Sydney Trains v Brookes (No 2)
[2022] NSWPICMP 383
•5 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Sydney Trains v Brookes (No 2) [2022] NSWPICMP 383 |
| CLAIMANT: | Colin Allan Brookes |
INSURER: | Sydney Trains |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Dr Wing Chan |
| MEDICAL ASSESSOR: | Dr Michael McGlynn |
| DATE OF DECISION: | 5 October 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – On 22 January 2018 the claimant was on a train waiting at the door to alight when the train hit the buffer at the end of the line; the claimant suffered fractured ribs, fractured nasal bones, a laceration to the forehead and an abrasion to the left patella; on 14 May 2018 the claimant diagnosed with thrombosis in the left popliteal artery; injuries referred for assessment; left knee soft tissue injury, amputation secondary to thrombosed left popliteal artery aneurysm, fractured nose with deformity, skin left knee scarring; question of causation of the aneurysm of the right popliteal artery and resulting amputation; Held – injury to the patella remote from anatomical location of the popliteal artery; claimant predisposed to thrombosis; no evidence of vascular insufficiency until three months post-accident; thrombosis in the popliteal artery was not causally related to the accident; claimant sustained soft tissue injury to the knee; 5% WPI for nasal deformity; scarring caused by surgery for complication of arterial thrombosis not caused by the accident; whole person impairment not greater than 10%. |
| DETERMINATIONS MADE: | The Panel revokes the certificate of Medical Assessor Geoffrey (Paul) Curtin dated · fractured nose with deformity, and · left knee-soft tissue injury. The Panel determines that the following injuries were not caused by the motor accident: · amputation secondary to thrombosed left popliteal artery aneurysm, and · skin-left thigh scarring. |
REASONS FOR DECISION
BACKGROUND
On 22 January 2018 Mr Colin Allan Brookes (the claimant) was working as a cleaner on the trains. On that day Mr Brookes was on the train on his way to work and was waiting at the door to alight when the train came into the station too quickly and hit the buffers. Mr Brookes was thrown about in the carriage sustaining injury (the accident).
Mr Brookes sustained a chest injury with fractured ribs, fractured nasal bones and a laceration to his forehead. Whilst a patient at Nepean Hospital it was noted he had a painful left knee on the medial aspect. On 14 May 2018 Mr Brookes was again admitted to Nepean Hospital where he ultimately underwent a left below knee amputation after he developed a thrombosis in the left popliteal artery aneurysm. The dispute between the parties is whether the aneurysm of the left popliteal artery and the resulting amputation was causally related to the accident.
QBE Insurance (Australia) Limited (the insurer) is the insurer with liability to pay damages to Mr Brookes for injuries sustained in the accident under the Motor Accident Injuries Act 2017 (the MAI Act).
This dispute is in relation to whether the degree of permanent impairment of
Mr Brookes as a result of the injury caused by the accident is greater than 10%.[1] This constitutes a medical dispute within the meaning of the MAI Act.[2]
[1] Section 4.11 of the MAI Act.
[2] Schedule Clause 2(a) of the MAI Act.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The relevant medical assessment was conducted by Medical Assessor Geoffrey (Paul) Curtin. He issued a certificate dated 26 November 2021 following an assessment on 17 November 2021.
Sydney Trains filed an application for review of that medical assessment within 28 days after the parties were issued with the certificate of Assessor Curtin.[3]
[3] Section 7.26(10) of the MAI Act.
On 12 April 2022, the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 7.26(5) of the MAI Act.
The Personal Injury Commission (Commission) commenced operation on
1 March 2021 and the Dispute Resolution Service (DRS) was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).Clause 14F of Schedule 1 of 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 of Schedule 1 of the PIC Act and includes Assessor Curtin where the medical assessment the subject of this review occurred after 1 March 2021.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[5] The President’s Delegate referred this application for review to the panel.
[5] Section 7.26 (5A) of the MAI Act.
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[6] The Guidelines are issued pursuant to s 10.2 of the MAI Act and are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[7]
[6] Section 7.21(1) of the MAI Act.
[7] Clause 6.2 of the Guidelines
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 Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
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.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[10] However, the assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment resulting from a particular injury and whether a particular injury was caused by the accident. [11]
[10] Section 7.26 of the MAI Act.
[11] Section 7.25 of the MAI Act.
The Panel issued a Direction to the parties on 1 August 2022 (the first Direction) which required each party to file an indexed, paginated bundles of documents. In response to this direction the insurer filed a bundle of documents paginated from pages 1 to 985 and marked AD2. The claimant filed his bundle of documents paginated from pages 1 to 1550 and marked AD3.
On 9 September 2022 the Panel agreed an examination was not required because:
(a) an examination is not required to determine the question of causation of the thrombosis in the popliteal artery which resulted in amputation; and
(b) there does not appear to be any dispute about the assessment of the fractured nose or the scarring to the left thigh.
The parties were given an opportunity on or before 23 September 2022 to confirm they agreed to the Panel determining the issues in dispute without re-examination. On 14 September 2022 the claimant indicated consent. No response was received from the insurer.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Geoffrey (Paul) Curtin
Medical Assessor Curtin provided a certificate dated 26 November 2021.[12]
[12] AD2 p 19.
The following injuries were referred to Assessor Curtin for assessment:
· left knee-soft tissue injury, amputation secondary to thrombosed left popliteal artery aneurysm;
· nose-fractured nose with deformity, and
· skin-left thigh scarring.
Assessor Curtin concluded the following injuries were caused by the accident and gave rise to a permanent impairment of 39%:
· left knee-soft tissue injury, amputation secondary to thrombosed left popliteal artery aneurysm;
· nose-fractured nose with deformity, and
· skin-left thigh scarring.
Assessor Curtin noted there were three opinions provided by vascular surgeons as to whether the soft tissue issue to the left knee could have resulted in the thrombosis of the femoral artery which ultimately resulted in the amputation of the left leg. He noted Dr Myers concluded there was no evidence to link the thrombosis with the earlier accident. Dr Peter Tomlinson opined that the soft tissue injury to the knee resulted in damage to a pre-existing aneurysm in the femoral artery which went on to be occluded by thrombosis. Dr Neische did not address the question of causation but found there was no history or evidence of pre-existing vascular disease prior to the accident and that the diagnosis was “thrombosis of a traumatic left popliteal artery aneurysm”.
Assessor Curtin agreed with the opinion of Medical Assessor Haber who considered the left femoral artery thrombosis which resulted in the below knee amputation had developed as a result of the accident.
In relation to the facial scarring Assessor Curtin stated:
“The Motor Accident Guidelines (para 6.189-6.191 p126 and para-6.258-6.267 pages p140-1) direct that facial scarring may be assessed using either chapter 13 AMA 4 (pages 279-280) or Chapter 9 (page 229- 230). It has been decided to make an assessment of facial scarring using Chapter 9. The facial impairment is Class 2 as the deviated nasal bones involves a loss of supporting structure of part of the face with or without cutaneous disorder. In my view the deformity is relatively minor and therefore falls at the bottom of the range at 5% WPI.”
Assessor Curtin assessed the scarring on the left leg. He found the assessment on a best fit basis was 1% because:
“the claimant is conscious of the scarring, but there is a good colour match with the surrounding skin. He is able to locate the scars but the location of the scarring is not usually visible with usual clothing. Suture marks are visible and there is a visible contour defect. The scarring appears to have negligible effect on any ADL. The scars are not adherent and no treatment is required.”
Assessor Curtin found the slight flexion contracture of the left knee attracts a rating of 4% WPI. He found the below knee amputation attracts an impairment rating of 28% WPI, but increased to 32% WPI because of the retained tibial bone length and hence the effective amputation length is less than 7.5 cm.
Assessor Curtin noted Mr Brookes has no symptoms in relation to his rib fractures which had resolved.
OTHER MEDICAL ASSESSMENTS
Medical Assessor John O’Neill
Medical Assessor John O’Neill issued a certificate dated 19 May 2021.[13] He found the condition of Guillain-Barre syndrome-persisting facial diplegia was caused by the accident and gave rise to a permanent impairment of 20%. He noted Mr Brookes had persisting bilateral facial weakness with associated slurring of speech and mild impairment of taste.
[13] AD2 p 5.
In relation to causation, he stated:
“There is absolutely no doubt that Mr Brookes sustained a fracture of the nose, fracture of the right fourth to seventh ribs (inclusive) and an apparent "soft tissue injury" to the left knee in the accident of 22 January 2018.
The question of causation is difficult in terms of subsequent events.
It is outside my area of expertise to state whether or not the development of a thrombosed left popliteal artery aneurysm could have arisen from the knee injury which took place in the accident of 22 January 2018. It was during rehabilitation for complications arising from management of the left popliteal artery aneurysm that Mr Brookes developed Guillain-Barre syndrome (GBS). GBS can arise in the setting of recent surgery and so if it was deemed that the popliteal artery aneurysm arose from the accident then it would be reasonable to say that the GBS was a further remote complication of the accident.”
Medical Assessor Richard Haber
The following injuries were referred to Medical Assessor Haber for assessment:
· pulmonary embolism;
· left knee – thrombosed left popliteal artery aneurysm secondary to trauma, and
· rib – fractured 4th, 6th, 7th and 8th ribs.
In his Certificate dated 28 June 2021[14] Medical Assessor Haber found the following injuries were caused by the accident but had resolved and did not result in permanent impairment:
· Fractures of the ribs;
· Pulmonary emboli, and
· Thrombosis in the left thigh.
[14] AD2 p15.
Assessor Haber found that the amputation of the left leg was outside his area of expertise.
Combined certificate of Medical Assessor Curtin
Medical Assessor Curtin issued a Combined Certificate dated 1 December 2021 in which he found that that the following injuries caused by the accident gave rise to a permanent impairment greater than 10%:[15]
[15] AD2 p 27.
· knee - left knee- thrombosed left popliteal artery aneurysm secondary to trauma;
· lung - lungs- pulmonary embolic;
· nose and air passage - nose- fractured nose with external deformity;
· ribs - rib fractures 4th, 6th, 7th and 8th ribs;
· leg - neurological- guillain barre syndrome, and
· skin - scaring - left thigh scarring.
MATERIAL BEFORE THE REVIEW PANEL
Hawkesbury District Health Service, 22 January 2018
The triage note records Mr Brookes was brought in by ambulance. He was standing on a train when he fell forward, hit his head and sustained a laceration to his forehead and pain to his nose.[16]
[16] AD2 p 251.
The clinical record reports Mr Brookes was thrown against the wall, hit his face and chest. He was complaining of nasal, right chest and left knee pain, with no loss of consciousness.[17] Mr Brookes was diagnosed with four right sided rib fractures without displacement and a nasal bone fracture (x2) with a nasal septum fracture. He was also noted to have a laceration to the forehead and left knee tenderness at the patella and medially.[18]
[17] AD2 p 254.
[18] AD2 p263.
Mr Brookes underwent an X-ray of his left knee on 22 January 2018 having regard to the history of left knee pain.[19] The findings were recorded as follows:
“There is good preservation of the joint space in the medial, lateral and patellofemoral articulations with no evidence of degenerative change or a synovial arthropathy. The skyline view suggests satisfactory patellar tracking. There is no evidence of a joint effusion or loose body. No fracture seen.”
Nepean Hospital
[19] AD2 p 269 and AD3 p 293.
Mr Brookes was transferred by ambulance to Nepean Hospital where he was admitted until 23 January 2018.[20] The Emergency Department notes list the injuries as follows:
“- Multiple rib fractures;
- Laceration to forehead – sutured;
- L knee pain with abrasion; and
- Nasal fracture – displaced.”
[20] AD2 p 303.
Clinical notes of Sydney Street Medical Practice[21]
[21] AD2 P 314.
Mr Brookes consulted his general practitioner (GP) Dr Selim at Sydney Street Medical Practice. The first relevant consultation was on 5 February 2018 when Dr Selim noted Mr Brookes had been involved in a train accident on 22 January 2018 sustaining a fractured nose, fractured ribs and a lacerated forehead.
On 9 February 2018 Dr Selim recorded a history of intermittent right elbow pain and left knee pain when flexed for an extended period of time. On examination of the knee, he recorded: “L knee-prepatellar effusion+.no tenderness. Full RON [sic ROM] all movements”.
On 16 February 2018 Dr Selim noted continuous left knee pain and on
23 February 2018 he recorded the left knee pain was stable. On 2 March 2018
Dr Selim reported the left knee pain was 4/10 and on 7 March 2018 he reported persistent left knee pain, localised around the patella. On examination he reported “localised tenderness and central patella/ bruising”.
On 19 April 2018 Mr Brookes underwent nose surgery, namely nasal bone osteotomies and septal reconstruction at Minchinbury Community Hospital under the care of
Dr Michael Hunter.
The next relevant complaint is on 3 May 2018 when Dr Selim records left foot and calf pain for the past three days. However, on examination Dr Selim records “L calf – no swelling, localised tenderness”. Dr Selim referred Mr Brookes for a leg venous doppler.
An ultrasound venous doppler of the left leg performed on 3 May 2018 concluded there was no evidence of deep vein thrombosis in the left lower limb.[22]
[22] AD2 p 387.
On 7 May 2018 Dr Selim notes no abnormality disclosed on the left venous doppler and records “pain now localised to L ankle”. He noted mild tenderness of the left ankle with a full range of motion.
On 9 May 2018 Dr Selim reported “L knee pain persists since accident. Mild but became severe after slight trauma”.
On 14 May 2018 Dr Selim reported the left foot was worse and was turning bluish. On observation he recorded “L foot appear cyanotic, nailbed capillary reurn sluggish [sic]”. Dr Selim concluded Mr Brookes required an urgent arterial doppler and intervention.
Mr Brookes underwent an ultrasound of the right foot on 18 May 2020.[23]
Dr Ketheswaran commented:
“No evidence of DVT or superficial thrombophlebitis in the right lower limb. Incidental note of occluded thrombosed right popliteal artery, arterial doppler study of the right leg is recommended.”
[23] AD2 p 892.
Mr Brookes underwent a right lower limb venous doppler ultrasound on
19 March 2021.[24] The report states:
“No DVT is seen in the right lower limb.
The common femoral, superficial femoral and popliteal veins demonstrate normal colour flow, compression and flow augmentation and the peroneal, anterior tibial and posterior tibial veins demonstrate normal colour flow and compression.
The superficial veins appear unremarkable.
There is no Baker's cyst in the posterior fossa.
The right popliteal artery is thrombosed and occluded with no flow.”
[24] AD2 p 895.
Mr Brookes underwent a right leg arterial doppler ultrasound on 24 March 2021[25].
Dr Sing reported:
“There is high grade occlusion with almost complete occlusion of the right external iliac, right common femoral, superficial femoral artery and profunda femoral arteries. There is complete occlusion of the popliteal artery and the calf arteries. The proximal intra-abdominal arteries were difficult to image due to bowel gas The results were discussed with Dr Selim and the patient is to attend Nepean Hospital A & E(Accident and Emergency) for further management, recommended.”
Minchinbury Community Hospital, 19 April 2018
[25] AD2 p 893.
On 19 April 2018 Mr Brookes underwent surgery, namely reconstruction of the septum at Minchinbury Community Hospital.[26]
Nepean Hospital admission, 14 May 2018
[26] AD2 p 277.
Mr Brookes was an inpatient at Nepean Hospital from 14 May 2018 to
27 August 2018.[27] The discharge summary states:
“…Colin Brookes a 54-year-old male who was admitted to Nepean Hospital on the 14.05.18 with pain and paraesthesia of the left leg. He was admitted under
Dr Nguyen (Vascular Surgeon) and diagnosed with an occluded popliteal aneurysm. He underwent a femoral - popliteal bypass which unfortunately was unsuccessful and required a left below knee amputation. Mr Brookes had a complex and complicated recovery suffering from post-operative DVT, Guillain Barre Syndrome, Stump dehiscence and suffering from a UTI and urinary retention.”
[27] AD 2 p 354 and 424 – 442.
The clinical summary of the left occluded popliteal artery states:[28]
“- Presented to Nepean hospital on the 14/5/18 with a 2 week history of pain in the left calf and limited in mobility. Left foot cool to palpate with monophasic flow on ultrasound of posterior tibial artery, unable to elicit DP
- CTA 12 mm left popliteal artery aneurysm with near complete occlusion
- Femoral popliteal bypass on the 15/05/18
- Day 1 post a op had pain crisis which required a femoral nerve block
- Required a left BKA (below knee amputation) on the 24/05/18 due to occluded bypass graft”.
[28] AD2 p 355.
Mr Brookes underwent a CT lower limb with spiral angiography on 14 May 2018 with the following findings: [29]
“There is abrupt cut off of the left superficial femoral artery in the mid thigh. There is good opacification and calibre of the profunda femoris artery. There is no contrast in the popliteal artery. Some of the collaterals in the anterior compartment of the thigh are supplying the proximal posterior compartment of the leg. There is minimal to no opacification of the anterior and posterior tibia and peroneal artery. Hyperdensity within the posterior tibia is likely due to calcified atherosclerosis.
Calcified atherosclerosis is present in the right posterior tibial. There is reduced opacification from ankle joint onwards. There is good calibre and opacification of the right femoral, profunda femoral, popliteal and proximal arteries of the leg.
There is mild calcified atherosclerosis of the right common iliac artery. The abdominal para and major branches show good opacification otherwise. There is early branching of the right renal artery. No dissection or aneurysm identified.”
Dr John Taper, 7 November 2018
[29] AD2 p 359 and 427.
Dr Taper, a staff specialist in the Haematology Clinic, Nepean Hospital reviewed
Mr Brookes on 7 November 2018. [30] He noted Mr Brookes was involved in a train related accident with significant trauma to his thorax and left lower limb, requiring admission to Nepean Hospital. He reported after discharge the limb was never entirely normal and in May an arterial thrombotic event occurred which eventually results in an amputation.
[30] AD2 p 338.
He reported during the hospital stay it was noted that Mr Brookes had a proximal left lower limb venous thrombosis. He also noted Mr Brookes was well with no medical issues prior to the accident, was a non-smoker and did not drink alcohol (it is clear from other records that Mr Brookes did drink alcohol – the clinical notes of Nepean Hospital refer to a carton a week). He also reported there was no significant family history of a thrombotic disorder and extensive procoagulant and vasculitic investigations in the hospital were unremarkable. He concluded the arterial event was related to the trauma and the venous thrombotic event attributable to his hospital stay and surgery.
Nepean Hospital admission, 8 January 2019
Mr Brookes was readmitted to Nepean Hospital on 8 January 2019 and discharged the following day.[31] He was admitted for a pulmonary embolism demonstrated on an outpatient CT-Pulmonary Angiogram.
[31] AD2 P 381.
The Discharge Summary includes the following:
“Further Review of his CTPA in hospital revealed left upper and lower lobe pulmonary embolism, with suspicion of consolidation. Colin was further investigated with a Doppler ultrasound of both lower limbs with findings of persistent DVT (previous DVT from distal external iliac vein extending into femoral and popliteal veins) and no other significant findings in the proximal external iliac vein. The right limb showed no pathology. Colin was further investigated with an ECG which showed sinus tachycardia, however he remained hemodynamically stable.”
In a report dated 3 April 2019 Dr Monica Comsa, respiratory specialist, Nepean Hospital noted Dr Brookes had been referred back to her following his pulmonary embolism in January 2019 which she thought was likely provoked by his immobility in the wheelchair following the left leg amputation in 2018.[32]
[32] AD2 p 334.
Nepean Hospital, 24 March 2021
Mr Brookes presented to Nepean Hospital on 24 March 2021 with Rutherford Type 1a acute right limb ischemia under the care of Dr Daniel Nguyen.[33]
[33] AD2 p 916.
On 24 March 2021 Mr Brookes underwent a CT angiogram of the lower limb.[34] The reason for examination was right side ischemic leg. The report concluded:
“There Is contiguous soft plaque extending from the distal right common lilac artery to the origin of the right superficial femoral artery causing up to severe stenosis as described above.”
Dr Daniel Minh Le Nguyen[35]
[34] AD2 p 918.
[35] AD2 p 982.
Dr Nguyen, vascular surgeon provided a report to Dr Selim dated 6 May 2021. He reported two months earlier Mr Brookes was admitted under his care to Nepean Hospital in respect of an acute thrombosis in the right leg. He reported a recent ultrasound demonstrated improvement in the thrombus burden with residual EIA stenosis 50 to 75%, non-occlusive thrombus in the popliteal artery with 75% stenosis and occlusion of the PTA from the midcalf.
Medico legal evidence
Dr Peter Tomlinson
Dr Tomlinson a vascular surgeon assessed Mr Brookes at the request of his solicitors on 15 October 2018 and provided a report dated 24 October 2018.[36]
[36] AD2 p 233.
Dr Tomlinson expressed the following opinion as to causation:
“It is my opinion that this gentleman has had a left popliteal artery aneurysm and has developed trauma to the medial aspect of his left knee resulting in some damage to the aneurysm itself. This has resulted in a degree of thrombosis of the aneurysm with total occlusion of the aneurysm and popliteal artery at the time of surgery to his fractures of the nose which were necessary as a result of the accidents sustained on 22 January 2018.”
He concluded further:
“I do believe that the surgery performed on 23 May 2018 for left below knee amputation was reasonably necessary due to ischaemia of the left leg. I believe that this surgery is directly related to the injury of 22 January 2018. I believe there has been a history of direct trauma to the left knee and there has most likely been some damage to the popliteal artery aneurysm resulting in thrombosis. Complete occlusion of the aneurysm has taken place in association with surgery for fractures to the nose, which were again sustained on 22 January 2018.”
Vocational capacity centre
Mr Brookes was assessed by Functional Assessor Christine Leaver and Vocational Assessor Burchett of the Vocational Capacity Centre on 19 November 2019 and
10 December 2019. A report dated 6 January 2020 was issued.[37]
[37] AD2 p 50.
The functional assessment concluded Mr Brookes was not capable of returning to his pre-injury occupation of commercial cleaner. Due to his left leg below knee amputation, he is no longer able to stand for a shift, to climb into trains and move around confined spaces to clean inside the carriage.
Dr Kenneth Howison
Dr Howison, ear, nose and throat specialist assessed Mr Brookes at the request of his solicitor and provided a report dated 17 May 2019.[38] He noted the obvious deformity of the nasal pyramid and assessed a 10% WPI as a result of the external deformity of the nose.
[38] AD2 p 229.
Dr Uthum Dias
Dr Dias, occupational physician assessed Mr Brookes at the request of his solicitor and provided a report dated 23 July 2019.[39] He concluded as a result of the accident
Mr Brookes sustained an acute traumatic impaction injury to his head resulting in the nasal fractures as well as an acute soft tissue injury to the left knee which resulted in a post-traumatic popliteal aneurysm and consequentially the left below knee amputation in late May 2018. He found the causal chain from the accident to the current condition was unbroken.
[39] AD2 p 211
He also concluded that the Guillain Barre syndrome diagnosed in June 2018 and the pulmonary emboli diagnosed in January 2019 were consequential to the accident of
22 January 2018.
Associate Professor Paul Myers
Associate Professor Myers provided a report on the papers dated 16 January 2020.[40] He noted that aneurysms of the peripheral vasculature are very common. He described the vast majority as atherosclerotic where the wall of the artery becomes damaged and inherently weak, and the outward radial pressure of the blood flow and the pulse caused the artery to dilate over time. He stated the normal diameter of a popliteal artery is 6-8 mm in adults and Mr Brookes has said to have an aneurysm of 12mm in diameter, twice the normal diameter of the vessel. Associate Professor Myers noted when an aneurysm forms the blood flood in that artery becomes turbulent and because of the turbulence of the blood flow at the periphery of the aneurysm, thrombus forms on the wall of the aneurysm.
[40] AD2 p 30.
Associate Professor Myers said aneurysm can also occur due to infection but noted there was no evidence of infection in Mr Brookes.
He also noted that there can be false aneurysms where the artery wall is broached and blood escapes from the artery into the surrounding tissues where it is contained. False aneurysms do not include dilation of the actual vessel itself. Again, he noted there was no evidence of this occurring in Mr Brookes.
Associate Professor Myers stated there are other genetic causes of aneurysms, but he is not aware of such causes in Mr Brookes.
He stated the most common presentation of popliteal artery aneurysm is thrombosis of the vessel which can occur due to bending and straightening of the knee pressing on the artery which is already weakened and dilated and containing mural thrombus and therefore vessel thromboses. He said this usually happens without warning or any symptoms. When this happens the distal vessels past the knee rapidly thrombose and occlude.
Associate Professor Myers stated the most common outcome of a spontaneous thrombosis of a popliteal aneurysm is amputation. He stated the pre-patellar effusion experienced by Mr Brookes is an indication of soft tissue issues in the bursa around the kneecap but was not associated with the aneurysm. He concluded the popliteal aneurysm was not made worse by the incident in the train and the thrombosis was not caused by the incident in the train. Indeed, he stated it was not sustainable to argue that an existent popliteal aneurysm would thrombose four months down the track from a blunt soft tissue trauma.
Dr John Niesche
Dr Neische, vascular surgeon assessed Mr Brookes at the request of the insurer and provided a report dated 20 January 2021.[41]
[41] AD2 p 873.
He diagnosed thrombosis of a traumatic left popliteal artery aneurysm. Other than noting there was no history of pre-existing vascular disease he did not otherwise express an opinion as to causation.
In relation to the amputation, he assessed 28% WPI.
Dr Henley Harrison
Dr Harrison, ear, nose and throat specialist assessed Mr Brookes at the request of the insurer and provided a report dated 12 February 2021.[42]
[42] AD2 p 878.
He diagnosed a nasal fracture with resulting nasal deformity and facial laceration and assessed a 7% WPI.
Dr Brian Stephenson
Dr Stephenson assessed the claimant and provided a report dated 5 January 2021.[43] He indicated he agreed with the opinion of Dr Tomlinson as to causation of the thrombosis of the aneurysm and subsequent amputation but did not otherwise address the question of causation. His assessment of WPI was undertaken for the purpose of workers compensation proceedings.
[43] AD3 p 109.
RELEVANT LEGAL AUTHORITY
Causation
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
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.”
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 28 February 2022.[44] Those submissions address the test to be considered by the delegate in determining whether the assessment of Assessor Curtin was incorrect in a material review.
[44] AD2 p 1.
The insurer submitted Assessor Curtin failed to provide proper reasons on the objective medical evidence nor provide a path of reasoning pertaining to the assessment of causation of the thrombosis in the femoral artery, resulting in amputation of the left leg.
The insurer submitted Assessor Curtin failed to appropriately address the divided medical opinions on whether the soft tissue injury to the left knee could have resulted in the thrombosis of the femoral artery which ultimately resulted in the amputation of his left leg and simply acceded to the opinion of Assessor Haber. The Panel notes the certificate of Assessor Haber is also the subject of review.
The insurer relies upon the opinion of Associate Professor Myers as to causation.
Claimant’s submissions
The claimant provided submissions dated 18 March 2022.[45] Those submission address the test to be considered by the delegate in determining whether the assessment was incorrect in a material respect.
DETERMINATION
Injury to the left knee
[45] AD3 p 36.
The left knee X-ray report of 22 January 2018 stated there was no bony injury or fracture to the distal femur or to the tibia tuberosity/head. There was no fracture of the patella, and the patellofemoral joint space was normal (“good preservation”). There was no effusion or loose body in the knee joint.
On 9 February 2018, the clinical notes of Dr Selim documented that Mr Brookes had “L knee prepatellar effusion +, no tenderness. Full RON [sic ROM] all movements”.
On 23 February 2018, the clinical notes of Dr Selim documented that the left knee pain was stable.
Based on the documented evidence of no bony injury, no fracture in the left knee joint and a full range of movement in the left knee, the Panel concludes that Mr Brookes had sustained a soft tissue injury to the left knee causally related to the accident. The Panel does not find the soft tissue injury to the left knee resulted in permanent impairment.
Causation of the thrombosis in the left popliteal artery
The issue in dispute was whether the thrombosis in the left popliteal artery was causally related to the left knee injury the claimant suffered in the accident.
Atherosclerosis is the process where fat, cholesterol, calcium and inflammatory cells build up inside the innermost lining (endothelium) of the wall of the body’s arteries to form an atherosclerotic plaque over a period of time.
With time, the atherosclerotic plaque builds up and it gets larger and hardens. The larger plaques bulge into the lumen (the hollow tube) of the artery, narrowing the passage where the blood flows.
The atherosclerotic plaque weakens the wall of the artery resulting in the wall of the artery bulging outwards to form an aneurysm.
The atherosclerotic plaque can break down and render the surface of the endothelium highly thrombogenic increasing the likelihood of a thrombus (blood clot) being formed on the endothelium, the inside wall of the artery. If the thrombus is large enough, it can completely block the flow of oxygen-rich blood to vital organs.
When the atherosclerotic plaque becomes unstable bits break off and become impacted resulting in the blockage of a smaller artery downstream.
The popliteal artery is situated in the posterior aspect of the knee joint (the popliteal fossa). After the accident Mr Brookes complained of pain in the medial side and the front of the knee, that is, to the patella. If the force to his left knee had been significant and had resulted in the fracture of his left patella, or the distal femur and/or the tibia tuberosity/head it may have caused injury to the popliteal artery which lies just behind the knee joint.
However, the left knee X-ray report of 22 January 2018 stated there was no bony injury or fracture to the distal femur or to the tibia tuberosity/head to which the popliteal artery lies in close proximity. There was no fracture of the patella, and the patellofemoral joint space was normal (“good preservation”). There was no effusion or loose body in the knee joint.
On 9 February 2018, the clinical notes of Dr Selim documented that Mr Brookes had complained of pain in the patella and the medial aspect of the left knee after the accident reporting there was “L knee prepatellar effusion +, no tenderness. Full RON [sic ROM] all movements”. Whilst there was no effusion in the knee joint shown on the
22 January 2018 X-ray of the left knee, Dr Selim noted that he had a prepatellar effusion which was situated in front of the patella. However, this effusion was not connected with the left knee joint and would not affect the movement of the left knee. Hence, Dr Selim recorded “Full RON [sic ROM] all movement”.
The Panel believes if Mr Brookes had injured his left popliteal artery in the accident, the circulation to his left leg would have been immediately compromised, and he would have developed some symptoms in his left calf and or left leg by 9 February 2018, some 20 days after the accident. This was not the case.
On 16 February 2018 Dr Selim noted continuous left knee pain and on
23 February 2018 he recorded the left knee pain was stable. On 2 March 2018
Dr Selim reported the left knee pain was 4/10 and on 7 March 2018 he reported persistent left knee pain, localised around the patella. On examination he reported “localised tenderness and central patella/ bruising”. Again, the left knee pain was in the patella, not in the knee joint and it was remote from the anatomical location of the popliteal artery.
On 19 April 2018 Mr Brookes underwent nose surgery, namely nasal bone osteotomies and septal reconstruction at Minchinbury Community Hospital under the care of
Dr Michael Hunter.
On 3 May 2018, Dr Selim recorded left foot and calf pain for the past three days. However, in the examination record, Dr Selim recorded “L calf – no swelling, localised tenderness”. Dr Selim referred Mr Brookes for a leg venous doppler.
An ultrasound venous doppler of the left leg performed on 3 May 2018 concluded there was no evidence of deep vein thrombosis in the left lower limb.
On 7 May 2018 Dr Selim recorded there was no abnormality disclosed on the left venous doppler and Mr Brookes lower limb pain was “now localised to L ankle”. He noted mild tenderness of the left ankle with a full range of motion.
On 14 May 2018 Dr Selim reported the left foot was worse and was turning bluish. On observation he recorded “L foot appear cyanotic, nailbed capillary return sluggish [sic]”. Dr Selim concluded that Mr Brookes required an urgent arterial doppler and intervention.
The CT lower limb angiography of 14 May 2018 revealed that the left popliteal artery was occluded, and calcification was reported in the atherosclerotic plaques in the left posterior tibial artery, the right common iliac artery and the right posterior tibial artery. The presence of calcification in these atherosclerosis plaques in both lower limbs indicates that Mr Brookes had atherosclerosis in both lower limbs which predisposed him to the development of the thrombus forming in the artery.
The Panel finds the blood flow in the aneurysm artery became turbulent and because of the turbulence of the blood flow at the periphery of the aneurysm, a thrombus formed on the wall of the aneurysm. Hence Mr Brookes’ left popliteal artery aneurysm was predisposed to the formation of the thrombus although the formation of the thrombus was asymptomatic until the artery became occluded.
Nearly three years after the left popliteal artery thrombosis, Mr Brookes presented to Nepean Hospital on 24 March 2021 with a Rutherford Type 1a acute right limb ischemia under the care of Dr Daniel Nguyen. He had a CT angiogram of the lower limb. The findings of this angiogram were:
“Right lower limb
There is soft (atherosclerotic) plaque within the distal right common iliac artery, the right internal iliac artery is occluded.
There is soft (atherosclerotic) plaque seen within the right external iliac artery causing severe stenosis.
There is a continuous soft plaque seen within the common femoral artery causing moderate to severe stenosis.
The proximal profundus femoris is occluded with distal reconstitution. There is popliteal artery involvement.
Left lower limb
There is complete occlusion seen of the left superficial femoral artery at the level of the mid-thigh.”
The Panel finds the 24 March 2021 angiogram showed that Mr Brookes had extensive atherosclerotic plaques in his lower limbs. The plaques narrowed the lumen, known as stenosis of the arteries, blocking the flow of blood. The angiogram findings demonstrate that Mr Brookes had a predisposition to the development of atherosclerotic plaque deposition in his arteries.
The presence of atherosclerotic plaques in his right common iliac artery was apparent in 2018. The CT lower limb with Spiral Angiography performed on 14 May 2018 referred to mild calcified atherosclerosis of the right common iliac artery.
Mr Brookes’ predisposition to atherosclerotic plaque formation supports the contention that the thrombosis in his left popliteal artery aneurysm occurring four months after the accident was due to his predisposition to thrombosis. The Panel finds the thrombosis in the left popliteal artery was not causally related to the accident.
In summary the Panel finds the thrombosis in the left popliteal artery was not causally related to the accident where:
(a) Mr Brookes was predisposed to thrombosis;
(b) the clinical notes record Mr Brookes complained of pain in the left patella with pre-patella effusion which the Panel finds was a minor soft tissue injury and unlikely to cause injury to the left popliteal artery on the opposite side of the knee joint;
(c) the injury to the patella or the anterior aspect of the left knee was remote from the anatomical location of the popliteal artery;
(d) there was no bony injury, no fracture of the left distal femur and no fracture of the left tibial tuberosity.
(e) Mr Brookes had full range of movement in the left knee when examined by Dr Selim on 9 February 2018;
(f) there was no complaint of compromised circulation or symptoms in the left calf or leg as of 9 February 2018;
(g) an injury to the popliteal artery at the time of the accident would more likely than not produce symptoms of vascular insufficiency shortly after the accident whilst the arterial thrombosis of the left popliteal artery did not occur until three months post-accident;
(h) there was no evidence of deep vein thrombosis in the left lower limb disclosed on the left venous doppler on 3 May 2018;
(i) on 7 May 2018 Dr Selim reported Mr Brookes’ pain was localised to the left ankle;
(k) calcification was reported in the atherosclerotic plaques, the left posterior tibial artery, the right posterior tibial artery and the right common iliac artery on 14 May 2018, and
(k) the 24 March 2021 angiogram showed that Mr Brookes had extensive atherosclerotic plaques in his lower limbs.
PANEL DECISION
Left knee-soft tissue injury, amputation secondary to thrombosed left popliteal artery aneurysm
The Panel finds the accident caused Mr Brookes to sustain soft tissue injury to the left knee. The Panel finds the soft tissue injury to the left knee did not result in permanent impairment.
The Panel does not find the accident caused amputation secondary to the thrombosed left popliteal artery aneurysm.
Fractured nose with deformity
There is no dispute the claimant sustained fracture of the nose in the motor vehicle accident. He had surgery for this injury on 19 April 2018.
The insurer raises no issues with the findings of Assessor Curtin in respect of the injury to the nose.
Assessor Curtin on examination noted the nose was broad, slightly deviated to the right but with a straight profile, and good airflow through both nostrils.
When assessing impairment due to the nose deformity Assessor Curtin referenced AMA4 Chapter 9 pages 229-230. He stated:
“The facial impairment is Class 2 as the deviated nasal bones involves a loss of supporting structure of part of the face with or without cutaneous disorder. In my view the deformity is relatively minor and therefore falls at the bottom of the range at 5% WPI.”
In the opinion of the Panel Assessor Curtin in his examination did not describe loss of supporting structure of part of the face. He described nasal distortion in physical appearance. This is assessed using AMA4 Table 4, page 230. The range is 0-5% WPI.
Assessor Curtin assigned 5% WPI to the nose deformity. The Panel is of the opinion it is reasonable to confirm 5% WPI for nasal distortion caused by the accident.
Skin-left thigh scarring
Assessor Curtin assigned 1% WPI to scarring of the left thigh which was caused by surgery for complications of arterial thrombosis. The Panel has found the arterial thrombosis was not caused by the accident. Accordingly, the scarring was not caused by the accident.
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