Petrovic v QBE Insurance (Australia) Limited
[2024] NSWPICMP 725
•22 October 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Petrovic v QBE Insurance (Australia) Limited [2024] NSWPICMP 725 |
| CLAIMANT: | Boris Petrovic |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Stephen Boyd-Boland |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 22 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment; physical injuries to cervical spine, left knee and right hand; Medical Assessor (MA) Herald found that the injuries to cervical spine, left knee and right hand were caused by the motor accident; MA Herald assessed whole person impairment (WPI) as follows: cervical spine 15%, left knee 2% and right hand 0%; re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine, left knee and right hand were caused by the motor accident; Panel assessed WPI as follows: cervical spine 5%, left knee 0% and right hand 1% finding a total 6% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 6%; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.26 of the Motor Accident Injuries Act 2017 1. The following injuries caused by the motor accident give rise to a permanent impairment of 6% and is NOT greater than 10%: (a) cervical spine, soft tissue injury; (b) left knee, soft tissue injury, and (c) right hand, soft tissue injury. 2. The certificate of Medical Assessor Medical Assessor Johnathan Herald dated 1 May 2023 is revoked. |
STATEMENT OF REASONS
BACKGROUND
On 11 April 2019, Boris Petrovic (the claimant) sustained injury in a motor vehicle accident (the motor accident).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer.
In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Claims are initiated by lodgement of an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident against the insurer. The legislation provides a scheme of statutory benefits (under Part 3) and lump sum damages (under Part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available.
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 and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for medical assessment.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage).
This constitutes a medical dispute within the meaning of the MAI Act.
A medical assessment was conducted by Medical Assessor Johnathan Herald who subsequently provided a certificate dated 1 May 2023 (the Initial Assessment).
The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Johnathan Herald for assessment:
(a) cervical spine;
(b) left knee, and
(c) right hand.
The Medical Assessor’s certificate
Medical Assessor Johnathan Herald found that the following injuries were caused by the motor accident:
(a) cervical spine being soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms;
(b) left knee being left knee chondromalacia patella, and
(c) right hand being right hand ganglion following a dorsal sprain.
Medical Assessor Johnathan Herald found that the following injuries were not caused by the accident:
(a) N/A.
Medical Assessor Johnathan Herald determined the degree of permanent impairment as follows:
Body part or System
Permanent
Yes/No
Current %WPI
%WPI from pre-existing or subsequent causes
%WPI due to motor accident
1
Cervical spine
Yes
5%
0%
5%
2
Left knee
Yes
2%
0%
2%
3
Right hand
Yes
0%
0%
0%
The Review
The claimant lodged an application for review of the assessment of Medical Assessor Johnathan Herald.
On 24 July 2023 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Commission then convened a panel to conduct the review.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a decision maker. A ‘new decisionmaker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new provisions apply.
The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts the proceedings and may determine the proceeding solely based on the written application.
The Review Panel was comprised of two specialist medical practitioners and a legal member. The Review Panel met on a number of occasions and provided Directions to the parties.
The Review is not a stand-alone hearing but a process involving the Review Panel seeking evidence, including additional material provided by the parties and further submissions, and potentially further medical examination, then meeting on a number of occasions to discuss the evidence before the Review Panel and to reach a view on the relevant issues and reduce that to written reasons.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
Both the claimant and the insurer are legally represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAI Act.
Whilst the Review is by way of a new assessment of all matters with which the medical assessment is concerned this occurs in the context of the initial assessment and certificate, the application for review of the assessment and the determination to conduct a review.
The following injuries were referred by the Commission for assessment:
(a) cervical spine being soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms;
(b) left knee being left knee chondromalacia patella, and
(c) right hand being right hand ganglion following a dorsal sprain.
Material before the Review Panel
Directions were issued by the Review Panel.
The parties were asked to provide submissions for the purpose of the Review addressing various specific issues.
The parties provided documentation to the Review Panel.
The insurer provided:
(a) a bundle of documents “Petrovic - 2023.06.20 - Insurers Reply (compiled)” being 53 pages;
(b) a bundle of documents “Petrovic - 2024.03.14 - Insurer's Review bundle (index and submissions - compiled) (1)” being 47 pages, and
(c) a bundle of documents “Petrovic - 2023.11.10 - Insurer’s List of documents in support of Reply to Application for Review (compiled)” being 172 pages.
The claimant provided:
(a) a bundle of documents “20231116 Dr Bishoy Marcus clinical notes” being 81 pages;
(b) a bundle of documents “20231124 Dr Smithers Clinical Notes” being 21 pages;
(c) a bundle of documents “A1-20230529 claimant's submissions for application for review” being 2 pages;
(d) a bundle of documents “20230926 Attachments in reply to Direction (1)” being 384 pages;
(e) a bundle of documents “20240304 bundle for review panel” being 11 pages;
(f) a bundle of documents “20240304 claimant's submissions requested by Review Panel” being 2 pages, and
(g) a bundle of documents “20240315 response to insurer's review panel submissions” being 1 page.
The claimant relied upon submissions dated 29 May 2023, 1 March 2024 and 15 March 2024.
The Insurer relied upon submissions dated 19 September 2022, 20 June 2023, 14 March 2024.
Pursuant to s 7.26(6A) of the MAIA the Review Panel agreed that Medical Assessor Shane Moloney would conduct the medical re-examination of the claimant for the purposes of the review.
In Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 Justice Basten referred to Court of Appeal comments on the volume of material which is routinely provided to Medical Assessors. Justice Basten confirmed that in reasons accompanying a certificate there was not a need to refer to all the documentation to which he or she has had access, but rather to be discriminating as to that material.
The Review Panel does not intend to refer to each and every document in the substantial volume of material before it, but only those documents considered significant to the issues in dispute.
The claimant’s submissions
The claimant lodged an application for review of the assessment of Medical Assessor Johnathan Herald.
The claimant did not take any issues with the conclusions of Medical Assessor Johnathan Herald in relation to causation of the following injuries:
(a) cervical spine being soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms;
(b) left knee being left knee chondromalacia patella, and
(c) right hand being right hand ganglion following a dorsal sprain.
The claimant took issue with the conclusion of Medical Assessor Johnathan Herald in relation to the assessment of permanent impairment in relation to the injury to the right hand.
The claimant did not take any issue with the conclusions of Medical Assessor Johnathan Herald in relation to permanent impairment of the following injuries:
(a) cervical spine being soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms, and
(b) left knee being left knee chondromalacia patella.
The insurer’s submissions
The insurer maintained that the right hand being right hand ganglion following a dorsal sprain was not caused by the motor accident.
The insurer did not take any issue with the conclusions of Medical Assessor Johnathan Herald in relation to causation of the following injuries:
(a) cervical spine being soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms, and
(b) left knee being left knee chondromalacia patella.
The insurer did not take any issue with the conclusions of Medical Assessor Johnathan Herald in relation to permanent impairment of the following injuries:
(a) cervical spine being soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms, and
(b) left knee being left knee chondromalacia patella.
The insurer took issue with the conclusion of Medical Assessor Johnathan Herald in relation to the assessment of permanent impairment in relation to the injury to the right hand.
Re-examination of the claimant
Pursuant to s 7.26(6A) of the MAIA the panel agreed that Medical Assessor Shane Moloney would conduct the medical re-examination of the claimant for the purposes of the review.
Mr Petrovic attended the medical suites at the Commission on 24 July 2024. He was unaccompanied.
Pre-accident history
Mr Petrovic stated that he was working full-time as an air conditioning apprentice in the third year of this apprenticeship at the time of the accident. He had migrated from Bosnia but attended all of his schooling in Sydney. He states that he had had no previous injuries to those assessed today and played soccer on a social basis and enjoyed off-road motorbike riding.
At present he lives with his parents and has a partner.
History of motor vehicle accident
On 11 April 2019, Mr Petrovic was at a pedestrian crossing when a car failed to give way and collided with him at speed. He states that the impact knocked him over causing him to sustain a fracture of his nose, a facial laceration, and injuries to his right hand and left knee. Apparently, the driver of the defendant car sped off and was later apprehended. The ambulance and police officers attended the scene of the accident, and he was taken to Sutherland Hospital.
History of symptoms and treatment following the motor accident
At Sutherland Hospital, a fracture of the nose was diagnosed and soft tissue injuries to the left knee and right hand. The laceration to the right cheek was treated without surgery. He remained at Sutherland Hospital for about nine hours and signed himself out due to excess noise in the emergency department (ED).
Prior to the accident, Mr Petrovic had no regular general practitioner (GP) and consulted Dr Choroomi who referred him to an ear, nose and throat (ENT) specialist for a subsequent rhinoplasty in June 2020. He was also referred to Dr Smithers in November 2019 for constant right wrist pain. Dr Smithers organised a cortisone injection which gave some relief and physiotherapy, but recommended surgery wasn’t necessary. He was also referred to a psychologist due to post-traumatic stress disorder.
There have been no further injuries sustained since the motor accident.
Current symptoms
Mr Petrovic states that the main pain is on the left side of his neck which feels stiff and constant. Any excess rotation increases the pain which radiates down the left arm and settles after about an hour to the level of the upper forearm and occipital region of his skull. He states that this is an infrequent situation as he avoids excess rotation of his cervical spine.
There is pain at the base of the index finger of the right hand in the metacarpal region and he feels that his grip is weaker. The pain increases with excess writing. He also gets a constant click in the wrist area. The left knee also clicks and feels unstable and increases with prolonged standing or walking. He continues to suffer from post-traumatic stress disorder and gets anxious when crossing the road. He is able to drive short distances but has not worked since the motor accident. He is unsure what employment to undertake.
Current treatment
Present medication is Valium one at night and he has recently ceased Cymbalta. He takes no analgesics at present. No manual therapy is being undertaken at present and he consults his GP when necessary. He has an appointment to see a psychiatrist in September.
Clinical examination
Mr Petrovic walked into the medical suite with a normal gait and sat comfortably during the interview. He states that he is right-handed. His height was measured at 174cm and weight 65.7kg.
Cervical spine
On testing range of movement of the cervical spine, flexion/extension was 75% of expected range. Rotation was 80% of range on the left and 70% on the right. Similarly side bending was 80% on the left and 70% on the right of expected range. Thus, there was dysmetria on testing range of movement. On palpation, there was tenderness over the right sternoclavicular muscle and tight scalene muscles with mild tenderness in the trapezius muscle.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. There was a full pain free range of movement of both shoulders. No muscle wasting was apparent in the upper limbs with the circumferences of the upper arms 25 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 24.5 cm bilaterally (5 cm below the olecranon process).
Left knee
On inspection no effusions were apparent and on testing range of movement, both knees was 130° of flexion and 0° extension. No ligament laxity was noted and at the time of my examination there was no patellofemoral crepitus or tenderness on palpation.
Wrists
On palpation, there was tenderness at the metacarpophalangeal (MCP) joint at the base the index finger. There is a bony prominence dorsally in this region consistent with a small carpal boss. On passive movement no crepitus was detected but when Mr Petrovic does a flexion/extension of his right wrist there is a click audible. No effusions were apparent. There is no clinical evidence of any extensor tenosynovitis in the right hand. Active movements are measured using a goniometer and repeated three times. There was a slight loss radial deviation in the right wrist compared to the left. There was a full pain free range of movement of all fingers and thumbs.
Wrist Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
80°
80°
Extension
60°
60°
Radial Deviation
10° = 2% UEI (figure 29)
20°
Ulnar Deviation
40°
40°
No radiological studies were available for inspection.
Whole person impairment and causation
Cervical spine – soft tissue injury
There is evidence that the Mr Petrovic sustained a soft tissue injury to cervical spine in the subject accident. It was reported by the treating GP a few days after the accident and by the treating physiotherapist. The Review Panel has determined that there is a diagnosis-related estimate (DRE II) classification which is 5% WPI. At the time of our examination dysmetria was present with no guarding or spasm and no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs. Medical Assessor Herald came to the same conclusion.
Left knee – soft tissue injury
There was documentation that Mr Petrovic sustained a soft tissue injury to his left knee at the time of the accident which was investigated by an X-ray at Sutherland Hospital and subsequent MRI. The treating GP had also recorded left knee pain a few days after the accident. The Review Panel accepts that Mr Petrovic sustained a soft tissue injury to his left knee due to the motor vehicle accident. At the time of our examination there was 0% WPI. This was because there was a full range of movement of both knees and no retro patella pain or crepitus was noted on examination with no ligament laxity. Medical Assessor Herald had noted some patellofemoral crepitus which was not apparent at the date of my examination.
Right wrist – soft tissue injury
It was recorded by the treating GP of the media pain in the right wrist region which was investigated with an X-ray the day after the accident and subsequent MRI. The Review Panel accepts that Mr Petrovic sustained an injury to the right wrist the time of the subject accident. This injury was assessed several times by Dr Smithers, wrist and hand orthopaedic surgeon. He considered that there had been a dorsal capsular sprain at the second carpometacarpal (CMC) joint after viewing the MRIs. The initial MRI did not record any tenosynovitis, but a small degree of dorsal metacarpal will pericapsular oedema consistent with a grade 1 sprain.
The Review Panel notes that in a medicolegal report of Dr Dixon, he had diagnosed extensor tenosynovitis in the right hand after viewing an ultrasound four years after the accident which demonstrated mild radio carpal synovitis. There was no clinical evidence of this at the time of my examination and was not noted by the treating hand surgeon in his several consultations.
At the time of our examination, there was a slight loss radial deviation which is 2% upper extremity impairment (UEI) in figure 29 of American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). This converts to 1% WPI using Table 3.
Thus, a total WPI for Mr Petrovic is 5% +1% which equals 6% WPI.
The Review Panel accepted the examination report from Medical Assessor Shane Moloney, set out above.
The Review Panel accepted and adopted the findings and clinical opinions of Medical Assessor Shane Moloney, set out above.
Issues for the Review
Pursuant to s 7.26(5) of the MAI Act the review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. That involves a consideration of the nature of the dispute not just following the initial assessment but prior to the initial assessment.
Schedule 2, cl 2(a) of the MAI Act, involves a determination of two issues:
(a) whether the injury (was) caused by the motor accident, and
(b) the degree of permanent impairment of the injured person that has resulted from the injury.
The Review Panel was required to determine whether the following injuries were caused by the motor accident;
(a) cervical spine being soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms;
(b) left knee being left knee chondromalacia patella, and
(c) right hand being right hand ganglion following a dorsal sprain.
The Review Panel was required to determine the degree of permanent impairment resulting from the following injuries:
(a) cervical spine;
(b) left knee, and
(c) right hand.
Review of the evidence
The certificate of Medical Assessor Herald sets out the history, including pre-accident history and pre-existing conditions and the history of the accident.
In relation to the history of the motor accident Medical Assessor Herald noted:
“Boris was involved in a motor vehicle accident on the 11 April 2019. He was a pedestrian crossing a road. There was a 50 kph sign that was controlled by a pedestrian light. The light was green and he was almost across the road when he was hit by a vehicle. He was knocked over by a car approaching from the left. He had no loss of consciousness and got up to stand, but had immediate right-hand pain, hip pain, left knee and back pain. He was taken by ambulance to Sutherland Hospital and was observed overnight. CT scan showed a fracture of his nose and x-rays of his hand showed no significant fractures. He was discharged from the hospital with no work capacity. Eventually, his job was terminated anyway in 2019. MRI scans on 20 July 2019 showed oedema in the fibular head and a tiny meniscal tear of uncertain age.”
In relation to the history of the motor accident Medical Assessor Herald noted:
“He continued to have hand pain, neck pain, and knee pain. In regards to his face, he was referred to see Dr Choroomi and underwent surgical rhinoplasty in June 2020. He was referred to Dr Smithers in November 2019 with regards to his wrist. MRI scans were performed and a cortisone injection was given, which gave only temporary relief. He underwent some physiotherapy in September 2019 but started seeing a psychologist in October for PTSD and anxiety. Currently, he is still having pain. He has a scar on his cheek and has neck pain, left thigh pain, left knee pain, and right-hand pain. A mentioned, he had a fractured nose. He was seeing a physiotherapist at some point, but this has been cancelled, and now he takes Cymbalta regularly and Valium as needed.”
The parties did not significantly dispute these factual matters.
The certificate of Medical Assessor Herald and the examination of Medical Assessor Moloney includes commentary on the relevant records, the current symptoms, physical examination, diagnostic tests and/or imaging findings.
We have addressed these matters as they relate to the issues in these proceedings below.
Causation
The Motor Accident Guidelines (the Guidelines) set out the relevant considerations in relation to causation in Part 6 specifically cls 6.5, 6.6 and 6.7.
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries…”
In Briggs Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. A finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible.
The question to be considered is whether the injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.
Whether the cervical spine injury (was) caused by the motor accident?
In the certificate dated 1 May 2023 Medical Assessor Johnathan Herald concluded that the cervical spine injury was caused by the motor accident.
Medical Assessor Johnathan Herald diagnosed the injury as soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms
The insurer did not dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms, as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms, as a result of the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.
We reviewed the various medical opinions provided.
The evidence available is consistent with the claimant suffering an injury to the cervical spine in the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Johnathan Herald in the certificate dated 1 May 2023.
Medical Assessor Moloney made a medical determination that the motor accident could have caused or contributed to the cervical spine injury.
We accepted the medical determination of Medical Assessor Moloney that the motor accident could have caused or contributed to the cervical spine injury.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, could have caused or contributed to the cervical spine injury.
Medical Assessor Moloney diagnosed a cervical spine soft tissue injury.
Medical Assessor Moloney concluded that there was evidence that the Mr Petrovic sustained a soft tissue injury to cervical spine in the subject accident. It was reported by the treating GP a few days after the accident and by the treating physiotherapist.
Having considered the dynamics of the accident, the reported symptoms of cervical spine pain contemporaneous with the accident, the ongoing complaints in relation to the cervical spine and the consideration of these issues by the other medical professional we accepted that the cervical spine injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the cervical spine injury.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the cervical spine injury was satisfied.
Whether the left knee injury (was) caused by the motor accident?
In the certificate dated 1 May 2023 Medical Assessor Johnathan Herald concluded that the left knee injury was caused by the motor accident.
Medical Assessor Johnathan Herald diagnosed the injury as left knee chondromalacia patella.
The insurer did not seek to dispute the conclusion that the claimant sustained an injury to the left knee, specifically a left knee chondromalacia patella as a result of the motor accident.
The claimant did not seek to dispute the conclusion that the claimant sustained an injury to the left knee, specifically a left knee chondromalacia patella as a result of the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.
We reviewed the various medical opinions provided.
Medical Assessor Moloney diagnosed a left knee soft tissue injury.
Medical Assessor Moloney made a medical determination that the motor accident could have caused or contributed to the left knee injury.
We accepted the medical determination of Medical Assessor Moloney that the motor accident could have caused or contributed to the left knee injury.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, could have caused or contributed to the left knee injury.
Having considered the dynamics of the accident, the reported symptoms of left knee pain contemporaneously with the accident, the ongoing complaints in relation to the left knee and the consideration of these issues by the other medical professional we accepted that the left knee injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the left knee injury was satisfied.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the left knee injury.
Whether the right hand injury (was) caused by the motor accident?
In the certificate dated 1 May 2023 Medical Assessor Johnathan Herald concluded that the right hand injury was caused by the motor accident.
Medical Assessor Johnathan Herald diagnosed the injury as right hand ganglion following a dorsal sprain.
The insurer did not dispute the conclusion that the claimant sustained an injury to the right hand, specifically a right hand ganglion following a dorsal sprain.
The claimant did not dispute the conclusion that the claimant sustained an injury to the right hand, specifically a right hand ganglion following a dorsal sprain as a result of the motor accident.
The insurer submits that there is uncertainty in relation to establishing a definitive causal nexus between the claimant’s right index finger pathology and the involvement in the subject accident.
The MRI report of the claimant’s right hand dated 5 March 2020, referred to the presence of a small non-acute osteochondral injury in the base of the second metacarpal. The Insurer highlights that the distinct reference to the injury being “non-acute” as opposed to “acute”, potentially indicates that the alleged pathology is not correlated with a direct trauma arising from the subject accident.
The MRI scan of the right hand undertaken on 5 March 2020, also revealed no capsular or pericapsular soft tissue oedema. In his report, dated 16 March 2020, Dr Chris Smithers (orthopaedic surgeon), referred to the findings of no marrow or soft tissue oedema in the abovementioned right hand MRI report.
The insurer acknowledges that an ultrasound of the claimant’s right hand performed on 6 June 2023, revealed mild active radiocarpal joint synovitis, the fact that swelling was not previously observed in the MRI scan of his right hand undertaken in March 2020, would suggest that any swelling subsequently observed in 2023, is potentially attributable to a nonaccident related cause.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.
We reviewed the various medical opinions provided.
Medical Assessor Moloney made a medical determination that the motor accident could have caused or contributed to the right hand injury.
We accepted the medical determination of Medical Assessor Moloney that the motor accident could have caused or contributed to the right hand injury.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, could have caused or contributed to the right hand injury.
Medical Assessor Moloney diagnosed a right hand soft tissue injury specifically, a dorsal capsular sprain at the second CMC joint.
Medical Assessor Moloney accepted, on the balance of probabilities, that the motor accident, did cause the right hand injury.
Having considered the dynamics of the accident, the reported symptoms of right hand pain contemporaneously with the accident, the ongoing complaints in relation to the right hand and the consideration of these issues by the other medical professional we accepted that the right hand injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right hand injury was satisfied.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the right hand injury.
Causation conclusions
The Review Panel found that the following injuries were caused by the motor accident:
(a) cervical spine being soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms;
(b) left knee being left knee chondromalacia patella, and
(c) right hand being right hand ganglion following a dorsal sprain.
The Review Panel found that the following injuries were not caused by the motor accident:
(a) N/A.
Permanent impairment
As noted earlier, permanent impairment is to be assessed in accordance with Chapter 6 of the Guidelines which are largely based on the AMA 4 Guides.
Assessment of the spine generally
Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions:
(a) cervicothoracic;
(b) thoracolumbar, and
(c) lumbosacral.
If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories, and a number of indicia provided (see Table 7).
The first is DRE category I which is selected if there are symptoms which may include pain.
DRE II requires:
(a) pain with guarding, or
(b) non-uniform range of motion – dysmetria, or
(c) non-verifiable radicular complaints defined in Table 6.8 as:
(i) symptoms (shooting pain, burning sensation, tingling), and
(ii) which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE III requires radiculopathy which is defined in cl 6.138 as
“dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(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.”
The degree of permanent impairment of the injured person that has resulted from the cervical spine injury?
In the certificate dated 1 May 2023 Medical Assessor Johnathan Herald diagnosed the injury as soft tissue injury to the cervical spine and left upper limb radiculopathic symptoms.
Medical Assessor Johnathan Herald concluded that the permanent impairment resulting from the cervical spine injury was 5%.
The insurer did not dispute the conclusion that the permanent impairment resulting from the cervical spine injury was 5%.
The claimant did not dispute the conclusion that the permanent impairment resulting from the cervical spine injury was 5%.
The Review Panel has determined that there is a DRE II classification which is 5% WPI. At the time of examination dysmetria was present with no guarding or spasm and no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs. Medical Assessor Herald came to the same conclusion.
The degree of permanent impairment of the injured person that has resulted from the left knee injury
In the certificate dated 1 May 2023 Medical Assessor Johnathan Herald diagnosed the injury as left knee chondromalacia patella.
Medical Assessor Johnathan Herald concluded that the permanent impairment resulting from the left knee injury was 2%.
The insurer did not dispute the conclusion that the permanent impairment resulting from the left knee injury was 2%.
The claimant did not dispute the conclusion that the permanent impairment resulting from the left knee injury was 2%.
At the time of our examination there was 0% WPI. This was because there was a full range of movement of both knees and no retro patella pain or crepitus was noted on examination with no ligament laxity. Medical Assessor Herald had noted some patellofemoral crepitus which was not apparent at the examination by Medical Assessor Moloney.
The degree of permanent impairment of the injured person that has resulted from the right hand injury
In the certificate dated 1 May 2023 Medical Assessor Johnathan Herald diagnosed the injury as right hand ganglion following a dorsal sprain.
Medical Assessor Johnathan Herald concluded that the permanent impairment resulting from the right hand injury was 0%.
The insurer did not dispute the conclusion that the permanent impairment resulting from the right hand injury was 0%.
The claimant disputed the conclusion that the permanent impairment resulting from the right hand injury was 0%.
The claimant noted that Medical Assessor Herald completed motion impairment using Figure 26, which is for UEI due to lack of flexion and extension of wrist joint, and Figure 29, which is for UEIs due to abnormal radial and ulnar deviations of wrist joint, despite having already reported the claimant had "full range of motion of all wrist and hand joints". He provided no explanation as to why he preferred these figures, as opposed to Dr Dixon's use of Table 20, which is specifically for "Joint Swelling Due to Synovial Hypertrophy for use when there is full range of motion of the joint".
Despite Medical Assessor Herald's examination being consistent with Dr Dixon's 23 September 2020 examination, his final assessment varied, without any explanation as to why. He clearly did not have proper regard to Dr Dixon's evidence.
The claimant noted that following Dr Dixon's comment that radiological investigation, dynamic ultrasound, would objectively indicate whether or not tenosynovitis is present in the joint, the claimant underwent this investigation on 6 June 2023 which confirmed the presence of synovitis within the radiocarpal joint. This objective evidence caused Dr Dixon to change his assessment from 4% hand impairment, equating to 2% WPI, to 6% UEI, equating to 4% WPI.
The insurer relied upon the medico-legal report of Dr Keller in its submission that the degree of permanent impairment of the claimant’s right hand (including the right index finger) ought to be assessed at 0% WPI.
Dr Keller assessed the claimant’s impairment of the right hand (including the right index finger) at 0% WPI, noting a full range of motion in the right wrist and all finger joint and no visible or palpable ganglion in the wrist and no nerve or tendon damage.
The insurer rejects the claimant’s argument that Table 20 of the AMA 4 Guides should be used to assess the claimant’s impairment as there is a lack of a causal connection between the occurrence of the subject accident and the presence of swelling in his right hand.
The insurer submits that it was appropriate in the circumstances for Medical Assessor Herald to assess the degree of permanent impairment of the claimant’s right hand (including the right index finger) at 0% WPI, based on observing a full range of motion of the wrist and hand joints in accordance with Figures 26 and 29 of the AMA 4 Guides, which mirrored the findings of Dr Keller.
The insurer submits that in relation to the assessment of the degree of permanent impairment of the right hand, the reports of Dr Dixon, which are relied upon by the claimant, should be afforded low probative value as Dr Dixon’s diagnosis of the presence of extensor tenosynovitis in the right index finger is clearly contradicted by the objective evidence of the MRI report of the claimant’s right hand dated 5 March 2020.
The Review Panel noted that whilst Dr Dixon diagnosed extensor tenosynovitis in the right hand there was no clinical evidence of this at the time of the examination and was not noted by the treating hand surgeon in his several consultations.
The method suggested for the calculation of permanent impairment by the claimant and adopted by Dr Dixon was not appropriate as there was no clinical evidence of extensor tenosynovitis in the right hand.
At the time of the examination, there was a slight loss radial deviation which is 2% UEI in figure 29 of AMA 4 Guides. This converts to 1% WPI using Table 3.
Medical Assessor Moloney considered that in the circumstances this was the most appropriate method of assessment of the impairment.
The Review Panel accepted the view of Medical Assessor Moloney.
Permanent impairment conclusions
The Review Panel determined the degree of permanent impairment as follows:
Body part or System
Permanent
Yes/No
Current %WPI
%WPI from pre-existing or subsequent causes
%WPI due to motor accident
1
Cervical spine
Yes
5%
0%
5%
2
Left knee
Yes
0%
0%
0%
3
Right hand
Yes
1%
0%
1%
CONCLUSIONS
The following injuries caused by the motor accident give rise to a permanent impairment of 6% and are NOT greater than 10%:
(a) cervical spine, soft tissue injury;
(b) left knee, soft tissue injury, and
(c) right hand, soft tissue injury.
The certificate of Medical Assessor Johnathan Herald dated 1 May 2023 is revoked.
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