Sedger v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Sedger v QBE Insurance (Australia) Limited [2022] NSWPICMP 464
CLAIMANT:	Nadine Sedger
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Mohammed Assem
DATE OF DECISION:	28 October 2022
CATCHWORDS:	MOTOR ACCIDENTS – Accident on 22 August 2017; claimant aged 23 years; whole person impairment (WPI) assessment; claimant was a front seat passenger in a single car rollover accident; two occupants of the car deceased; claimant suffered fractures of the transverse processes from L1 to L4, fractures sixth and seventh ribs, fractures of the distal metatarsals of right foot; claimant has fully recovered respect to her right foot but requires specific footwear for mobilisation; Held – WPI force of movement in the right ankle 7% and WPI spinal injury 5%; total WPI 12%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination The Panel revokes the certificate of Medical Assessor Hyde-Page dated 16 July 2021. The Panel determines that the following injuries were caused by the motor accident: · lumbar spine injury with fractures of the transverse processes from L1 to L4; · injury to the right foot with fractures of the distal metatarsals; · soft tissue injury to the left ankle; · scarring to the left leg, and · fractured sixth and seventh ribs, healed. The injuries caused by the motor accident have a total whole person impairment of 12%

STATEMENT OF REASONS

BACKGROUND

This medical dispute came before Medical Assessor Hyde-Page to determine the degree of permanent impairment of the following injuries;
a.     lumbar spine – fractures, disc injury, musculoligamentous injury;
b.     right lower extremity (ankle and foot) – fractures, musculoligamentous injury, and
c.     left Lower extremity(ankle) – musculoligamentous injury.
Medical Assessor Hyde-Page determined that the following injuries were caused by the accident and gave rise to a permanent impairment of 6% namely;
a. lumbar spine – fractures, disc injury, musculoligamentous injury, and
b. right lower extremity (ankle and foot) – fractures, musculoligamentous.
Medical Assessor Hyde-Page determined that Nadine Sedger’s (the claimant) left ankle musculoligamentous injury was caused by the accident but had resolved at the time of assessment and did not result in permanent impairment.
The claimant seeks a review of the certificate of Medical Assessor Hyde-Page dated 16 July 2021.
The claimant was involved in a catastrophic motor vehicle accident which occurred on 22 August 2017, shortly after midnight. The claimant was a front seat passenger in a car when the driver lost control of the car with it then rolling onto its side and into a culvert. A passenger in the car died.
Immediately after the accident the claimant was taken to hospital by ambulance to Coffs Harbour Hospital.
She was there briefly and then transferred to Grafton Hospital on 25 August 2017. She was discharged from hospital on 29 August 2017 with limited mobility.
The claimant suffered the following injuries;
a.     injury to lumbar spine with fractures of the transverse processes from L1 to L4;
b.     injury to right foot with fractures of the distal metatarsals;
c.     soft tissue injury to left ankle, and
d.     fractured sixth and seventh ribs

CLAIMANT’S SUBMISSIONS

The claimant says that the assessment was incorrect for the following several reasons;
a)    Failed to carry out any permanent impairment assessment of the claimant’s cervical spine and which had been referred to him to assess.
b)    Failed to provide adequate reasons for the assessment of permanent impairment of the right second, third and fourth toes using the range of motion method.
c)     Failed to consider or apply alternative methods of assessment under the Guides to the Evaluation of permanent impairment ( AMA 4), contrary to paragraph 1.70 of the PIG (presumably Permanent Impairment Guidelines) (the guidelines) including the diagnosis based estimate method.
d)    Failed to consider and give adequate reasons why the assessor selected the range of motion method over the other alternative methods in chapter 3 of AMA 4 as required by paragraph 1.70 of the guidelines.
e)    Failed to consider and apply paragraph 1.72 of the guidelines when comparing the right and left ankles, feet and toes and fail to adequately or properly take into account a relevant fact, namely that both the right and left ankles had both been injured in the accident and that both ankles could have had a reduced range of motion as a result of the accident.
f)     Failed to provide any or any adequate reasons as to his determination that the claimant’s injury to her left ankle had resolved and did not result in a permanent impairment.
g)    Failed to use a goniometer to assess the reduced ranges of motion in relation to the left and right ankles, feet and toes contrary to the requirements of paragraph 1.84.1 of the guidelines.
It was the insurer who lodged an application for assessment of the claimant’s disabilities by the Medical Service.
The claimant responded with a reply and disagreed with the areas of disability for assessment. The claimant submitted that the following disabilities should be assessed;
a.     neck – musculoligamentous injury;
b.     chest/ribs-fractures;
c.     back – fractures, disc injury, musculoligamentous injury;
d.     right foot – fractures, musculoligamentous injury, scarring, and
e.     left leg- musculoligamentous injury, scarring.
The claimant also raised an issue for assessment of psychological injury but that is not something for which this Panel is concerned.
The claimant said that initially the cervical spine was required to be assessed by way of a soft tissue injury to the neck. Subsequently this requirement was withdrawn by the claimant.
The claimant has thoroughly analysed the reasons of Medical Assessor Hyde-Page. The claimant is critical of the manner of assessment of the Medical Assessor and has provided detailed submissions about this.
The claimant says that the Medical Assessor failed to provide adequate reasons for his assessment of permanent impairment. The insurer submits that the assessor adequately addressed his findings on examination and assessment of permanent impairment. The insurer says that it was for the Medical Assessor to use his clinical judgement to assess the appropriate impairment percentage based on his findings on examination and using his clinical judgement. The insurer says that it was at the Medical Assessor’s discretion to determine the amount of any appropriate assessment of whole person impairment.
The claimant says that the Medical Assessor’s reasons in relation to his assessment of permanent impairment of the right second, third and fourth toes are limited. The Medical Assessor commented that the claimant had mild stiffness in her second, third and fourth toes and with reference to AMA 4 at page 78 Table 45, a lesser toe metatarsophalangeal extension of less than 10% gives mild impairment which equates to 1% whole person impairment.
The claimant submits that the Medical Assessor failed to disclose whether and what the reduced percentage range of motion was for each toe. The claimant submits that without providing the details of his range of motion measurements for each toe, the claimant is not able to understand how the Medical Assessor arrived at his assessment or whether he has erroneously combined assessments for all three toes.
The claimant submits that Table 45 of AMA 4 contemplates separate whole person impairment is for each lesser toe and for two or more toes on a single foot, the whole person impairment is 2%. The claimant submits that it is entirely unclear from the very limited reasons provided by the assessor , what conclusions he reached on this point.
The claimant submits that paragraph 1.68 of the guidelines adopts s 3.2 of Chapter 3 in AMA 4 for the assessment of the lower extremity. The claimant submits that this requires that each method of assessment should be calculated in lower extremity percentages and then converted to whole person impairment using Table 4 of the guidelines.
The claimant submits paragraph 1 .70 of the guidelines requires that the most specific method, or combination of methods, of impairment assessment should be used. However, the claimant says that when more than one equally specific method or combination of methods of rating the same impairment is available, the method providing the highest rating should be chosen.
The claimant submits that on a reading of the Medical Assessor’s reasons as a whole, it is apparent that he has not considered all of the alternative methods of assessment and in particular, the diagnosis based estimates method as referred to at paragraphs 1.94 to 1.102 of the PIG and pages 85-88 of AMA 4.
The claimant submits that the Medical Assessor did not use the recommended worksheet and has not provided any reasons why he has preferred the range of ocean method and not the alternative method.
With respect to the use of a goniometer, the claimant says that paragraph 1.84.1 of the guidelines provides that a goniometer should be used where clinically indicated in an assessment using the range of motion method. The claimant submits that this is because a goniometer accurately records the percentage ranges of motion with the various active ranges of motion to be measured during the assessment.
The claimant says that it is clear that the Medical Assessor did not use a goniometer in assessing range of motion.

THE INSURERS SUBMISSIONS

With respect to the claimant’s submission that the Medical Assessor failed to provide adequate reasons for his assessment of permanent impairment of the right second, third and fourth toes using the range of motion method, the Insurer submitted that the Medical Assessor adequately addressed his findings on examination and assessment of permanent impairment to reach his finding of 1% permanent impairment as per Table 45 of AMA 4 because:
(a)    On page 5 he records on examination that the claimant's second, third and fourth metatarsophalangeal joints had some discomfort and there was some stiffness with extension of these toes but reasonably full flexion.
(b)    On page 8 the Medical Assessor records the claimant has mild stiffness in her second, third and fourth toes.
(c)    While the footnote of Table 45 says, "The maximum whole-person impairment percent for impairments of 2 or more lesser toes of one foot is 2%." The insurer submits:
(i)It was for the Medical Assessor to use his clinical judgment to assess the appropriate impairment percentage based on his findings on examination and using his clinical judgment. It was at his discretion to determine that the minimum 1% was appropriate.
(ii)Even if the Medical Assessor assessed the toe impairments at 2%, the claimant's whole person impairment would still not be greater than 10%.
With respect to the assessment of the range of motion of the claimant’s left and right ankles, feet and toes, the insurer submits that paragraph 1.84.1 of the guidelines does not require the use of a goniometer unless it is clinically indicated.
The claimant says the Medical Assessor failed to provide adequate reasons for his assessment of permanent impairment of the right 2nd, 3rd and 4th toes using the range of motion method.
In response the insurer submits the Medical Assessor adequately addressed his findings on examination and assessment of permanent impairment to reach his finding of 1% permanent impairment as per Table 45 of AMA 4 because:
(a)    On page 5 he records on examination that the claimant's second, third and fourth metatarsophalangeal joints had some discomfort and there was some stiffness with extension of these toes but reasonably full flexion.
(b)    On page 8 the Medical Assessor records the claimant has mild stiffness in her second, third and forth toes.
(c)    While the footnote of Table 45 says, "The maximum whole-person impairment percent for impairments of 2 or more lesser toes of one foot is 2%." The insurer submits:
(i)It was for the Medical Assessor to use his clinical judgment to assess the appropriate impairment percentage based on his findings on examination and using his clinical judgment. It was at his discretion to determine that the minimum 1% was appropriate.
(ii)Even if the Medical Assessor assessed the toe impairments at 2%, the claimant's whole person impairment would still not be greater than 10%.
There is an issue between the parties as to whether scarring suffered by the claimant was to be assessed. The insurer said that the non-traumatic scarring was not caused by the accident and it had not been put to the Medical Assessor to assess scarring. Scarring was not noted within the original application for whole person impairment assessment, which had been lodged by the insurer. The claimant however did raise the issue of scarring on page 7 of 9 of the claimant’s reply. The Panel will proceed on the basis that any scarring suffered by the claimant does form part of its review, for consideration.
Going the claimant’s submission that the Medical Assessor failed to consider and apply paragraph 1.72 of the guidelines , the insurer refers to paragraph 1.72 of the guidelines which says:
“If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint, only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.”
The insurer submits it is unclear how this could be applicable in the current circumstances in respect of the claimant's alleged ankle, foot and toe injuries because the Medical Assessor clearly undertook an examination of all of these alleged injuries on both the left and right side and appropriately noted any differences on examination, where applicable. The insurer highlights:
(a) The Medical Assessor adequately considered whether each ankle and hindfoot had a reduced range of motion as per his findings on examination (page 5 of the certificate). He found on examination both ankles and hindfoot movements were normal and symmetrical on examination.
(b) The Medical Assessor adequately assessed the claimant's forefeet and toes, noting the left examination was normal. He went on to assess the impairment that stemmed from his findings at the right toes.

THE LEGISLATION

The Delegate of the President was satisfied that there was reasonable cause to suspect that the medical assessment of Medical Assessor Hyde-Page was incorrect in a material respect. Consequently, the matter comes before the Panel for review by way of a new assessment of the claimant’s injuries for the purposes of assessing the whole person impairment.
The President’s delegated officer, Rachel Brittliff, determined on 24 January 2022 that there was reasonable cause to suspect an error in Medical Assessor Hyde-Page’s decision and the Panel has been convened.
The present application is a review of a medical assessment pursuant to s 63 of the Motor Accidents Compensation Act (the MACA).
The application for referral of a medical assessment to a Review Panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought – s 63(7) of the MACA.
On 24 January 2022, the Delegate of the President referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment of Medical Assessor Hyde-Page was incorrect in a material respect having regard to the particulars set out in the application – s 63(2) b) of the Act.
Pursuant to s 63(3) of the Act and Sch 1, cl 14F(2) of the Personal Injury Act 2020 (PIC Act), the Panel consists of two Medical Assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
Clause 14F of Sch 1 of the PIC Act provides that 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 Sch 1 of the PIC Act. As the medical assessment, the subject of the review, was made after 1 March 2021, the new review provisions apply.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see s 63(3A) of the Act.

THE MEDICAL EVIDENCE.

The claimant has not relied on any medico-legal reports but has submitted treating doctors reports and clinical records.
In the report of Dr Genon, orthopaedic surgeon dated 29 August 2018, he noted fractures of the distal metatarsals resulting in impinging heterotopic calcification of the right third and fourth metatarsals. The claimant was scheduled for surgery for removal of these bony growths on 6 September 2018.
There is a letter dated 6 February 2018 from Macquarie Neurosurgery, Dr Siu, who refers to a CT scan of 22 August 2017 demonstrating left transverse process fractures involving L1 to L4 with central disc bulging at L5/S1. Dr Siu felt that the claimant had suffered a stable injury to her lumbar spine associated with the transverse process fractures. He said that she needed no surgery and should continue with conservative management.
Dr Brian Stephenson, orthopaedic surgeon, completed a medico-legal report for the insurer on 28 March 2019. He diagnosed the claimant as having suffered a lumbar spine injury with fracture of the transverse processes and fractures of the second, third and fourth metatarsals with some stiffness in the toes. He concluded that she had a whole person impairment related to her lumbar spine injury to give DRE Category II of the lumbar spine and 5% WPI.
He considered that there was stiffness in her right ankle and hindfoot to give 13% lower extremity impairment which on conversion amounted to 5% WPI. He said that there was stiffness in the toes giving 2% WPI. When these values are all combined, there was 10% whole person impairment (WPI)on his assessment.
Dr Keller thought that the claimant had suffered undisplaced transverse process fractures from L1 to L4 with no instability. However, the X-ray report from Coffs Harbour Hospital, shortly after the accident, notes that there were minimally displaced fractures to left L1 to L4 transverse processes.
The report also notes a non-displaced healing fracture of L1 spinous process. The Panel notes that despite this X-ray report confirming displaced fractures of the L1 to L4 transverse processes, Dr Keller said that the claimant only had a DRE category I lumbar spine injury giving 0% WPI.

Medical examination

The claimant was examined by Medical Assessors Assem and Stubbs. The report of the findings of the Medical Assessors follows and is adopted by the Panel.
Ms Sedger and her mother flew to Sydney for the examination.

History:

Ms Sedger confirmed the history as recorded in the documents. In brief she was a front seat passenger in a motor vehicle accident that ran off the road, rolled over and hit a tree. She was taken by ambulance to hospital suffering from fractures of the spinous and transverse processes of the lumbar spine and fractures of the 2^nd 3^rd and 4^th metatarsals of the right foot. There was also a soft tissue injury to the left foot. An interhospital transfer was made after initial assessment.
Ms Sedger was discharged home after a week. She had moon boot splints on both lower limbs She was allowed to weight bear as tolerated. She wore the moon boot on the right leg for eight weeks but was able to get out of the moon boot on the left side at one week though 4 weeks use had been advised.

The fractures in the right foot healed with bony spurs and a subsequent operation was required to remove the spurs. The wound healing for this was very good. The scar was only recognisable on very close inspection. She said that this caused her no practical difficulties.
She is fully mobile now but continues to have tenderness in the right forefoot. She chooses to wear sandals or clogs with a high-density polypropylene soul to provide extra cushioning. Ms Sedger has residual back discomfort particularly with prolonged sitting.
She is otherwise well with no history of injuries in the affected regions.

Clinical examination

Ms Sedger is 162cm tall and weighs 90kg. She has a normal standing posture. She is bilateral genu valgus (knock knee) deformity which results in an inter-malleolus gap of 11cm and valgus posture of the hind foot. This is a developmental and not associated with the motor accident, but it does have effects on range of hind foot motion.
She can tip toe and heel toe walk on both sides. She can squat to 90°. She could hop on her left foot but not on the right as this causes increased forefoot pain. She can stand and balance on either leg alternatively. She has a low normal range of motion in the low back and the functional tests showed no evidence of muscle weakness in the lower limbs. Her upper body and upper spine are normal.
Both feet were examined. As noted, she stands with a slight hind foot valgus secondary to the knock knee. Both feet are abroad with a long first toe, toe length. Foot width, a general shape is the same between both feet. There are no corns or callosities on either foot. There is tenderness in the right forefoot most pronounced over the 3^rd metatarsal. Plantar sustaining as an indication of weight-bearing is identical between the two feet. There are no significant sensory changes. Calf and ankle circumference, 30 and 21cm respectively, is the same on both sides.
There was tenderness over the 3^rd metatarsal head. It was noted that the metatarsal arches total length is well preserved. In the hind foot there is 20° each of varus and valgus in both ankles.
The right foot shows greater than 10° of ankle dorsi flexion measured along the lateral border of the foot.
The left foot also shows a restricted dorsi flexion. Plantar flexion for both ankles is 40° in both feet measured along the lateral border of the foot.
Both ankles are stable.
Clinical tests for talar shift from lateral ligament instability or painful instability from diastases injury are negative on both sides.
The appearance of toes of both feet are the same but there are differences in active and passive extension of the toes. Flexion is normal.
The 1^st metatarsophalangeal joint on the right is less than 15° compared to 30° on the left.
The 2^nd metatarsophalangeal joint on the right lacks active extension but has a neutral posture.
The 3^rd and 4^th metatarsophalangeal joints on the right also lack extension compared to the left side, but this is less pronounced with just a 10° difference.
Active dorsi flexion power in the 3^rd and 4^th metatarsophalangeal joints is much better than in the 2^nd metatarsophalangeal joint.
There are several choices of methodology for assessment of fractured metatarsals.
It can be based on gait. Table 36 would give a 7% whole person impairment based on an antalgic limp with a short stance phase. However, clinical examination shows a normal gait and no evidence of weight shift in stance phase or secondary effects such as muscle wasting.
Assessment can be based on weakness. Table 39 assesses forefoot impairments on muscle weakness. Only the great toe is considered, as there is no assessment for weakness in the lesser toes. The clinical grade 3/5 would yield a 3% whole person impairment for the big toe.
Both ankles have normal strength.
Assessment can be considered based on range of motion. Table 42 provides a 3% whole person impairment based on mild restriction of ankle dorsi flexion (11-20°). Tables 43 and 44 do not apply as the range of motion is right equals left. Table 45 applies to metatarsophalangeal extension in the great toe. This is moderate, 2% whole person impairment based on the limitation of extension of less than 15°. Extension is limited in the lesser toes as well, 1% whole person impairment if less than 10° with a footnote noting that impairments of more than 2 of the lesser toes only receive a total 2% impairment. Strength testing cannot be combined with range of motion assessment (MAA Guides, Table 6.5, p 108). She was therefore awarded 4% whole. person impairment for a limitation in motion to her big toe and lesser toes.
Table 64 covers metatarsal fractures. The middle metatarsals attract only a 1% impairment each and only if plantar angulation and metatarsalgia or weight transfer differences are confirmed on lateral X-ray. However, Table 6.5 of the guidelines precludes this combination.
Whilst this is not for consideration, the Panel notes the surgical scar is imperceptible. Table 6.18 of the MAA guidelines gives a 0% WPI
Range of motion is the most beneficial methodology for Ms Sedger.
The total of WPI on the combined tables is 12%

Causation

The claimant was a front seat passenger in a car which was involved in an accident in which the driver lost control of his car, at speed, resulting in the car leaving the road, and rolling onto its side and into a culvert.
The Panel has concluded that it would not be unreasonable for the claimant to suffer a number of injuries, as has occurred and including injuries to her lumbar spine, right foot and ankle as well as scarring to her left leg as a direct consequence of this accident. In the particular circumstances of this accident, the Panel is satisfied that the injuries suffered by the claimant are causally related to the accident occurring on 22 August 2017

DETERMINATION

The Panel revokes the certificate of Medical Assessor Hyde-Page dated 16 July 2021.

The Panel determines that the following injuries were caused by the motor accident:

·        lumbar spine injury with fractures of the transverse processes from L1 to L4;
·        injury to the right foot with fractures of the distal metatarsals;
·        soft tissue injury to the left ankle;
·        scarring to the left leg, and
·        fractured sixth and seventh ribs, healed.

The injuries caused by the motor accident have a total whole person impairment of 12%.

[2022] NSWPICMP 464

28 October 2022