QBE Insurance (Australia) Limited v Maguire
[2025] NSWPICMP 104
•19 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Maguire [2025] NSWPICMP 104 |
CLAIMANT: | Tristan Maguire |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF AMENDMENT: | 11 June 2025 |
DATE OF DECISION: | 19 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; left wrist comminuted fracture of the distal shaft of the left radius; mild posterior displacement of the distal fragments; re-examination required; open reduction and internal fixation of the radial fracture with volar plate and screws; left median sensory motor neuropathy; residual stiffness of the left wrist; radial fracture remains stabilised by plate and screws; numbness in the thumb and index finger; loss of grip strength; loss of heat sensitivity over index and middle finger; unconcerned about scar; residual sensory changes of carpal tunnel distribution; Held – combined values chart upper extremity impairment 10% whole person impairment; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | AMENDED CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Panel revokes the Certificate of Medical Assessor Farhan Shahzad dated 2 April 2024 and issues a new certificate determining that the following injuries were caused by the motor vehicle accident and give rise to a permanent impairment of 10% and is NOT greater than 10%, · injury to the left wrist – commuted fracture of the distal shaft of the left radius with a marked posterior displacement of the distal fragment. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 22-year-old man who was injured in a motor bike accident that occurred on 18 May 2021. Following the accident the claimant lodged an Application for Personal Injury Benefits. The claimant sustained a fracture to his left wrist in the motor vehicle accident and accordingly the parties agreed that the claimant had sustained a threshold injury. The claimant sought a concession from the insurer that his injuries exceeded 10% whole person impairment (WPI). The insurer declined to make this concession and consequently the claimant lodged an application for assessment of WPI with the Personal Injury Commission (Commission).
Thereafter the claimant was examined by Medical Assessor Farhan Shahzad on
20 March 2024. In a Certificate dated 2 April 2024 Medical Assessor Shahzad issued a certificate that the injury to the claimant’s left wrist- comminute fracture of the distal shaft of the left radius with mild posterior displacement of the distal fragments, gave rise to an assessment of 13% WPI.
The insurer made a Medical Assessment review application in respect to Medical Assessor Shahzad’s Certificate which was opposed to by the claimant. The application was considered by the President’s delegate Ashley Payne, who in a decision dated 4 June 2024, determined there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect and accordingly the matter was referred to this Review Panel.
On 18 July 2024, the Panel met by Teams Conference and considered the matter. The Panel sought submissions from either party as to whether or not a re-examination of the claimant was required. Following this the claimant has indicated that they considered that a re-examination of the claimant would be required. The insurer submitted that a re-examination would not be required so long as the Panel was satisfied that they were able to assess permanent impairment and provide readings regarding the cause of the claimant’s range of motion in his wrist based on the material available.
Having received these submissions the Panel reconvened on 30 August 2024 at which time it was determined that, noting the submissions to the parties, that a re-examination of the claimant ought to take place. This was scheduled for 1 November 2024. On
12 September 2024 the claimant advised that he was unable to attend the medical examination and accordingly the examination of the claimant was re-scheduled to
31 January 2025.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The claimant was examined by Medical Assessor Drew Dixon on 31 January 2025.
Pre-accident history
The claimant was involved in a motor vehicle accident when he was knocked from his motorbike while travelling home from work at about 5.00pm on 18 May 2021 on Bowral Road, Mittagong. There was an intersection where a car emerged from the side of the road, colliding with him on his left wrist and a result of the impact, he was thrown off his bike and landed on the ground and rolled some 10m before coming to a stop near the gutter.
He sustained an injury to his left wrist and abrasions to both knees and a small abrasion above his right eye eyebrow and a small laceration above his left eye. The claimant was not conscious of the scar, it did not concern him and was a good colour with no trophic changes, no suture marks and no contour defect of effects on activities of daily living and no adherence.
There was no head injury or loss of consciousness and he was taken by ambulance to Campbelltown Hospital where X-rays revealed a comminuted fracture of the distal radius with intra-articular extension. He had closed reduction and a cast applied and then analgesia was given.
Post-accident treatment
On 21 May 2021 he had open reduction and internal fixation of his radial fracture with volar plate and screws. Post-operative X-rays and CT of the left wrist was performed on
24 July 2021 that showed the volar plate and screws were transfixing the comminuted distal radial fracture with intra-articular extension in good position. He had been in a cast for two weeks after the operation and had been in an Exos cast for six weeks and took opioids for pain such as Oxycodone.In the convalescent period he had numbness of his fingers of the left hand and was referred for a nerve conduction study on 14 August 2021 which showed left median sensorimotor neuropathy, felt likely due to median nerve injury related to the distal wrist fracture.
On further follow up with his orthopaedic surgeon, Dr Nouh on 25 August 2021, there was residual stiffness of his left wrist although he still experienced numbness of his left thumb and index finger. He had hand therapy organised for a few sessions. X-ray on the same day had shown the distal radial fracture remained stabilised by plate and screws but there was some incomplete bony union of the fracture site and he commenced hand therapy on
6 September 2021.After six weeks of hand therapy, he was able to return to work, initially doing light duties part-time.
He had follow up by Dr Noah on 17 November 2021 who noted there was ongoing altered sensation of the claimant's thumb and that if there was no improvement, a repeat nerve conduction study was suggested, which the claimant says has not taken place.
He saw his general practitioner, Dr Kwong, on 13 December 2021 who noted numbness of the left thumb and slight weakness. The hardware remained in situ.
He had not had any previous injuries to his left wrist or hand and there were no injuries since the subject motor vehicle accident.
Current symptoms
He is still having numbness in the thumb and index finger and loss of grip strength and loss of heat sensitivity over the index and middle finger.
Examination
The claimant was consistent in presentation. He presented in a straightforward manner and there was no inconsistency on repeat measurements of range of motion of his left wrist and sensation of his left hand.
On examination he was 180cm tall and weighed 90kg. He had a 7cm volar longitudinal scar at his left wrist which was well healed and was non-tender today. He is not concerned about the scar and reported he is not concerned about the abrasions of his knees.
There was sensory loss, grade three out of five, in the thumb, index and middle finger. The Tinel’s sign over the median nerve was negative and the Phalen’s test was negative. His thenar power was grade 5 out of 5 and grip strength was grade 4 out of 5 and intrinsic power grade 5 minus out of 5.
There was no wasting of either upper arm. There was wasting of his left forearm 10 cm below the elbow crease, measuring 25cm on the left and 27cm on the right. He had a full range of motion of both elbows and his right wrist and a full range of motion of the thumbs and fingers of both hands. The range of motion of his left wrist was restricted with dorsiflexion of 45° this is midway between 40° (4% upper extremity impairment (UEI)) and 50° UEI (2%). Therefore, the impairment must be extrapolated between these two figures, hence 3% UEI. Then 3% palmar flexion of 40° (3% UEI) radial deviation 10° (2% UEI) and UD 30°(0% UEI) gives rise to 8% UEI combined with 10% for sensory loss = 17% UEI which gives rise to a 10% WPI.
Radiological investigations
His investigations have been noted above but his final X-ray and CT of the left wrist on
24 July 2021 showed the volar plates and screws transfixing the comminuted distal radial fracture with intra- articular extension and the fracture remained visible with no bony union/callous formation at that stage and no hardware failure was noted. He did commence hand therapy on 6 September 2021 for some six weeks.Nerve conduction studies dated 14 August 2021 showed that there was left median sensorimotor neuropathy probably due to his median nerve injury related to his distal wrist fracture. Although the neurologist reported no significant left carpal tunnel syndrome clinically, there was residual sensory changes in the carpal tunnel distribution, grade three out of five, and satisfactory motor power and there was no evidence of ulnar neuropathy or gross intrinsic weakness.
Relevant medical material
The Panel notes that Dr O’Neill had not been provided with the results of the nerve conduction studies. Similarly, Dr O’Neill notes he was not sent the actual clinical notes pertaining to his admission to Campbelltown Hospital although he does go on to say that “it seems in association with the fracture there was a loss of movement of the left hand and numbness of the left hand.” The Panel is firmly of the view that the post-traumatic stiffness of the left wrist is a consequence of the radial fracture he sustained and the subsequent open reduction and internal fixation with plate and screws. The same findings in respect to causation can be made in respect to the neuropathy notwithstanding the observation of
Dr O’Neill that it is possible to make a statement about impairment about knowing the exact mechanism for continued symptoms.
Whole person impairment
The WPI for the sensory median neuropathy of the left hand is from Table 15, Page 54,
AMA 4, 26% of 38%, giving 10% UEI.The post-traumatic stiffness of the left wrist is from Pie Charts 26 and 29, Pages 36 to 38. The range of motion of his left wrist was restricted with dorsiflexion of 45°. This measurement is midway between 40° (4% UEI) and 50° UEI (2%). Page 9 of the AMA 4 Guides states:
“In general, an impairment value that falls between those appearing in a table or figure of the Guides may be adjusted or interpolated to be proportional to the interval of the table or figure involved, unless the book gives other directions….”
Therefore, the impairment must be extrapolated between these two figures, hence 3%UEI. Then, 3% palmar flexion of 40° (3% UEI) radial deviation 10° (2% UEI) and UD 30°(0% UEI) gives rise to 8% UEI.
The sensory and range of motion impairments were combined, using AMA4, p 322, Combined Values Chart, thus 10% UEI for sensory loss and 8% UEI for reduced range of motion = 17% UEI which gives rise to a 10% WPI.
He has reached maximum medical improvement.
There were no symptomatic pre-existing conditions.
There has been some mild improvement in the range of motion of the claimant’s left wrist since the MAC dated 2 April 2024, that is some 10 months previously, but he does have residual sensory changes consistent with carpal tunnel sensory loss.
It was noted that the insurer had submitted that the Medical Assessor should only assess impairment for the peripheral nerve damage and disregarded the findings in relation to the range of motion. With respect, this is incorrect. The claimant has both post-traumatic stiffness of his left wrist due to his comminuted fracture of the distal left radius with intra-articular extension which required operative intervention with volar plate and screws and has sensory median nerve dysfunction of his left hand, grade 3 out of 5, as a result of the subject fracture.
The panel noted the claimant had a 5cm scar on the palmer aspect of the left hand which had healed well. There were no issues around the scar. Whilst the scar was visible, and the claimant is aware of it, the scar caused no limitation in activities of daily living and required no treatment. The panel assessed the scarring gave rise to 0% WPI.
These have both been combined to give a final WPI of 10%.
0
0
0