Smart v AAI Limited t/as GIO
[2025] NSWPICMP 115
•24 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Smart v AAI Limited t/as GIO [2025] NSWPICMP 115 |
CLAIMANT: | Rodney Smart |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 24 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; statutory provisions; claimant riding motor scooter in roundabout; fractured right ankle; injuries to right shoulder, neck, and lower back; open reduction and internal fixation; clinical notes support lumbar spine injury; use of walking stick; low back pain increasing; medications; examination shoulder no asymmetry; scarring; tropic changes but no contour defect; pigmentary changes to site of scar; documentation supporting claims of injury; Held – whole person impairment greater than 10%; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the Certificate of Medical Assessor Robert Kuru dated 17 June 2024 and issues a new certificate that the following injuries caused by the motor accident give rise to a permanent impairment of 13% and is greater than 10%: · right shoulder – soft tissue injury - 1%; · lumbar spine – soft tissue injury - 5%; · right ankle – fracture dislocation – 7%, and · scarring – 1%. |
STATEMENT OF REASONS
INTRODUCTION
Rodney Smart (the claimant) is a 61-year-old man who was seriously injured in a motor vehicle accident when the motor scooter he was riding was struck by the insured’s vehicle. The claimant alleges he sustained injuries to his cervical spine, lumbar spine, both shoulders as well as fractures to his right lower leg, scarring and an injury to his thoracic spine.
The insurer conceded the claimant’s injuries were non-threshold but did not concede that the injuries exceed 10% whole person impairment. The claimant was examined by Medical Assessor Robert Kuru on 10 May 2024 who, in a certificate dated 17 June 2024, determined that the claimant sustained a whole person impairment caused by the motor vehicle accident of 8%.
The claimant sought a review of this determination and, in a certificate dated 9 August 2024 the President’s delegate Stephanie Wigham determined that she was satisfied that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The matter was then referred to this medical panel.
Directions were issued on 4 September 2024 for the parties to upload to the portal all the material which had been lodged with the application and reply to the Application for Assessment of Whole Person Impairment. This material was before the Panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The claimant attended the medical suites at the Commission on 8 January 2025. He was unaccompanied. He drove down from Cabarita yesterday prior to the interview by himself.
Pre-accident history
Mr Smart stated that he had had no previous injuries of those assessed today. He was working full-time as a real estate agent for Raine and Horne in Pottsville at the time of the accident. He was divorced and has two adult children and shares a flat. Prior to the accident he states that he was attending the gym six times a week, running on the beach most days engaged in martial arts, tennis and horse riding.
History of motor accident
Mr Smart was riding a motor scooter in a roundabout when a car failed to give way knocking him off the scooter. He landed heavily on his right side. At that time, he had severe pain in the right ankle, right shoulder, neck and low back. He was taken by ambulance to Tweed Heads Hospital where there was a closed reduction of his ankle dislocation.
History of treatment following the motor accident
A few days after the accident, he underwent an open reduction and internal fixation of the right ankle fracture. He was wearing a cam boot for 12 weeks with crutches and two months after the accident, the pins were removed. He states that he was initially improving but there has been no change in the past year. He was also assessed for a soft tissue injury to his right shoulder and undertook physiotherapy for shoulder and ankle.
There have been no further injuries sustained since the accident.
Relevant medical material
The Panel noted that the hospital notes identified degenerative changes in L5/1. Such post-accident clinical notes make clear that the claimant raised an issue with his lumbar spine which was the subject of an examination. The Panel also noted that the claim form identified a list of injuries including an injury of lumbar spine. Further the claimant’s treating general practitioner referred the claimant for an MRI of his lumbar spine on 28 July 2022. On the basis of this history and the material, the Panel is satisfied that there is sufficient contemporaneous medical material to support the allegation of the claimant that he sustained an injury to his lumbar spine.
Current symptoms
Mr Smart continues to have anterior right ankle pain which increases with cold weather. He has persistent stiffness in the ankle and sometimes walking more than 50 m has a feeling of electric shocks in the ankle. He states that he pushes through the pain barrier and spends one to three hours six days a week walking. He is unable to walk in soft sand. Whilst walking he carries a walking stick in case the pain increases.
There is a sharp right sided low back pain which increases with flexion and occasional burning sensation in the right quadriceps muscle and hamstring which can last for up to one day. He gets some relief of this with stretching.
There is loss of range of movement of the right shoulder and in particular abduction more than 90° such as hanging clothes on the line which causes sharp anterior shoulder pain. He states that flexion is pain free and has been some improvement with weight training.
There was stiffness in the cervical spine particularly in the morning and increases with rotation to the right.
Current treatment
Present medication is Nurofen and Panadeine Forte. He takes an antidepressant Cipramil and is on statin therapy for high cholesterol.
No radiological studies were available for inspection.
Clinical examination
Mr Smart was a well looking man who walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is left-handed. Height was measured at 175 cm and weight 90 kg.
Cervical spine
On inspection there was a normal contour of the cervical spine and on testing range of movement a normal range of flexion/extension. Side bending and rotation were 80% bilaterally. On palpation there was no guarding or spasm in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 30 cm on the right and 31.5 cm on the left (10 cm above the olecranon process) and in the upper forearms 27 cm on the right and 28 cm in the left (5 cm below the olecranon process). This is within normal limits for left-handed male.
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on passive movement no crepitus was detected. Impingement tests were slightly positive on the right. Active movements were measured using a goniometer and repeated.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 180° |
| Extension | 50° | 50° |
| Adduction | 50° | 50° |
| Abduction | 130° = 2 % UEI = 1 % WPI | 180° |
| Internal Rotation | 80° | 80° |
| External Rotation | 80° | 80° |
Thoracic spine
On testing range of movement of the thoracic spine, there was a normal range of flexion/extension side bending rotation with no asymmetry. There were no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region.
Lumbar spine
Mr Smart walked with a normal gait and was able to stand on his toes but not on the right heel. Squatting was limited to 50% of expected range due to stiffness in the right ankle and low back pain. On testing range of movement there was a full range of flexion but extension was limited to 50% of expected range. Side bending to the right was 50% of expected range and to the left 80% of expected range. On palpation there was no guarding or spasm noted in lumbar musculature. Straight leg raise when lying was 80° bilaterally.
On neurological examination of the lower limbs, there was normal power and normal reflexes. No sensory changes were noted except slight loss of sensation around the surgical scar. No muscle wasting was apparent with the circumference of the lower thighs 42 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 37 cm bilaterally.
Ankles
| Ankle Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion | 10°= 7%LEI | 30° |
| Plantarflexion | 10° = 15 % LEI | 30° |
| Hindfoot Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Inversion | 10° = 2% LEI | 30° |
| Eversion | 5° = 2 % LEI | 20° |
Scarring
There is a 12 cm surgical scar over the lateral malleolus and a 2 cm portal scar over the medial malleolus. Mr Smart is conscious of the largest scar and states he is a bit embarrassed by the appearance. On palpation there was slight trophic changes but no contour defect some pigmentary changes as the larger scar is pinker than the surrounding skin. There is a decrease in sensation within 1 cm of the large scar. He states that he gets some relief by applying a hemp cream to the scars.
Discussion
Right shoulder – soft tissue injury
Mr Smart gave a history of landing on his right shoulder when thrown off his motor scooter. Although it was not recorded in the hospital discharge summary, a fracture dislocation of the right ankle would have taken precedence. His treating GP investigated the right shoulder three months after the accident with an MRI. The right shoulder was also mentioned in referral to a physiotherapist. It is reasonable to assume that there has been a soft tissue injury to the right shoulder sustained in the subject accident.
The right shoulder is assessed using range of movement and tables 38, 41 and 44 of AMA 4. Add abduction of 130° is 2% UEI and using table 20 becomes 1% WPI.
Left shoulder – soft tissue injury
There is no documentation of any injury to the left shoulder until five months after the accident when an ultrasound was ordered. The Medical Panel certifies that the injury sustained to the claimant’s right shoulder, lumbar spine, right ankle and scarring causally related to the subject accident and gives rise to a whole person impairment of 13%.
At the time of the examination by the Panel, there was a full pain free range of movement of the left shoulder so any injury has now resolved.
Cervical spine – soft tissue injury
On the day of the accident, Tweed Hospital ordered a CT scan of the cervical spine which showed degenerative changes. The Panel accepts that Mr Smart sustained a soft tissue injury to cervical spine at the time of the accident which gives a classification DRE category l which is 0% WPI. On testing range of movement, no dysmetria was noted with no guarding on palpation and no signs of non-verifiable radicular complaint or radiculopathy.
Thoracic spine – soft tissue injury
There is no documentation of any injury to the thoracic spine sustained in the subject accident and no impairment on examination. The Panel does not consider that the thoracic spine was injured in the subject accident.
Lumbar spine – soft tissue injury
Mr Smart maintains that he had a sore lower back after the accident and the treating GP recorded this on 28 July 2022 which was four months after the accident. Mr Smart stated that he had persistent lower back pain after the accident but the major ankle fracture took precedence. The lower back pain would have been aggravated by his immobility due to the ankle surgery and wearing a cam boot for several months when he started to mobilise. He would have had an initial antalgic gait due to the stiffness in movement of the right ankle which would also cause dysfunction in the lumbar spine. This injury is a soft tissue injury due to aggravation of his underlying degenerative lumbar spine.
The Panel has determined that this is a classification DRE category ll which is 5% WPI due to dysmetria noted on testing range of movement with no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs.
Right ankle
The fracture dislocation of the right angle was recorded by the ambulance officers and treated immediately afterwards at Tweed Hospital surgically. This injury is assessed using range of movement and tables 42 and 43 of AMA 4. 10° plantarflexion is 15% LEI and 5° eversion is 2% LEI. This adds to 17% Lei which converts to 7% WPI using table 6.4 of MAA guidelines.
Scarring right ankle
There is a surgical scar in the right ankle which ought to be assessed using the Temski chart. Mr Smart is conscious of the scar is easily able to locate it and there are minimal trophic changes with no contour defect and slight pigmentary changes competed surrounding skin. Suture marks are barely visible. There is negligible effect on any ADLs with no adherence. Classification of best fit is 1% WPI.
Conclusion - whole person impairment
The claimant has sustained a whole person impairment of 13% which is greater than 10%. He sustained 1% whole person impairment consequent on the right shoulder injury, 5% whole person impairment consequent on lumbar spine injury, 7% whole person impairment consequent on fracture dislocation of right ankle, 1% whole person impairment for scarring.
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