QBE Insurance (Australia) Limited v Sibley
[2024] NSWPICMP 743
•29 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Sibley [2024] NSWPICMP 743 |
CLAIMANT: | Joseph Kevin Sibley |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Les Barnsley |
DATE OF DECISION: | 29 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment as to level of whole person impairment (WPI); physical injuries; claimant was the driver of a motor vehicle when a group of males in another vehicle chased him and threw objects including a metal tyre lever that struck the claimant’s arm causing a penetrating injury; claimant made no ongoing complaints regarding the injury including any sensory loss; insurer argued that no complaints suggests nil WPI; Held – Medical Assessment Certificate revoked; new certificate issued certifying 12% WPI due to a penetrating injury to distal right forearm with chronic non-union of a compound comminuted fracture of distal ulna, and injury to the ulnar palmar digital nerve to right ring finger below mid-forearm level together with scarring. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Permanent impairment assessment Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Nigel Menogue dated The Review Panel certifies that the following injuries were caused by the motor accident and give rise to a 12% whole person impairment which is GREATER than 10%: (a) right arm – penetrating injury to distal right forearm with chronic non-union of a compound comminuted fracture of distal ulna, and injury to the ulnar palmar digital nerve to right ring finger below mid-forearm level, and (b) scarring – right forearm. |
STATEMENT OF REASONS
INTRODUCTION
Mr Joseph Kevin Sibley (the claimant) suffered injury on 25 October 2018. The claimant alleges that he was the driver of a motor vehicle when a group of males in another vehicle chased him and threw objects at the claimant’s vehicle. One object, a metal tyre lever, struck the claimant’s arm causing a penetrating injury.
The claimant subsequently lodged both a claim for statutory benefits and claim for damages with the compulsory third party insurer of the other vehicle, QBE Insurance (Australia) Limited (the insurer).
The insurer has a liability to pay Mr Sibley statutory benefits and/or damages in accordance with the provisions of the Motor Accident Injuries Act2017 (MAI Act).
The issue in dispute before the Review Panel is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Nigel Menogue who issued a certificate dated 31 December 2023 certifying that the claimant’s physical injuries caused by the motor accident gave rise to a whole person impairment that is greater than 10%.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 7.26(10) of the MAI Act.
The President’s delegate, by way of determination dated 10 April 2024, referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[4]
10.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[4] Section 41(2) of the PIC Act.
[5] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[7]
[7] Clause 6.2 of the Guidelines.
The Panel convened via preliminary conference on 21 May 2024. The Panel decided that a re-examination of the claimant was necessary and an examination was arranged to occur on 9 July 2024 with Medical Assessor Stubbs and with Medical Assessor Oates in attendance via telephone. In addition, directions were made requiring the parties to lodge bundles of all documents relied upon.
The examination took place as arranged and the Panel reconvened for a further preliminary conference on 22 July 2024.
Prior to the completion of the medical assessment the Panel had to be reconstituted, with Medical Assessor Les Barnsley joining the Panel, in the place of Medical Assessor Stubbs.
A further preliminary conference was arranged with the reconstituted panel which occurred on 24 October 2024.
ASSESSMENT UNDER REVIEW
Medical Assessor Menogue assessed the whole person impairment of the following injuries referred to him:
· right arm – compound fracture right ulna, and
· skin – laceration right forearm.
The Medical Assessor found a penetrating injury to the right forearm with a compound fracture to the distal ulna. He found the joint above and below the fracture also requires assessment for whole person impairment given these joints can be adversely affected by the fractured ulna with possible adverse sequelae.
The Medical Assessor noted complaints of sensory changes involving the right hand, consistent with a peripheral nerve injury with CT evidence of negative ulnar variance. He concluded that the negative ulnar variance is secondary to the injury caused by the accident.
After combining impairment found after range of motion measurements and for sensory deficit, the Medical Assessor found a 21% upper extremity impairment, converted to a 13% whole person impairment.
In respect of scarring, applying the TEMSKI scale the Medical Assessor found a 2% whole person impairment.
Therefore, in total Medical Assessor Menogue found a 15% whole person impairment.
SUBMISSIONS
Insurer’s submissions dated 8 December 2023
These submissions were relied upon by the insurer as part of their reply to the claimant’s initial application for the assessment of the whole person impairment dispute by the Commission.
The insurer refers to the available medical evidence and notes a lack of reference to the right arm fracture in the years following the accident until the claimant attended for claim purposes. It is submitted that “…it is clear that the fracture has since resolved and there is no ongoing permanent impairment.” Additionally, it is asserted that when the general practitioner (GP) records lack of reference to the injury “it cannot be said there is ongoing permanent impairment…”
Finally, the insurer notes the claimant was yet to annex any medical evidence in support of a permanent impairment.
In respect of scarring, the insurer submits that in the absence of medical evidence commenting on same it is difficult to provide submissions, however, on the evidence available, the scar (if any) appears to have had a negligible effect on activities of daily living and therefore a finding of 0% whole person impairment should be found.
Insurer’s review submissions dated 6 February 2024
The insurer submits that Medical Assessor Menogue failed to consider relevant material. This includes the submissions of the insurer as well as further records of Orange Medical Centre as at November 2023, further records of Wellness Family Medical Centre and correspondence from cardiologist, Dr Ben Moore.
It is further submitted that the Medical Assessor has not provided adequate reasons justifying how he reached the diagnosis of a peripheral nerve injury in accordance with his obligations under the AMA 4 and the Guidelines.
The insurer submits that the finding of a peripheral nerve injury was made by Medical Assessor Menogue solely on the claimant’s self-reporting rather than consideration of the available evidence. In this regard, it is noted that the treating medical evidence does not document any complaints of sensory loss.
Further, it is submitted that Medical Assessor Menogue did not provide an explanation as to how he formed the view that a grade 4 classification for the nerve injury pursuant to the AMA4 Guides.
The insurer submits that the Medical Assessor failed to comply with the requirement to bring to the attention of the claimant inconsistencies between the Medical Assessor’s actual examination and other evidence.
In addition, the insurer submits that the Medical Assessor is in error by failing to set out the path of reasoning on his method of assessment of the right wrist when there was no primary or isolated injury to same.
Claimant’s reply submissions dated 6 March 2024
It is submitted that the mere absence of complaint to treating doctors does not of itself demonstrate how any relevant complaint could be properly made out. It is suggested that the Medical Assessor was entitled to assess the claimant and exercise his own clinical judgment as to whether the symptomatic complaints on presentation were genuine.
DOCUMENTS
The Panel has considered all material provided by the parties in their respective bundles lodged in response to the Panel directions. Whilst not all documents may be specifically mentioned in these Reasons, that is not to say the Panel has not taken into account all evidence. The Panel has taken into account all the material provided.
NSW Ambulance Service
The claimant is noted to have been seen post alleged assault with a tyre iron impaled into right arm and head injury post low speed motor accident.
Orange Health Service
The NSW Health file from Orange Health Service documents a number of admissions to hospital.
In respect of the subject accident, consultation notes of 25 October 2018 note the claimant suffered a house break in several days prior and was driving to see a friend when he saw persons he thought were responsible for the break in. An altercation ensued and he remained in the car and tried to drive away and was attacked through the window of his car with the metal rod.
The claimant presented with a large pole protruding from radio-dorsal aspect of forearm with no other obvious injury. He was noted to have sensation paraesthesia to the 5th digit and was unable to ab/adduct fingers mild weakness. Median and radial nerve sensation and motor was intact.
The claimant underwent debridement surgery.
The Wellness Family Medical Centre Pty Ltd clinical file
Prior to the accident, the claimant is noted to have some unrelated health complaints and injuries.
After the accident the claimant first attends upon GP, Dr Chen on 28 November 2018, and an open end fracture distal end of ulnar is noted. The claimant is noted to be attending the fracture clinic. A mention of a motor accident is not documented.
The visits are reasonably infrequent. Approximately a year later on 21 November 2019 the claimant is noted to have woken up with acute back pain a few days prior, neurological symptoms were denied. He was noted to have left scapular pain radiating to the left arm which was chronic in nature. On examination the left elbow had no tenderness. There was tenderness noted in the upper medial part of the left scapula.
The claimant first mentions the motor accident on 23 August 2022 in the context of pursuing a CTP claim. It was noted that after the accident he could no longer work as a plumber due to the fracture and is now a line operator. He was noted to have reduced power on the right hand with limited lifting capacity.
RE-EXAMINATION
Details of who attended the assessment
Mr Sibley attended unaccompanied for Panel re-examination by Medical Assessor Stubbs at the Commission’s Medical Suites in Sydney, with Medical Assessor Oates in attendance by way of telephone link, on 9 July 2024 as arranged.
History
Pre-accident medical history and relevant personal details
At the time of the accident, Mr Sibley was working as an apprentice plumber and had relatively recently entered a new relationship.
In the past, his general health had been good and he was participating in martial arts. He was on no regular medication.
He had a fractured right wrist aged five or six years old with closed reduction and he recovered without any restriction of movement of his forearm or wrist.
The various hospital admissions noted which document various unrelated injuries.
History of the motor accident
The claimant stated on 25 October 2018 he was driving a vehicle along a road when a group of males in a second vehicle chased him and started throwing various objects at his vehicle. One object, a metal tyre level, struck him on the distal right forearm, resulting in a penetrating injury and the lever remained in situ.
He felt immediate severe pain but was able to drive to a police station in an effort to avoid his attackers. Unfortunately, he crashed the car into the fence of a courthouse beside the police station.
He was extricated from the vehicle by police officers, who arranged for an ambulance to take him to Orange Base Hospital.
History of symptoms and treatment following the motor accident
He is right hand dominant.
He was admitted and investigations showed a compound fracture of the distal right ulna, with no injury to the right radius. He had compound scrub and was started on IV antibiotics.
The day after admission, he went back to theatre for open reduction and internal fixation with a plate and screws for the ulnar fracture. He was discharged within a couple of days for follow-up with the fracture clinic.
He followed up with a GP about a month after the accident on 28 November 2018.
He returned to work as an apprentice plumber about nine months after the accident and persisted for about 12 months in this position, but had difficulty using vibrating tools because they caused annoying pain and numbness in the right wrist and hand, so after 12 months he gave up the plumbing job and started work as a machine operator in a pet food factory.
He continued to see the fracture clinic at Orange Base Hospital for follow-up and after a backslab plaster was removed, he started mobilisation of the limb. He did not attend physiotherapy. He rested his arm in a sling for the rest of 2018.
He had imaging in May 2019 with an X-ray of the forearm showing dorsal plate and screw fixation of the distal ulna and a CT of the right forearm and wrist showing no evidence of fracture union at that time, with a negative ulnar variance. The radiologist commented that the distal radioulnar joint was congruent.
At one stage, he was told he would have the metalware removed but this did not occur.
He noticed wasting of the right forearm muscles after the accident and started a self-directed strengthening exercise program using Therabands.
Details of any injuries or conditions sustained since the motor accident
He stated to have had no further injuries.
Current symptoms
The claimant indicated he cannot rotate his right forearm into a palm upward position but can pronate the arm into the palm down position. There is numbness in the middle and ring fingers with pins and needles sensation.
He tries not to use his right arm as much at work, so mainly uses his left arm. He can no longer do marital arts and can’t train at a gymnasium. Driving is limited to half an hour because of pain and restriction of right forearm rotation.
He continues work as a machine operator in a dog food factory and does overtime when it is available.
His partner has not been working since they had a son 10 months ago. They live in their own mortgaged home.
Current and proposed treatment
He takes Panadol or Voltaren or Nurofen for pain, which is noticeable by lunchtime with normal everyday usage of the arm.
CLINICAL EXAMINATION
General presentation
He was of solid build with height 185cm and weight 122kg.
He could sit comfortably whilst relating the history and transferred freely out of a chair and on and off the couch.
His gait was normal and he was able to squat satisfactorily and stand on the heels and toes and walk.
Lumbar spine range of movement was without normal limits.
Upper extremity
There was measurable atrophy of the forearms, with right forearm girth 34.5cm compared with left forearm girth 37cm.
There was full range of movement of both shoulders.
Active range of movement of the elbows measured with a goniometer.
| Elbow Movements | ||
| Active ROM measured RIGHT | Active ROM measured LEFT | |
| Flexion | 140° | 140° |
| Extension | 0° | 0° |
| Pronation | 50° - 2% UEI | 80° |
| Supination | 30° - 2% | 80° |
Active range of movement of the wrists measured with a goniometer.
| Wrist Movements | ||
| Active ROM measured RIGHT | Active ROM measured LEFT | |
| Flexion | 30°- 5% | 70° |
| Extension | 40° - 4% | 60° |
| Radial deviation | 10° - 2% | 20° |
| Ulnar deviation | 20°- 2% | 30° |
There was full range of movement of both hands.
There was local tenderness at the fracture site in distal ulna suggesting fibrous rather than bony union. Dysaesthesia was present in the middle and ring fingers from the DIP joints to the fingertips but there was no frank sensory loss to light touch or pin prick in the fingers. There was no weakness of intrinsic muscles of the right hand and no wasting of the interossei or the hypothenar muscles. Resisted abduction and adduction of the fingers was normal. There was no complaint of dysaesthesia to palpation in the little finger.
Tinel’s sign was negative over the ulnar nerve at the right elbow and right wrist, and negative over the median nerve at the right wrist.
Grip strength; right equals left.
Scarring
There was a 15cm longitudinal scar in the dorsoulnar aspect of the distal right forearm. On inspection, the forearm was relatively hairy, but there was a distinct lack of body hair in the area of the scar, increasing its contrast with the surrounding skin.
The claimant was conscious of the scar. There was colour contrast between the pale scar and surrounding skin. The claimant was easily able to locate the scar. There were some trophic changes (thickening) evident to touch. There were clearly visible suture marks. The anatomical location of the scar would be usually visible with usual short sleeve clothing. There was no contour defect. He reported some tenderness of the scar if he rested the ulnar right wrist area on a hard surface, representing a minor limitation in the performance of ADL, such as sitting at a desk or table to work or eat. There was no contour defect. There was no requirement for treatment and no adherence.
Comments on consistency
The claimant presented in a straightforward consistent manner.
Imagine
No imaging was brought to this assessment.
Mr Sibley had an original post-accident X-ray image on his mobile phone – the tyre lever is still in the bone – right distal ulna. There was extensive comminution at the fracture site.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnosis is penetrating injury to distal right forearm with chronic non-union of a compound comminuted fracture of distal ulna, and injury to the ulnar palmar digital nerve to right ring finger below mid-forearm level. There is significant muscle atrophy of the dominant right forearm indicative of chronic loss of function of this body part. There is also scarring associated with the penetrating injury and surgical procedures.
Based on the file evidence available, the accident was a cause of this injury, as it is referred to in the hospital records from the date of injury.
It is noted that the submissions provided by the parties do not indicate a dispute regarding whether the alleged injuries arise from a motor accident, as defined by the MAI Act. There is, however, clear argument as to the extent and diagnosis of any such injury.
There was no evidence of any previous injury to the right wrist area which had resulted in a permanent impairment. Although there was evidence of a prior right wrist injury as a child, there was no indication that any permanent impairment resulted from that injury.
PERMANENT IMPAIRMENT
There was measurable, reproducible loss of active range of motion in the right elbow and wrist which forms the basis for assessing permanent impairment.
Pronation 50° gives 2% upper extremity impairment, supination 30° gives 2% upper extremity impairment. Adding these gives 4% upper extremity impairment arising from the right elbow.
Similarly, there is measurable reproducible loss of active range of motion of the right wrist giving rise to assessable impairment.
Flexion 30° gives 5% upper extremity impairment, extension 40° gives 4%, radial deviation 10° gives 2%, ulnar deviation 20° gives 2%. Adding these gives 13% upper extremity impairment arising from the right wrist.
With regard to the dysaesthesia in the right ring finger in the distribution of the ulnar palmar digital nerve of the right finger below mid-forearm, there is decreased sensibility with abnormal sensation, which is forgotten during activity, placing him in Grade 2 sensory deficit giving 25% of the maximum sensory deficit.
The maximum sensory deficit for this distribution is 2% upper extremity impairment. 25% of 2% is 0.5% rounded to 1% upper extremity impairment.
Combining 13% upper extremity impairment from right wrist, with 4% upper extremity impairment from right elbow, with 1% upper extremity impairment from ulnar nerve branch, gives 17% upper extremity impairment. This is equivalent to 10% whole person impairment.
With regard to scarring, according to the TEMSKI table, the majority of descriptors are in the 2% WPI column.2% WPI is therefore the “best fit”.
Combining 10% WPI with 2% gives 12% whole person impairment.
There is no indication for making a deduction, as there was no evidence that there was a pre-existing permanent impairment which was symptomatic immediately before the subject accident.
The Panel is aware that the insurer has questioned the inclusion of the wrist and elbow range of movement given that there is no specific record of injury to these areas. Movements at the elbow joint, particularly pronation and supination depend upon normal rotation of the ulnar bone at the wrist. Similarly, normal wrist movements depend on the integrity of the relationships between the ulnar bone and radius at the distal radioulnar joint, as well as the soft tissues at the end of ulnar head (notably the triangular fibrocartilage) and the relationship between the ulnar and the other wrist bones.
The type of injury and the subsequent intervention would be expected to compromise these areas, and the findings of the Medical Assessors are consistent with the injury to the ulnar bone. The assessments of the wrist and elbow movements are an integral part of assessing the effects of an injury to the ulnar bone, particularly a comminuted, compound fracture with operative intervention.
The lack of complaint recorded in the clinical files does not negate the presence of the injuries found, and does not equate to a finding of nil permanent impairment, as suggested by the insurer. There is very clear and uncontroversial evidence that the claimant suffered a penetrating injury to his arm. The findings of the Panel are consistent with such a mechanism of injury.
Reference
AMA4, Chapter 3, Table 3, page 20; Figure 26, page 36; Figure 29, page 38; Figure 35, page 41; Table 11, page 48; Table 15, page 54.
Guidelines, Table 6.18. AMA4 Combined Values Chart, page 322.
CONCLUSION
The Panel finds that the following injuries were caused by the motor accident and give rise to a 12% whole person impairment which is GREATER than 10%:
· right arm - the diagnosis is penetrating injury to distal right forearm with chronic non-union of a compound comminuted fracture of distal ulna, and injury to the ulnar palmar digital nerve to right ring finger below mid-forearm level. There is significant muscle atrophy of the dominant right forearm indicative of chronic loss of function of this body part, and
· scarring - there is right forearm scarring associated with the penetrating injury and surgical procedures.
As the level of whole person impairment found by the Panel differs from that found by Medical Assessor Menogue, the certificate of 31 December 2023 is revoked and a new certificate is issued at the beginning of these reasons.
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