Plummer v Allianz Australia Insurance Limited
[2025] NSWPICMP 47
•24 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Plummer v Allianz Australia Insurance Limited [2025] NSWPICMP 47 |
CLAIMANT: | Adrian Plummer |
INSURER: | Allianz |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Mohammed Assem |
DATE OF DECISION: | 24 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whole person impairment (WPI) dispute; the claimant was crossing on a green light at an intersection; insured vehicle struck the claimant, causing him to hit the bonnet on the left side of his body and fall to the road, onto the right side of his body (the accident); claimant was on his way to work; insurer admitted liability for the claim; pelvic fracture with muscle atrophy; healed un-displaced condylar fracture; scarring; Review Panel finds 8% WPI at time of assessment; Held – certificate (8% WPI) revoked as Review Panel’s findings made on basis of different examination findings and assessment methodology; no matters of principle. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate issued on 21 March 2024 by Medical Assessor Neil Berry and issues a new Certificate determining that: (a) the following injuries caused by the motor accident give rise to a permanent impairment of 8% and is not greater than 10%: · left knee – lateral femural condyle fracture with medial colateral ligament tear; · right hip – a minimally displaced comminuted fracture extending into the acetabulum and sacroiliac joint, with involvement of the pubic rami causing post-traumatic stiffness of the right hip with wasting of the right thigh, and · skin – TEMSKI scarring over the medial malleolus of the left ankle. |
STATEMENT OF REASONS
INTRODUCTION
Adrian Plummer (the claimant) was crossing on a green light at the intersection of Castlereagh and Bathurst Streets in the Sydney CBD. He heard a loud bang and turned to his left to see what had caused the noise. He saw the insured utility vehicle, waiting to turn left into Bathurst Street, being impacted at the rear by a bus. The insured vehicle accelerated and struck the claimant, causing him to hit the vehicle’s bonnet on the left side of his body and fall to the road, onto the right side of his body (the accident). The claimant was on his way to work. He was conveyed by ambulance to St Vincent’s Hospital where scanning revealed a displaced comminuted fracture of the right pelvis and injury to the left knee. The claimant was discharged the same day from hospital on crutches and with a left knee brace.
Allianz (the insurer) indemnifies the owner and/or the driver of the at-fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act2017 (the Act). The insurer admitted liability for the claim.
The issue in dispute is the degree of permanent impairment that has resulted from the claimant’s physical injuries caused by the accident.[1]
[1] Schedule 2, cl 2(a) of the Act.
ASSESSMENT UNDER REVIEW
The claimant was referred for assessment by Medical Assessor Neil Berry who issued a replacement certificate on 21 March 2024 as follows:
“The following injuries caused by the motor accident give rise to a permanent impairment of 8% and IS NOT GREATER THAN 10%:
·Left knee – ligamentous strain and fracture of the medial tibial plateau and lateral condyle
·Skin – TEMSKI scarring over the medial malleolus of the left ankle
·Right hip – post-traumatic stiffness of the right hip, labral tear”
Medical Assessor Berry found 4% whole person impairment (WPI) for the left knee, 4% WPI for the right hip and 0% WPI for scarring of the left ankle. Medical Assessor Berry made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects.
THE REVIEW
The claimant sought a review of Medical Assessor Berry’s certificate on the basis that it was incorrect in a material respect. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submitted that Medical Assessor Berry’s assessment of 4% WPI for the left knee was incorrect. The claimant submitted that Medical Assessor Berry ought to have allowed an additional WPI percentage for the claimant’s crepitus and laxity. The claimant relied upon the report dated 9 December 2020 by Dr Drew Dixon, orthopaedic surgeon.
The claimant submitted that the main difference between the WPI assessments of Medical Assessor Berry and Dr Dixon is that Dr Dixon made an additional allowance of 5% lower extremity impairment (LEI) for crepitus and an additional 7% LEI for laxity. That resulted in a total of 8% WPI compared to Medical Assessor Berry’s assessment of 4% WPI for the left knee.
The claimant submitted that a proper assessment of the left knee would place the claimant over the 10% WPI threshold such that Medical Assessor’s assessment contains a material error.
Detailed submissions were made in relation to the respective assessments and findings made by Medical Assessor Berry and Dr Dixon which it is not necessary to repeat.
The claimant’s review application was opposed by the insurer. As the insurer’s submissions were not accepted by the President’s delegate, it is not necessary to refer to them in detail. Briefly, they can be stated as follows:
(a) the insurer disputed the claimant’s submission that the Medical Assessor failed to conduct a proper review and evaluate all of the available evidence under cl 6.18(a) of the Motor Accident Guidelines Permanent Impairment (the Guidelines);
(b) the insurer disputed the claimant’s submission that the Medical Assessor failed to properly conduct an interview and clinical examination in respect of the claimant’s left knee as per cl 6.18(b) of the Guidelines;
(c) the insurer disputed the claimant’s submission that the Medical Assessor failed to identify inconsistencies between the available medical evidence and his own examination of the claimant and to draw them to the attention of the claimant as per cl 6.41 of the Guidelines;
(d) the Medical Assessor did use the entire gamut of clinical skill and judgment as evidenced by the thorough nature of the reasons provided within his certificate;
(e) there was no suggestion that the results of measurements were not plausible, and
(f) the observations and test results did verify the impairment found by the Medical Assessor.
President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 29 May 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of the satisfaction of the President’s delegate was stated as follows:
“In the original submissions supporting his application for assessment, the claimant referred to a medico-legal report prepared by Dr Drew Dixon dated 9 December 2020 in which Dr Dixon determined that the claimant had 5% lower extremity impairment arising from crepitus of the left knee. Medical Assessor Berry did not make any observations about crepitus in his findings on the claimant’s left knee injury and did not refer to it in his diagnosis or causation reasons.”
Therefore, pursuant to s 7.26 of the Act, the application was accepted.
The Review Panel is to assess WPI arising from each of the following injuries and whether those injuries were caused by the accident:
· right hip – post-traumatic stiffness of the right hip with groin pain on rotation with flexion contracture, acetabular fracture extending into the sacroiliac joint and pubic rami on the right;
· left knee – ligamentous strain with mild medial collateral ligament laxity with the flexion;
· post-traumatic retro-patella crepitus with patella-femoral lateral impingement, and
· skin – TEMSKI scarring over the medial malleolis of the left ankle. Abrasions to right elbow
These are the same injuries that were referred to Medical Assessor Berry for assessment.
The claimant solicitor was directed to provide all of the imaging of the claimant’s right hip and left knee in the form of a memory stick, CD or direct electronic access via a portal. The Review Panel indicated it would be assisted by submissions from a qualified radiologist as to what that imaging shows. Neither the imaging nor any further submissions were provided.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[3]
[3] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act. See s 3B(2) of that Act.
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
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 biological 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:
1.The alleged factored could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factored did caused or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question “Would this injury (or impairment) have occurred if not for the accident?” may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
In Briggs v IAG Limited t/as NRMA Limited.[5] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956[6], 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 principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[5] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[6] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This require, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) Claimant’s submissions in support of application for review of medical assessment (previously summarised).
(b) Claimant’s submissions for assessment of WPI.
Claimant’s medico-legal report
(c) Report dated 24 May 2022 by Dr Farhan Shahzad, occupational physician, to the claimant’s lawyers.
Dr Shahzad conducted a physical examination of the claimant’s lumbosacral spine, left knee, right hip and left ankle. He describes the diagnostic investigations as follows:
X-ray report of the pelvis reported by Dr Lorie Markowski on 7 April 2020 states:
“Comparison is made with the study performed 27/02/2020. Minimally displaced right acetabular fracture extending from the right sacroiliac joint is difficult to visualise. Normal pelvic and acetabular appearances. Both femoral heads are enlocated. No protrusion.”
X-ray report of the pelvis reported by Dr Seymour Atlas on 20 March 2020 states:
“There are no previous studies available for direct comparison. There is no visible fracture line around the right acetabulum. The alignment of the right acetabulum appears normal allowing for slight rotation of the pelvis. The right hip and proximal femur appear normal. The left hip appears normal. Both sacroiliac joints are in normal alignment and of normal appearance.”
X-ray report of the pelvis reported by Dr Reeve on 27 February 2020 states:
“Comparison was made with CT pelvis of 21/02/2020. Pelvis: the minimally displaced fracture through the right acetabulum and superior pubic ramus demonstrated on the prior CT is less conspicuous on X-ray. Alignment appears unchanged. The right hip remains enlocated. The right proximal femur is intact. There is no widening of the pubic symphysis.”
X-ray report of the left knee reported by Dr Reeve on 27 February 2020 states:
“There is normal knee joint alignment. No knee joint effusion. No cortical irregularity to suggest tibial plateau fracture. Fabella is incidentally noted.”
X-ray report of the left knee reported by Dr Benson Cheung on
21 February 2020 states:“AP and lateral radiographs of the left knee. There is a small cortical defect at the medial aspect of the left knee, this is suspicious for a medial tibial plateau fracture. This can further be evaluated with CT imaging. There is a small knee joint effusion. Normal alignment of the knee joint otherwise.”
CT report of the left knee reported by Dr Cheung on 23 February 2020 states:
“There is a small cortical irregularity that the lateral aspect of the lateral femoral condyle which may represents a minimally depressed fracture. Subtle flattening of the inferomedial patella may represent a concurrent depressed fracture due to transient patella dislocation. There is a curvilinear lucency which may represent a small minimally displaced fracture at the cortex of medial proximal tibia. No extension to the articular surface noted. This may represent a small avulsion injury of the meniscotibial ligament or reverse second fracture. There is a small knee joint effusion. No articular surface depression.”
CT report of the pelvis reported by Dr Cheung on 21 February 2020 states:
“There is a minimally displaced comminuted fracture of the right pelvis with a fracture line extending anteriorly and inferiorly from the antero-superior of the right sacroiliac joint with extension the roof and anterior wall of the acetabulum. The fracture line continues to extent into the right superior public ramus. No intra-articular bone fragments detected. The acetabular alignment is virtually anatomic both femoral heads remain enlocated. No acute fractures of the proximal femur. Normal alignment and appearance of the visualise lower lumbar and sacral spine. On review of the pelvic radiograph. There is apparent small defect superiorly at the base of the inferior pubic ramus although no lucency traversing the pubic ramus. This occurs at the level of the iliac spine and a pelvic binder button is also positioned at this site – this may be due to summation artefact or alternatively a non-displaced fracture.”
Mobile X-ray report of the pelvis reported by Dr James Millhouse on
21 February 2020 states:“Pelvis X-ray. Pelvic finder in situ. The femoral heads are enlocated. Anatomical alignment of the bones of the pelvis. No fracture detected within the pelvis ring or proximal femurs.”
Under the heading SUMMARY AND ASSESSMENT, Dr Shahzad says that the accident caused a fractured right pelvis and a ligamentous injury to the left knee with abrasions to the right elbow. The claimant suffered an acetabular fracture which extended into the sacroiliac joint and pubic rami on the right, post-traumatic stiffness of the right hip which gradually improved but has not subsided, a ligamentous injury to the left knee with medial and lateral collateral ligament laxity. Dr Shahzad agrees with the Dr Dixon that the claimant probably will develop arthritis in his right hip, due to the accident, in the next 15 to 25 years.
(d) Report dated 9 December 2020 by Dr Drew Dixon, consultant orthopaedic surgeon, to the claimant’s lawyers.
Under the heading EXAMINATION, Dr Dixon states as follows:
“He walked without limp and toe and heel walking was satisfactory. There was pain in his right groin on squatting and his Trendelenburg test was equitable. He could take full weight on his right leg albeit with groin pain.
There was stiffness of his right hip with a flexion contracture of 20 degrees, with flexion through to 120 degrees, internal rotation 20 degrees, external rotation 30 degrees, active abduction 30 degrees and adduction 20 degrees. Abduction in flexion was decreased by one-third. He reported groin pain on hip rotation and localised detenderness in the groin today on firm palpation. There was no wasting of either lower extremity.
He has a full range of motion of his left hip and there was a good range of motion of both knees with flexion through to 140 degrees.
There was a retro-patella on the left with mild medial collateral ligament laxity with the knee inflexion in and otherwise stable knee. There was no mal-alignment of his limbs. He had difficulty reproducing full recurvatum of his left knee. There was no gross popliteal fullness. His apprehension test for patella subluxation was negative, but there appear to be lateral patella-femoral impingement on knee flexion.”
Dr Dixon describes the radiological investigations (see previously). He gives the following diagnosis:
1. Healed acetabular fracture extending into the sacroiliac joint and pubic rami on the right.
2. Post-traumatic stiffness of his right hip with groin pain on rotation with flexion contracture.
3. Ligamentous strain injury to his left knee with mild medial collateral ligament laxity with the knee in flexion and post-traumatic retro-patella crepitus with patella-femoral lateral impingement, with a negative apprehension test for patella-femoral subluxation, and an undisplaced fracture of the medial tibial plateau and lateral femoral condyle, and probable depressed fracture of the inferior medial patella due to transient patella dislocation due to vulgus stress injury.
In a separate permanent impairment report of the same date, Dr Dixon states as follows:
“The claimant’s impairment for the flexion contracture of the right hip is from Table 40, Page 78, AMA 4, 10% lower extremity impairment; that for the mild medial collateral ligament laxity of the right knee with the knee in flexion is from Table 64, Page 85, AMA 4, 7% lower extremity impairment;
that for the retro-patella crepitus with patella-femoral lateral impingement is from Table 62, Page 84, AMA 4, 5% lower extremity impairment;
that for the undisplaced fracture of the medial tibial plateau is from Table 64, AMA 4, 5% lower extremity impairment, and that for the undisplaced fracture is from Table 64, AMA 4, 7% lower extremity impairment.
This gives a total from the Combined Values Chart of 30% lower extremity impairment which equates to 12% whole person impairment.”
(e) Report dated 16 November 2021 by Dr James Powell, orthopaedic surgeon, to the insurer.
Respondents Medico-legal Report
Dr Powell notes that the claimant has no persisting difficulties at the left knee. He has returned to running and feels quite confident in the knee. Dr Powell notes an isolated incident around July 2020 when the claimant awoke with severe pain all around the left knee and had difficulty moving it. Those symptoms have not recurred. As to the right hip region, Dr Powell notes persisting difficulty localised largely to the right groin area. He can experience pain precipitated by a long run. Dr Powell records that the claimant is taking no medication arising from the motor accident and is having no other treatment.
Under the heading SUMMARY, Dr Powell records as follows:
“This patient was a pedestrian struck by a motor vehicle from the left in the left lower thigh and knee region and landed on his right trochanteric/pelvic region on the roadway after he came off the bonnet of the car.
He was found to have a fracture involving the right ilium extending to the anterior acetabulum and superior pubic ramus, managed by non-weight bearing on crutches, followed by physiotherapy and exercise.
He has some groin discomfort with high levels of activity but no other persisting symptoms and no stiffness in the hip joint.
There was some pain above the left knee region, but no structural injury identified, and symptoms resolved with no functional persisting deficit.”
Under the heading DIAGNOSIS, Dr Powell says as follows:
“The diagnosis is comminuted fracture of the right ilium extending to the anterior acetabulum and proximal pubic ramus which has united in anatomic position with some non-specific activity-related symptoms likely to arise from the hip region. No specific injury was identified in the left knee or distal thigh region. He most likely suffered some non-specific soft tissue contusion that has preceded through its natural history and resolved.”
Dr Powell assesses 0% WPI arising from the motor accident.
Claimant’s medical records
(f) Clinical notes of St Vincent’s Hospital.
(g) Report of Dr Robert Molnar, orthopaedic surgeon, dated 29 May 2023, to Dr Jin.
Clinical examination today confirms the patient to have an irritable hip with a positive FABER signs. He has no tenderness over the proximal lateral femur and no pain on ballottement of the sacroiliac joint. He has X-rays which demonstrates slight acetabular retroversion with maintained joint spaces and an MRI confirms an anterosuperior labral tear. Dr Molnar discusses treatment options.
(h) Clinical notes of Dr David Broe.
(i) MRI right hip dated 30 March 2023.
(j) Physiotherapy treatment notes – Peak Health Services.
(k) Clinical notes of Dr Daniel Jin – Life Medical Clinic.
(l) Clinical notes of Peak Health Services.
The insurer relied upon the following material which the Review Panel has considered:
(a) insurer’s submissions in reply to review application (previously summarised);
(b) Amended certificate of Medical Assessor Berry;
(c) insurer’s submissions re whole person impairment application;
(d) Application for personal injury benefits;
(e) internal review corticate;
(f) Certificate of Capacity;
(g) report of Dr Powell (previously summarised);
(h) left knee X-ray dated 20 February 2020;
(i) CT pelvis dated 21 February 2020;
(j) chest and pelvis X-ray dated 21 February 2020;
(k) CT left knee dated 21 February 2020;
(l) X-ray pelvis and right hip dated 20 March 2020, and
(m) X-ray pelvis and right hip dated 19 May 2020.
EXAMINATION REPORT
The examination report of Medical Assessor Michael Couch is as follows:
“Adrian Plummer
Mr Plummer was assessed over a period of 70 minutes. He attended alone.
Pre-accident Medical History and Relevant Personal Details
Mr Plummer said that he grew up on the Gold Coast and had lived in Sydney for 10 years. He completed high school and obtained a Bachelor of Science and a Bachelor of Information Technology – mainly at UTS, but also with some time at Southern Cross University. He had worked in IT since then.
He is a software developer and works from home as a full-time employee, working in the area of identity and security. He lives with his de facto partner in Bondi and they do not currently have children.
Mr Plummer said that he had previously been very fit and healthy. He had been an elite middle distance runner. At one time he had trained up to 150 kilometres per week. He said that his particular event was 1500 metres and he had competed in various Australian National Championships, his best placing being sixth. His best time for the 1500 metres had been 3 minutes, 40 seconds (the current world record is 3 minutes, 26 seconds).
He had competed in Australian Olympic trials. He emphasised how much he enjoyed running and how important it had been to him. He said that prior to the subject accident in 2020, he had been running about 80 kilometres per week. He had completed the City to Surf in 49 minutes (Steve Moneghetti’s record is 40 minutes, 03 seconds). He said that he had not formally competed in any marathons.
He was asked how long it had taken him to be able to resume some training after the accident. He said that he had been able to start some intermittent slow jogging (approximately one minute at a time, with breaks) three or four months after the accident. He said the furthest that he had run in 2024 had been 38 kilometres, but with pain. This is mainly in his right hip. He described his left knee as ‘pretty good’.
Mr Plummer confirmed that he had not suffered from any musculoskeletal conditions or restrictions prior to the subject accident.History of the Motor Vehicle Accident
Mr Plummer said that on 21 February 2020, he was on foot and was crossing Bathurst Street in the CBD at the intersection with Castlereagh Street. A utility was waiting to turn into Bathurst Street. A bus hit the rear of the utility and the utility driver suddenly accelerated forward, striking Mr Plummer on the left side. He stated that the utility definitely accelerated – ‘absolutely – I travelled on the bonnet for 10 metres before he stopped and I flew off onto the road’. Mr Plummer said that the utility front bumper had hit the outside of his left knee-he thought that he had sustained the pelvic fractures when he landed heavily on the road on his right side. He was taken by ambulance to St Vincent’s Hospital.
A discharge letter from Dr Giles Flick, Emergency Department Registrar, stated ‘… Adrian was stable in the emergency department with his only significant injury being a mildly displaced fracture of his right superior pubic ramus. He also sustained superficial abrasions to both legs and his right leg for which he received a Boostrix vaccination. He was reviewed by the orthopaedic registrar, advised he be non-weight-bearing through his right leg for six weeks with DVT prophylaxis, and mobilise with crutches’.
On attempting to mobilise, Adrian reported some pain in his right knee warranting some investigation. X-ray was suspicious for a medial tibial plateau fracture, which was reviewed with a CT scan and reassuringly ruled out. There was however a suggestion of a medial and lateral collateral ligament injury, although his formal report was pending at the time of discharge… He knows now that he has an increased risk of developing osteoarthritis of his right hip as a result of his fracture, which he discussed with the orthopaedic registrar…’.
After six hours his partner collected him and took him home. His mother flew down from Queensland and stayed with them for some time to help out. He was mobilising with full length crutches and a rigid right knee brace. He recalled that he was able to get himself to the bathroom and toilet and shower himself. An Occupational Therapist provided a shower seat. After about six weeks he began to walk without crutches. He recalled a lot of physiotherapy.
He was initially followed up at St Vincent’s Fracture Clinic. In May 2023, Mr Plummer consulted Dr David Broe, Hip and Knee Surgeon, on 21 March 2023 in relation to right hip and left knee symptoms. With the knee he was complaining of a sensation of the joint locking and pain and difficulty weight bearing, but without instability. He commented, ‘he is very active and does a lot of running. He enjoys gym training, surfing and tennis’. He also described right groin pain. On examination Dr Broe found maltracking of the left patella, a full range of movement and a stable joint, and a positive impingement sign in the right hip on flexion and internal rotation.
He summarised, ‘he has a patellofemoral syndrome on the left with likely some fat pad impingement. He does not require surgery however would benefit from a properly guided strength and conditioning program. On his right hip I think he should have an MRI scan. He may have a tear of the labrum or potentially tendinitis of the psoas. He potentially may require input and opinion from some who specialises in hip arthroscopy’.
He then consulted Dr Robert Molnar, Orthopaedic and Lower Limb Surgeon. In his letter of 29 May 2023, Dr Molnar described two types of ongoing groin pain – one a sharp catch, but also a dull ache which occurred after activity. Mr Plummer was reporting that there had been no improvement over the past couple of years.
Dr Molnar’s examination showed an irritable right hip with a positive FABER sign. He stated that X-rays showed slight acetabular retroversion with maintained joint spaces and MRI confirmed an anterior superior labral tear. He stated that the pubic ramus fracture had united solidly on MRI scan and the likely cause of his pain was the labral tear and recommended an injection of Celestone and local anaesthetic.Reviewing his progress over the past four years, Mr Plummer said that his left knee pain had eventually resolved, but it HAD felt unstable for a while – he said this also seemed to have settled. He said that the right hip had never returned to normal. He recalled seeing Dr Molnar in 2023 – he said that he had not in fact had the recommended corticosteroid injection and had not had arthroscopy. He had no further investigation or treatment for the hip in the past year.
Details of any relevant injuries or conditions sustained since the motor vehicle accident
Mr Plummer denied any such relevant injuries or conditions.
Current symptoms
Mr Plummer said that he now only has pain in the right hip. He described symptoms in more detail as follows:
1. Right hip
Mr Plummer described pain which occurs on most days, particularly in cold weather. He pointed quite precisely to the right groin and there is no lateral pain. He described a sharp pain on deep squatting and a more aching pain with prolonged sitting, commenting that once this ache commences it lasts most of the day. In addition, he sometimes experiences a burning sensation in the same area. He sometimes experiences pain in the right groin with each step on landing on the right foot. He denied night pain.
2. Left knee
As noted above, Mr Plummer said that the left knee seemed to have settled more recently. He explained that he used to have episodes when he would wake in the night with the knee completely locked, and with a very sharp pain lasting for about 30 minutes. He described several episodes of this, particularly during the first year after the accident.
He thought that this might have occurred once in the past year – it always occurs in bed – he stated, ‘I can’t move – it wakes my partner and she helps me to sit up’. He described this pain as very severe and as “at screaming point”. He takes Brufen or Panadol and it will gradually settle.
On questioning, he denied any knee pain on walking, running or standing and he no longer experiences locking. When asked about instability, he said that previously it used to feel somewhat unstable, but he had done a lot of work with a physiotherapist and this has now ceased. He said, however, that he does feel insecure if he performs a heavily-loaded squat.
Physical Examination
Mr Plummer attended promptly and came alone. He presented as a tall, slim, healthy-looking young man. He was well-spoken and appeared to be intelligent and well-educated. He had a friendly and co-operative manner and a normal affect. He gave a clear and very specific history, with no suggestion of exaggeration. During the examination he showed excellent effort, with no suggestion of an abnormal pain behaviour, self-limitation or inconsistency.
Height was 185 cm and weight 78 kg, giving a normal BMI of 23. He was wearing a T-shirt, shorts and underpants, socks and joggers. He removed his shoes, socks and shorts for examination.
Detailed examination was restricted to the lower extremities. Although he is right side dominant, the right thigh, measured 10 cm proximal to the patella, measured 44.5 cm compared with 46.5 on the left. This 2 cm difference was confirmed with several re-measurements (Mr Plummer stated that initially his right quadriceps muscle had been markedly wasted). The right calf measured 36 cm and the left 37 cm. Popliteal, posterior tibial and dorsalis pedis pulses were normal and symmetrical in both lower limbs.
Both knees showed minimal valgus alignment (within normal limits). The right knee measured 36.5 cm in girth and the left 37 cm. Both knees were normal to inspection. Both knees were clinically normal to detailed examination – the only minimal difference was that range of movement on the right was from 0 to 135 degrees flexion and on the left from 0 to 130 degrees flexion, but without any pain. Both knees showed no effusion, no tenderness to palpation, intact collateral and cruciate ligaments, no crepitus and no pain on patellofemoral grinding or Clarke’s apprehension test.
There was a 15 mm faint scar over the medial malleolus at the left ankle which was barely visible. This was not depressed, raised or widened and there was no adherence to underlying tissues.
Turning to the hips, there was slight restriction of active range of movement (AROM) in the right compared with the left, as tabulated.
Right
Left
Flexion
90°
110°
Extension
10°
20°
Abduction
30°
30°
Adduction
20°
30°
Internal rotation
30°
30°
External rotation
40°
60°
Of these movements, right adduction appeared to be the most uncomfortable.
A few functional activities were observed: Mr Plummer was able to walk normally on tiptoes and then on his heels. The Assessor first demonstrated the following activities to him, before asking him to copy them:
· Without using hand support, Mr Plummer could only go down three-quarters of the way to the floor before stopping and complaining of pain in the right groin (the considerably older Assessor could squat more fully).
· The Assessor demonstrated a squat-walk (duck walk). Mr Plummer attempted this but could not manage it satisfactorily, complaining of pain in the right hip.
Review of Imaging
From St Vincent’s Hospital:
21 February 2020, x-ray left knee (read by Dr Benson Cheung, Radiology Registrar) ‘There is a small cortical defect in the medial aspect of the left knee, this is suspicious for a medial tibial plateau fracture. This can further be evaluated with CT imaging. There is a small knee joint effusion. Normal alignment of the knee joint otherwise’.
21 February 2020, CT left knee (reported by specialist radiologist) ‘There is a small cortical irregularity at the lateral aspect of the lateral femoral condyle which may represent a minimally depressed fracture. Subtle flattening of the inferomedial patella may represent a concurrent depressed fracture due to transient patellar dislocation. There is a curvilinear lucency which may represent a small minimally displaced fracture at the cortex of medial proximal tibia. No extension to the articular surface noted. This may represent a small avulsion injury of the meniscotibial ligament or reverse second fracture. There is a small knee joint effusion. No articular surface depression. MRI could be considered for further evaluation’.
21 February 2020, CT pelvis. ‘There is a minimally displaced comminuted fracture of the right pelvis with a fracture line extending anteriorly and inferiorly from the antero-superior margin of the right sacroiliac joint with extension to the roof and anterior wall of the acetabulum. The fracture line continues to extend into the right superior pubic ramus. No intra-articular bone fragments detected. The acetabular alignment is virtually anatomic. Both femoral heads remain enlocated. No acute fractures of the proximal femur. Normal alignment and appearances to the visualised lower lumbar and sacral spine’.
27 February 2020, x-ray pelvis and left knee. “The minimally displaced fracture through the right acetabulum and superior pubic ramus demonstrated on the prior CT is less conspicuous on x-ray. Alignment appears unchanged. The right hip remains enlocated. The right proximal femur is intact. There is no widening of the pubic symphysis. Left knee: there is normal knee joint alignment. No knee joint effusion. No cortical irregularity to suggest tibial plateau fracture. Fabella is incidentally noted”.
07 April 2020, x-ray pelvis and right hip. ‘Minimally displaced right acetabular fracture extending from the right sacroiliac joint is difficult to visualise. Normal pelvis and acetabular appearances. Both femoral heads enlocated. No protrusion’.
09 March 2023, x-ray right hip and pelvic girdle. ‘Previous superior pubic ramus fracture on the right. No residual right superior pubic ramus fracture line is identified. Right hip joint space appears preserved. No right femoral head neck junction osteophyte formation. Acetabular coverage of the right femoral head laterally is normal, with lateral centre age angle of 28 degrees. The left hip symphysis pubis and sacroiliac joints define normally’.
09 March 2023, x-ray left knee. This was reported as normal.
09 March 2023, MRI left knee. ‘Conclusion: mild scarring of the superficial MCL towards the femoral attachment. No abnormality is seen in relation to the LCL. No meniscal tear or articular cartilage abnormality. Small amount of fluid in the knee’.
30 March 2023, MRI right hip. ‘Conclusion: no hip joint or pubic rami fractures are seen. Minor symphyseal fibrocartilage signal without cleft formation. Chronic degenerative anterosuperior cleavage tear at the base of the labrum without para-labral cyst formation. No other hip joint intra-articular pathology’.
Conclusions following re-examination
1. Adrian Plummer is a now 32-year-old young man who was extremely fit and active and had previously been an elite distance runner, prior to being knocked down by a vehicle as a pedestrian four years earlier. He sustained a direct injury to the left knee which was struck by the utility bumper and fell heavily on his right side fracturing the pelvis.
Imaging at St Vincent’s Hospital demonstrated a fracture of the right pelvis extending into the acetabulum of hip joint, but fortunately with minimal displacement. This was treated conservatively with non-weight-bearing for some six weeks. This resulted in a considerable period of incapacity.
From the imaging at St Vincent’s Hospital there was a probably a minimally depressed fracture of the lateral condyle of the femur. The radiologist on CT scan was uncertain about this and also a possible small minimally displaced fracture of the medial proximal tibia and possible minor fracture of the inferomedial patella related to transient dislocation. There was no disruption to the actual articular surfaces of the knee joint. Imaging now with more recent MRI only shows minor thickening-scarring of the medial collateral ligament (a strain of the medial collateral ligament would be consistent with a “bumper bar” blow to the lateral knee.)
The left knee continued to give intermittent pain for about three years but is now essentially asymptomatic. Examination is normal.
In the right hip, there are definite ongoing symptoms and MRI has shown an anterior labral tear. Dr Molnar, a specialist hip surgeon, in May 2023 suggested corticosteroid injection and possible hip arthroscopy if symptoms persisted. These have not been done. Examination shows minimal restriction of AROM in the right hip but definite difficulty with deep squatting and activities such as squat walking – normally a fit athletic young man would be expected to have no difficulty with these. There is a risk of his developing premature osteoarthritis in the right hip, which might eventually require total hip replacement.
Impairment Assessment
1. Right hip.
The Motor Accident Guidelines-Permanent Impairment (the Guidelines) specify that pelvic fractures should be assessed using Section 3.4, Page 131 of AMA 4, with fractures of the acetabulum assessed using Table 64. From Table 3.4 on Page 134 of AMA 4 it is stated that a fracture into the acetabulum should be evaluated on the basis of restricted motion of the hip joint. Applying the above tabulated AROM of the right hip to Table 40 of AMA 4, 90 degrees flexion is assessed as a “mild” impairment, giving a 2% WPI or 5% LEI. Although there was also a restriction in hip extension, according to the MAA guidelines (paragraph 6.85, p. 96),"Where there is loss of motion in more than one direction/axis of the same joint, only the most severe deficit is rated.
There was also a confirmed 2 cm wasting of the right thigh – Mr Plummer confirmed that the quadriceps muscle had been very wasted prior to extensive work with his physiotherapist. From Table 37 of AMA 4, 2 – 2.9 cm wasting of the thigh gives a 4% WPI or 13% LEI (the Guidelines stipulate that the higher value of the range given in Table 37 is to be used).
Table 6.5 (permissible combinations of lower extremity assessment methods) from the MAG specifies that range of motion (Table 40) and muscle atrophy may not be combined. There is also an instruction to use the method or combination of methods giving the highest impairment, where there is a choice of methods. There is, therefore, 4% WPI in relation to the right hip injury.
In accordance with paragraph 6.69 of the Guidelines (page 94), in the absence of crepitus or instability, the most appropriate assessment method is muscle atrophy, as it provides the highest assessment rating. This aligns with paragraph 6.70 of the Guidelines (page 94), whereby the assessment method that yields the highest assessment rating is to be used.
2. Left knee.
There is no assessable impairment based on the completely normal physical signs documented above. From Table 64 (impairment estimates of certain lower extremity impairments) of AMA 4, there is no assessable impairment for scarring of the medial collateral ligament as there is no laxity. The radiologists at St Vincent’s Hospital were somewhat uncertain about possible minor fractures demonstrated on CT scan. Any possible fractures have healed with no residual abnormality seen on subsequent MRI scan. The Panel considers that an assessment for an undisplaced supracondylar or intercondylar fracture of the femur, as per AMA 4, Table 64 (Page 3-85), is appropriate, resulting in 2% WPI. While Dr. Dixon and Dr. Powell identified patellofemoral crepitus during earlier assessments, at the time of the Panel's evaluation, there was no knee pain on standing, walking, or running, and no evidence of patellofemoral crepitus. This suggests that any joint inflammation or structural irregularity causing crepitus had likely resolved.
3. Scarring.
The scar over the left medial ankle was small, faint and barely visible. The best fit on the TEMSKI table is 0% WPI.
4. Pelvic Fracture and Sacroiliac Joint
The CT pelvis on 21 February 2020 confirmed a minimally displaced comminuted fracture extending to the sacroiliac joint. According to AMA 4, Table 64 (page 85), this condition results in a 1-3 WPI. Based on the minimal displacement noted, and the absence of significant structural deficits, 2% WPI appears reasonable as a mid-point.
Summary:
· Right Hip: 4% WPI due to muscle atrophy (highest rating method applied per guidelines).
· Left Knee: 2% WPI for an undisplaced femoral fracture (no current crepitus or instability).
· Sacroiliac Joint: 2% WPI for a minimally displaced fracture.
· Scarring: 0% WPI (minor and non-functional impact).
Total: 8% WPI.”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[7] The Review Panel adopts the examination findings and reasons of Medical Assessor Couch with which Medical Assessor Assem concurs.
[7] Section 7.26(6) of the Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[8] The Medical Assessors have explained the basis of their assessment, which does not differ significantly to the assessment of Medical Assessor Berry, at the time of their assessment.
[8] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel notes that Dr Dixon found crepitus in the left knee which was not present at the re-examination.
The Review Panel notes the views expressed by Dr Powell with which it respectfully disagrees.
CONCLUSIONS
The Review Panel assesses the same WPI percentage as Medical Assessor Berry but on the basis of differences in the examination findings and assessment methodology.
For the above reasons, the Review Panel concludes that the replacement Certificate issued by Medical Assessor Berry on 21 March 2024 should be revoked. The new Certificate appears at the commencement of these reasons.
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