QBE Insurance (Australia) Limited v McNamara
[2024] NSWPICMP 508
•29 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v McNamara [2024] NSWPICMP 508 |
CLAIMANT: | Tracy McNamara |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Ian Cameron |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 29 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26; claimant involved in intersection collision; other car tipped over and claimant’s car was spun; issue of causation of left hip injury and left hip replacement raised by insurer; Medical Review Panel satisfied forces involved (two cars at 50 km per hour) in accident could have caused injury to middle and lower back and both hips; Medical Review Panel satisfied accident could have caused and did cause soft tissue injury to the lower back; Medical Review Panel also satisfied accident could have caused and did cause injury to the left hip aggravating degenerative changes and contributed to the need for left hip replacement surgery; claimant had good result from the surgery but a femoral nerve injury arose from the surgery; Held – whole person impairment (WPI) assessed at 5% for lower back, 15% for left hip replacement, and 4% for femoral nerve injury, for a total of 22% WPI; Medical Assessment Certificate revoked; no issue of principle. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Harrington dated 31 August 2023. 2. Certifies that the degree of Tracy McNamara’s permanent impairment resulting from the injuries caused by the motor accident on 7 April 2019 is 22% which is greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Ms McNamara was injured in a motor accident in the early hours of the morning on 7 April 2019 at Gunnedah in north-central New South Wales. The claimant was 53 years of age at the time and a seat-belted driver travelling through an intersection when another driver failed to give way and a t-bone type collision occurred between the front of the claimant’s car and the passenger side of the other car.
Ms McNamara says she injured her left hip, thoracic and lumbar spine in the accident.
Ms McNamara made a claim for statutory benefits and then damages against QBE, the third-party insurer of the at-fault vehicle and QBE has accepted liability for the two claims. A dispute however has arisen in connection with the claim about the degree of Ms McNamara’s whole person impairment (WPI). Ms McNamara referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 31 August 2023, Medical Assessor Harrington determined that Ms McNamara had a WPI of 34% which is of course greater than 10%.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 27 October 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review and on 31 October 2023, the President’s delegate convened this Review Panel (the Panel) to conduct the Review.
LEGISLATIVE FRAMEWORK
General
Ms McNamara’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Harrington’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect”
(sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two Medical Assessors (sub-ss (2) and (2B).The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
ASSESSMENT UNDER REVIEW
Medical Assessor Harrington examined the claimant on 28 August 2023 and issued his certificate a few days later. He confirms at [2] that he was asked to assess the claimant’s left hip as well as her thoracic and lumbar spine.
The claimant was, at the time of the examination, 57 years of age and not working. At the time of the accident, she had been a cleaner working 40 days a week.
The claimant denied any previous relevant injuries and said while she had pre-existing scoliosis, she had never experienced back symptoms.
Medical Assessor Harrington records at [8] a history of the accident which is consistent with the other records. He records the claimant was wearing a seatbelt and her airbags deployed.
Medical Assessor Harrington records at [9] and [10] the development of the claimant’s symptoms:
(a) Ms McNamara was taken to hospital by ambulance due to immediate back pain and left leg pain;
(b) she was reviewed by her general practitioner (GP) with radiating lower back pain and radiculopathy and diagnosed with left hip necrosis;
(c) she had physiotherapy;
(d) she returned to work, reduced her hours and struggled with left leg pain;
(e) she had an X-ray of her hip and stopped work in May 2021;
(f) she saw Dr Edger, neurosurgeon in June 2020 and Dr Leibenson, orthopaedic surgeon in May 2021;
(g) she had a left total hip replacement on 2 September 2021 as a public patient and subsequently developed a possible femoral nerve neuropraxia with quad lag and paraesthesia around the knee, and
(h) more recently she had developed a foot drop on the right side although this was not evident to Medical Assessor Harrington at the time.
The claimant was “happy” with her hip replacement but complained about her balance, reliance on a walker and a few falls. She has altered sensation in the left upper calf area ad has lower lumbar pain.
The claimant was taking pain relieving medication and reflux medication but having no active treatment.
Medical Assessor Harrington examined the claimant and documented the following findings:
(a) she was using the walker but “has a pretty good gait”;
(b) there was little movement in the thoracic spine and an obvious scoliosis;
(c) it was difficult to assess the lumbar spine, but he notes there “is no neurology in her right leg” and no evidence of a foot drop (which she said she noticed 9 months earlier);
(d) he examined the lower limb and said there was slight restriction of hip movement, her left thigh was less bulky that the right, the left hip flexors were weak compared to the right and in the knee. There was altered sensation to pin prick in the saphenous nerve distribution;
(e) her right hips movement was full, and
(f) the subtalar joint on the left was in a good position.
After summarising the relevant medical reports at [18] and the radiology at [19], Medical Assessor Harrington diagnosed at [20] the following:
(a) “it was feasible that she had an aggravation injury to her left hip from the force of the impact” which resulted in the pre-existing arthritic condition and avascular necrosis to become symptomatic;
(b) while she would have progressed at some point (to hip replacement surgery), the claimant said she had no problems before the accident and was working two jobs as a commercial cleaner;
(c) the claimant complained of back and hip pain but this was not really investigated for 12 months;
(d) the hip replacement surgery has resulted in femoral nerve issues, and
(e) the lower back was injured with sciatica but there is a lack of evidence concerning an injury to the thoracic spine.
Medical Assessor Harrington noted again that there was no evidence of pre-accident hip symptoms, that the accident aggravated her underlying condition and was a “substantial contributing factor” to her symptoms, treatment and hip replacement surgery.
Medical Assessor Harrington assessed the left hip injury as 20%, the femoral nerve injury at 16% and the lumbar spine injury at 5% and deducted 1/10th for pre-existing causes in the left hip and lumbar spine.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer takes issue with the Medical Assessor’s finding on causation submitting that he did not expose his reasoning process and explain how it was that the claimant injured her left hip in the accident.
The insurer noted that the claimant did not have any investigation of her left hip until September 2020, 17 months after the accident.
The insurer refers to the claimant’s GP referring her to Dr Leibenson for osteoarthritis in both hips and to Dr Leibenson’s report which refers to the claimant’s left hip pain emerging “insidiously without discriminable triggering event.”
Claimant’s submissions
The claimant refers to her statement of 25 April 2023 which says, “her pelvis was pushed to the left, causing my left hip to dislodge the centre console.”
The claimant also refers to physiotherapy notes which on 26 February 2020 included a drawing of the injured body parts and a history of an impact from the right forcing her hips to the left.
The claimant refers to the decision of Bugat v Fox[5] and the decision of Justice Hulme who said, "The presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence."
[5] [2014] NSWSC 888.
Procedural matters
On 1 November 2023, the Panel issued directions to the parties seeking bundles of all the documents upon which they relied.
The insurer’s bundle was due on 30 November 2023 and was received on 23 November 2023 comprising 279 pages.
The claimant’s bundle was due on 22 December 2023 and was received on 25 January 2024 comprising 161 pages.
The Panel asked the parties “to ensure the Panel has a copy of the claimant’s pre-accident GP notes for say the three years before the accident and all reports and notes from the claimant’s treating GP and treating orthopaedic surgeon [after the accident].”
The Panel met on 29 January 2024 and reported to the parties on 31 January 2024. The Panel noted there were three injuries assessed and that the submissions raised issues only with Ms McNamara’s left hip injury. The Panel noted that the real issues in dispute appeared to be:
(a) causation of the hip injury;
(b) the nature of that injury;
(c) did the accident cause the need for the hip surgery;
(d) did the claimant have a good, fair or poor result from the surgery;
(e) is the femoral nerve issue caused by the surgery, and
(f) if the claimant’s hip injury is an aggravation type injury what is the apportionment of impairment.
The Panel asked:
(a) the claimant whether the thoracic spine injury was in issue and whether the claimant conceded it had recovered and had a 0% WPI;
(b) the parties if there was agreement that the claimant’s lower back impairment was 5% WPI based on the Medical Assessor’s determination, and
(c) if the parties agreed on the real issues in dispute identified by the Panel.
The Panel again requested pre and post-accident health records and other evidence supporting the arguments as to causation made by the respective parties.
Directions were issued for additional documents and the Panel advised the parties it would defer the review proceedings for a further teleconference.
Parties’ responses
The claimant responded in a letter dated 28 February 2024 advising the Panel:
(a) the claimant pressed for the assessment of the left hip, thoracic and lumbar spine [1];
(b) provided information about attempts made to obtain records from Dr Hunter and the pre and immediate post-accident medical practice [3] and [4];
(c) refers to Medicare and physiotherapy records in support of treatment after February 2020 [5];
(d) the claimant presses for the lumbar spine to be assessed but not the thoracic spine [6C];
(e) the claimant’s physiotherapist in February 2020, Dr Arora in June 2020 and Certificates of Capacity from June 2020 evidence that the claimant had reduced her work hours and duties [6D] and [E], and
(f) the claimant agrees with the list of issues identified by the Panel.
The insurer responded on 13 March 2024 as follows:
(a) the thoracic spine did not need to be assessed [1.1];
(b) the lumbar spine needs to be assessed [2.1];
(c) the issues identified by the Panel were the real issues in dispute [3.1];
(d) on the issue of causation, the insurer noted the claimant had a history of joint disease and injury; the claimant worked her full-time hours for nine months before reducing her hours in March 2020, hip complaints are not recorded until 2020, radiology was not requested until September 2020 and by April 2021 the hip had further deteriorated, and the history from Dr Leibenson was of no triggering event [4.2], and
(e) the insurer has been unable to obtain any other records not already provided by the claimant.
Further Review Panel teleconference
The Panel reconvened on 21 March 2024 and reported to the parties that day. The Panel:
(a) noted there was agreement that the claimant’s thoracic spine injury attracted a 0% WPI;
(b) causation of the lower back injury was not in issue but there was no agreement as to impairment, and
(c) while there was no issue as to impairment of the hip, there was a significant dispute confirmed about causation of any hip injury and in particular with regard to the need for surgery.
The Panel advised the parties of the re-examination which had been scheduled for 3 May 2024. The Panel was subsequently advised that the claimant had hernia surgery and was unable to attend the appointment. A fresh appointment was arranged for 4 July 2024.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The Application for personal injury benefits was completed on 9 March 2020. The claimant described the accident but did not provide a list of injuries. She denied any previous claims, injuries or relevant conditions.
The police report confirms the history of the accident provided by the claimant and notes that both cars were travelling at 50kmph per hour prior to impact.
The certificate of capacity was completed by Dr Arora of Northwest Family Medical (Northwest) on 4 March 2020. He says the claimant was first seen on 11 November 2019. He does not diagnose any injury or disease or list any injury at section 2. He notes simple analgesia and physiotherapy are required and imposed lifting, carrying, sitting, standing and driving restrictions. An amended version of that certificate[6] has a completed section 2 as follows “lower back pain radiating to right leg: Sciatica / Radiculopathy.” The Panel notes there was no reference to the left hip.
[6] Page 65 of the claimant’s bundle.
The claimant says in the Certificate of Capacity that she had maintained her hours until 6 January 2020 when they were reduced form 40-42 hours per week to 15-17 per week.
A further Certificate of Capacity was completed by a doctor from Northwest on 9 June 2020 and it refers to “low back pain” only. The claimant’s treatment plan included physiotherapy and the claimant was certified fit for reduced hours.
Statements
The claimant provided a statement dated 12 March 2020, presumably in support of a late claim application. She says:
(a) she complained of low back pain, but no x-rays were taken at the hospital [9] and that she has had significant back pain radiating into both legs since the accident [10];
(b) Dr Hunter prescribed sleeping tablets and antidepressants [10];
(c) she took three days off work at first and then worked with pain until the beginning of January 2020 [11];
(d) she was independent and did not want financial assistance [12];
(e) she continued to see Dr Hunter “every couple of months” to obtain scripts but that Dr Hunter stopped working in Gunnedah at the end of 2019 and the claimant commenced at the Family Medical Centre and has had two consultations with Dr Adams [13];
(f) she had an X-ray on 24 May 2019 which revealed disc protrusions which she says is responsible for the shooting pain she experiences in both legs [14], and
(g) her gait has been affected and a friend told her on 11 February 2020 that she should get legal advice [15].
The claimant provided a further statement dated 27 February 2023. She says:
(a) her car, when hit was turned in an anticlockwise rotation [3]. Her hip and lower back were pushed against the centre console and broke the lid which she found on the floor of the car after the accident along with two bottles of water [4];
(b) after the accident she felt immediate pain in her lower back and was limping and that “over the following hours, I began to also experience severe pain in my left hip radiating down my left leg” [5];
(c) she went to hospital and then six weeks later saw Dr Hunter who prescribed her with pain killers and sleep medication, and she was sent for a CT scan of her lower back [7];
(d) the claimant says “shortly after” attending on Dr Hunter she started seeing a physiotherapist for her lower back [8];
(e) she continued to see Dr Hunter and then Northwest Family Medical for regular reviews of her injuries [10];
(f) on 7 September 2020 she says Dr Hodges referred her for x-rays of her hips and she had that done on 15 September 2020 and she was referred to Dr Leibensen on 19 September 2020 [11]-[13];
(g) from September 2020 to April 2021 she took medication for her injuries but by 1 April 2021 her left hip pain was agonising and pain her lower back was persisting [14]. Ms McNamara then details her treatment at length before moving to her loss of earnings and earning capacity [28]-[33];
(h) she has a constant and severe ache in her lower back [34] and in her left hip with sharp pain when aggravated [35], and
(i) she details her limitations on her daily life, her ability to care for herself and her need to use a cane.
The claimant provided a number of photographs. The claimant says one of these taken by rescue services shows her damaged centre console. The Panel notes this photograph is of poor quality and was taken in the early hours of the morning when it was dark. It clearly shows the deployed airbags, and the Panel can see the centre console, but the Panel cannot clearly see whether there was any damage to it. Another photograph shows the interior of the claimant’s car. The Panel can see the top of the centre console in place on the centre console and there is nothing on the passenger seat.
Treating medical records and reports
The clamant was a patient of Dr Hunter at the Mackellar Rural Health Centre. In a letter dated 28 February 2024, the claimant’s solicitor says this Health Centre has closed down and that he had been advised by the Northwest Family Medical Centre, Gunnedah Hospital and Gunnedah General Practice that they have not been able to obtain Dr Hunter’s notes. The Panel accepts that steps have been taken to obtain Dr Hunter’s notes but that they cannot be located.
Ambulance records from 7 April 2019 suggest the accident occurred at about 2.00am between the claimant and a vehicle that failed to give way being driven without its light on. The force of the impact flipped the other car onto its side. The driver apparently absconded. The claimant had pain with walking had no pelvic tenderness but “some bruised sensation on lateral right thigh.”
Gunnedah District Hospital notes record at triage the accident was at low speed (later notes record 50km) but that the airbags were deployed. The claimant was said to have got herself out of the vehicle and had pain in the outer right leg and was able to walk. The further notes indicate the claimant did not have a head injury and did not lose consciousness. The claimant was hypertense, vomited a few times and was said to be anxious.
A CT scan of the claimant’s lumbar spine was ordered by Dr Hunter on 24 May 2019 with a clinical history “MVA 6 weeks ago. Ongoing lower back pain radiating down right thigh.” The conclusion was no fracture or significant vertebral height loss. There was scoliosis and multilevel spondylitic changes with right foraminal narrowing at L4/5-L5/S1.
Northwest records have been produced as at 9 June 2022. They do not pre-date the accident but commence with an entry on 11 November 2019. The claimant was said to have been a previous patient of MacKellar Health.
At her first consultation, with Dr Raghib, she mentioned the car accident, anxiety and depression since then and bulging discs shown on X-ray. She was given a script for Escitalopram.
The next attendance was on 19 February 2020, and Ms McNamara attended for a blood pressure check with the nurse before seeing the doctor. She mentioned the car accident, the CT of her spine in May 2019 and the lumbar findings. The claimant was “teary and upset” due to having to reduce her work hours. It appears she was referred for physiotherapy.
The claimant then attended on 4 March 2020 and the claimant had seen the physio “with some effect.” On 25 March 2020 Ms McNamara attended for “ongoing back pain” and had seen the physiotherapist four times and was not sleeping well.
On 9 June 2020 the claimant attended again saying the physiotherapy was not helping much and a referral to Dr Edger was provided.
On 7 September 2020, Dr Hodges took over the claimant’s care and a letter to Dr Edger was printed again and imaging was requested. Targin was prescribed. On 18 September 2020 a referral to Dr Leibenson was provided due to “OA left hip”.
On 15 September 2020, an X-ray of the claimant’s hips and pelvis were undertaken at the request of Dr Hodges and with a clinical history of osteoarthritis. There were marked degenerative changes in the left hip and early degenerative changes in the right hip.
On 13 October 2020 the claimant requested a script for Targin and Mobic. On 16 December 2020 there is a reference to hip pain, and on 15 January 2021 severe hip pain. There are sporadic attendances after that and on 1 April 2021 the claimant was “in agony” with the left hip pain, she was nauseous and had poor appetite. The claimant was said to be working too much and had pain especially at night.
Dr Hodges referred the claimant for a pelvis and left hip X-ray again on 15 April 2021. There was a tilt of the pelvis and “severe scoliosis.” There was osteopenia in the pelvis but “total derangement of the left hip joint.” The concluding comment was that the appearance was consistent with the previous necrosis now further advanced.
Dr Leibenson, orthopaedic surgeon wrote to Dr Hodges on 12 May 2021. He noted she presented with “left hip pain and left leg shortening” and that her pain “has emerged insidiously without discriminable triggering event.”
Dr Leibenson notes pain in the left groin and buttocks which is severe and “there are no radicular symptoms”.
Ms McNamara mobilised with a walking stick and had a 5cm shorter left leg which he attributed half to the migration of the femur and the other to severe degenerative lumbar scoliosis. He counselled the claimant in respect of the risks of surgery and Ms McNamara signed a consent form for the surgery.
A pre-operation CT scan of the pelvis noted bony remodelling, marked degenerative changes in the left hip and left gluteus and upper leg muscle atrophy.
Other records
Medicare and pharmaceutical benefits scheme (PBS) records have been provided by the insurer from 1 January 2017 to 7 April 2022. These reveal:
(a) no entries before 29 April 2019 when the claimant first filled a script for Escitalopram, an antidepressant. These were regularly filled more than 20 times before 7 September 2020;
(b) the claimant was first prescribed heavy pain killing medication (oxycodone) on 7 September 2020 and Mobic (Meloxicam) on 2 November 2020;
(c) before 7 September 2020 there are no pain killing scripts filled and no evidence of sleeping tablets prescribed;
(d) the claimant attended Dr Naeem at Gunnedah Rural Health centre on 8 February and 13 March 2017 and then had a number of pathology tests done;
(e) the claimant saw Dr Hodges of Gunnedah Rural Health on 28 February and 15 March 2018 and had a number of pathology tests were done;
(f) the claimant saw Dr Hunter on 2 January 2019 and had pathology tests done soon thereafter and what would appear to be a follow up appointment with Dr Hunter occurred on 16 January 2019;
(g) there are no further attendances on anyone until 29 April 2019 when the claimant saw Dr Hunter, pathology on 30 April, Dr Hunter on 20 May 2019, the radiology on 24 May 2019 and then Dr Hunter on 25 June 2019;
(h) the next attendance was on Dr Raghib on 11 November 2019 and then Dr Arora on 19 February 2020, and
(i) thereafter the Medicare records confirm the history and the available notes.
Medico-legal reports
Dr Hopcroft, general surgeon (orthopaedics) provided a report to the claimant’s solicitors dated 22 June 2024.
He has a consistent history of the accident and says the claimant “was thrown violently sideways in her driver’s seat, and the airbags activated. She recalls her hip and pelvis were rammed against the console and she developed immediate back pain ...”
Dr Hopcroft has a report from the claimant of immediate severe limping and significant pain in her left hip area with radiation of pain down her left leg. She was discharged home and recalls “ongoing and significant back pain, left leg sciatica and pain in her left groin.”
The claimant said she saw Dr Hunter six weeks later because her symptoms had not resolved, and she had difficulty walking. The claimant told Dr Hopcroft she was not a whinger or complainer and so no further investigations occurred despite her “ongoing and debilitating problems with her spine, left leg and left hip pain.”
The claimant reported taking Aspirin and Lyrica, Nexium and paracetamol. She complained of continuing significant pain in her spine with pain and paraesthesia radiating down her left leg. Her left groin pain had improved.
On examination Dr Hopcroft says there was “gross abnormality in the thoracic musculature, a marked left sided limp and gross wasting of the left thigh and calf muscles”. There were absent left knee reflexes.
In his impairment assessment he assessed:
(a) left hip 15% WPI based on an excellent result from a hip replacement;
(b) lumbar spine – Diagnostic Related Estimate (DRE) category III which is 10% WPI less one tenth for pre-existing changes, and
(c) thoracic spine – DRE category II 5%.
Dr Wallace, orthopaedic surgeon provided a report to the insurer dated 7 October 2022.[7] He noted the claimant was, at the time of the accident working seven-hour shifts, seven days a week at a hotel in Gunnedah and a further 12 hours a week at a discount department store. At both establishments she worked as a cleaner.
[7] Page 11 of the insurer’s bundle.
Dr Wallace has a correct history of the accident. He says that the claimant hit the other car head on and that the force of the impact caused the other car (a Toyota hi-lux) to roll.
He has a history of the claimant being taken to hospital but being discharged within four hours. He then has a history of her seeing Dr Hunter in Gunnedah with pain in her lumbar spine radiating to her right thigh and having a CT on 24 May 2019. She had physiotherapy for three months and a home-based exercise program.
Dr Wallace then has the history of the claimant’s review by Dr Hodges, the hip and pelvis being X-rayed and the diagnosis in September 2020 of bilateral osteoarthritis and the total hip replacement in September 2021.
Dr Wallace has a history of no previous injury or lumbar spine problems and no other medical problems.
The claimant complained of a constant aching pain radiating into the paravertebral regions on both sides as well as the left thigh. Some activities aggravate the pain, and she experiences paraesthesia and numbness in her lower limbs, weakness in the left leg and stiffness in her lower back.
The claimant was reported to have ceased work and that she is applying for a disability support pension.
The claimant was walking with a walking stick and the range of motion in her lumbar spine was able to be measured.
Dr Wallace diagnosed a musculoligamentous strain of the lower back and aggravation of pre-existing lumbar spondylosis.
He expressed the view “there is no objective medical evidence that Ms McNamara suffered any injury at her left hip.” He said her current left hip symptoms are due to the pre-existing severe degenerative osteoarthritis in the joint.
In a separate impairment assessment, he expressed the view the claimant had a 5% WPI based on a DRE category II impairment.
Other assessments
Medical Assessor Hyde-Page assessed a dispute about minor (now threshold) injury which arose in the claimant’s statutory benefits claim. He undertook his examination on 18 February 2022 and issued his certificate on 1 March 2022. The only injury he was asked to assess was the low back injury. He found two or more of the five signs of radiculopathy and found the claimant had a non-minor (non-threshold) injury.
He has a history of the accident and the onset of lower back symptoms with pain going into her left leg and down to the knee with some numbness around the knee. He then writes “she started to develop a lot of pain in her left groin and thigh as well as the pain shooting in her left leg from her lower back down to the knee.”
Her current symptoms were low back pain and stiffness and symptoms in the left leg and knee despite the successful left total hip replacement.
Medical Assessor Hyde-Page records that she was using a walking stick at the time of his examination. There were absent left knee reflexes, altered sensation in the left leg in an L4 nerve root distribution, slight weakness in the left quadriceps and wasting of the left thigh. She had a normal straight leg raise on the right but reduced on the left.
Medical Assessor Hyde-Page diagnosed an acute low back injury with left L4 radiculopathy. He had no history of pre-existing back complaints or sciatica and therefore found that the radiculopathy was caused by the accident. Interestingly, the claimant’s left hip condition and replacement was not referred for assessment.
RE-EXAMINATION FINDINGS
Ms McNamara attended the Commission’s medical suites on 4 July 2024 accompanied by her daughter two granddaughters. Medical Assessor Oates undertook the re-examination on behalf of the Panel.
History provided by the claimant
Pre-accident medical history and relevant personal details
Ms McNamara is single. She normally lives in Gunnedah but is staying with her daughter, in Mudgee at present as her daughter is her carer.
She says she had no history of any prior accidents or injuries, was in good general health, and was on no regular medications.
She has had four Caesarean sections in the past and had a hysterectomy at the time of the delivery of her fourth child.
At the time of the accident, she worked in two cleaning jobs for different companies; at the courthouse in Mudgee seven days a week for about four hours per day, and at a Target store, three days a week for three to four hours per day. She was paying off a mortgage.
She has thoracolumbar scoliosis which she had had not been symptomatic in the past.
History of the motor accident
The claimant was driving to work in a Patriot Jeep vehicle on 7 April 2019 at about 2.30am. She was intending to clean the courthouse. She had no passengers. She was travelling at about 50kmph because there were sometimes kangaroos on the road at that time of night.
She came to the intersection of Abbott Street and South Street, and a twin cab utility came from her right and failed to stop at a Give Way sign. This vehicle had no headlights on and she did not see it until the last minute. The utility hit the Jeep in front of the driver’s door and caused her car to spin out to the left. The utility lost control and continued to a median strip and then rolled onto the driver’s side.
Passersby came up and saw the driver scurrying under the steering wheel and he managed to free himself from the vehicle and then ran off. His male passenger was suspended in his seatbelt and was helped out of the vehicle. She got out of her vehicle through the driver’s door, and she noticed pain immediately and she was limping favouring her left leg.
Both her driver’s side and passenger airbags deployed.
The police and ambulance attended. She was breath tested at the scene and taken to Gunnedah Hospital where she had blood tests for drug and alcohol, and then was discharged after a few hours of observations. A security guard from the hospital gave her a lift home.
Her Jeep was subsequently written off. She said she was aware of some posterior left hip and low back pain, which worsened over a few hours after the accident.
She had about three or four days off work after the accident and then returned to work hoping that everything would just get better with time.
Things did not get better, so she eventually went to see her GP, Dr Hunter at McKellar Medical Centre at Gunnedah, about six weeks after the accident. She had not seen any other practitioners before this time. Dr Hunter sent her for a CT scan of the lumbar spine.
Ms McNamara was asked about the ambulance record which referred to bruising in the lateral right thigh. Ms McNamara could not recall bruising there, although she did recall some bruising over the lateral right shoulder and she thought she had bruising in the lateral left hip area.
When she saw Dr Hunter on 24 May 2019, the referral for the CT scan read “low back pain radiating to lateral right thigh”. However, the claimant did not recall the right thigh being involved, but does recall limping favouring her left side. She does not recall if she mentioned the left hip to her GP. She thought the pain radiating from her back was making her limp on that side.
She said she was sent for physiotherapy for her back with Bernadette McVoy at Gunnedah in 2019, after seeing the GP, but she did not improve with this treatment.
McKellar Health subsequently closed down, so after several months she saw another GP, Dr Raghib, on 11 November 2019 regarding anxiety and depression which had come on since the motor vehicle accident and she was treated with Escitalopram.
She then saw a different GP at the medical centre, Dr Arora, on 9 June 2020 saying that physiotherapy was not helping, with the last physical consultation having been in March 2020.
She was referred to Dr Edger, neurosurgeon, Newcastle and was treated with Targin.
She then saw a further GP, Dr Hodges, at the same medical centre on 7 September 2020 who noticed her limping gait and ongoing pain, particularly in the back and left hip, and sent her for pelvis and hip X-rays which were done on 15 September 2020 showing marked left hip degenerative changes and early degenerative changes in the right hip, with the right hip joint space maintained.
The insurer then cancelled Dr Edger’s appointment.
Dr Hodges then referred Ms McNamara to Dr Leibenson, orthopaedic surgeon, Tamworth, but she had to wait several months for an appointment to become available.
She continued to work her two jobs but eventually cut down her hours in January 2021. She did no further physiotherapy.
In the meantime, she saw the GP a couple of times and they were trying to expedite her appointment with Dr Leibenson. After a long delay, she eventually saw him on 12 May 2021. She had had an update X-ray in April 2021 showing an avascular necrosis of the femoral head in the left hip joint. She had tried an ultrasound-guided cortisone injection to the left hip on 15 April 2021 to buy some time but there was no benefit.
Dr Leibenson stated, “she had had the insidious development of left hip pain with no triggering event”.
The claimant was asked about this and she agreed that there was no sudden onset of left hip pain, it just gradually worsened after the motor vehicle accident while she continued her two cleaning jobs and tried to maintain her usual activities.
Dr Leibenson found 5cm of left leg shortening. He noted that the weight-bearing X-ray of 15 April 2021 showed avascular necrosis and he recommended a total hip replacement as the only viable treatment option.
She was put on the public hospital waiting list and on 2 September 2021 had the surgery at the Tamworth Base Hospital. She said she did not ask the third-party insurer to cover this.
She said the hip replacement was very helpful and she had two weeks inpatient rehabilitation. After the hip replacement she noticed weakness down the left thigh, knee and lower leg and has become reliant on a rollator walker when out of the house. The Tamworth Base Hospital discharge summary noted that the patient was found to have likely femoral nerve neuropraxia post-operatively with quadriceps muscle lag and paraesthesia around the anterior knee. She is still left with problems and had a post-operative X-ray on 12 October 2021 and further X-ray in November 2021.
She continued follow-up with Dr Leibenson until 12 months post-operatively and then was referred back to the care of her GP.
Details of any relevant injuries or conditions sustained since the motor accident
Ms McNamara says she had developed a foot drop on the right side, however after its spontaneous onset, it recovered without treatment, and it was not in evidence at the re-examination.
Ms McNamara had developed hiatus hernia reflux symptoms sometime after the accident (and unrelated to it) and she had hiatus hernia surgery in May 2024 by Dr Van Schoor, Tamworth.
Current symptoms
The claimant says her back is ‘terrible’ and the pain spreads across the back and into the buttocks, but does not go upwards into the proximal spine. She said medications do not help, so she just takes Panamax.
She gets right and left calf cramps at times but there is no radiating pain to the right leg or numbness or pins and needles.
At times she has aching across the lateral side of the left thigh as far as the knee and sometimes beyond the knee. There is no numbness in the left leg. The left thigh seems to lock at times.
The severe pain she was having in the left hip and groin area prior to the left total hip replacement has resolved.
She stopped working about February 2020 and has not worked since. She has been on Centrelink benefits. She was granted a DSP (disability support pension) in May 2023 but then this was cut off because the compulsory third party (CTP) insurer, QBE, informed Centrelink about a possible payout and she is trying to get the DSP reinstated.
She takes Panamax as required for pain.
EXAMINATION
General presentation
She was of petite build and used a rollator walker. She changed into an examination gown assisted by her daughter, who also was called into the examination room to assist with redressing, whilst the Medical Assessor waited outside the room. She was offered a female chaperone to be present during the physical examination but she declined this.
Rapport was established with the claimant quickly. Mc McNamara presented in a genuine manner and made an effort to answer all questions which were put to her without hesitation.
Thoracic spine (thoracolumbar)
There was a moderate scoliosis at the thoracolumbar junction which was a fixed scoliosis. There was stiffness in the thoracic spine with rotation about one-half bilaterally.
Lumbar spine (lumbosacral)
There was no guarding or muscle spasm in the lumbar or thoracic spine and no thoracic radiculopathy.
In the lumbar spine, range of motion was recorded for two planes as follows:
(a) flexion / extension – flexion was two-thirds of normal, extension one-half, and
(b) lateral flexion - to the right movements were one-half of normal and to the left two-thirds.
There was tenderness left L5 area. Whilst holding the table for support, she could stand on her heels and balls of the feet.
Sensation in the right lower extremity was normal but there was restriction of light touch and pin-prick sensation in the medial thigh and medial leg of the left lower extremity, but sensation over the foot was intact.
Reflexes showed intact right knee jerk but absent left knee jerk, even with reinforcement. The ankle jerks were bilaterally absent. The plantar responses were both flexor. Medial hamstring jerk was present bilaterally.
Power in the right leg was normal and in the left leg showed slight weakness of left ankle dorsiflexion and eversion. There was also some weakness of left knee flexion and extension strength compared with the right.
Supine straight leg raising was achieved in the right at 40 degrees and left at 30 degrees with complaints of low back pain limiting the movement but there was a negative stretch test.
The circumferences of the legs were measured as:
(a) thigh girth: 35cm bilaterally at 10cm above the superior patellar pole, and
(b) calf girth: right 31.5cm, left 31cm at 14cm below inferior patellar pole.
The claimant’s leg length was measured as 85cm on the right and 85.5cm on the left from the anterior superior iliac spine to the medial malleolus.
Lower extremity
There was an 18cm well-healed scar over the lateral aspect of the left hip. There was no tethering, no adherence, no trophic changes and no visible suture marks.
Hips
The measurements in the claimant’s hips are recorded below. The left hip flexion was reduced but all measurements in the right hip were normal. All movements were active measurements.
Measurement RIGHT
Measurement LEFT
Flexion
100°
60°
Extension
Normal
Normal
Adduction
30°
30°
Abduction
40°
40°
Internal Rotation
20°
20°
External Rotation
30°
20°
Comments on consistency
The claimant was asked about the three photographs she provided. The middle photo showed no airbag deployed and Ms McNamara confirmed the photo was not taken after the accident. A third photo with the airbags deployed was said to show the lid of the console slightly off centre. Ms McNamara explained that it had been placed by emergency services back on top of the console after being knocked off by impact from her body. The car was then towed away. While it was difficult to identify whether the console was hinged and in place or in place but broken, the claimant was quite clear in describing how it was broken, where it was found and how it had been moved into the position it was in, in the photograph.
The claimant maintained the impact from the insured’s car hitting the right side of her car, caused an impact on the right side of her body which pushed her to the left side of her seat and knocked the top off the console and scattered some plastic water bottles onto the floor of the car on the passenger side.
The claimant was asked about paragraph 5 of her Statement from 27 March 2023, and she said that the severe pain in the left hip radiating down the left leg was not present at the time when she was in the Gunnedah Hospital. Even if it was, she said she was in shock and her blood pressure was “through the roof”, so she is uncertain whether she reported this symptom or not.
The claimant was informed that the Panel had physiotherapy records dating from 26 February 2020, which did not refer to the thoracic spine pain but did refer to both hips and lower back. She said she was sure she attended the physiotherapist from about six weeks or so after the accident, after seeing the GP for the first time, and that there should be other notes available because she attended the same physiotherapist.
With respect to sleep medication and painkillers prescribed by Dr Hunter, whom she saw six weeks after the accident, she did not recall the name of the medications prescribed. Apart from these prescribed medications, she relied on Panadol and Nurofen.
With respect to the physiotherapy records with Bernadette McVoy, Ms McNamara again said that she was sure that she was seeing Ms McVoy earlier than February 2020 and that there should be other clinical notes available.
No imaging was brought to the assessment.
CONSIDERATION OF THE ISSUES
What is the test of causation?
The test of causation set out in the Guidelines is:
“6.6 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, therefore, involves a medical decision and a non-medical informed judgement.
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.”
The Review Panel therefore needs to consider:
(a) could the accident (and the mechanics and forces involved) have caused or contributed to lower back, mid back and left hip injuries and any resulting impairment, and
(b) did in fact the accident cause or contribute to lower back, mid back and left hip injuries and any resulting impairment.
Could the accident have caused or contributed to the injury and impairment?
The medical members of the Review Panel have considered the mechanics of the accident noting that the claimant’s car was travelling at 50kmph and that the other car was also travelling at 50kmph. The impact was significant enough to cause the other car to flip onto its side and the claimant’s car was spun around. Considerable damage was apparently done to both vehicles with both being towed.
The Medical Assessors are satisfied that the forces involved in this accident could have caused an injury to the claimant’s back and hips as her body was thrown around inside the car on impact and afterwards.
Did the accident in fact cause or contribute to the injury and impairment?
Lower back
The claimant said she had immediate onset of back pain and had trouble walking at the scene. Ambulance confirms the difficulty with walking and the claimant had pain in the right leg which is confirmed in the hospital note. The hospital did not record any lumbar spine pain.
The claimant explained the absence of any complaint to the hospital about lower back pain on the fact she was shocked. The Panel notes the hospital records confirm Ms McNamara was anxious and vomited several times.
The visit to Dr Hunter and referral for a CT of her lumbar spine in May 2019 is a relatively contemporaneous medical record of lower back symptoms particularly in a rural area where GPs are few, and waiting times for appointments extend beyond that which might be expected in metropolitan areas.
The Panel is therefore satisfied that the accident did cause a soft tissue injury to the claimant’s lumbar spine.
Left hip
The Review Panel notes there was no mention of the left hip in the ambulance records or at the hospital. The claimant was sure she had left hip pain and was limping favouring her left leg after the accident. She did not complain of right hip or right leg pain at the re-examination and did not recall a right lower limb injury.
The ambulance records note a bruising sensation in the right hip area. The hospital records contain limited detail but no complaint of left hip pain. The claimant’s explanation for an absence of left hip pain in the hospital notes was that she was shocked and not aware of the extent of her injuries.
Due to no fault on the part of the claimant there are no records available from the claimant’s usual pre-accident GP so the Panel has no way of ascertaining whether there was any early complaint of left hip pain. The available GP records from November 2019 or early 2020 do not record hip complaints and there is no record of hip complaints until later in 2020.
Dr Leibenson has a history of the insidious onset of left hip pain “without a triggering cause”. When this was put to the claimant, she said that her left hip pain came on gradually after the accident and her discomfort and pain developed slowly.
The Panel notes Ms McNamara’s uninjured right hip shows signs of mild age-related degenerative changes (but no avascular necrosis) and it is likely that before the accident, the claimant’s left hip would have also had mild age-related degenerative changes. The medical members of the Panel note that although avascular necrosis is generally caused by the result of interference with vascular supply to the head of the femur, usually through dislocation of the hip with late reduction of the dislocation, in their experience a blow to the lateral side of the hip could have initiated the gradual process of aggravation of degenerative changes and deterioration of the left hip.
The Panel has considered the mechanics of the accident and the speed of the two vehicles and the evidence of the claimant. The Panel is satisfied on the balance of probabilities that the claimant did hit her left hip on a part of the inside of her car, such as the centre console. The Panel is satisfied that this mechanism was a cause, that is more than negligible, of the aggravation of pre-existing asymptomatic degenerative changes to the left hip resulting in the gradual development of avascular necrosis of the femoral head, as described by the radiologist, of the left hip joint.
The medical members of the Panel, in considering their views of causation, have also considered the absence of any other usual cause of the left hip pathology.
The medical members of the Panel, in their clinical experience note that some people with avascular necrosis have no symptoms, particularly in the early stages and that pain develops gradually developing in the groin, thigh and buttocks. The pattern of symptoms described by the claimant is typical of the development of the condition.
The Medical Assessors are of the view that it is medically plausible that the claimant’s first GP considered any left hip pain to be an effect of radiating pain from the lumbar spine which could be why no investigations were undertaken of the left hip for some time. Because of her continued limp, the GP she eventually saw, suspected hip problems and organised
X-rays of the pelvis and hips.The Panel also notes that a post-operative complication of left femoral neurapraxia occurred following total hip replacement. This is referred to in the Tamworth Base Hospital discharge records. Medical Assessor Harrington included this in his assessment.
IMPAIRMENT ASSESSMENT
Thoracic spine
The parties agreed that the Panel did not need to reassess the thoracic spine and the claimant conceded the WPI from this injury was 0%. The Panel confirms that based on the findings of the re-examination by Medical Assessor Oates this is an appropriate concession.
Lumbar spine
Assessment of the lumbar spine requires consideration of Chapter 3 of AMA 4 Guides. Only the DRE method of assessment is allowed (cl 6.111).
There are five diagnostic related categories and a number of indicia provided to assist Medical Assessors in determining which category to choose (see Table 7).
The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are relevant.
DRE category II requires there to be:
(a) pain with guarding or
(b) non-uniform range of motion – dysmetria or
(c) non-verifiable radicular complaints defined in Table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(i)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE III requires radiculopathy which is defined in cl 6.138 as meaning the impairment caused by dysfunction of a spinal nerve root or nerve roots and requires two or more of the following clinical signs to be found on examination:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
In Ms McNamara’s case she has pain in her lower back which she describes as “terrible.” While there was no guarding or spasm, dysmetria (asymmetrical loss of motion) was present in both planes of motion.
Although there is reflex asymmetry, the weakness affecting left knee flexors and extensors and left ankle dorsiflexors and evertors was, in the clinical judgment of the medical members of the Panel too widespread to result from a specific lumbar nerve root distribution. There was reduction of sensation in the left leg, but this was considered due to the peripheral nerve lesion in the femoral nerve rather than a lumbar nerve root lesion. The straight leg raising test (a nerve root tension sign) was negative and there was no clinically significant atrophy in the left leg.
There is thus only one of the five signs required to be present to indicate lumbar radiculopathy within the meaning of the Guidelines. The claimant does not qualify for a DRE III impairment of 10% but, due to the presence of dysmetria has a DRE II impairment of 5%.
Left hip
The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:
(a) limb length discrepancy (3.2a);
(b) gait derangement (3.2b);
(c) muscle atrophy (3.2c);
(d) manual muscle-testing (3.2d);
(e) range of motion (3.3e);
(f) joint ankylosis (3.2f);
(g) arthritis (3.2g);
(h) amputations (3.2h);
(i) diagnosis-based estimates (3.2i);
(j) skin loss (3.2j);
(k) peripheral nerve injuries (3.2.k);
(l) causalgia and reflex sympathetic dystrophy (3.2l), and
(m) vascular disorder (3.2m).
Both left and right limbs are assessed and each injury (if there are multiple injuries in each limb) is assessed separately. Clause 6.70 and Table 6.5 states which of the above methods can and cannot be combined and Table 6.6 provides guidance is selecting the most appropriate method. The Guidelines at cls 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment.
Left hip replacement
The Panel is of the view that primarily, the diagnosis-based estimates section at 3.2i is the most appropriate method of impairment assessment. Table 64 at page 85 of AMA 4 Guides provides for an impairment associated with total hip replacement as follows:
(a) good result 15% WPI (based on 85 – 100 points);
(b) fair result 20% (based on 50 – 84 points), and
(c) poor result 30% (based on less than 50 points).
Table 65 provides the mechanism for determining the number of points:
(a) pain – Ms McNamara says her hip replacement has eliminated the hip and groin pain she experienced (44 points);
(b) function – unable to be assessed;
(c) activities – sitting was not impaired (4 points) as the claimant was able to sit for the hour of the re-examination without difficulty and other measures were unable to be assessed;
(d) deformity – there was no deformity from the hip surgery (5 points), and
(e) range of motion - impaired in flexion and external rotation therefore one point results for abduction, adduction and internal rotation (3 points).
The Panel notes that the points assessment of “function” and the total points for “activities” could not be validly assessed under this table, because the claimant’s limp, her need for supportive device, any walking distance limitation, difficulty with stair climbing, putting on shoes and socks result principally from the femoral nerve lesion, and are not the direct result of the hip replacement.
Of the measures that could be assessed ,a score of 53 was obtained, which places the claimant in either a good or fair result category. However, the assessment of points in the other areas would involve both the femoral nerve problem and a fair hip replacement result would be double-dipping in the Panel’s view. The Panel notes the surgery was very successful in terms of the primary aim of this type of procedure, that is of pain relief in the hip. It is the Panel’s view therefore that the claimant should be assessed at the lowest available DRE that is having had a good result which attracts a 15% WPI.
Femoral nerve injury
The Panel has found the left hip replacement is related to the injuries caused by the accident and has assessed the impairment in relation to that.
The medical members of the Panel note the claimant demonstrated on testing, impaired sensation in the left leg, loss of left knee reflex, and weakness of left quadriceps. In their clinical judgment, these are not a result of any L2, L3 or L4 nerve root lesion (and therefore could not be included in the lumbar spine impairment assessment). In their clinical judgment the Medical Assessors are of the view these features are due to a peripheral nerve lesion in the left femoral nerve which is responsible for power and sensation in much of the lower limb. A nerve lesion has been documented as occurring as a post-operative complication of the left hip replacement. It is a not uncommon result of total hip arthroplasty.
The most appropriate method of assessing this injury is section 3.2k peripheral nerve injuries on page 88 of AMA 4 Guides as follows:
(a) Table 68 provides for impairments of the femoral nerve:
(i)15% for motor deficits;
(ii)1% for sensory deficits (loss), and
(iii)3% for dysesthesia (sensation is present but abnormal).
(b) Clause 6.109 of the Guidelines says that in using Table 68 Medical Assessors must refer to Tables 11a and 12a at pages 48-49 of AMA 4 Guides to determine the grade of impairment as well as cls 6.58-6.60 of the Guidelines.
(c) The commentary on page 88 and cl 6.104 says that the three separate impairments must be combined.
In Ms McNamara’s case, there is no dysesthesia.
It is the clinical judgment of the Medical Assessors the motor impairment is grade 4 on the basis there was active movement against gravity with some resistance (see paragraph 142 above). Table11a provides a range from 1-25% however cl 6.59 provides that the maximum must be used. The motor impairment is calculated as 25% of 15% which is 3.75% which in accordance with cl 6.39 must be rounded up to 4%.
The Medical Assessors consider that the claimant’s sensory impairment should be assessed as grade 2 because she has loss of sensation without dysesthesia or pain over her left leg as documented in paragraph 140 above. Again, there is a range provided in Table 11a of 1-25% and in accordance with cl 6.59 the maximum must be used. The sensory impairment is calculated as 25% of 1% which is 0.25% which in accordance with cl 6.39 must be rounded down to 0%.
The combined value of the two impairments is therefore 4%
CONCLUSION
Ms McNamara’s WPI is assessed as follows:
(a) left lower extremity of 18% WPI:
(i)left hip replacement (15%) combined with
(ii)left femoral nerve impairment (4%).
(b) lumbar spine DRE II 5% WPI.
When 18% is combined with 5% using the combined values table at page 322 of AMA 4 Guides, the total impairment is 22%.
Medical Assessor Harrington included the WPI of 34% in his certificate. While the Panel has come to the same conclusion (that the claimant has a WPI of greater than 10%), the Panel has come to a different percentage figure. The Panel must therefore revoke the certificate of Medical Assessor Harrington and issue a fresh certificate.
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