Proksch v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 700
•27 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Proksch v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 700 |
CLAIMANT: | Karl Proksch |
INSURER: | Insurance Australia Ltd t/as NRMA |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 27 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; physical injury; assessment of permanent impairment; head-on collision; serious right leg fractures; evolution of fractures from displaced to undisplaced; atrophy present in right lower limb; scarring from surgery assessed; onset of symptoms in other limb due to altered gait; discussion of paper referred by insurer; long-term altered gait can aggravate osteoarthritis in other limb supported by findings in paper; claimant had greater than 12 months altered gait causing aggravation of pre-existing osteoarthritis; assessment of left knee; no loss of range of motion; no ligament instability; no X-rays showing loss of cartilage interval; pre-accident X-rays showed significant narrowing of medial joint compartment; no assessable loss of left knee; Held – impairment assessed at less than 10%; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel confirms the Medical Assessment Certificate dated 21 February 2024. |
REASONS
BACKGROUND
On 24 April 2021 Mr Karl Proksch (the claimant) was injured in a motor accident. The claimant was driving when he was involved in a head on collision with the unidentified insured vehicle which had crossed the median strip. The accident caused the claimant’s vehicle to spin around and collided with a further vehicle before hitting a concrete barrier.[1]
[1] Insurer’s bundle, p 14.
Insurance Australia Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Proksch any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Mr Proksch “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Kenna and dated 21 February 2024 (the medical assessment certificate).
The following injuries were referred for assessment:
· left knee - acceleration of osteoarthritis;
· leg - broken femur and right tibial plateau fracture right lower extremity - compound comminuted displaced fracture of right femur and fracture of the right tibial plateau, and
· scarring - right leg scarring.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 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 Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
On 24 July 2024 the parties were advised by the Panel that we will be reviewing the various radiology investigations and, if appropriate, assessing the fractures under Table 64 of AMA 4.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] 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), ss5D 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.”
[9] See s 3B(2) of the CL Act.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused a comminuted displaced fracture of the right femur, fracture of the right tibial plateau and right leg scarring. A finding was made that there was a temporary aggravation of the left knee due to altered gait, the effects of which ceased. The Medical Assessor found that there was also a right hip injury which had not been referred for assessment.
The Medical Assessor assessed permanent impairment at 6% with an additional 2% for the right hip injury which was not included in the assessment.
MATERIAL BEFORE THE PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
The clinical note of the general practitioner (GP) dated 12 August 2019 referred to ongoing pain in the bilateral hips which have been getting worse over months to years.[11]
[11] Claimant’s bundle, p 69.
Bilateral knee X-rays dated 17 August 2019 showed bilateral osteoarthritis in the medial knee joint compartments.[12]
[12] Claimant’s bundle, p 96.
On 31 July 2020 the GP noted bilateral knee pain with an impression of osteoarthritis.[13]
[13] Claimant’s bundle, p 70.
Medical records post-accident
The ambulance record included the following history:[14]
“POA 52 yo driver of 4wd ute, trapped by compression of dashboard against R thigh. Major damage to front & right side of vehicle. Pt alert, well perfused, orientated. Pt states he was driving at 70- 80 when another vehicle appeared on his side of the road - overtaking another vehicle. Wife and son in same vehicle self extricated - no complaint, no injuries. Pt wearing seatbelt, airbags deployed. OE GCS 15. Tachycardic, decreasing BP while Pt trapped. No head strike, no LOC, no C-spine on palpation, no injuries or pain to chest and abdomen, no sign seatbelt trauma, pain to right groin initially - relieved by changing position, no pain to hips/pelvis. Compound fracture to R femur, bleeding from wound, swelling to lower R leg. Pedal pulse present R foot. No pain to L leg.”
[14] Insurer’s bundle, p 54.
On 26 April 2021 the claimant underwent insertion of Zimmer retrograde nail in the right femur and open reduction, internal fixation with the right tibial plateau.[15]
[15] Claimant’s bundle, p 137.
The personal injury benefits claim form dated 30 April 2021[16] referenced a “broken leg” as caused by the motor accident.
[16] Insurer’s bundle, p 13.
The X-ray dated 28 May 2021 showed a comminuted moderately displaced oblique fracture of the mid to distal shaft of the right femur associated with up to 13mm of distraction/ displacement of the fracture components and cortical side plate with multiple cortical screws transfixed in a comminuted non-displaced/non-depressed oblique intra-articular fracture of the lateral tibial plateau.[17] The X-ray showed moderate degenerative osteoarthritis of the medial and lateral compartment of the right knee joint. There was also mildly distracted transverse fracture of the head of the proximal right fibular bone associated with up to 2mm of distraction of the fracture components and multiple calcified intra-articular loose bodies located within the midline of the right knee joint.
[17] Claimant’s bundle, p 111.
On 1 June 2021 Dr Keeley noted the claimant was progressing well five weeks post internal fixation of the right tibial plateau fracture and insertion of a nail of the right distal femoral shaft. The plan was to commence partial weight-bearing of the right leg.[18]
[18] Claimant’s bundle, p 164.
On 2 September 2021 Dr Keeley noted the claimant was mobilising with a stick and progressing reasonably well.[19]
[19] Claimant’s bundle, p 128.
On 6 December 2021 Dr Keeley noted ongoing non-union of the femoral shaft fracture and the inability to bear weight and progress with mobility and strengthening. The doctor recommended a CT scan to confirm this and suggested that the claimant required revision of the internal fixation of the right femoral shaft.[20]
[20] Claimant’s bundle, p 107.
The CT scan of the right femur dated 13 December 2021 showed persisting non-union.[21]
[21] Claimant’s bundle, p 135.
On 22 December 2021 Dr Keeley noted the CT scan of the right femur confirmed non-union of the shaft and recommended removal of the original nail and insertion of a new large diameter nail.[22]
[22] Claimant’s bundle, p 125.
The X-ray of the right femur dated 23 March 2022 showed the fracture of the midshaft of the femur was united.[23]
[23] Claimant’s bundle, p 157.
On 6 April 2022 Dr Keeley noted the claimant was two weeks post exchange of right femoral nail, was progressing well and mobilising weight-bearing as tolerated but continued to use crutches to mobilise.[24] On 4 May 2022 Dr Kelley noted ongoing improvement with partial weight-bearing on the right leg with crutches and an antalgic gait with a short stance phase on the right leg.[25]
[24] Claimant’s bundle, p 105.
[25] Claimant’s bundle, p 106.
On 20 June 2022 Dr Keeley noted ongoing progression with the claimant mobilising weight-bearing as tolerated with a crutch to support. On examination the claimant had a mild antalgic gait and recommended cessation of the crutch.[26] Updated X-rays showed that the femoral fractures were uniting in satisfactory alignment.
[26] Claimant’s bundle, p 109.
On 19 September 2022 Dr Keeley noted the applicant was progressing well without any walking aids for the last month and had returned to part-time duties at school. Examination showed a near normal gait with a mild Trendelenburg lurch, no antalgic component and no leg length discrepancy.[27]
[27] Claimant’s bundle, p 175.
An X-ray of the right femur dated 20 January 2023 showed progression towards bone union with consolidation of the new bone formation at the fracture margins.[28]
[28] Claimant’s bundle, p 204.
On 23 January 2023 Dr Keeley noted that the claimant was progressing well with no pain and no antalgic component. The doctor noted a very slight short leg component, excellent range of movement in the updated X-rays demonstrating a united fracture with some post-traumatic changes in the knee joint.[29]
[29] Claimant’s bundle, p 176.
Qualified opinions
Dr Peter Giblin, orthopaedic surgeon, was qualified by the claimant and provided a report dated 19 October 2022.[30] Dr Giblin opined that the motor accident caused a compound comminuted displaced fracture of the right femur and a fracture of the right tibial plateau with a soft tissue laceration in the right ankle and a secondary compensatory soft tissue injury to left knee with a material aggravation of pre-existing arthritic changes.
[30] Claimant’s bundle, p 34.
Dr Giblin says the fracture of the lateral tibial plateau at 12% lower extremity impairment and the malrotation of the right femur at 25% lower extremity impairment. In the absence of any radiological evidence Dr Giblin assessed a 2mm gap of the left knee attracting 8% whole person impairment.
Dr Sean Low, occupational physician, was qualified by the claimant and provided a report dated 20 October 2022.[31] The doctor opined that the motor accident caused fractures of the right femur and tibial plateau with recovery complicated by non-union and further surgery and consequential left knee pain secondary to altered gait. Dr Low did not provide an assessment of permanent impairment as the claimant was recovering from surgery.
[31] Claimant’s bundle, p 42.
Associate Professor Courtenay was qualified by the insurer and provided a report dated
6 February 2023.[32] In respect of diagnosis, the Associate Professor stated:“Mr Proksch has sustained a very serious injury to his right leg. He had some mild degree of osteoarthritis prior to the injury, but there certainly would be evidence that this is likely to have accelerated. He has a slight degree of varus deformity of that knee. That will actually protect the lateral tibial plateau, but it is still a damaged knee with intra-articular fractures and there is some degree of depression of that tibial plateau, demonstrated by some medial and lateral laxity.
He has a lower third femoral fracture. The X-rays confirm it would have been comminuted, and there looks to be an oblique component and I opine that to be the cause of the slight leg length inequality. He has a limited range of knee movement.
Regarding the left knee, he stated that this has been flared up because of the pre-existing osteoarthritis, and I would opine that to be totally reasonable. I am of the opinion there has been some deterioration because of that favouring over the prolonged period of time. Normally there is questions regarding the evidence around this, but given that there was already pre-existing pathology, I would suggest it is consistent.
I note there have been no investigations of that left knee, but there is certainly a degree of varus deformity and it would be my opinion that is constitutional.”
[32] Claimant’s bundle, p 51.
Later in his report, Associate Professor Courtenay stated:
“There is loss of motion of the right knee which I believe is related to tethering of the quads muscle due to the femoral fracture. Also I do not agree that there is any significant rotational deformity of the femoral fracture as indicated by the hip ROM I found on examination. There is some measurable hip reduced movement due to the accident as listed above. There is also the 2 cms shortening of the right femur. The total for the femur using the clinical measurements if 5% LEI (table 35 p 75) hip reduction 10% LEI, knee reduction 10% (Table 41 p 78).
I have assessed the knee according to the DRE and specific conditions method and table 64 p 85 mild displaced of tibial plateau fracture at 12% LEI.
Total combined right lower extremity is therefore = 33% LEI= 13%WPI Conversion 3.2 p75 (LEI x 0.4).”
Associate Professor Courtenay assessed the left knee consistent with a varus deformity and did not assess the loss of cartilage, in the absence of scans, as less then 3mm thick. This amount to an assessment of 7% lower extremity impairment.
Associate Professor Courtenay provided a further report dated 2 March 2023.[33] He then adjusted the loss of range of motion of the hip to 5% lower extremity impairment and otherwise provide reasons for his assessments.
[33] Claimant’s bundle, p 60.
Photographs show extensive damage to the claimant’s vehicle, particularly to the driver’s position, supporting the claimant’s account of the motor accident.[34]
[34] Claimant’s late application.
SUBMISSIONS
Claimant’s submissions dated 4 September 2023[35]
[35] Claimant’s bundle, p 28.
The claimant submitted that he relied on the opinion of Dr Peter Giblin dated 19 October 2022 and the opinion of Dr Low dated 20 October 2022.
In respect of the right leg, the claimant noted he walked with a limp, and it was externally rotated with a loss of 1cm. Dr Low also noted the reduction of range of motion of the right hip as well as both knees.
The claimant referred to the scars over the proximal aspect of the femur and five smaller scars around the leg and right ankle.
The claimant noted that Dr Giblin found that the left knee was tender at the medial joint line and may require future surgery.
The claimant noted that the insurer had qualified Associate Professor Brett Courtenay who provided an initial report dated 6 February 2023 and assessed the claimant at 21% whole person impairment. The doctor then provided a further report dated 2 March 2023 having acknowledged a calculation error and assessed impairment at 18%.
Claimant’s submissions dated 26 March 2024[36]
[36] Claimant’s bundle, p 23.
These submissions sought leave to review the medical assessment.
The claimant submitted that the Medical Assessor failed to explain how the claimant’s left knee condition had recovered following restoration of functionality in the right leg. He noted that Associate Professor Courteney, qualified by the insurer, supported the issue of causation for the left knee.
The claimant noted the assessment provided by Dr Giblin of 8% whole person impairment for the left knee and the assessment of 3% provided by Associate Professor Courteney.
The claimant otherwise submitted that the Medical Assessor failed to accurately combine the assessments and submitted that when muscle atrophy was combined with the tibial plateau fracture and the assessment for scarring, the overall impairment was 8%.
Insurer’s submissions dated 29 September 2023[37]
[37] Insurer’s bundle, p 8.
The insurer submitted that it did not rely upon the reports of Associate Professor Courtenay as the assessment was inconsistent with the relevant provisions of the Guidelines.
The insurer conceded in accordance with the reports produced by St George Hospital, that the motor accident caused a compound fracture to the right lower femur and tibial plateau fracture.
The insurer submitted, in accordance with the report of Dr Keeley dated 23 January 2023, that the injury had resolved, and the claimant was “signed off without any restrictions”.
The insurer disputed the opinions of Dr Peter Giblin and Associate Professor Courtenay that the fracture of the lateral tibial plateau was displaced. It relied on the X-ray of the right knee dated 15 July 2021 and the report of Dr Keeley dated 6 December 2021 which provided evidence that the tibial plateau fracture was not displaced and had united in satisfactory alignment.
The insurer referred to the X-ray of the right femur dated 4 May 2022 which indicated there was no significant alteration in position or alignment of the internally fixed healing fracture of the lower half of the femoral shaft.
The insurer noted that pursuant to table 6.5 the Guidelines, range of motion and DBE impairments in the right knee could not be combined.
In respect of the left knee, the insurer noted that this was not mentioned in the records of St George Hospital and was not included in the application for personal injury benefits. It noted there was no request for imaging for treatment directed specifically to the left knee.
The insurer noted that Dr Keeley had not provide any assessment of injury to the left knee.
The insurer submitted that the assessments of left knee impairment were incorrect because of the need for radiography as required by table 62 and cl 6.88 of the guidelines. It otherwise submitted that the problem with crutches due to the significant right leg injuries could not cause of aggravation of osteoarthritic symptoms and referred to the AMA Guides for the Evaluation of Disease and Injury Causation which states that there is “no credible studies that support the ‘overuse hypothesis’ in the concept of favouring one lower extremity can result in injury or illness in the other is not based on scientific evidence; instead it is an unsupportable myth”.[38]
[38] The insurer referred to pages 769-772 of American Medical Association Guides to Evaluation of Disease and Injury Causation.
The insurer submitted that the scarring should not be assessed at 3% and noted that
Dr Giblin had previously stated there is no adherence and Associate Professor Courtenay did not definitively state that there was adherence.
Insurer’s submissions dated 15 April 2024[39]
[39] Insurer’s bundle, p 5.
These submissions were filed opposing the application to review the medical assessment.
The insurer referred to PIC Procedural Direction six – paragraph 37 and noted the parties were provided with a copy of a referral to the Medical Assessor and neither party objected to the referral and neither party requested the right hip to be included in the referral.
The insurer submitted that the Medical Assessor did not err in concluding that there had only been a temporary aggravation of the left knee condition.
Insurer’s submissions dated 4 July 2024[40]
[40] Insurer’s bundle, p 2.
These submissions related to whether the right hip was part of the medical dispute.
The insurer noted that the injuries referred for assessment did not include the right hip. The insurer referred to the decision of Mandoukas v Allianz Australia Insurance Ltd[41] and submitted that “an Assessor is not required to consider whether any injury not complained of the identified as such by the claimant, could fall within the ambit of personal injury is defined by the Act.” It submitted, consistent with the decision of the primary judge in Mandoukas that “it is not the job of the commission, the insurer and not the medical assessor to ‘ferret around and construct a claim’ the material annexed to the claimant’s application.” (emphasis in original submission)
[41] [2024] NSWCA 71 (Mandoukas).
The insurer further submitted that the reduction in the mobility of the claimant’s right hip was not related to the motor accident. Reference was made to the clinical note notes of
Dr Michael Mumford dated 12 August 2019 that the claimant had ongoing pain in the bilateral hips which have been getting worse over months to years. The insurer also noted the following evidence:(a) ambulance report which stated no pain in the hips or pelvis;
(b) absence of reference in the claim for personal injury benefits dated 30 April 2021 to the right hip;
(c) X-ray dated 28 May 2021 mild bilateral femoroacetabular impingement and minimal degenerative osteoarthritis of both hips;
(d) report of Dr Keeley dated 6 December 2021 who noted excellent range of motion in hip pain, and
(e) absence of reference to any right hip pain in the report of Dr Giblin dated
19 October 2022.
RE-EXAMINATION
Mr Proksch was examined by Medical Assessor Oates on 29 August 2024. The examination report is as follows:
“Details of who attended the Assessment
Mr Proksch attended the PIC Medical Suites accompanied by his wife and stepson. He was examined alone by Medical Assessor Christopher Oates on behalf of the Medical Review Panel on 29 August 2024 as arranged.
HISTORY
Pre-accident medical history and relevant personal details
At the date of accident, Mr Proksch was a high school science teacher and had done this work full-time since 2001. After the accident, he next returned to work at the end of 2022 or early 2023 but could not stand too long as a classroom teacher and could not supervise sport or do bus duty. He did playground duty in a limited fashion, where he was close to the staff room.
He did his usual teaching hours, but he was very worried about falling, as he wouldn’t be able to get back up if he were, for example, knocked accidentally by a student rushing past.
He was using a shower chair after the accident but was able to get rid of this in early 2024 and as his mobility improved, he was able to get up off the ground again.
Before the accident, he had a Baker’s cyst in the right knee with early osteoarthritis in both knees, but it was not severe enough to require any treatment as per the advice of Dr Mumford, his GP.
Subsequently, his employer said his teacher was not up to standard and he was to undergo an improvement program. He started this is an unofficial manner, but his mental health suffered, and he went on sick leave on account of mental health in the latter half of 2023. He then returned to a formal teacher improvement program over 10 weeks in April/May 2024, but he failed that.
He is still employed by Education NSW but is not at work. His current work capacity is four days per week, as per his Certificate of Capacity, but he is not working pending action following his failing the teacher improvement program.
He does present to the Warilla Regional Office of Education Department NSW four days a week with Thursdays off.
History of the motor accident
Mr Proksch confirmed on 24 January 2021 at 10.30pm, he was the driver of a vehicle with his wife as front seat passenger and his stepson as left rear seat passenger, when an oncoming vehicle came across into his lane of the two-lane road and there was a head-on collision.
Mr Proksch’s vehicle spun into a car which was following behind him and then hit a concrete barrier on the opposite side of the road but remained upright. He had a seatbelt on. The airbags deployed. Photographs were submitted showing extensive damage to the right front quadrant of the vehicle driven by Mr Proksch.
He explained that the fire and rescue people jacked up the dashboard, which had wedged his right leg above the knee, so that he could be freed from the vehicle. When the pressure was relieved from the dashboard, he was able to put his right foot to the floor of the car again. The driver’s door was removed by fire and rescue after the accident, enabling him to be extricated from the vehicle.
He was then conveyed by road ambulance to a nearby field and then taken by helicopter to St George Hospital Kogarah. He had a compound fracture of right femur, bruising to left foot, superficial laceration right wrist and swelling of right leg. He was an inpatient until 11/5/2021 and had an intramedullary nail inserted to the femur. There was open reduction and internal fixation of right tibial plateau fracture under Dr Keeley, orthopaedic surgeon. There was no injury to the back, hips or left leg.
History of symptoms and treatment following the motor accident
There was non-union of the femoral fracture. At specialist review on 6/12/2021 there was excellent range of movement in both knees and hips with no pain and normal neurological findings. The tibial plateau fracture had united but there was non-union of the femoral fracture confirmed on CT scan taken on 15/12/2021.
After discharge from hospital, he had seen a physiotherapist and then went on to an exercise physiologist at Vincentia, but the exercises worsened right femoral and knee pain, so he just did physiotherapy. This was evidently due to non-union of the right femur fracture.
On 22/3/2022, Dr Keeley removed the original femoral rod and re-inserted a right femoral nail of slightly larger diameter, and all the metal remains insitu in the right femur and right proximal tibial. He then mobilised on crutches.
After a short period on crutches, he went to one crutch and then mobilised on his feet without a walking stick.
In about late May or early June 2022, he developed pain in the left knee as he was mobilising. There was no treatment for the left knee and no investigations of this part. He had no treatment to the hips or back. He noticed his back was sore when he would go to bed, but after overnight rest he woke up pain-free.
After the revision surgery on the right femur, he did not return to physiotherapy but continued with the exercise physiologist.
Details of any injuries or conditions sustained since the motor accident
Nil.
Current symptoms
He can’t stand for more than 30 minutes or else both knees go stiff. It eases off if he sits down for a period. If he walks for more than 30 minutes, both knees are uncomfortable. He can sit for 20-60 minutes but then his knees are stiff when he gets up and he feels a little off balance until he warms up.
He can walk about 1.5km at a time but after that his knees get shaky. If he is distracted, he can stand for two periods straight of a school period duration, totalling 104 minutes.
He used to get knee cramps disturbing his sleep at night but not now.
His knees get a bit sore when he is driving and he is better if he uses cruise control, as he is able to move the right leg around to get rid of the knee pain.
He has sore knees and shaky legs when going up and down stairs at times, but other times he manages them better.
He is now very careful when moving about, particularly on inclines and stairs, and is more conscious about the positioning of his legs.
He has constant dull ache in the medial aspect of the left knee and intermittent ache in the medial aspect of the right knee, and there is stiffness at the back of the knees on extension of the legs.
There is no soreness at the femoral shaft fracture site unless he works the quadriceps hard with the exercise physiologist, but it eventually settled again.
His ankles are OK.
If he does a lot of walking, he does get some central low back ache, but if he straightens up his back this relieves the back discomfort. He gets very occasional right hip discomfort, and it can tend to give way with a little movement of the upper thigh.
Current and proposed treatment
He is on no medication.
He remains under the care of his GP, Dr Mumford, Dapto. The doctor did suggest Panadol Osteo and he takes it occasionally, but it does not seem to help the symptoms and he wants to avoid medication, as he is worried about adverse-side-effects on his renal function.
He attends the exercise physiologist once a week and her name is Shannae (surname unknown) at Dapto Phytness Health. The EP is paid by the NRMA.
He also saw a psychologist for eight sessions, and this finished a couple of months ago.
EXAMINATION
General presentation
He was of solid build with height 174cm and weight 101.5kg.
He had a mild limp on the right leg. He stood with a slight pelvic tilt, with the right side of the pelvic lower than the left.
Lumbar spine (lumbosacral)
There was full range of movement in flexion, extension, lateral flexion and in thoracic and lumbar rotation. There was no guarding and no tenderness.
There were no non-verifiable radicular complaints. Reflexes were brisk and symmetrical, and plantar responses were both flexor. Power and sensation in the lower limbs were normal.
Supine straight leg raising was negative bilaterally with 80° possible. He did develop some cramp in the right thigh on this manoeuvre.
Leg length; right 90cm, left 91cm. A tape measure was used from the anterior superior iliac spine to the medial malleolus.
Thigh girth; right 56cm, left 57cm at 10cm above the superior patellar pole. Calf girth; right 45cm, left 46cm at 13cm below the inferior patellar pole.
Resisted straight leg raising was equal bilaterally in strength.
When lying supine on the couch, he lay with his right foot turned outwards and in slight flexion at the right knee and right hip, but when assessed formally there was no true rotation of the right lower extremity, as he was able to assume a normal supine positioning of both lower extremities.
There was no bony tenderness in the femur or tibia.
Hip Movements
Active ROM measured
RIGHT
Active ROM measured
LEFT
Flexion
90°
120°
Extension
Normal
Normal
Abduction
30°
40°
Adduction
40°
30°
Internal rotation
10°
20°
External rotation
40°
40°
Knee Movements
Active ROM measured
RIGHT
Active ROM measured
LEFT
Flexion
115°
120°
Extension
0°
0°
There was crepitus present in the bilateral patellofemoral joints. There was some complaint of pain on compression of the left patella but not of the right. Both knees were stable in an anteroposterior and mediolateral movement plane.
There was full range of movement of the ankles and hind feet bilaterally.
Scarring
There was an 18cm longitudinal scar running from the distal thigh, through the right knee, to the proximal tibia. There were suture marks visible. The scar was paler than surrounding skin, but there were no trophic changes and no adherence.
There was a 5.5cm pale scar on the lateral proximal femur, up to 5mm wide with some atrophy of the scar but no adherence, and suture marks were visible.
There were two irregular 2cm long scars over the distal two-thirds of the femur from the compound fracture piercing the skin.
IMAGING
No imaging was brought to the assessment.
From the file:
28/5/2021 – X-ray of right hip, femur and knee showed the comminuted, moderately displaced and distracted oblique fracture of mid to distal shaft of right femur and tibial plateau fracture.
13/12/2021 – CT right femur – Eight months post intramedullary nail right femur with non-union evident.
16/9/2022 – X-ray right femur – Progress view.
20/1/2023 – X-ray right femur – There has been progression towards bony union with consolidation of new bone formation at the femoral fracture margins, and no complication of intramedullary rod fixation. The right hip joint appears mildly narrowed. The medial tibiofemoral joint compartment remains narrow.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnosis is right lower extremity injury consisting of compound fracture of femur, complicated by non-union and treated by open reduction and internal fixation with intramedullary rod on two occasions.
There was also a tibial plateau fracture which was treated by open reduction and internal fixation.
There was associated traumatic scarring from the compound femoral fracture wound and operative scarring to the right thigh and proximal leg.
There was also a soft tissue injury to the right hip.
On the evidence available, these injuries were caused by the mechanism of the motor vehicle accident, as explained by the claimant and evident in photographic evidence and the ambulance, hospital, orthopaedic, GP and paramedical therapy records.
There was no evidence that the accident caused a left knee injury. There was no frank injury from the motor vehicle accident to this part. We accept there was exacerbation of symptoms of pre-existing osteoarthritis of the left knee during the period of increased weight-bearing on the left side in the recovery period from the right lower extremity injury,. There was a significant period of altered gait in the left leg caused by the extensive right leg fractures. Based on the complaints he exacerbation of symptoms in the left knee is ongoing accepting the claimant’s complaints which appeared reasonable.
The clinical experience of the Medical Assessors on the Panel supports that a distinct period of increased weight-bearing on a lower extremity joint could result in a permanent exacerbation of a condition and resulting impairment.
In addition, the left knee examination findings in terms of range of movement and stability present in both knees does not result in assessable permanent impairment. Although both patellofemoral joints show prominent crepitus, there was no history of direct trauma to the left knee having occurred in the accident, hence it is not assessable under the arthritis table footnote.
PERMANENT IMPAIRMENT
There is 1cm right thigh atrophy giving 6% lower extremity impairment and 1cm calf atrophy also giving 6% lower extremity impairment.
There is 1cm limb length discrepancy which does not result in assessable impairment.
Range of movement in the right hip shows 5% lower extremity impairment from loss of flexion and 5% from loss of internal rotation. Only one range of motion is assessable, therefore 5% lower extremity impairment.
In the uninjured asymptomatic left hip, there is 5% lower extremity impairment from loss of internal rotation. This is used as a baseline and subtracted from the impairment of the right hip, resulting in a net 0% permanent impairment arising from the right hip.
The right knee findings result in 0% assessable permanent impairment.
For a diagnosis-based estimate, an undisplaced tibial plateau fracture gives 5% lower extremity impairment. There was no evidence of continued displacement following expert surgical treatment.
The femoral shaft fracture was similarly treated orthopaedically, resulting in no angulation or malrotation, hence no assessable permanent impairment.
There was no assessable impairment from loss of muscle strength, and there was no skin loss, peripheral nerve disorder, peripheral vascular disease or complex regional pain syndrome, joint ankylosis or amputation.
With respect to scarring and considering the scars collectively in their total effect on the skin as an organ system and matching against the criteria of the TEMSKI scale: the claimant is conscious of the scars and there is noticeable colour contrast of the scars with surrounding skin. The claimant is able to easily locate the scars and they are visible to others when wearing shorts. There are trophic changes evident to touch. There are clearly visible suture marks. As mentioned, the anatomical location of the scar is visible with short pants. There is a mild contour defect visible. There is no limitation of ADLs, no requirement for treatment, and no adherence.
The best fit under TEMSKI noting these matters is 2% whole person impairment.
An impairment from DBE cannot be combined with one from atrophy, however DBE can be combined with scarring, and atrophy can be combined with scarring.
Therefore, DBE 2% whole person impairment combined with 2% scarring gives 4% whole person impairment.
Alternatively, atrophy 4% whole person impairment from 1cm right thigh and 1cm right calf atrophy, combined with 2% from scarring gives 6% whole person impairment.
As the latter gives the greater impairment, it is the method chosen.
Body Part or System
AMA4 Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
%WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
Right leg muscle atrophy
Guidelines, Table 6.1(a), 6.1(b), page 95
Yes
4
0
4
Tibial plateau fracture undisplaced
AMA4, Chapter 3, Table 64, page 85
Yes
2
0
2
Left knee
AMA4, Chapter 3, Table 41,page 78;Table 62, page 83, Table 64, page 85
yes
0
0
0
Skin – minor scarring
TEMSKI, Guidelines, Table 6.18, page 132
Yes
2
0
2
Right hip
AMA4, Chapter 3, Table 40, page 78
Yes
0
0
0
* %WPI = percentage whole person impairment
The combined impairment of “1” with “4” from the above table is 6% whole person impairment (muscle atrophy cannot be combined with a DBE impairment - see Table 6.5 of the Guidelines).
Apportionment, pre-existing or subsequent impairment and effects of treatment
There was no indication to make an apportionment of the impairment owing to a pre-existing or subsequent permanent impairment, and the effect of treatment is not relevant in this matter.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[42]
[42] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[43] and Insurance Australia Ltd v Marsh.[44]
[43] [2021] NSWCA 287 at [40], [41] and [45].
[44] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination report provided by the Medical Assessor supplemented by the following further reasons.
The claimant did not bring original radiological examinations to the medical assessment. The Panel then issued the following direction:
1.The claimant did not bring any original radiological investigations to the examination.
2.The Panel immediately requires the imaging link to the X-ray dated 20 January 2023 to examine the status of the fractures (displaced versus undisplaced) and the condition of the right knee joint.
The claimant produced the X-rays which were examined by the Panel. The X-rays are discussed later in these reasons.
Right hip
We accept that the claim for the assessment of permanent impairment included an assessment of the right hip. This is because the claim was based on documents that included the report of Associate Professor Courtenay who assessed the right hip.
In Mandoukas the Court held that there is no obligation by a Medical Assessor to consider “a matter [unless it] falls within the ambit of the medical dispute referred for assessment”.[45]
[45] Mandoukos at [90].
This construction was consistent with the meaning of medical dispute in the workers compensation legalisation considered by the Court of Appeal in Skates v Hills Industries Ltd[46] and Scone Race Club Ltd v Cottom.[47]
[46] [2021] NSWCA 142 (Skates) at [30] per Basten JA and [44]–[50] per Leeming JA.
[47] [2024] NSWCA 34 at [47]–[48], [53] applying Skates at [44].
The insurer’s submission incorrectly defined the concept and scope of the medical dispute. The suggestion that there was no requirement to “ferret around and construct a claim” ignores the fact that Mr Proksch’s claim was based on the reports of Dr Giblin and Associate Professor Courtenay. Associate Professor Courtneay assessed the right hip as being injured and causing permanent impairment.
It is correct that the referral did not mention the right hip and the claimant’s solicitor did not seek any amendment of the document. However, the referral does not change the scope of the medical dispute which is “crystallised by the correspondence attached to the application”.[48] As Leeming JA stated in Skates:[49]
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute.”
[48] Skates at [46].
[49] Skates at [48].
Despite the pre accident bilateral hip symptomatology[50], we accept that the direct trauma to the right femur in the motor accident would have impacted on the range of motion of the right hip. We agree with the explanation provided by Associate Professor Courtenay.[51] However, the range of motion of the right hip is now identical to that shown in the left hip. Accordingly, using the uninjured left hip as a baseline, there is no measurable impairment of the right hip.
[50] See Claimant’s bundle, p 69.
[51] See para 44 herein.
Right leg
We note the relevant submissions on the presence of displaced fractures. Whilst Mr Proksch did have a displaced femoral shaft fracture, the expert treatment resulted in that fracture uniting.
The latest X-rays were viewed by the Panel which comprised medical experts. The latest X-rays confirmed that the femoral and lateral tibial plateau fractures had united.
Accordingly, the fractures are assessed as having united as at the date of assessment.
A major difference between our assessment and those undertaken previously is that we find that the fractures are not displaced. Indeed, Dr Giblin found angulation of the femur fracture which is not evident in the X-rays post-dating his report.
In respect of the right knee there was direct trauma and obvious injury with ongoing crepitus. The recent X-rays of the right knee (98% magnification reflecting true size) showed the lateral joint cartilage interval at 4 mmm which is normal. The joint cartilage interval in the medial compartment could not be deciphered because the bony margins of the femur overlapped the tibia, and a true Rosenberg measurement could not be obtained.
In these circumstances it would only be supposition by the Panel to calculate the extent of any loss of joint cartilage in the medial compartment. We could not otherwise identify from the medical evidence any express opinion based on examination of the X-rays that there was specific cartilage interval loss in that compartment.
The claimant clearly had some loss of joint cartilage in the medial compartment prior to the motor accident because the X-ray dated 17 August 2019 showed moderate narrowing of the medial joint compartment suggestive of osteoarthritis. The lateral knee joint and patella-femoral compartments were then stated to be “reasonably preserved”.
Accordingly, we are unable to assess any joint space loss to the right knee caused by the motor accident.
There was direct trauma to the right knee and crepitus on patellar compression. However, there was no complaint of pain on direct compression of the patella against the knee joint. The X-ray of the knee joint must also be normal. Accordingly, the footnote to Table 62 of AMA 4[52] is not satisfied. The X-ray of the knee joint also must be normal to satisfy the foot note which is not the case.
[52] See AMA 4 at p 83.
Accordingly, we cannot find loss of medial joint cartilage interval caused by the motor accident and are unable to provide an assessment on that basis in addition to the tibial plateau fracture.
Skin/Temski
We have considered all factors under Table 6.18 of the Guidelines[53] when making an assessment of best ft.
[53] Guidelines at p 162.
We have not assessed the best fit at 3% based in part on the absence of adherence and the scars, whilst visible, did not have an easily visible contour defect and did not have easily identifiable colour contrast with surrounding skin.
There are a number of matters which satisfy a 2% assessment including visible sutures, the claimant is conscious of the scars and there is noticeable colour contrast of the scars with surrounding skin. The claimant is able to easily locate the scars, and they are visible to others when wearing shorts. There are trophic changes evident to touch.
The scars otherwise have no impact on the activities of daily living and there is no need for ongoing treatment.
Accordingly, we have assessed the scarring at 2%.
Left knee
The insurer’s submissions quoted at paragraph 65 of these Reasons cited an article as supporting its submission that injury in a lower limb cannot cause symptoms in the contra limb. Unfortunately, the submissions do not accord with the findings in that article.
The paper commenced with the statement that the “unsupportable myth is that favouring 1 lower extremity will often result in injury or illness of the opposite lower limb”. (emphasis added). The paper emphasised the duration of the altered gait was relevant to the issue of whether the other limb was adversely impacted by the original injury. It cited from a paper by Dr Harrington which stated:[54]
“Unless the surgery carried out on the right knee resulted in a significant limp over a long period of time – greater than a few months – it is unlikely there would be an aggravation of pre-existing arthritis of the left knee due to the mechanism previously described, ie, a minimal Trendelenburg lurch and decreased walking speed as a result of surgical treatment, and pain is likely to result in less than normal load transmission by the opposite left knee.” (emphasis added)
[54] At pages 771-772.
The claimant suffered from a significant altered gait from the date of the motor accident until the recovery of the right knee following the operation in March 2022. The altered gait symptoms remained for months following that operation until a reported recovery with only a mild Trendelenburg lurch in September 2022.[55]
[55] See para 37 herein.
The facts of this matter are far removed from those suggested in the article where there is an unlikely causal relationship from an altered gait over a few months.
The claimant’s complaint of onset of left knee symptoms is consistent with the altered gait over an extended period. Furthermore, as the analysis below shows, the claimant had a pre-existing significant arthritic left knee which made him more vulnerable to aggravation from an altered gait.
The Panel relies on its medical expertise in accepting a causal relationship between the onset of left knee symptoms and the effects of the serious right leg injury which resulted in impaired walking for over a 15-month period.
Our conclusion otherwise accords with that reached by Dr Giblin and Associate Professor Courtenay.
The X-ray of the left knee dated 17 August 2019 showed moderate to severe narrowing of the medial joint compartment. Those words are suggestive of a 1 or 2mm joint cartilage interval.
Dr Giblin opined that the left knee medial joint compartment was a 2 mm gap in the absence of post motor accident X-rays. There are no post-accident left knee X-rays to our knowledge. Accordingly, we are unable to find that the altered gait, on balance would have increased the already moderate to severe narrowing of the left medial joint compartment. Accordingly, whilst there was pain caused by the altered gait, we are unable to assess any impairment on that basis.
The claimant does not obtain an assessable impairment for loss of active range of motion or ligament instability as there was none.
There was crepitus in the left knee but there was no direct trauma to the left knee[56] in the motor accident. This is confirmed by the claimant and the absence of contemporaneous complaints.
[56] Table 62 of AMA 4, footnote.
Accordingly, there is no assessable impairment of the left knee due to the symptoms caused by the altered gait.
We are satisfied that the impairment is permanent within the meaning of cls 6.19 and 6.20 of the Guidelines because the condition is well stabilised, the claimant does not require further surgery and treatment in the foreseeable future, and the Medical Assessors’ clinical examination of the claimant is that there is unlikely to be a change greater than 3% impairment over the next year.
CONCLUSION
Whilst our reasons are different, the permanent impairment of 6% is the same as that undertaken by Medical Assessor Kenna. Accordingly, the medical assessment certificate is confirmed.
0
6
0