QBE Insurance (Australia) Limited v Bucca
[2024] NSWPICMP 23
•12 January 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Bucca [2024] NSWPICMP 23 |
| CLAIMANT: | Carolyn Bucca |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 12 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant injured in a motor accident on 17 April 2017 when a buggy collided with her whilst she was attending the Royal Easter Show; dispute as to whether the degree of permanent impairment as a result of the injury caused by the accident is greater than 10%; claimant underwent left foot surgery after the accident and injured her right knee during her recovery phase following that surgery when her foot was protected in a CAM boot and she tripped on a stairwell; Medical Assessor (MA) determined that the injuries to the claimant’s left elbow, right knee, left ankle and hindfoot, left hallux, left foot (neurological impairment) and scarring give rise to a combined whole person impairment (WPI) of 12%; insurer sought review; Held – there was a consequential soft tissue injury to the claimant’s right knee during her recovery phase following left foot surgery which was caused or materially contributed to by the accident; the left hallux valgus was not present after the surgical procedure in June 2019; combined WPI assessed at 7% - 4% for the left ankle and hindfoot, 1% for the left ankle and left foot scarring, 0% for left elbow, 1% for the left foot and peripheral nerve injury, 1% for the left toe and 0% for the right knee; right buttock ischial bursitis resolved with no assessable impairment; certificate of MA revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Home dated 7 July 2021. 2. The Review Panel certifies that the permanent impairment of the claimant as a result of the following injuries caused by the accident is a combined total of 7%: (a) left ankle – soft tissue injury; (b) left ankle and left foot – scarring; (c) left elbow – soft tissue injury; (d) left foot – soft tissue injury and peripheral nerve injury; (e) left toes – soft tissue injury; (f) right buttock – ischial bursitis, and (g) right knee – consequential soft tissue injury. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Carolyn Bucca, suffered injuries in a motor accident on 17 April 2017 when a buggy collided with her whilst she was attending the Royal Easter Show at Olympic Park in Sydney, New South Wales (the accident).
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
QBE Insurance (Australia) Pty Ltd (the insurer), is liable for the driver of the vehicle which struck the claimant’s vehicle for liability to pay the claimant any damages under the MAC Act.
The present dispute between the parties is whether the “degree of permanent impairment as a result of the injury caused by the accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s.44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s.63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Alan Home and is dated 7 July 2021. Medical Assessor Home certified that the following injuries caused by the motor accident give rise to a permanent impairment of 12% and is greater than 10%:
(a) left ankle;
(b) left elbow;
(c) left foot;
(d) hallux vulgus;
(e) left toes;
(f) right knee, and
(g) respiratory system.
THE REVIEW
The application for review of the medical assessment to a Review Panel (the Panel) was made by the insurer on 23 December 2021.
On 30 March 2022, the President’s Delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.[3]
[3] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Personal Injury Commission (the 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 medical assessor.[4]
[4] 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[5].
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
On 17 August 2022, the claimant was examined by Medical Assessor Cameron.
THE ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Home for assessment:
(a) elbow – soft tissue injury, chronic olecranon bursitis, lateral epicondule, ulnar neuritis;
(b) toes – crush, bursitis, chronic MTP joint synovitic, chronic Morton’s metatarsalgia, neuroma;
(c) foot – bursitis, dysesthesia, superficial peroneal nerve left foot and also of the medical plantar nerve, peripheral nerve injuries, hallux valgus;
(d) ankle – bursitis dysesthesia, superficial peroneal nerve left foot and also of the medical plantar nerve, peripheral nerve injuries, hallux valgus;
(e) knee – direct blow injury, soft tissue injury, mild osteoarthritis (OA) involving patellofemoral joint, wasting vastus medialis oblique (VMO);
(f) buttocks – chronic right-sided ischial bursitis;
(g) foot – scarring, and
(h) ankle – scarring.
Medical Assessor Home obtained a pre-accident medical history from the claimant and relevant personal details. He records that the claimant lives with her ex-de facto. She performs a share of light domestic chores, particularly bench high tasks, but her de facto performs most of the heavier cleaning and gardening or she employs the services of a gardener and she has not been able to resume previous active hobbies of ballroom dancing since the accident.
The claimant is a qualified registered nurse who previously worked in the hepatobiliary unit at Westmead Hospital, but then undertook work as an occupational health nurse and has progressed to work as an occupational health and safety consultant and continues work on a contractual basis but avoids work that involves a lot of site inspections.
With regards to the history of the motor accident, the claimant stated that she sustained injuries in a motor accident on 17 April 2017. She had completed work at the Olympic Park Showgrounds and was looking about the Showgrounds when she was struck by an 8-seater buggy which ran over her left foot. The driver of the buggy then reversed off the foot and she recalls that she fell back and landed over the point of her left shoulder.
She attended the St Johns Ambulance Service and received first aid treatment and was assessed by a doctor on site and then later driven by the Showground staff to her husband’s vehicle and then driven home. She subsequently received treatment from Dr Somanaland before referral to the orthopaedic surgeon, Dr Gothelf, and a diagnosis of aggravation of underlying metatarsophalangeal (MTP)joint arthritis was made. She was referred for MRI scanning which demonstrated local synovitis of the great toe and bursitis of the first, second, third and fourth interspaces. Local corticosteroid injection was unhelpful.
She eventually underwent surgical management of the left foot performed on 20 June 2019 which consisted of a left hallux valgus correction,Scarf Akin 3/4 neurectomy and 2/3 neurolysis and there was temporary benefit from pain and correction of the deformity of the big toe. The claimant told Medical Assessor Home that about five weeks after the operation she was walking with her left foot in a controlled ankle motion (CAM) boot when the boot caught the tip of a stair and tread and she fell forward, landing over the anterior aspect of her right knee.
She was then seen by an orthopaedic surgeon, Dr Coffey, and MRI scanning was requested and there was discussion about arthroscopic surgery to the knee which did not proceed. Physiotherapy was commenced and did provide some benefit, however, the claimant reports persisting anterior pain at the right knee.
The claimant had recently attended the pain specialist, Dr Boesel and trialled Gabapentin but was unable to tolerate this medication due to side effects. She now applies a clonidine cream to her left elbow, right knee and left foot, and also takes magnesium supplements. She reported use of Nortriptyline, one to two tablets per night, Panadeine Extra, four to six tablets daily.
In the opinion of Medical Assessor Home, the claimant was involved in the subject motor accident in which her foot was run over. She fell onto the point of her left elbow. There was a consequential injury to the right knee during her recovery phase following left foot surgery when her foot was protected in a CAM boot and she tripped on a stairwell, falling forward onto her right knee.
Medical Assessor Home was satisfied that there is causal relationship between the motor accident and her left foot injury, the subsequent requirements for treatment, the local neurological complications and the injury to the right elbow. He was also satisfied that there is a causal relationship between the left foot injury and the consequential injury to the right knee.
Medical Assessor Home determined that the following injuries were not caused by the accident:
(a) there is no evidence of local ankle injury beyond restricted motions secondary to the period of immobilisation;
(b) there is no scarring about the left ankle, and
(c) right gluteal injury – there is no evidence the claimant suffered injury to the right ischial bursitis and no current complaints in the right buttock and no abnormality on examination of the right buttock.
Medical Assessor Home determined that the following injuries were caused by the accident:
(a) left elbow – soft tissue injury, chronic olecranon bursitis;
(b) left ankle – restricted motion secondary to the period of immobilisation;
(c) left foot – bursitis, dysesthesia, superficial peroneal nerve involvement, neurectomy and neurotomy surgery;
(d) hallux valgus – surgically corrected;
(e) left foot – scarring, and
(f) right knee secondary injury – direct blow, soft tissue injury.
Medical Assessor Home determined that the following injuries caused by the accident give rise to a combined whole person impairment of 12% as follows:
(a) left elbow – 1%;
(b) right knee – 2%;
(c) left ankle and hind foot – 4%;
(d) left hallux – 1%;
(e) left foot – neurological impairment – 2%, and
(f) scarring – 2%.
REVIEW OF MEDICAL ASSESSOR GRAINGE’S DETERMINATION
Medical Assessor Grainge assessed the claimant on 12 November 2021 and issued a certificate dated 12 November 2021.
Medical Assessor Grainge made a diagnosis of sleep fragmentation leading to daytime hypersomnolence and in his opinion this sleep fragmentation was not due to obstructive sleep apnoea, but that the frequent arousals the claimant suffers from result in a similar outcome. ie. that of day time hypersomnolence.
In the opinion of Medical Assessor Grainge, the injuries sustained by the claimant in the accident, physical damage to her left leg and elbow, have resulted overtime in chronic pain and hypersensitivity which have led to her having repeated subjective and objective awakenings and micro-arousals which lead to the sleep disruption and daytime hypersomnolence.
In the opinion of Medical Assessor Grainge, the claimant has sleep fragmentation due to the accident which occurred many years ago, and whilst it is likely that she had a previous disposition to sleep fragmentation, prior to the accident she did not have this disorder and the chronic pain and hypersensitivity from her physical disorder has led to sleep fragmentation and insomnia.
Medical Assessor Grainge assessed that the claimant’s chronic insomnia and sleep fragmentation caused by the accident give rise to a whole person impairment of 8%.
The insurer lodged an application for review of the certificate of Medical Assessor Grainge on the basis that the assessment was incorrect in a material respect. On 31 March 2022, the President’s Delegate accepted that review application and referred it to a Review Panel, being matter no. R-M10478714/21.
The Review Panel which was constituted to determine the review of the certificate of Medical Assessor Grainge is the same panel which was allocated the determination of the review application in relation to Medical Assessor Home’s certificate – Member Thompson and Medical Assessors Cameron and Gibson.
STATUTORY PROVISIONS AND GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.
Section 60 of the MAC Act provides either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) 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 implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[7] In Raina v CIC Allianz Insurance Ltd[8] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[7] See s 3B(2) of the CL Act.
[8] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE PANEL
The Panel issued directions requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the review of Medical Assessor Home’s certificate.
In response to these directions, the insurer uploaded to the portal at AD6 a final index and bundle of documents paginated from pages 1 to 847 (IB). The claimant subsequently uploaded to the portal an amended bundle of documents at AD7, paginated from pages 1 to 265 (CB).
On 7 June 2022, the Panel made a direction that on or before 5.00pm on 4 July 2022 the claimant is to serve on the insurer and upload to the portal clinical records in relation to all general practitioners who have treated the claimant during the period from twelve months prior to the accident to twelve months after the accident, that is from 17 April 2016 to 17 April 2018.
In response to that direction the claimant uploaded to the portal at AD5 clinical records from Lower Mountains Family Practice.
The Panel has read and considered the documents relied upon by the parties on this review as identified in paragraphs 39 to 42 above in making its findings and determinations.
PROCEDURAL MATTERS
As part of directions dated 7 June 2022, the Panel issued the following further directions:
“1. The referral to the Panel lists eight separate injuries to be assessed. The Insurer is directed to provide by 5 pm on 21 June 2022, an updated list of body parts to be assessed and a short diagnosis of each injury to them (eg. soft tissue injury, bursitis etc).
2. The Claimant is to advise by 5 pm on 4 July 2022 as to whether it agrees or disputes there should be an assessment only of the body parts and injuries to them specified by the Insurer pursuant to the direction in paragraph 1 above.”
In response to this the insurer sent an email to the Panel advising that the following body parts will need to be assessed in light of the dispute between the parties with respect to Medical Assessor Home and Medical Assessor Grainge:
(a) left ankle;
(b) left foot;
(c) left toes;
(d) left elbow;
(e) right knee;
(f) buttocks;
(g) scarring, and
(h) respiratory/sleep disorder.
The claimant confirmed by email the following list of injuries to be assessed:
(a) left elbow – soft tissue injury, chronic olecranon bursitis, lateral epicondule, ulnar neuritis;
(b) left toes – crush, bursitis, chronic MTP joint synovitic, chronic Morton’s metatarsalgia, neuroma;
(c) left foot – bursitis, scarring, dysesthesia, superficial peroneal nerve left foot and also of the medical plantar nerve, peripheral nerve injuries, hallux valgus;
(d) left ankle – bursitis, scarring, dysesthesia, superficial peroneal nerve left foot and also of the medical plantar nerve, peripheral nerve injuries, hallux valgus;
(e) right knee – direct blow injury, soft tissue injury, mild OA involving patellofemoral joint, wasting VMO;
(f) right glute injury – chronic right-sided ischial bursitis, and
(g) respiratory – sleep fragmentation, frequent microarousals, occasional obstructive hyperpnoeas with respiratory disturbance.
SUBMISSIONS
[9] IB p 1.
These submissions were relied upon by the Insurer in its MAS 2R Reply to the claimant’s MAS 2A Application for assessment of the permanent impairment dispute.
In summary, whilst the Insurer did not dispute that there is a disagreement between the parties as to the claimant’s degree of whole person impairment, it submitted that the allocation of the dispute to an assessor ought to be deferred so as to allow the Insurer reasonable time to obtain evidence in response to the expert evidence relied upon by the claimant.
Insurer’s Further MAS Submissions[10]
[10] IB p 582.
These submissions were relied upon by the Insurer in its MAS 2R Reply to the claimant’s MAS 2A Application for assessment of the permanent impairment dispute.
It is the insurer’s position that the claimant did not sustain any physical or psychological injuries in the subject accident that give rise to a permanent impairment greater than 10% and it makes further submission with respect to each of the injuries alleged by the claimant as having been sustained in the subject accident.
The insurer concedes that the claimant sustained an injury to the left elbow in the subject accident, however, it disputes that any such injury has left the claimant with a degree of whole person impairment greater than 10%.
The insurer submits that when the claimant attended Lower Mountains Family Practice the day after the accident and describedgrazing(emphasis in original) to her left elbow, she was not diagnosed with a left elbow injury on that occasion
The insurer submits that the claimant did not raise left elbow complaints following her initial attendance until 9 June 2017, two months later and the insurer submits that this does not suggest the claimant suffered a serious left elbow injury in the accident and further that the claimant’s general practitioner diagnosed only a “resolving soft tissue injury”(emphasis in original) with no evidence of tenderness or swelling.
X-ray of the left elbow on 9 June 2017 showed a normal study and an ultrasound of the left elbow on 28 August 2017 revealed common extensor tendinopathy and mild olecranon bursitis.
The claimant underwent physiotherapy treatment on four occasions between 5 January 2018 and 24 January 2018, and the Insurer submits that the claimant’s limited attendance is consistent with the minimal nature of the injury sustained in the accident and there being no need for ongoing treatment.
Further there is no mention of left elbow complaints in the general practitioner’s records from 3 November 2017 to 6 February 2018, a period of approximately four months, and further, the claimant’s general practitioner makes no reference to left elbow symptoms for approximately 1.5 years from 3 November 2018 to 4 March 2020.
The insurer submits that had the claimant sustained a serious injury to the left elbow causing ongoing restriction, it is reasonable to assume that the claimant would have raised such complaints with her treating general practitioner throughout 2019 and 2020.
The insurer relies upon the opinion of Dr Frank Machart, orthopaedic surgeon, who diagnosed the claimant with a contusion to the left elbow as a result of the accident. The claimant reported only intermittent left elbow pain. Dr Machart on clinical examination found full movement in left elbow flexion, extension, pronation and supination and did not consider there was any assessable permanent impairment attributable to the subject accident in the left elbow, which, in the insurer’s submission, is consistent with the post-accident medical records.
Dr Thomas Rosenthal, occupational physician, also found there to be a full range of movement in the left elbow with only intermittent pain complaints and considered the claimant’s left elbow complaints would “resolve with the passage of time” (emphasis in original). He considered there was no impairment attributable to the left elbow which the insurer submits is consistent with the post-accident clinical records.
Dr Grant Walker, neurologist, considered that the claimant suffered a “relatively minor soft tissue injury” (emphasis in original) to the left elbow in the accident and did not assess any degree of permanent whole person impairment related to the left elbow.
For the above reasons, the insurer submits that the claimant sustained a minor injury to the left elbow in the accident, which has not necessitated ongoing medical treatment and has not resulted in any permanent impairment.
Whilst the insurer concedes that the claimant sustained an injury to her left lower extremity in the accident, it submits that any such injury has not left the claimant with a degree of whole person impairment greater than 10%.
The insurer notes that the claimant has a pre-accident history of left foot pain having attended the Wentworthville Medical and Dental Centre on 1 November 2009 after twisting her left ankle one week prior when the claimant reported swelling and pain whilst walking. Further, a left ankle radiograph dated 2 November 2009 revealed a “plantar calcaneal spur” (emphasis in original). X-ray of the left foot on 18 April 2017, after the accident, revealed a calcaneal plantar spur, which was present prior to the accident and was a source of complaint and investigation in November 2009.
The insurer submits that from 29 April 2017 to 4 August 2017, a period of over three months, the claimant made no mention of left foot symptoms to her general practitioner at Lower Mountains Family Practice.
On 5 August 2017, the claimant’s general practitioner noted the radiological examinations of her left foot revealed “mild osteoarthritis only” (emphasis in original).
Dr Todd Gothelf, foot and ankle surgeon, saw the claimant on 6 December 2017 and observed good range of motion and noted that radiological investigations revealed moderate degenerative changes and recommended orthotics.
On 20 March 2018, Dr Gothelf expressed the view that the claimant “should have a full recovery from the injury and ought to be able to resume her pre-accident occupation” (emphasis in original). The insurer notes that the claimant has in fact continued working in her pre-accident industry since the subject accident occurred.
The insurer submits that on 7 May 2018, Dr Gothelf considered that the claimant was suffering from a left hallux valgus, medial sesamoid arthritis and neuromas and he recommended a hallux valgus correction with a metatarsal osteotomy and 2/3 neurectomy and 3/4 neurolysis. The Insurer notes that the claimant’s plantar spur/bunion was a pre-existing condition.
The insurer submits that the claimant underwent surgery on 20 June 2019 in the form of a left hallux valgus correction (bunion removal), scarf osteotomy, 2/3 neurolysis and 3/4 neurectomy, and on September 2019, the claimant reported to Dr Gothelf that she was walking to work and recently went on an overseas trip. Then on 19 November 2019, Dr Gothelf expressed the view that he was happy with the claimant’s surgical results and that “she can return to activities as tolerated” (emphasis in original).
The insurer submits that the surgery performed by Dr Gothelf was, at least in part, attributable to the claimant’s unrelated bunion condition which was present prior to the accident and which had previously required investigation and treatment.
The insurer further relies upon the views of Dr Machart, who diagnosed a soft tissue injury to the left foot causing Morton’s metatarsalgia as a result of the accident and considered that the bunion repair surgery was not related to the accident, consistent with the pre and post-accident clinical records which confirm that this condition was present prior to the accident.
Dr Machart assessed 4% whole person impairment for the claimant’s left lower extremity, not taking into account the impact of the unrelated bunion repair, and the insurer submits that this assessment is appropriate in light of the clinical evidence.
The insurer also relies upon the views of Dr Walker, neurologist, who diagnosed a “relatively minor injury” (emphasis in original) to the left foot as a result of the accident and was also of the opinion that the bunion was present prior to the accident and would have required surgery in its own right in due course. He did not assess any degree of permanent neurological impairment as a result of the accident.
Whilst Dr Rosenthal assessed 6% whole person impairment with respect to the claimant’s left lower extremity, the insurer notes that this included a 2% allowance for left great toe restriction, and, on the basis of the pre-accident records and the opinions of Dr Machart and Dr Walker, the insurer disputes that the left great toe bunion is related to the accident.
The insurer denies that the claimant sustained a right knee injury as a result of the accident or that any degree of permanent impairment is attributable to same. It submits that there is no reference to right knee symptoms in the initial post-accident clinical records or the claim form and that this omission is significant and supports an argument that any right knee symptoms are unrelated to the accident.
On 18 April 2019, the claimant reported that she had fallen at a bowling alley and this fall was mentioned again by the claimant on 2 July 2019, however neither consultation makes any reference to the claimant landing on her right knee or suffering knee pain. Significantly, right knee symptoms were not raised by the claimant until 10 September 2019, more than two years after the accident occurred, and on that occasion the claimant complained of pain behind her right knee which she attributed to “no specific trauma/injury” (emphasis in original).
The insurer submits that this substantial delay in the claimant’s self-reporting challenge her assertion that she sustained a right knee injury in the accident or even due to an unrelated post-accident fall.
MRI of the right knee on 10 September 2019 revealed mild osteoarthritic changes, early bursitis and an oedema involving the medial tibial plateau, and the insurer notes that the claimant denied sustaining any direct impact to her right knee in any post-accident fall.
The insurer submits that ultrasound of the right knee on 13 September 2019 did not reveal any pathology consistent with trauma that could have been sustained in the accident which occurred more than two years before the investigations.
On 14 January 2020, the claimant’s general practitioner noted the claimant reported right knee pain attributable to “no direct knee trauma” (emphasis in original). It notes the following history taken of the claimant’s post-accident fall:
“Has had 2 falls last year we had briefly discussed before. One was a slip at bowling alley, slipped and landed on backside. Another time going up stairs, tripped on stairs at Darling Harbour, happened a few months after her foot surgery – grabbed the rail but fell down, she thinks contributing to fall was as her foot gets tired, takes effort to lift it – more prone to tripping. Can’t remember details of the next fall and whether fell onto knee, no other trauma/injury since the Easter Show” (emphasis in original)
The insurer submits that the above history does not suggest that the claimant sustained a right knee injury in the accident, nor that she suffered any direct knee impact as a result of a post-accident fall. Further, the claimant’s general practitioner observed normal right knee flexion and extension suggesting that the claimant was not suffering any significant impairment as a result of her reported right knee symptoms.
The insurer submits that on 14 January 2020 and 15 April 2020 the claimant’s general practitioner noted the following with respect to right knee symptoms:
“She had 2 falls last year which she will tell you about but not direct impact that she can remember with those, however, since September (or earlier), she has been getting worsening R knee pain, worst going downstairs.” (emphasis in original)
For the above reasons, the insurer denies that the claimant sustained a right knee injury in the subject accident and submits that the post-accident clinical records call into question whether the claimant sustained a direct injury to the right knee at all in the post-accident period, and the insurer disputes that any such falls are related to the subject accident.
The insurer refers to the opinion of Dr Machart, who took a history that the claimant fell on to her right knee following her left foot surgery and submits that this was inconsistent with the claimant’s self-reporting to her general practitioner that she did not suffer a direct knee impact in her falls. The insurer therefore submits that the claimant’s self-reporting with respect to her right knee ought not to be accepted unless verified by objective and contemporary evidence.
Whilst Dr Machart was of the opinion that the claimant may have sustained a contusion to the right knee on the background of degenerative changes as a result of her fall, Dr Machart was not of the opinion that the falls affecting the right knee and right buttock were related to the accident.
Dr Machart is of the opinion that the left foot surgery was undertaken primarily for unrelated bunion repair, and any fall related to same could not be attributed to the accident. In any event, Dr Machart observed full range of movement to the right knee, suggesting that there was no significant impairment or restriction.
Dr Machart did not assess any permanent impairment to the right knee because that injury was not related to the subject accident. The insurer submits this is appropriate and in line with the clinical records.
The insurer further notes that Dr Rosenthal took a history that the claimant suffered a right knee injury following her left foot surgery, which, it submits, is inconsistent with the claimant’s self-reporting to her general practitioner that she did not suffer an impact to her right knee in either of her falls. Further, Dr Rosenthal noted full range of movement in the right knee with tenderness over the patella and evidence of crepitus and considered the claimant’s right knee symptoms would “resolve with the passage of time”
The insurer therefore submits, in the alternative, that any injury that may have been sustained to the right knee has not resulted in any permanent restrictions that would warrant a finding of whole person impairment. The insurer indicated that it was currently in the process of seeking a supplementary report from Dr Rosenthal with respect to the apparent inconsistency between his comments on prognosis and his whole person impairment assessment of the right knee, and reserved the right to make further submissions should that report be received prior to the relevant Medical Assessment Service (MAS) assessment.
Insurer’s Review Application Submissions[11]
[11] IB p 828.
These submissions were lodged by the insurer in support of its application for review of the certificate of Medical Assessor Home.
The insurer submits that there is a reasonable cause to suspect that the assessment of Medical Assessor Home is incorrect in a material respect and accordingly seeks a review pursuant to s 63 of the MAC Act.
The insurer submits that there is more than a reasonable cause for suspicion that Medical Assessor Home’s assessment is incorrect in a material respect for the following reasons:
(a) failure to consider material relevant to the dispute provided by the parties which constituted a breach of procedural fairness;
(b) failure to engage in a substantive argument over a medical controversy raised by the parties, and
(c) failure to provide adequate reasons.
With regard to the first ground, the insurer submits that Medical Assessor Home was either not provided with various documents that were forwarded by the insurer which are particularly relevant to the issues of diagnosis, causation and whole person impairment arising from the accident, or alternatively, they were provided and Medical Assessor Home failed to consider them. The insurer submits that the following documents were not properly considered by Medical Assessor Home (or referenced at all):
(a) insurer’s Further MAS Submissions dated 21 April 2021;
(b) report of Dr Grant Walker, neurologist, dated 1 October 2020;
(c) refresher report of Dr Thomas Rosenthal, occupational physician, dated 23 November 2020;
(d) Spotless Management (Employment Records);
(e) records from Wentworthville Medical and Dental Centre;
(f) records of Nepean Imaging;
(g) records of Doctors on Darling;
(h) records of Sydney Hand Surgery Associates;
(i) records of Body Focus Physiotherapy and Sports Injury Clinic;
(j) report of Dr Foster, general practitioner, dated 15 April 2020;
(k) correspondence from Moray and Agnew Lawyers to claimant’s solicitors re: report of Dr Desai and WPI Threshold dated 29 March 2021, and
(l) supplementary report of Dr Thomas Rosenthal dated 27 April 2021.
The insurer submits that Medical Assessor Home was either not provided with the insurer’s further submissions and the above evidence, or that he failed to engage with this material at all during his assessment of the claim, and that this is prima facie a breach of procedural fairness and constitutes a material error that ought to justify referring the matter to a Review Panel for the following reasons:
(a) Medical Assessor Home accepted that the claimant sustained a right knee injury in the subject accident giving rise to a 2% whole person impairment;
(b) despite this, Dr Rosenthal and Dr Walker, in their reports dated 27 April 2021 and 1 October 2020, did not consider the right knee injury was accident related, and, had that information been before Medical Assessor Home, or considered by him, there is a possibility he would have made an alternate finding on the causation of the right knee injury;
(c) further, the insurer made extensive reference to the causation issues surrounding the alleged right knee injury at paragraphs 39 to 63 of its substantive submissions, including drawing Medical Assessor Home’s attention to a number of inconsistencies between the claimant’s reports of sustaining a right knee injury and the records of her general practitioner noting “no direct knee trauma” (emphasis in original). Had the Medical Assessor had access to, or properly considered, the insurer’s submissions and the medical controversies raised therein, it is possible he would have made an alternate finding on causation of the right knee injury;
(d) the insurer submits that this submission is material in circumstances where, had Medical Assessor Home not accepted the right knee injury was sustained as a result of the subject accident, the claimant’s degree of whole person impairment would be below the s.131 threshold (12%-10% whole person impairment);
(e) Medical Assessor Home assessed 1% for restricted range of motion in the left elbow in his certificate, and, significantly, the reports of Dr Rosenthal dated 23 November 2020 and 27 April 2021, and Dr Walker, dated 1 October 2020 record full range of motion in the left elbow giving rise to no degree of assessable impairment;
(f) had Medical Assessor Home properly considered these alternate assessments, it is possible he would have reached a different conclusion with respect to the claimant’s left elbow condition during his assessment, or, at the very least, put this inconsistency to the claimant for her comment as he was required to do pursuant to cl.1.41 of the Guidelines;
(g) Medical Assessor Home diagnosed the claimant with local neural damage to the left forefoot giving rise to a 2% whole person impairment. Dr Walker, neurologist in his report dated 1 October 2020, diagnosed an earlier soft tissue injury to the left foot and did not assess any degree of permanent impairment attributable to any neurological condition;
(h) had Medical Assessor Home properly engaged with the insurer’s submissions and the report of Dr Walker, it is possible he would have reached an alternate conclusion with respect to the degree of whole person impairment attributable to any neurological symptoms, and
(i) instead, Medical Assessor Home makes no reference to the report of Dr Walker, notwithstanding the clear relevance of a report from an expert neurologist to a proper assessment of such an injury. The insurer submits that this omission is significant and material as, were it the case that Medical Assessor Home accepted the views of Dr Walker, the claimant’s degree of whole person impairment would be below the s 131 threshold.
The insurer submits that the absence of comment on the insurer’s submissions and the expert reports of Dr Rosenthal and Dr Walker in his certificate amounts to a denial of procedural fairness to the insurer, particularly as engagement with that material during the medical assessment of the claimant would have had a material bearing on the outcome of the assessment for the reasons outlined above. Th insurer relies upon the decision of the Full Federal Court in Najt v Minister for Immigration and Multicultural Indigenous Affairs.[12]
[12] [2005] FCAFC 134
The insurer further submits that there has been a clear breach of procedural fairness with respect to Medical Assessor Home’s assessment in circumstances where it appears he was provided with the claimant’s further submissions and materials, but not the insurer’s.
The insurer refers to the fact that the claimant provided further submissions on 26 April 2021 in response to the insurer’s submissions dated 21 April 2021, and that within those submissions was the report of Dr Gehr, orthopaedic surgeon, dated 25 August 2020.
It submits that Medical Assessor Home makes explicit reference to the report of Dr Gehr on page 8 of his certificate, where he also engages with the expert’s finding and compares them to his own.
The insurer further submits that the claimant forwarded the report of Dr Boesel, treating pain physician, dated 29 May 2021 to the Commission on 18 June 2021 for inclusion in the MAS assessment.
The insurer notes that whilst Medical Assessor Home makes reference to the report of Dr Boesel in his certificate, there is no reference to the Insurer’s further evidence and reports including the supplementary report of Dr Rosenthal, and submits that the only reasonable conclusion that can be reached in light of this is that Medical Assessor Home was either provided with the claimant’s further documents, but not the insurer’s, or that Medical Assessor Home chose to consider the claimant's further documents and not the insurer’s. It submits that either way, this constitutes a gross breach of procedural fairness to the insurer and that this constitutes clear material error that requires the matter to be referred to a Review Panel for proper determination, including consideration of the balance of the material provided by both parties.
The insurer further submits that Medical Assessor Home failed to provide adequate reasons as to why he failed to consider the substantive submissions and further documents provided by the insurer, if they were in fact provided to Medical Assessor Home. In support of this submission the Insurer refers to s.61(9) of the MAC Act and the decision in AAI Limited v Fitzpatrick[13].
[13] [2015] NSWSC 1108.
Whilst the insurer acknowledges the established trend not to construe the obligation of Medical Assessors to provide reasons in an overly narrow fashion, it submits that it is an accepted principle that a decision-maker must set out the actual path of reasoning which leads to their ultimate conclusion, that is, the steps that were taken to arrive at a conclusion.
In particular, the insurer points out that Medical Assessor Home accepted that the claimant sustained a right knee injury in the accident, however, makes no reference to the opinion of Dr Rosenthal and Dr Walker who challenge this conclusion, and submits that in the circumstances it is impossible to ascertain what Medical Assessor Home made of their opinions or what impact, if any, they had on his ultimate conclusion.
The insurer also submits that the Medical Assessor Home does not engage with the insurer’s submissions in relation to the issue of causation of the claimant’s right knee injury and does not seek to explain what impact, if any, they had on his determination. The insurer also submits that Medical Assessor Home accepted that the claimant suffered restricted range of left elbow movement during his assessment, but does not seek to explain or reconcile this finding with those of Dr Machart, who found full range of motion in the left elbow when he assessed the claimant in December 2018 and March 2020. Further, it submits that Dr Rosenthal and Dr Walker similarly found no restriction of range of motion in the left elbow to justify a whole person impairment finding, however, it is unclear what Medical Assessor Home made of those inconsistencies in circumstances where he does not reference those reports at all in his certificate, and, no further explanation is provided by Medical Assessor Home as to whether the reduced range of motion identified during his examination is an accurate assessment of the claimant’s left elbow functionality, or why the claimant would have demonstrated full range of motion at previous assessments.
The insurer reiterates that it should not have to “fill in the gaps in the path of reasoning” (emphasis in original) by reference to assumptions and evidence, as was held by Justice Hamill in Sadsad v NRMA Insurance Limited and Others[14] and refers to the decision of the Supreme Court in AAI Limited v Fitzpatrick,[15] where it was held that where there is a medical controversy over a particular issue, a more expansive explanation needs to be given and express consideration revealing the use the Assessor made of the information provided is required.
[14] [2014] 67 MVR 601.
[15] [2015] NSWSC 1108.
The insurer submits that Medical Assessor Home did not address in his certificate the issue raised by the insurer of the claimant’s left elbow range of motion, the causation of the right knee injury and the degree of the impairment arising from any neurological condition in its further submissions lodged on 21 April 2021, and that Medical Assessor Home’s failure to address the above issues gives rise to a reasonable cause to suspect that the medical assessment is incorrect in a material respect.
The insurer submits that there is therefore reasonable cause to suspect that significant errors have been made in Medical Assessor Home’s assessment, and accordingly, that the matter ought to be referred to a Review Panel for re-determination.
Insurer’s Review Application Further Submissions[16]
[16] IB p 842.
This is a further submission by the insurer in correspondence to the Principal Lawyer at the Commission submitting that Medical Assessor Home’s failure to consider and/or the insurer’s evidence not being provided to him is not sufficient for his certificate to be classified as “incomplete” pursuant to cl 13.18 of the Guidelines, and that the only appropriate course of action in light of the clear procedural breaches of fairness to the parties is for the Commission to consider and determine the insurer’s Review Application and the material errors raised therein.
The insurer further submits that fundamental breaches of fairness due to failures to refer documents to Medical Assessor Home are also capable of satisfying the material error in the medical assessment pursuant to s 63, given that such breaches affect the whole assessment and the rights of both parties.
For these reasons the Insurer does not consent to Medical Assessor Home’s certificate being classified as an incomplete certificate or to the missing material simply being provided to him for delayed consideration, and requests that a determination be made in respect of the review application of the certificate of Medical Assessor Home.
Claimant’s Reply Submission to insurer’s Review Application of Medical Assessor Home[17]
[17] CB p 3.
These submissions were relied upon by the claimant in reply to the Insurer’s application for review of the certificate of Medical Assessor Home.
The claimant submits that, essentially, the insurer submits that Medical Assessor Home failed to have regard to numerous documents upon which it apparently relied and that this affected his assessment of the claimant, even though Medical Assessor Home physically assessed the claimant, and that these arguments are flawed and unpersuasive.
The claimant submits in relation to the allegation that Medical Assessor Home failed to consider documents that there is no evidence that the Commission did not send the documents referenced by the Insurer to Medical Assessor Home. The claimant submits that the insurer cannot now seek to raise any issue of documents when it did not attempt to rectify this issue with the Commission in June 2021, and that the insurer’s submission on this issue falls well short of demonstrating that there was reasonable cause to suspect that the assessment of Medical Assessor Home is incorrect in a material respect.
With regards to the insurer’s submission that Medical Assessor Home’s assessment was affected by not having certain documents, the claimant submits:
(a) firstly, that it should be found that there was no error regarding any failure to consider relevant documents, and
(b) secondly, that the insurer is not correct when it states that Medical Assessor Home’s assessment of range of motion in the left shoulder could possibly be affected by the apparent failure to consider relevant documents. Medical Assessor Home clearly conducted an in-person examination, physically assessed the claimant and he is perfectly equipped to form his own opinion on range of motion in such circumstances and is not bound by any previous assessment of range of motion.
With regard to the insurer’s submission that Medical Assessor Home’s consideration of causation was affected by not having certain documents, the claimant submits that:
(a) firstly, it should be found that there was no error regarding any failure to consider relevant documents, and
(b) secondly, as regards to causation of the right knee injury, Medical Assessor Home more than adequately discharged his obligation and complied with the applicable principles of causation as set out in Slade v Insurance Australia Limited t/as NRMA.[18]
[18] [2020] NSWSC 1 1031.
The claimant submits in relation to the issue of causation of the right knee, that Medical Assessor Home:
(a) took a history that about five weeks after the claimant’s operation, she was walking with her left foot in a boot, the boot caught the tip of a stair tread, and she fell forward, landing over the anterior aspect of her right knee;
(b) noted the history given by Dr Machart who stated that the claimant “tripped over a step, reports this was due to weakness in her foot fatigue which caused trip, fell on her right knee and buttock, experienced right knee pain” (emphasis in original);
(c) noted the numerous medicolegal experts who found that the right knee injury was caused by the subject accident;
(d) referred to the radiological investigations of the right knee;
(e) gave a clear opinion that there was a consequential injury to the right knee during her recovery phase following her left foot surgery, when her foot was protected in a CAM boot and she tripped on a stairwell falling forward onto her right knee;
(f) was satisfied that there is a causal relationship between the left foot injury and the consequential injury to the right knee, and
(g) found that there was a right knee secondary injury.
The claimant submits that in so doing, Medical Assessor Home more than adequately addressed causation in a way that was required of him as disclosed in the authorities cited above.
Further, the claimant submits regarding the assessment of the right knee, that again, Medical Assessor Home clearly conducted an in-person examination, physically assessed the claimant and is perfectly equipped to form his own opinion on range of motion in such circumstances.
In conclusion, the claimant submits that on account of the above reasons, the Proper Officer cannot be satisfied on the grounds submitted by the Insurer that there is reasonable cause to suspect the assessment of Medical Assessor Home is incorrect in a material respect either in relation to causation or apportionment and that the insurer’s application for review of the certificate of Medical Assessor Home should be dismissed.
RE-EXAMINATION
The claimant was re-examined by Medical Assessor Cameron on 17 August 2022. The re-examination report is as follows:
“Ms Bucca attended unaccompanied. The assessment was at Hornsby on 17 August 2022 by Medical Assessor Cameron.
History of Injury
Ms Bucca was involved in an accident on 17 April 2017. She had completed work at Olympic Park and her left foot was run over by an eight-seat buggy. There were significant injuries to the left foot.
Ms Bucca has had continuing problems. These have included surgery to the left foot.
Ms Bucca explained that following surgery, about two years after injury, she was wearing a CAM boot and tripped and hit her right knee. She has had right knee symptoms since that time.
Background
Ms Bucca is living at Blaxland. She shares the house with her ex-partner.
Ms Bucca is a registered nurse. She has worked in occupational health and safety and injury management for many years. Ms Bucca continues to work in this role. Ms Bucca is a non-smoker. Ms Bucca did not report major past illnesses.
Current Status
Ms Bucca said that her left foot swells significantly and intermittently. There is pain at night from the left foot which causes poor sleep. Sometimes there are cramps from the left foot.
Ms Bucca said that felt as if there was a hard ball under her left foot. There is some pain in the left mid foot. There is sensory deficit over the part of the dorsum of the foot and also on the plantar aspect of the third and fourth toes.Intermittently there is tingling in the ulnar aspect of the left hand and in the left hand. Intermittently, from the right knee, there is sharp pain.
Ms Bucca said there were no symptoms from the buttock. She said there was scarring on the left foot but no scarring on the left ankle.
Ms Bucca sees her General Practitioner, Dr Samarathan. Current medications are a compound cream from the pain management specialist, paracetamol, Panadeine Forte occasionally and magnesium.
There have been no recent consultations with Dr Boesel, Pain Management Specialist. However, Ms Bucca anticipates that there will be a further consultation with him in the future.
Ms Bucca is working in her role as an injury management consultant. This is for variable hours. The work is generally from home. She does need to travel to work sites on occasions.
Generally, Ms Bucca drives only locally. She was driven to the appointment by a friend.
Examination
Ms Bucca is right handed, 166cm in height and weighs 69 kg.
Ms Bucca was co-operative. She was emotionally distressed when talking about the incident and subsequent events.
At the cervical spine there was a full range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders.
There was a full range of motion at other upper extremity joints. Specifically, there was full range of movement at the left elbow and in the left hand.
There were no neurological abnormalities in the upper extremities. No neurological deficit was detected in the left hand.
No difference in circumferences of the upper extremities was detected.
At the thoracic spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints present.
At the lumbar spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints present. Nerve tension signs were negative.Range of motion at both knees was 0 to 130 degrees. There was no crepitus, or instability, at the right or left knee.
At the left ankle, range of movement was plantarflexion 50 degrees, dorsiflexion 10 degrees, eversion 20 degrees, and inversion 10 degrees.
At the toes in the left foot extension was to 10 degrees.
At the interphalangeal joint movement at the left great toe flexion was to neutral only.
There was a sensory deficit over the dorsum of the foot involving the third and fourth toe and a patch on the left forefoot. There was sensory deficit on the plantar aspect of the third and fourth toes.
There was a 5 cm scar over the medial aspect of the left foot adjacent to the left metatarsophalangeal joint. There was some colour contrast. There was no bunion on the left foot. It was difficult to see surgical scars at the base of the left foot, first and second, and second and third toes.
Ms Bucca had difficulty standing on her toes. She could not stand in full tandem stance. Her difficulty in standing on the toes was due to pain.
There were other neurological abnormalities in the lower extremities.
Circumferences of the lower extremities were above knee right 49cm and left 50cm, below knee right 41cm and left 41cm.Ms Bucca walked with a normal gait.
There were no imaging studies to review.
Diagnosis
The following injuries were diagnosed:·left ankle - soft tissue injury
·left ankle and left foot - scarring
·left elbow – soft tissue injury
·left foot – soft tissue injury and peripheral nerve injury
·left toes – soft tissue injury
·right buttock – ischial bursitis – resolved
·right knee – consequential soft tissue injury
These are the injuries expressed in usual medical terminology. The peripheral nerve injury affects the left foot, not the left ankle. Hallux valgus was not present in the left foot following the surgical procedure. There was no current evidence of left elbow olecranon bursitis or ulnar neuritis. Scarring is assessed with reference to the skin as a whole.
Impairment Evaluation
Left ankle – soft tissue injury
At the left ankle range of movement was plantarflexion 50 degrees, dorsiflexion 10 degrees, eversion 20 degrees, and inversion 10 degrees. With reference to Tables 42 and 43, page 78 AMA4, there is ‘mild’ ankle motion impairment and ‘mild’ hindfoot impairment. These are assessed at 3% WPI and 1% WPI respectively.
Left ankle and left foot – scarring
There was a 5 cm scar over the medial aspect of the left foot adjacent to the left metatarsophalangeal joint. There was some colour contrast. There was no bunion on the left foot. There were difficult to see surgical scars at the base of the left foot first and second, and second and third toes. This is assessed using the method in clauses 1.262 to 1.264 of the Guidelines, and the TEMSKI (Table 18). Ms Bucca’s impairment of the skin due to scarring is 1% WPI, with reference to this Table, because she is conscious of the skin condition, she is easily able to locate the skin condition, there is some colour contrast and minimal trophic changes, the anatomic location is usually visible and there is no contour deficit, no effect on activities of daily living, no treatment and no adherence.
Left elbow – soft tissue injury
For evaluation of the impairment associated with this injury the only applicable method is related to abnormal range of motion and using this method there is 0% WPI.Left foot – soft tissue injury and peripheral nerve injury
There was a sensory deficit over the dorsum of the foot involving the third and fourth toe and a patch on the left forefoot. There was sensory deficit on the plantar aspect of the third and fourth toes. This is consistent with an injury to the left superficial peroneal nerve. The sensory grade from Table 11, page 48 AMA4 is 3 and thus there is 60% of 2% WPI (from Table 68 AMA4) which rounds to 1% WPI.
Left toes – soft tissue injury
At the interphalangeal joint movement at the left great toe flexion was to neutral only and extension at the first metatarsophalangeal joint was to 10 degrees. At the toes in the left foot, extension was to 10 degrees.
With reference to Table 45, page 78 AMA4, this is assessed at 1% WPI.
Right buttock – ischial bursitis – resolved
Right knee – consequential soft tissue injury
For evaluation of the impairment associated with this injury the only applicable method is related to abnormal range of motion and using this method there is 0% WPI.
The impairments are combined to give a total of 7% WPI.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
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[19] and Insurance Australia Limited v Marsh.[20]
[19] [2021] NSWCA 287 at [40], [41] and [45].
[20] [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the re-examination report of Medical Assessor Cameron in its reasons and adds the following further reasons.
Causation
The insurer in the submissions it relies upon:
(a) concedes that the claimant suffered injuries to the left elbow and left lower extremity in the subject accident;
(b) disputes that the left great toe bunion is related to the accident, and
(c) denies that the claimant sustained a right knee injury as a result of the accident.
The Panel agrees with the claimant’s submissions and reasoning in relation to the causation of the injury to the claimant’s right knee as referred to in paragraphs 116 and 117 above.
The Panel accepts that there was a consequential injury to the claimant’s right knee during her recovery phase following left foot surgery, when her foot was protected in a CAM boot and she tripped on a stairwell, falling forward onto her right knee.
The Panel has determined that the soft tissue injury to the claimant’s right knee was caused or materially contributed to by the motor accident on 17 April 2017.
The left hallux valgus (bunion) was not present after the surgical procedure in June 2019.
The Panel is satisfied that the motor accident on 17 April 2017 caused the following injuries to the claimant:
(a) left ankle – soft tissue injury;
(b) left ankle and left foot – scarring;
(c) left elbow – soft tissue injury;
(d) left foot – soft tissue injury and peripheral nerve injury;
(e) left toes – soft tissue injury;
(f) right buttock – ischial bursitis, and
(g) right knee – consequential soft tissue injury.
Impairment assessment
The Panel has determined that the degree of permanent impairment as a result of the injuries caused by the motor accident on 17 April 2017 is a combined total of 7% as follows:
(a) left ankle and hindfoot soft tissue injury – 4%;
(b) left ankle and left foot scaring – 1%;
(c) left elbow soft tissue injury – 0%;
(d) left foot soft tissue injury and peripheral nerve injury – 1%;
(e) left toe soft tissue injury – 1%;
(f) right buttock ischial bursitis – resolved with no assessable impairment, and
(g) right knee soft tissue injury – 0%.
CONCLUSION
For the reasons set out above, the Panel revokes the certificate of Medical Assessor Home dated 7 July 2021. A replacement certificate is attached at the commencement of these Reasons.
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