QBE Insurance (Australia) Limited v Kritas
[2025] NSWPICMP 297
•30 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Kritas [2025] NSWPICMP 297 |
CLAIMANT: | Alexander Kritas |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Tai-Tak Wan |
DATE OF DECISION: | 30 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant assessed as having 11% whole person impairment (WPI) for physical injuries; claimant hit by a car while on a motorbike; fractured right wrist and right knee; developed neuropathic pain over right forearm but did not satisfy the criteria for complex regional pain symptoms under clauses 6.61-6.64 of the Motor Accident Guidelines (Guidelines); Table 15 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th ed (AMA4) gives maximum upper extremity impairment of 38%; under Table 11 of the AMA4 the claimant has Grade 5 impairment with major causalgia; clause 6.59 of the Guidelines states that the maximum in the range is to be used unless assessing for CRPS; maximum is 100%; therefore the upper extremity impairment (UEI) due to median nerve injury is 38%; combining the 38% UEI with wrist loss of range of motion (16%) and the shoulder loss of range of motion (6%) gives 51% UEI; converts to 31% WPI; Held – MAC revoked; new certificate issued; claimant sustained injuries that give rise to 33% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated (a) The Review Panel certifies the following injuries were caused by the motor accident: (i) right wrist and forearm – distal radius and ulnar styloid fractures; (ii) right forearm – sensory dysfunction predominantly in median nerve distribution; (iii) right knee and leg – medial femoral condyle fracture; (iv) right hip – soft tissue injury; (v) cervical spine – soft tissue injury; (vi) thoracic spine – soft tissue injury; (vii) lumbar spine – soft tissue injury; (viii) left shoulder – soft tissue injury; (ix) right shoulder - soft tissue injury with the limitation in range of motion persisting; (x) left ankle - soft tissue injury; (xi) right ankle – soft tissue injury, and (xii) right wrist and forearm – surgical scarring. (b) The Review Panel finds that the above injuries result in a whole person impairment of 33% which is greater than 10%. COMBINED CERTIFICATE Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel combines its assessment of 24 April 2025 and the medical assessment of Medical Assessor Edward Korbel dated 6 August 2024 and finds: 1. The following injuries caused by the motor accident: (a) right wrist and forearm – distal radius and ulnar styloid fractures; (b) right forearm – sensory dysfunction predominantly in median nerve distribution; (c) right knee and leg – medial femoral condyle fracture; (d) right hip – soft tissue injury; (e) cervical spine – soft tissue injury; (f) thoracic spine – soft tissue injury; (g) lumbar spine – soft tissue injury; (h) left shoulder – soft tissue injury; (i) right shoulder - soft tissue injury with the limitation in range of motion persisting; (j) left ankle - soft tissue injury; (k) right ankle – soft tissue injury; (l) right wrist and forearm – surgical scarring, and (m) testicular injury – intratesticular haematoma/testicular Injury – sexual dysfunction – resolved. Give rise to a permanent impairment of 33% and is greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
Alexander Kritas (the claimant) was involved in a motor accident on 17 April 2023. He was riding a motorcycle along a straight road when a vehicle exited a side street in front of him. He collided into the side rear of the vehicle and was ejected from his motorcycle, landing on the other side of the road.
The claimant suffered multiple injuries to his body including a testicular injury and fractures to his right wrist and right knee. An ambulance arrived and transported him to St George Hospital.
The claimant made a claim for personal injury benefits with the insurer (QBE), the third-party insurer of the vehicle that he says caused the accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. This is important because if there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination.
[1] See Division 4.3 of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant’s testicular injury was assessed by Medical Assessor Edward Korbel on
6 August 2024 and was found to be resolved.On 2 September 2024, Medical Assessor Alexander Woo assessed the claimant’s musculoskeletal injuries as having a WPI of 26%. This resulted in a WPI of greater than 10%.
QBE lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Woo’s assessment.
On 12 November 2024, a delegate of the President (Ms Rachel Brittliff) accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Woo noted that the claimant was diagnosed with a fracture of the right distal radius (right wrist and forearm) and a right medical femoral condyle impaction fracture (right knee and leg). The wrist was treated with open reduction and internal fixation on
18 April 2023. The knee was examined under anaesthesia and was found to be stable. It was treated conservatively.The Medical Assessor also noted thigh/groin pain in the ambulance report which, in the Medical Assessor’s view, was in keeping with hip pain.
The other bodily injuries did not surface until some time later. The claimant explained that he was on heavy medication for the treatment of CRPS and did not feel much pain until his CRPS symptoms improved. The Medical Assessor accepted that the other bodily injuries were caused by the motor accident.
On the issue of CRPS, the Medical Assessor did not find at least eight of the criterions present for a diagnosis of CRPS under the Guidelines.[2] The Medical Assessor also observed symptoms and signs of median nerve injury in the forearm, proximal to the carpal tunnel overlap with that of the CRPS. The nerve dysfunction was revealed in a nerve conduction study on 25 July 2023. However, the Medical Assessor did not assess the CRPS or the median nerve injury because he did not think the conditions had reached permanence. The right wrist scarring was also not assessed for the same reason.
[2] Clauses 6.61-6.64.
The Medical Assessor assessed the right wrist and forearm fracture using loss of range of motion which was 9%WPI.
The right knee fracture was assessed as a supracondylar or intercondylar undisplaced fracture at 2%WPI.
The other musculoskeletal injuries, while caused by the motor accident, resulted in a WPI of 0%.
The total degree of WPI caused by the motor accident was therefore assessed at 11%.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer submits that there was no contemporaneous evidence of any injury to the right hip, left ankle, right ankle, thoracic spine, cervical spine, left shoulder, right shoulder, right hand, lumbar spine or scarring to the skin.
By “contemporaneous evidence”, the insurer was referring to the:
(a) ambulance report (S13);
(b) discharge referral dated 19 April 2023 (R4);
(c) general practitioner (GP) clinical records (R6, R17);
(d) GP’s questionnaire dated 9 May 2023 (R5);
(e) certificate of capacity dated 31 August 2023 (S4), and
(f) physiotherapy AHRR No 1 dated 11 May 2023 (S6).
The insurer refers to a report of Dr Saeed Kohan dated 23 January 2024 where it noted the claimant’s onset of lumbar pain commenced around 21 January 2024 after a trip to the South Coast. The claimant reported radiation in a non-dermatomal distribution to the lower limbs with no paraesthesia or numbness. The insurer submits any lumbar spine injury has not reached permanence to allow an assessment of WPI.
The insurer says the medical assessment should consider the impact of all pre-existing conditions including a fracture of the right little finger on 7 November 2017.
Claimant’s submissions
The claimant says the pre-existing injury on 7 November 2017 was a fracture to the 5th distal phalanx (which is a bone in the finger) with extensor tendon injury. It is entirely removed from the subject motor accident injury which were fractures of the distal radius and ulnar styloid.
The claimant submits that the fractures of his right distal radius and right medial femoral condyle result in an impairment of 11% WPI as assessed by Medical Assessor Woo. It is submitted that the assessment is correct and should stand.
REVIEW OF THE EVIDENCE
On 14 November 2024, the Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. The Panel stated that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents. The parties duly responded with the insurer’s bundle comprising of pages 1-186 and the claimant’s 1-500.
The Panel has read and discussed the documentation with the relevant material referred to in the Panel examination report and Panel findings below.
RE-EXAMINATION REPORT
At the preliminary conference on 12 February 2025, the Panel determined that the claimant be re-examined. The re-examination report of Medical Assessor Gorman is as follows:
Medical Review Panel Examination
PIC Rooms, 1 Oxford St, Darlinghurst
28 March 2025
Who attended the assessment?
Mr Kritas attended the assessment unaccompanied.
HISTORY
Pre-accident medical history and relevant personal details
Mr Kritas is a 27 year old man.
He was working as a branch manager of a logistic company at the time of the accident.
He lives with his parents.
He does not have children.
He is a non-smoker and does not drink alcohol.
He previously fractured the distal phalanx on the right hand.
He had history of sensorineural hearing loss in 2020. He had no history of previous relevant injuries.
History of the motor accident
On 17/04/2023, Mr Kritas was riding a motorcycle wearing a helmet and full protective gear. He was travelling on King Georges Road when a car came out from a side street on his left side and collided into his body and motorcycle. He was thrown into the air and landed on his right side. He was unconscious for approximately 20 seconds he reported.
An ambulance attended the scene and transported him to St George Hospital.
History of symptoms and treatment following the motor accident
At St George Hospital, he was diagnosed with a fracture of the right distal radius and a right medial femoral condyle impaction fracture.
The right distal radius fracture was treated with open reduction and internal fixation on 18 April 2023, under the care of Dr Hugh Jones.
The right knee was examined under anaesthesia and was found to be stable. It was treated conservatively.
He was also diagnosed with left traumatic testicular haematoma.
He was discharged home on 20/04/2024. He came under the care of his GP Dr Monier Cosman on 21/04/2023. He was referred for physiotherapy.
He underwent an MRI of the right knee. He was referred to Dr David Parker who saw him on 15 May 2023 and opined that the right knee was stable and advised him to use a single crutch and hinged brace, weight bear as tolerated.
Dr Parker saw him on 13 July 2023 and noted that he had a full range of movement in his right knee, and it felt stable and symmetrical with the contralateral knee. There was quadriceps wasting.
Dr Hugh Jones reviewed his right wrist fracture and noted x-ray finding of anatomical restoration of the joint surface and radial length. MRI scan showed intact TFCC and preserved DRUJ.
He consulted with a psychologist to help him cope with the severe ongoing severe right wrist and forearm pain.
He underwent nerve conduction study on 25 July 2023. Dr Adeniyi Borire reported proximal median nerve dysfunction. There is marked reduction of the right median motor amplitude, with relative preservation of the distal latency and conduction velocity. In contrast, the right median sensory response and ulnar nerve values are within normal limits. The nerve conduction study was not diagnostic of carpal tunnel syndrome. The nerve dysfunction is proximal to the carpal tunnel.
He was suspected to have suffered Complex Regional Pain Syndrome (CRPS). This was confirmed by Dr Nikunj Parikh, Pain Specialist. He began treatment for CRPS.
He had “mirror box therapy” with a Hand Therapist and used lateralisation apps.
He was referred to Dr Saeed Kohan, Neurosurgeon on 23 January 2024 for increasing back pain after travelling to the South Coast. He stated that he did have back and neck pain since his accident but with the amount of analgesia for his other injuries, this was not of any significant severity.
Dr Kohan referred him for MRI scan of the lumbar spine, done on 01 February 2024. It showed a moderately large left central disc lesion at L5-S1 causing mild impingement of the left S1 root.
Dr Kohan reviewed him on 8 February 2024 and recommended him to have a left S1 peri-radicular steroid injection which helped his low back pain.
Dr Parikh reviewed him on 16 May 2024 and recommended:
1. Continue hydrotherapy and hand therapy
2. Continue current analgesia. Consider trial of Norspan 5mcg weekly patch in one month.
3. Advised to commence active self-management online pain management course.
I note the most recent assessment with Dr Parikh at St George Private Hospital on 20 March 2025. He continued to treat him for “Complex regional pain syndrome of the right forearm”. He also noted adjustment disorder with depression and anxiety as well as noting PTSD had been diagnosed by a Psychologist.
Details of any relevant injuries or conditions sustained since the motor accident
As outlined above he had back pain after travelling to the South Coast in January 2024 and attended emergency department of Shoalhaven Hospital on 22 January 2024. He was reviewed by Dr Kohan on 23 January 2024.
Current symptoms
Mr Kritas main problems are in his right upper limb. It is painful and hypersensitive. It sweats, changes colour, is cold and swells with any activity.
The right upper extremity pain is associated with decreased range of movement in the right shoulder, elbow, wrist and fingers.
He has intermittent neck and low back pain as well.
Current and proposed treatment
He takes Endone, Palexia, Amitryptilline, Panadol Osteo and Celebrex.
He has been on the Norspan patch and mirtazapine previously.
CLINICAL EXAMINATION
General presentation
Mr Kritas is right-handed. He is 181cm in height and weighs 95.3kg.
He has a mild limp with the tendency to put more weight on his left leg. He wears a protective sleeve over his right forearm because of hyperaesthesia.
Cervical spine
There was no tenderness or spasm in the cervical spine but some tenderness in the base of the skull and over the trapezii bilaterally. Neck movement was limited by pain to 2/3 normal in all directions. There was no dysmetria.
There were no non-verifiable radicular complaints – the neurological symptoms in his right forearm are related to median nerve dysfunction/CRPS. There was no muscle guarding.
Neurological examination of both upper limbs - Reflexes in the right upper limb could not be assessed due to the severe pain with even light touch. There was no significant weakness or atrophy.
Thoracic spine
There was no tenderness, spasm or guarding in the thoracic spine.
Range of movement was normal. There was no dysmetria. There were no non-verifiable radicular complaints. Neurological examination was normal.
Lumbar spine
There was no tenderness or spasm in the lumbar spine. Back movement was limited by pain to: Flexion and extension – 2/3 normal Lateral flexion normal and symmetrical. There was no dysmetria. There were no non-verifiable radicular complaints There was no muscle guarding. Straight leg raising was 70 degrees on both sides with associated lower back pain. Sciatic nerve root tension signs were negative.
Neurological examination of both lower limbs - Reflexes were normal and symmetrical. There was no weakness and no atrophy. There was no sensory loss confined to any spinal nerve root distribution.
Upper extremities
There was tenderness over the right shoulder and the left shoulder. Range of motion was measured with a goniometer as below:
SHOULDER MOVEMENT
RIGHT (Degrees)
Left (Degrees)
Flexion
130
180
Extension
50
50
Abduction
130
170
Adduction
50
50
Internal rotation
70
80
External rotation
80
90
There was mild discoloration of the whole right forearm and hand with blotchiness.
There is marked hyperaesthesia and allodynia in the whole forearm and hand. The volar surface of the forearm could not be touched nor could the median nerve distribution in the palmar surface of the hand be touched. The dorsum of the forearm and dorsum of the hand could be touched but there was marked hypersensitivity. There was a feeling like a “knife stabbing” with even light touch of the hand and forearm he reported.
Motor power could not be assessed because of the extreme hypersensitivity. He had markedly reduced active movement of the fingers and thumb due to the hypersensitivity.
The limb was cool and sweating on the right.
There was mild swelling of the forearm and hand on the right.
There was normal hair growth. There was no nail deformity.
The wrist ranges of motion are outlined below:
| WRIST MOVEMENT | Right (degrees) | Left (degrees) |
| Flexion | 40 | 60 |
| Extension | 20 | 60 |
| Ulnar deviation | 10 | 30 |
| Radial deviation | 10 | 20 |
The elbow ranges of motion are outlined below:
ELBOW MOVEMENT
Right (degrees)
Left (degrees)
Flexion
120
130
Extension
0
0
Supination
60
80
Pronation
80
80
He could not form a fist – his fingers did not fully flex or extend and his thumb did not have a full range of motion.
[Colour photographs were taken of the right arm as they helped complement the above description of the clinical findings. These are located in an Appendix at the end of the Panel statement of reasons.]
Lower extremity
Hips - There was no tenderness over the anterior joint line and greater trochanter in both hips. Both hips had the normal range of movement. Thigh and calf circumference was equal on both sides.
Knees - There was no effusion in both knees. Range of movement was normal and equal on both sides. There was no ligamentous instability.
Ankles - There was normal alignment of both ankles and feet. Range of movement was normal and equal on both sides. There was no ligamentous instability.
Comments on consistency
He was cooperative and consistent throughout the examination.
Summary of relevant radiological and medical imaging and other investigations
The following radiological and medical imaging was reviewed at the assessment:
X-ray right wrist on 13/07/2023 - There is ventral plating and screw fixation of a fracture of the distal radius. No deformity can be seen. Bony union is radiologically incomplete. There is a fracture of the ulnar styloid.
MRI right wrist on 12/09/2023 - Intact TFCC; There is an old fracture of the ulnar styloid with non-union and secondary pseudoarthrosis. There is patchy marrow oedema at the base of the ulnar styloid with synovitis suggestive of a degree of stabilisation. The DRUJ is preserved. There is prominent ECU tendinosis/tenosynovitis together with a small linear interstitial spread. ORIF of the distal radius with solid bony union.
X-ray cervical, thoracic and lumbar spine on 12/10/2023 - No fracture.
Whole body bone scan with SPECT on 08/11/2023 - No cause for the patient’s symptoms is demonstrated.
Bone scan on 25/01/2024 - In the lumbar spine, hips and pelvis there is normal distribution of tracer. Comment There are no bone scan findings for the diagnosis of CRPS.
MRI lumbar spine on 01/02/2024 - There is a moderately large left central disc lesion at L5-S1 causing mild impingement of the left S1 root. There is no vertebral fracture or epidural haematoma. No significant facet injury. The central canal is preserved.
MRI cervical and lumbar spine on 15/06/2024 - Cervical spine: No thoracic fracture or epidural haematoma detected. The central canal and intervertebral foramina are preserved. There are multilevel small central disc lesions from the T2-3 to T10-11. There is no significant neural compression. The thoracic cord is intact. Lumbar spine: At L5-S1, there is mild disc desiccation. There is a moderately large broad-based left central disc protrusion with rupture of the annulus. This was also present on the prior study and has demonstrated marginal interval regression. It abuts the left S1 nerve root without significant compression. The facet joints are intact. The intervertebral foramina are preserved.
FURTHER SUBMISSIONS
Following the examination, Medical Assessor Gorman advised the Panel that it was his preliminary view that the claimant’s right arm injury could satisfy the CRPS criteria under cls 6.61-6.62 of the Guidelines and that the condition was permanent. While this was a preliminary view only, the Panel decided to invite additional submissions from the parties because of Medical Assessor Woo’s finding that any consideration of the presence of CRPS could not be done because the condition was not considered permanent at the time.
Both parties provided brief written submissions. The claimant stated that it was open for the Panel examiner to assess and diagnose CRPS because it was a condition found by
Dr Nikunj Parikh in his report dated 7 December 2023.[3] The claimant also stated that the insurer’s submissions dated 9 April 2025 referred to the CRPS criteria in cl 6.62 of the Guidelines. The claimant says Dr Dryson agreed with Dr Parikh’s diagnosis of CRPS however CRPS was not present at the time of Dr Dryson’s examination on8 November 2023. The claimant submits that it is open for the Panel examiner to find CRPS pursuant to the criteria in cl 6.62 of the Guidelines and to assess the WPI accordingly.[3] At page 469 of claimant’s bundle.
The insurer stated that the radiological evidence and the findings of Dr Dryson and Medical Assessor Woo do not support a diagnosis of CRPS under the Guidelines.
Specifically, the insurer highlighted Medical Assessor Woo’s observation:
“Furthermore, the symptoms and signs of median nerve injury in the forearm, proximal to the carpal tunnel overlap with that of CRPS.”
The Panel discussed the parties’ further submissions at the second teleconference on
14 April 2025. As revealed below, while the Panel accepted that the claimant could be diagnosed with CRPS under other CRPS criteria, he did not satisfy the criteria under the Motor Accident Guidelines. Reasons for the assessment of the median nerve injury is provided below.
FINDINGS
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
The Panel should only consider the impairment as it is at the time of the Panel’s assessment.[5]
[5] Clause 6.21 of the Guidelines.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[6]
[6] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessor Gorman and adopts the findings in their entirety. The Panel reconvened on 14 April 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis, causation and reasons
Causation is dealt with at cls 6.5-6.7 of the Guidelines. An abridged form of the requirements is contained in cl 6.7 which states:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
Causation, diagnosis and reasons
The Panel noted that the mechanism of injury was quite a violent one. As described in the ambulance report, there was Police CCTV footage of the claimant riding a motorbike along a straight road at 70kmph when a vehicle exited a side street in front of him causing an impact and the claimant being “ejected from the bike approx 2 metres in the air and forward approx. 3-4 meters…”
The claimant’s immediate injuries of concern were the fractures of his right radius as well as an impacted fracture of his right femoral medial condyle. A few weeks later, he presented to his GP where he complained of symptoms to his right side of neck, right hip and bilateral ankles. The Panel accepts these injuries as being causally related to the motor accident.
Complaints with respect to the thoracic spine, left shoulder, right shoulder and lumbar spine came later. The claimant was seen by Ms Laura Fakih on 6 July 2023 for physiotherapy where he was experiencing compensatory pain in his upper thoracic region and left shoulder.
The claimant was also seen by Dr Parikh, a pain specialist, on 19 October 2023 with follow up assessments on 9 November 2023 and 7 December 2023. Dr Parikh noted that there was thoracic pain, right shoulder, neck and back pain. There was also some mild pain in the left shoulder.
The back pain required hospital admission when the claimant experienced an exacerbation while on a family holiday in Nowra in January 2024.
The Panel acknowledges the insurer’s submissions regarding the lack of contemporaneous evidence in relation to complaints made to these other body parts. However, the Panel considered that there were circumstances that militate against the presence of contemporaneous evidence as being the decisive factor for a finding of causation of injury.
While the complaints made to the physiotherapist and Dr Parikh in respect of other injuries sustained occurred some three to six months respectively after the motor accident, the Panel was of the view the mechanism of injury (motorbike vs vehicle impact) could have caused these other injuries with the immediate concern and treatment directed at the claimant’s right arm and right leg fractures. This view is consistent with the claimant reporting to Dr Kohan in January 2024 that he did have back and neck pain since the accident, but with the amount of analgesia for his other injuries, this was not of any significant severity. The delay in the Panel’s view was therefore explained and reasonable.
Accordingly, based on the history of the accident, mechanism of injury, clinical and medical imaging findings as well as the medical records available, the claimant has the following diagnoses for the accident-related injuries referred:
(a) right wrist – distal radius and ulnar styloid fractures;
(b) right forearm - median nerve dysfunction proximal to carpal tunnel;
(c) right knee and leg – medial femoral condyle impaction fracture;
(d) right hip – soft tissue injury;
(e) cervical spine – soft tissue injury – there is no radiculopathy;
(f) thoracic spine – soft tissue injury – there is no radiculopathy;
(g) lumbar spine – soft tissue injury – there is no radiculopathy;
(h) left shoulder – soft tissue injury;
(i) right shoulder - soft tissue injury;
(j) left ankle - soft tissue injury;
(k) right ankle - soft tissue injury, and
(l) right wrist – surgical scarring.
Right forearm – CRPS
The Panel accepts that the claimant developed chronic neuropathic pain over his right forearm as a result of his accident-related injuries. The condition developed within months of the motor accident and there is no suggestion that the claimant had any such symptoms before the motor accident.
X-ray imaging of the previous 2017 injury to the claimant’s right hand revealed a displaced avulsed mallet fracture of the right 5th distal phalanx. It was treated at the time and there were no complaints of pain or neuropathic pain at the time of the subject motor accident in April 2023.
The claimant has been treated for CRPS by his pain specialist. At the Panel examination, Medical Assessor Gorman believed that he meets the Budapest Criteria for CRPS and also meets the criteria for CRPS in Table 17.1 of the NSW Workers Compensation Guidelines.
However, the claimant does not meet the Motor Accident Guidelines criteria (Version 9.3, section 6.61-6.64). For the diagnosis of CRPS, at least eight of the following criteria must be present:
(a) skin colour is mottled or cyanotic – positive;
(b) cool skin temperature – positive;
(c) oedema – positive;
(d) skin is dry or overly moist – positive;
(e) skin texture is smooth and non-elastic – negative;
(f) soft tissue atrophy (especially fingertips) – negative;
(g) joint stiffness with reduced motion – positive;
(h) nail changes with blemished, curved or talon-like nails -negative;
(i) hair growth changes with hair falling out, longer or fine – negative;
(j) X-rays showing trophic bone changes or osteoporosis – negative, and
(k) bone scan showing findings consistent with CRPS – negative.
In summary, there are symptoms of CRPS but the diagnosis of CRPS cannot be confirmed for the purpose of impairment assessment under the Motor Accident Guidelines as he only has 5 positive findings, not the 8 required. It is however diagnosable using modern criteria such as those under the NSW Workers Compensation Guidelines.
There is no evidence of carpal tunnel syndrome. The nerve conduction study suggested dysfunction in the median nerve proximal to the carpal tunnel.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
(a) right wrist and forearm – distal radius and ulnar styloid fractures;
(b) right forearm – sensory dysfunction predominantly in median nerve distribution;
(c) right knee and leg – medial femoral condyle fracture;
(d) right hip – soft tissue injury;
(e) cervical spine – soft tissue injury;
(f) thoracic spine – soft tissue injury;
(g) lumbar spine – soft tissue injury;
(h) left shoulder – soft tissue injury;
(i) right shoulder - soft tissue injury with the limitation in range of motion persisting;
(j) left ankle - soft tissue injury;
(k) right ankle – soft tissue injury, and
(l) right wrist and forearm – surgical scarring.
The following injuries WERE NOT caused by the motor accident:
(a) right forearm – complex regional pain syndrome, and
(b) right hand – secondary carpel tunnel syndrome – the sensory change is much more widespread extending up the forearm.
The following injuries have RESOLVED:
(a) right hip – soft tissue injury;
(b) thoracic spine – soft tissue injury;
(c) left shoulder – soft tissue injury;
(d) left ankle - soft tissue injury, and
(e) right ankle – soft tissue injury.
PERMANENCY OF IMPAIRMENT
Statement about permanent impairment
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA4 Guides) (p 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
It is now almost two years since his motor vehicle accident. He has had expert orthopaedic and pain specialist treatment. His symptoms and signs have not changed significantly over the last six months. There is no specific treatment planned. Noting page 48 of the AMA4 guides, the persistent pain has led to a permanent loss of function despite maximal effort towards medical rehabilitation. The Panel believes that his injuries are stable for the assessment of permanent impairment.
DETERMINATIONS – PERMANENT IMPAIRMENT
The determination as to permanent impairment is made in accordance with the AMA4 Guides and Part 6 of the Motor Accident Guidelines.[7]
[7] The applicable version of the Guidelines is version 9.3.
There is no assessment made for the limitations in movement of the right elbow, fingers and thumb as these regions were not referred.
Right upper extremity
Right forearm – median nerve injury
While the Panel examination did not reveal the presence of CRPS when assessed under the Guidelines, the median nerve injury is now stabilised and capable of impairment evaluation.
The Panel noted Dr Dryson’s finding of a Grade 2 sensory deficit with marked sensitivity to touch in the right lower arm on examination. In contrast, at the time of the Panel’s re-examination, the underside of the claimant’s forearm and hand could not be touched and that the claimant had the feeling of “knife stabbing” even with light touch. This is consistent with the claimant’s need of wearing a protective sleeve over his right forearm because of the hyperaesthesia.
The most severe allodynia (causalgia) best fits the distribution of the median nerve. The claimant underwent nerve conduction studies on 27 July 2023 that noted chronic neurogenic change in the right median innervated muscles, the findings being suggestive of proximal median nerve dysfunction. The median sensory response was normal. The severe causalgia also covers the distribution of the lateral and medial antebrachial cutaneous nerves as outlined in Figure 45 on page 50. However, because the causalgia is most severe in the median nerve distribution and because the nerve conduction studies suggest the abnormalities arising from the proximal median nerve, the median nerve above the mid-forearm only will be assessed for impairment assessment.
Using Table 15 on page 54 of AMA4 Guides this gives a maximum upper extremity impairment (UEI) of 38%. Using Table 11 on page 48 he has a Grade 5 impairment with major causalgia – causalgia is severe burning pain in a limb caused by injury to a peripheral nerve. Paragraph 6.59 of the Guidelines states that one is to use the maximum in the range unless assessing CRPS. The maximum is 100%.
Therefore, the UEI due to median nerve injury is 38%.
Right wrist
Using Figures 26 and 29 on page 36 and 38 of AMA 4 Guides the claimant has 3% UEI due to limitations in flexion, 7% due to limitations in extension, 4% UEI due to limitations in ulnar deviation and 2% UEI due to limitations in radial deviation. The total UEI is therefore 16%.
Right shoulder
The right shoulder was symptomatic after the injury and continues to have limitations in range of motion; using Figures 38, 41 and 44 on pages 43, 44 and 45 the limitation in flexion gives 3% UEI, limitation in abduction 2% UEI and limitation in internal rotation 1% UEI. The total UEI due to the shoulder is therefore 6%.
Combining the upper extremity impairment
Combining the median nerve allodynia (38%) with the wrist loss of range of motion (16%) and the shoulder loss of range of motion (6%) gives 51% UEI. Using Table 3 on page 20 this equates to 31% WPI.
Right leg and knee
2% WPI - Right medial femoral condyle fracture - the right knee has normal range of motion. The appropriate assessment is by Diagnosis Related Estimate (AMA4 Guides page 85, Table 64) - Supracondylar or intercondylar fracture undisplaced.
Right wrist scarring
The scar is long on the volar side of the wrist and forearm. It is easily visible with normal clothing. There are suture marks. It is not widened but is depressed. It is slightly erythematous. It is assessed as 2% WPI based on the TEMSKI criteria.
Cervical spine
DRE category I – 0% WPI - Symptoms of injury without clinical signs of dysmetria or radiculopathy.
Lumbar spine
DRE category I – 0% WPI - Symptoms of injury without clinical signs of dysmetria or radiculopathy.
Permanent impairment table
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident |
| Right lower extremity - knee | Table 64 on page 85 of AMA 4th Edition | Yes | 2% | 0% | 2% |
| Right upper extremity – median nerve, wrist and shoulder | Figures 26 and 29 on page 36 and 38 of AMA 4th Edition; Table 15 on page 54; Table 11 on page 48 | Yes | 31% | 0% | 31% |
| Cervical spine | Table 73 on page 110 of AMA 4th Edition | Yes | 0% | 0% | 0% |
| Lumbar spine | Table 72 on page 110 of AMA 4th Edition | Yes | 0% | 0% | 0% |
| Scarring | TEMSKI Scale | Yes | 2% | 0% | 2% |
* %WPI = percentage whole person impairment
Pre-existing/subsequent impairment
Nil relevant. The distal 5th finger injury previously had resolved and does not affect the current impairment.
Apportionment
Nil needed.
Effects of treatment
Nil relevant.
CONCLUSION – PERMANENT IMPAIRMENT
The claimant’s WPI caused by the motor accident is 33% (combine 31% for the right upper extremity with 2% for the right lower extremity and 2% for the scarring) and is greater than 10%. The injuries assessed and the impairment percentages found by the Panel are different to those assessed in the medical assessment under review.
As such, the Panel revokes the certificate of Medical Assessor Woo dated 2 September 2024 and issues a new certificate in accordance with the Panel’s above findings and reasons for assessment.
The Panel also issues a combined certificate combining its assessment with that of Medical Assessor Korbel.
Both certificates are located at the front page of this statement of reasons.
APPENDIX
Colour photographs taken at Panel re-examination of Mr Alexander Kritas on 28 March 2025 (10 in total):
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