel’s calculation of permanent impairment in the left ankle before the subject accident and caused by the subject accident differs from Medical Assessor Home’s assessment, it results in the same outcome for that body part.
Panel decision
The Review Panel found that the subject accident did not cause the following injuries:
·arm–soft tissue and/or cardiovascular injury to left arm;
·hand–soft tissue injury to left hand;
·leg–soft tissue injury to left leg (soft tissue injury), and
·foot–injury to left foot (musculoligamentous/soft tissue injury).
The Review Panel found that the subject accident caused the following injuries:
· thoracic spine–injury to thoracic spine (musculoligamentous injury);
· lumbar spine–musculoligamentous injury to lumbar spine;
· ankle–injury to left ankle (musculoligamentous/soft tissue injury), and
· skin–scarring to the left ankle.
These injuries were symptomatic, but were assessed as 0% permanent impairment:
Permanent impairment
The subject accident caused injuries with total percentage permanent impairment of 0%. The total WPI is not greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The Review Panel’s permanent impairment from the injuries caused by the subject accident, are the same as Medical Assessor Home’s assessment dated 26 February 2024. However, the Panel confirmed different clinical findings to Medical Assessor Home’s assessment and certificate issued.
Accordingly, the Review Panel will revoke this certificate and issue a new permanent impairment certificate.
Each Panel member has reviewed this decision and agreed with the findings.
APPENDICES
APPENDIX A
Statutory Provisions
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 9.2 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the subject accident. The subject accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation.
Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
In respect of any injury or impairment before or after the subject which would justify any negative causation findings, the basis for this needs to be higher than the level of ‘mere speculation’ in the absence of any identifiable evidence. Such speculation must be dismissed as per the principles enunciated in Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236.
In particular, such findings must follow the Guidelines paragraphs 6.31 to 6.34 which set out what must be considered when assessing impairment from conditions before or after the subject accident.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
APPENDIX B
Original Assessor’s findings
The Commission issued Medical Assessor Home’s certificate dated 26 February 2024.
Medical Assessor Home found the accident injured the claimant’s lumbar spine, aggravated an existing left ankle condition, which required further surgery and left insignificant scarring.
The claimant received physiotherapy for his lumbar spine condition and experiences persisting intermittent lower back pain symptoms.
In relation to the left ankle, he underwent further arthroscopic debridement to relieve scarring related to a previous reconstruction. The claimant’s GP noted left ankle swelling soon after the accident. The Medical Assessor opined that he had sufficient objective evidence to calculate permanent impairment existing at the day of the accident that would satisfy clause 6.31 of the Guidelines. He calculated the claimant’s left ankle was 3% before the subject accident and 3% when he examined the claimant. This resulted in 0% permanent impairment.
The lateral left ankle scar relates to the previous lateral collateral ligament reconstruction of the joint, performed in 2018. Arthroscopic scars related to his arthroscopy after the subject accident were barely visible.
The subject accident did not cause any new injury to the left arm, left hand, left leg or left foot.
Permanent Impairment Table
Combined whole person impairment – 0% WPI.
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to subject accident | |
| 1 | Thoracic spine | AMA 4, 3/106, 3.3i: DRE Thoracolumbar I | Yes | 0% | 0% | 0% |
| 2 | Lumbar Spine | AMA 4, 3/102, 3.3g DRE Lumbosacral I | Yes | 0% | 0% | 0% |
| 3 | Left ankle | AMA 4, 3/78, Table 42: Guidelines clauses 6.31 to 6.33 | Yes | 3% | 3% | 0% |
| 4 | Scarring | AMA 4, Temski Table 18 | Yes | 0% | 0% | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 0% | |||||
* %WPI = percentage whole person impairment
APPENDIX C
Parties’ disputes and issues
Claimant’s submissions
The force of the accident on 17 June 2020 pushed the claimant’s left foot/ankle into an inversion position with his body moving forward forcefully then back as he hit his head on the window of the car door on the driver’s side. The claimant felt pain in his left hand, back and left ankle/foot and head and was in shock.
The claimant alleges that the subject accident caused or materially contributed to the following injuries: -
• Head (soft tissue injury)
• Left hand/forearm (soft tissue and cardiovascular injury)
• Thoracic spine (musculoligamentous/soft tissue injury and nerve/muscle spasms)
• Lumbar spine (musculoligamentous/soft tissue injury)
• Left lower limb (soft tissue injury)
• Left ankle/left foot (musculoligamentous/soft tissue injury)
• Scarring (left ankle)
Dr General Surgeon Endrey-Walder opined in his report dated 17 May 2022 that the claimant continues to have pain and restriction of movement in his lumbar spine, and left foot and ankle and left forearm.
Dr Endrey-Walder assessed the accident caused 15% Whole Person Impairment overall.
Following 6.31 of the AMA 4 Guidelines and the report of Dr Endrey-Walder, the claimant submits, that there should not be any deduction from the current WPI value regarding the left ankle injury.
The claimant submits that Dr Raymond Wallace’s deduction in his report dated 9 June 2022 is incorrect. The claimant’s left ankle injury should be assessed at 10% whole person impairment following Dr Endrey-Walder’s method.
Dr Frank Machart’s report dated 3 April 2019 opined that the claimant sustained a minor injury to the left lateral ankle complex, being partial rupture. The claimant submits there is no supporting objective medical evidence confirming that the previous injury and symptoms thereof could still be causing any or substantial symptoms or disability.
Furthermore, Dr Machart opined that the prognosis for healing of the left ankle was reasonably good and that after the reconstruction was full recovery good community ambulation and full ADLs.
The claimant states at the time of the accident he was in good health in general and did not have symptoms in his lumbar spine or left ankle.
The radiology dated 28 May 2019 revealed no thrombophlebitis and/or DVT.
Dr Assem reported on 28 November 2018 that the claimant’s right wrist injury has subsided.
Dr Assem’s report dated 26 October 2022 opines the claimant’s left ankle has deteriorated as a result of or arising from the subject motor vehicle accident.
Dr Assem notes the claimant relies on a walking stick since the subject accident because he has developed plantar flexion.
Dr Riley, orthopaedic surgeon on 10 July 2020 saw the claimant for his left ankle symptoms after the subject accident. That doctor confirmed significant reoccurrence of left ankle symptoms. Dr Riley performed arthroscopic debridement surgery on the claimant on 28 October 2020.
The accident has accelerated the need for the left ankle surgery. Although the claimant was already considering left ankle surgery before the accident, he intended to postpone it to mitigate the risk of the thrombophlebitis. The subject accident caused left ankle symptoms which made it necessary to bring that surgery forward.
The claimant has attempted to return to work since the subject accident but has been unable to maintain full employment. He submits the accident caused injuries including left ankle symptoms, which made it impossible to continue work.
The claimant continues to be unable to attend to duties requiring repetitive bending, twisting, sitting or standing in one position for an extended period of time, repetitive bending, squatting, crouching or kneeling using his left leg/foot and/or lifting above 5kgs.
The following claimant’s submissions regarding errors in Medical Assessor Home’s certificate are relevant to this Panel.
The clinical records and medicolegal reports refer to the left hand/wrist and left arm injuries suffered in the accident. Medical Assessor Home did not examine the claimant’s upper limb injuries or interview him about the relevant ongoing symptoms, nor did he diagnose the referred upper limb injuries. Despite that, he certified the accident did not cause those injuries without providing reasons.
The claimant also submitted the ADLs were not considered when Medical Assessor Home assessed the claimant’s scarring.
In respect of the left ankle, the claimant referred to the Medical Assessor not addressing the extent of the aggravation caused by the subject accident, or whether that aggravation is ongoing.
The claimant criticised the Medical Assessor was in error for not following Dr Endrey-Walder in using AMA 5 to assess the claimant’s permanent impairment or addressing that doctor’s assessment method adequately.
Dr Endrey-Walder, General Surgeon opined in his report dated 17 May 2022 that the claimant continues to have pain and restriction of movement in his lumbar spine, and left foot and ankle and left forearm.
Dr Endrey-Walder assessed the accident caused 15% Whole Person Impairment overall.
Following 6.31 of the AMA 4 Guidelines and the report of Dr Endrey-Walder, the claimant submits, that there should not be any deduction from the current WPI value regarding the left ankle injury.
The claimant states at the time of the accident he was in good health in general and did not have symptoms in his lumbar spine or left ankle.
The claimant has attempted to return to work since the subject accident but has been unable to maintain full employment. He submits the accident caused injuries including left ankle symptoms, which made it impossible to continue work.
All of the independent medical examiners including Dr Wallace, and the claimant’s GP agree that the claimant cannot return to his pre-injury duties because of the injuries and symptoms caused by the subject accident.
The claimant continues to be unable to attend to duties requiring repetitive bending, twisting, sitting or standing in one position for an extended period of time, repetitive bending, squatting, crouching or kneeling using his left leg/foot and/or lifting above 5kgs.
In respect of the left ankle, the claimant referred to the Medical Assessor not addressing the extent of the aggravation caused by the subject accident, or whether that aggravation is ongoing.
The claimant criticised the Medical Assessor not following Dr Endrey-Walder in using AMA 5 to assess the claimant’s permanent impairment or addressing that doctor’s Method of assessment adequately.
The claimant submits, that there should not be any deduction from the current WPI value regarding the left ankle injury. This is based on 6.31 of the AMA 4 Guidelines and the reports of Doctors Endrey-Walder, Assem and Machart.
In paragraph 28 of the claimant’s submissions dated 14 February 2024 submitted that the left ankle injury should be assessed at 10% whole person impairment following Dr Endrey-Walder. Furthermore, it was held in Aleksic v AAI Limited [2023] NSWPICMP 466 that if an accident aggravates a medical condition, then it materially contributes to an injury.
The claimant submits the Assessor’s reasons did not address the extent of the aggravation caused by the subject accident and the Assessor failed to consider the possibility that the claimant sustained any aggravations.
Associate Professor Kuo advised the claimant on 14 February 2024 that he requires a left ankle arthroscopy, removal of the talar screws and/or anchors as well as possibly revising the lateral ligament reconstruction. The deterioration and/or aggravation of the left ankle injury is evident and therefore the Assessor should have assessed same accordingly and commented as to its extent in relevant detail in accordance with the Guidelines.
Under the summary of relevant documentation on page 9 paragraph 3 Assessor Home notes Dr Endrey-Walder’s assessment is not correct. The AMA 5 Guidelines note that these are to be used as a guideline and the arcs listed are examples of mild, moderate and severe impairment as per 3.2e page 77 of the AMA 5 Guidelines. Furthermore, as per 6.5 of the Permanent Impairment Assessment Guidelines there is no restriction in combining the assessment based range of motion and therefore the assessment of whole person impairment provided by Dr Endrey-Walder should have been considered and commented upon by Assessor Home in detail.
Insurer’s submissions
The insurer’s earliest submission was that before the subject accident the claimant had injured his left ankle and undergone surgery at least twice.1
Dr Raymond Wallace examined the claimant for the insurer on 7 June 2022 and opined the claimant’s lumbar spine attracted a 0% WPI and his left ankle a 4% WPI but 50% of this (i.e., 2% WPI) was due to left ankle injury existing at the day the accident, which must be deducted.
Dr Wallace re-examined then produced a further report dated 24 January 2024. He maintains the accident caused 2% permanent impairment.
APPENDIX D
Documentation
The Review Panel considered the following documentation as well as Medical Assessor Home’s certificate:
Dr Wahid's clinical notes
Our Medical Home Marsden Park clinical notes
Dr Mohammed Assem's reports dated 28 November 2018 and 26 October 2022
Dr Frank Machart's report dated 3 April 2019
Certificates of capacity commencing 17 June 2020 referring to left ankle injury and lower back pain
Orthopaedic surgeon Dr Riley's reports including operation report
Associate Professor Rodrick Kuo’s clinical notes and reports dated 30 April 2021, 4 June 2021, 13 July 2021, 14 February 2024
Dr Endrey-Walder's reports dated 17 May 2022 and 18 July 2023
Dr Raymond Wallace's reports dated 9 June 2022 and 24 January 2024
The Panel noted and examined the scans provided of the claimant's injuries before and after the subject accident.
The Panel did not refer to Dr Wallace’s latest report or to Dr Baron Levi’s report
APPENDIX E
Permanent Impairment Table
Combined whole person impairment – 0% WPI.
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to subject accident | |
| 1 | Thoracic spine | AMA 4, 3/106, 3.3i: DRE Thoracolumbar I | Yes | 0% | 0% | 0% |
| 2 | Lumbar Spine | AMA 4, 3/102, 3.3g DRE Lumbosacral I | Yes | 0% | 0% | 0% |
| 3 | Left ankle | AMA 4, 3/78, Table 42: Guidelines clauses 6.31 to 6.33 | Yes | 4% | 5% | 0% |
| 4 | Scarring | AMA 4, Temski Table 18 | Yes | 0% | 0% | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 0% | |||||
* %WPI = percentage whole person impairment
0
3
0