Tannous v QBE Insurance (Australia) Limited
[2024] NSWPICMP 176
•22 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Tannous v QBE Insurance (Australia) Limited [2024] NSWPICMP 176 |
| CLAIMANT: | Elisabeth Tannous |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 22 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether the physical injuries to the manubrium sternum, right leg, tibial midshaft, medial and lateral malleolus and scarring, were caused by the accident; whether whole person impairment (WPI) exceeded 10%; Held – Medical Assessor’s certificate is revoked after taking into account scarring assessed at 1% previously not included as a result of an omission; the Medical Review Panel certifies WPI of 11%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Mohammed Assem of |
STATEMENT OF REASONS
INTRODUCTION
Correction of obvious error.
The Review Panel issued a determination on 31 January 2024, which concluded that whole person impairment (WPI) was 10% for the reason that the claimant had not listed an injury, namely “scarring”, and no percentage for WPI was allocated to it.
In fact, there was consensus by the medical assessors that there was scarring caused by this motor vehicle accident and it would have been assessed about 1% WPI, if it had been included as an injury.
The failure of the claimant to include scarring on the List of Injuries to be assessed was accepted by the Review panel as the result of an obvious error.
The Review Panel corrects that error by issuing Amended Reasons as it is authorised to do, pursuant to the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11.
Background
Elisabeth Tannous (the claimant) was born in November 1949.
The claimant was injured in a motor vehicle accident on 1 November 2020 (the accident).
The claimant applied for the assessment of WPI in respect of the following injuries:
• leg – shortening of right leg compared to the left leg (approximately 13mm leg length discrepancy);
• knee – bulging of the medial meniscus;
• cervical spine – contusion/ligamentous injury;
• chest – fracture to manubrium sternum;
• knee – fracture to tibial midshaft and medial malleolus fracture;
• shoulder – aggravation of full thickness tea in supraspinatus;
• ankle – bimalleolar fracture, and
• lumbar spine – discal injury.
Medical Assessor Assem assessed the claimant’s WPI on 1 February 2023 and certified that the injuries:
•fracture to manubrium sternum;
•R) leg shortening;
•fracture to tibial midshaft extending to tibial plafond; and
•fracture to medial malleolus and lateral malleolus,
did not give rise to permanent impairment in excess of 10%.
THE REVIEW PANEL
The claimant lodged an Application for Review of Medical Assessor Assem’s Determination, and this Application has been referred to this Panel. Medical Assessors Stubbs and Moloney assessed the claimant on 18 September 2023. They had the assistance of an interpreter of the Arabic language.
Reasons for Determination of Medical Assessor Assem
Medical Assessor Assem was assigned the following injuries for assessment of WPI:
· leg – shortening of right leg compared to the left leg (approximately 13mm leg length discrepancy);
· knee – bulging of the medial meniscus;
· cervical spine – contusion/ligamentous injury;
· chest – fracture to manubrium sternum;
· knee – fracture to tibial midshaft and medial malleolus fracture;
· shoulder – aggravation of full thickness tear in supraspinatus;
· ankle – bimalleolar fracture, and
· lumbar spine – discal injury.
Medical Assessor Assem considered the documents provided to him in the Application and Reply and the Additional Late Documents referred to in [4] of his Reasons, namely:
· clinical notes of Ms Charmaine Moubarak;
· report of Dr JB Stephenson (plastic surgeon) dated 12 July 2022;
· AD4 - AD9 various documents dated 26 July 2022;
· X-ray scan right leg dated 11 August 2022;
· Ultrasound of the left knee dated 6 September 2022, and
· AD14-Combined dated 27 January 2023.
Medical Assessor Assem took a detailed history [6], including a short description of the accident [7], and a history of the symptoms following the accident [8].
Medical Assessor Assem noted at [8] that, according to the hospital records, the claimant was discharged on 20 November 2020 with a right tibial midshaft and medial malleolus fracture that had been treated with an intramedullary nail. A CT scan of the right leg showed a comminuted, undisplaced, mid tibial fracture and undisplaced fracture to the lateral malleolus. There was also a fracture to the medial malleolus with mild subluxation of the ankle joint.
Medical Assessor Assem noted at [10] that the claimant described her main concern as severe pain involving her right knee, lower leg, and ankle, and that she had been relying on a walking stick for support since the accident.
Medical Assessor Assem’s physical examination is summarised at [13], [14], [15], and [16].
Medical Assessor Assem commented that the claimant presented in a straightforward manner and was capable of differentiating the injuries sustained in the accident and in the accident of 8 September 2019.
Medical Assessor Assem sets out his review of the relevant documentation at [18], including a review of the medicolegal reports provided, namely of Dr Peter Conrad of his assessment on 23 November 2021 (arrived at 22% WPI), of Dr Stephenson, who reported on
12 July 2022 (12% WPI including 1% for scarring), and Dr Raymond Wallce, orthopaedic surgeon, who reported on 21 February 2022 (total WPI of 8%).
Medical Assessor Assem also reviewed the reports of Dr Matthew Jones, the treating orthopaedic surgeon, who considered that there had been an excellent alignment of the fracture. In his report of 19 March 2021, he considered that the claimant had an excellent range of knee and ankle joint motion.
At [19], Medical Assessor Assem noted that a plain X-ray on 11 August 2022, showed leg length discrepancy of 13 mm.
In his section of the Determination ‘Diagnosis, causation and reasons’ at [20], Medical Assessor Assem noted that the claimant had clarified that her ongoing symptoms regarding her right shoulder, neck, and low back, were not related to the subject accident. He also noted that the claimant’s neck, right shoulder, and low back complaints were not documented in the medical records from Westmead Hospital or Holroyd Hospital, which he was discharged from on 24 December 2020. There was no contemporaneous evidence of any aggravation of her pre-existing neck, right shoulder, or low back complaints. He commented that in this respect, the injuries documented in her Apply for Personal Injury Benefits Claim Form were inconsistent with all of the evidence, and not causally related to the subject accident.
Medical Assessor Assem said at the foot of page [8]:
“Chest, Right knee, Right Leg and Right Ankle The subject motor vehicle accident caused a mildly displaced fracture to the lower manubrium / sternum which does not give rise to an impairment. There was also a comminuted spiral fracture to the mid shaft of the right tibia inferiorly, extending to the plafond and fractures to the right medial and lateral malleolus. There was no evidence provided of an injury to the meniscus.”
He considered [21] that the following injuries were caused by the accident:
· fracture to manubrium sternum;
· R) leg shortening;
· fracture to tibial midshaft extending to plafond, and
· fracture to medial malleolus and lateral malleolus.
Medical Assessor Assem set out his conclusions at [23]:
“Ms Tannous has a loss of knee flexion giving 10% lower extremity impairment (AMA4, Table 41, p 78). There was a loss of ankle dorsiflexion 7% lower extremity impairment (AMA4, Table 42, p 78) and a marked limitation in subtalar movement to less than 10 degrees giving 5% (AMA4, Table 43, p 78). Assessment of the lower extremities are only completed in one axis (MAA Guidelines, clause 6.85, p 103). Although leg length discrepancy can be combined with range of motion (Motor Accidents Guides, table 6.5, page 21), a leg length discrepancy of 0 to 1.9cm gives rise to a 0% whole person impairment (AMA4, Table 35, p 75).
The combined lower extremity impairment is 20% which converts to 8% whole person impairment.”
Medical Assessor Assem concluded at [24] that the degree of WPI, caused by the accident, was 8%.
REVIEW OF THE EVIDENCE
Claimant’s statement of 27 March 2023
The claimant provided a Supplementary Statement dated 27 March 2023, which the Panel summarises by reference to paragraph number:
[7]The accident was ‘very severe’, and the airbags were deployed. The Claimant alleges that she has since suffered from hearing loss and dizziness.
[8]-[10]The claimant alleges that she struggles with daily activities such as eating and washing herself, due to forgetfulness caused by the accident.
[14]The claimant’s sleep is ‘often broken’ and this causes her to be tired during the day.
[15]The claimant’s GP has prescribed sleeping tablets and pain killers, and his main focus has been on the claimant's physical pain and restriction of movement.
[16]-[17]The claimant alleges that she has suffered incontinence which she did not have prior to the accident.
[19]-[21]The claimant is frustrated and angry most of the time and no longer visits family and friends and avoids being in crowds. The claimant states this is due to heart palpitations and difficulty breathing.
[22]The claimant avoids doing housework and finds it difficult to walk up and down stairs at her home. She states that the Insurer assessed that she needed a stair lift.
[23]The claimant alleges that she still has a lot of pain and finds it difficult to sit, stand, walk, and lie down without aggravating her pain symptoms.
[24]The claimant lists the disabilities caused by her injuries in the motor vehicle accident. The claimant states that the motor vehicle accident had a significant impact on her life.
Reports of treating medical practitioners
Clinical records of Granville Medical Centre
The claimant attended Granville Medical Centre on 5 January 2021 to see her General Practitioner (GP) Dr Wafik Latif. The notes record that the claimant attended:
“hospital Westmead and rehab after a long stay following MVA
d/s not available will get
multiple fractures right knee, leg and ankle sternal fracture
Examination: scars of surgery right knee and leg ankle - in a large CAM boot.”Notes from the claimant’s subsequent visit on 14 January 2021 record:
“Examination:
stable afebrile
walking with a stick
right LL in a cam boot
cvs chest normal
Reason for contact:
Fracture - Sternum Right
Fracture – Tibia.”
The claimant attended her GP on 8 March 2021. The notes recorded that she complained of:
“severe pain over the right lower limb
had multiple hard ware [put in her] ankle, knee and leg following the MVA”
On examination, the GP reported:
“no evidence of infection or deformity
hard ware in place
on physio and currently able to manage full body weight bearing with a frame”
Reports of Dr Matthew Jones, treating orthopaedic surgeon
Dr Matthew Jones reported on 10 February 2021 following the claimant’s attendance at his rooms. He noted:
“…she is progressing very well. She has minimal pain and is now at home engaging in an outpatient physiotherapy program.
On examination, there is no tenderness at the fracture site. She does have some mild tenderness at the medial malleolus which is related to two small fragment screws. She is happy to put up with this at the moment. Her ankle joint is supple and not irritable.”
After reviewing diagnostic imaging, Dr Jones reported:
“Radiographs demonstrate excellent reduction of the ankle and tibial shaft fracture. The ankle is united, with no incongruity. The tibial shaft has almost united radiographically.”
Dr Jones saw the claimant again on 19 March 2021. He noted:
“…She is progressing very well given her significant injury. Her fractures have united. Her ankle and knee range of motion is excellent. I'm happy for her to weight bear as tolerated. From my perspective she does not necessarily need to have a walking aid.”
Medicolegal expert opinion
Report of Peter Conrad, general surgeon, of 23 November 2021
Dr Peter Conrad reported on a medicolegal basis following an examination of the claimant on 23 November 2021. Dr Conrad recorded the claimant’s present symptoms:
“Ms Tannous continues to have pain in her neck, right shoulder and back and also pain in her right knee and right ankle. She finds it difficult to do a lot of standing, walking, and going up and down stairs … She continues to take tablets for pain.”
Dr Conrad recorded his prognosis at page 3:
“Ms Tannous was involved in two motor accidents, the first on 7 September 2019 when she sustained a neck and back injury and the second on 1 November 2020 when the neck and back injuries were aggravated. She developed also an injury to her right shoulder associated with a rotator cuff tear, a fracture of the sternum, a comminuted fracture of the right tibia and fibula extending to the right ankle treated with an intramedullary nail, which has subsequently been taken out…. At this stage, she needs conservative treatment including the modalities of medication, medical supervision, physiotherapy and psychological counselling at a present day cost of some $3000 per year… Her prognosis for recovery is poor.”
Dr Conrad assessed the claimant’s WPI on page 9:
“…These combine to give a 22% WPI. There is no other pre-existing degenerative disease or other accidents apart from those deducted, and therefore 22% Whole Person Impairment relates directly to the accident of 1 November 2020, which can be said to be a substantial contributing factor to her Whole Person Impairment.”
Report of Dr Raymond Wallace, orthopaedic surgeon, of 21 February 2022
Dr Raymond Wallace examined the claimant on 15 February 2022 and provided a report on 21 February 2022.
On clinical examination, Dr Wallace recorded, with respect to the right knee:
“…an active range of movement of 0-90° flexion. There is no effusion at the joint. There is tenderness at the medial joint line with no retropatellar crepitus. Her gait is normal. Her calf circumference measured 32cm on the right compared to 33cm on the left.”
He continued, on page 4:
“Examination of the right tibia showed no deformity. There is some tenderness at the distal third of the shaft.”
With respect to scarring, Dr Wallace recorded:
“At the right ankle, there is a 4cm longitudinal scar at the anterior aspect of the right ankle which has healed to a fine red line and is minimally visible. There is a 9cm longitudinal scar at the medial aspect of the ankle which has healed to a fine red line and is minimally visible.”
On examination of the range of movement of the claimant’s right and left ankle, Dr Wallace observed:
“She has an active range of movement at the right ankle of dorsi flexion 0°, plantar flexion 40° inversion 30° and eversion 10°. She is neurovascularly intact distally. Examination of the left ankle shows an active range of movement of dorsi flexion 20°, plantar flexion 50° inversion 40° and eversion 20°. She walked with an unsteady gait despite the use of a walking stick but did not limp.”
Dr Wallace diagnosed the following injuries caused by the Accident:
“1. Fracture right tibia at the junction of the middle and distal thirds.
2. Bimalleolar fracture right ankle.”
Dr Wallace recorded his findings with respect to WPI at page 6:
“In regard to her right knee condition, she has suffered a right lower limb impairment of 10% as a result of loss of range of movement at the joint according to Table 41 page 78 AMA Guides Edition 4.
In regard to her right ankle condition, she has suffered a right lower limb impairment of 7% as a result of loss of range of movement in extension according to Table 42 and 43 page 78 AMA Guides Edition 4.
In regard to her right foot condition, she has suffered a right lower limb impairment of 2% as a result of loss of range of movement in eversion according to Table 43 page 78 AMA Guides Edition 4.
Therefore, using the combined values tables, she has suffered a total right lower limb impairment of 18% which corresponds to a whole person impairment of 7%.”
He continued, with respect to scarring:
“…she has suffered a whole person impairment of 1% as a result of scarring at the right lower leg according to TEMSKI Scale page 58 MAA Guidelines to Assessment of Permanent Impairment.”
In accordance with the AMA Guides Edition 4 and Motor Accident Guidelines to Assessment of Permanent Impairment, Dr Wallace concluded that the claimant’s total WPI was 8% on page 7:
Body part Or System
MAA Guidelines to Assessment of Permanent Impairment
Impairment Chapter, Page, Paragraph, Figure & Table Numbers in AMA 4 Guides
% WPI
% WPI Deductions pursuant to S323 for pre-existing injury, condition & abnormality
Sub-Total/s % WPI (after any deductions in Column 5)
Right Leg
Table 41, 42 and 43 page 78
7%
0%
7%
Scar
TEMSKI Scale page 58
1%
0%
1%
Total % WPI (The Combined Tables Values of all sub-total/s)
8%
Report of Dr J Brian Stephenson, plastic surgeon, of 12 July 2022
Dr J Brian Stephenson examined the claimant and provided a report on 12 July 2022.
Dr Stephenson assessed WPI at [5a]:
“I found 12% Whole Person Impairment for the second motor vehicle accident of
1 November 2020. Once I have observed that there is a lesser degree of impairment for the second motor vehicle accident, that is because of excellent internal fixation by intramedullary nail and cross-screw technique which means the fracture is out to length, there is no lower limb length discrepancy.”
Claimant's submissions of 24 March 2023
The claimant’s solicitor provided submissions in respect of the WPI dispute, which the Panel briefly summarises by reference to paragraph number:
[1]-[2]The Medical Assessor failed to consider the injury of ‘scarring’ despite referencing the assessments of scarring of Dr Stephenson and Dr Wallace. The Medical Assessor failed to provide a WPI assessment of scarring or reach a conclusion as to whether the claimant is eligible for assessment of scarring.
[5]-[6]The Medical Assessor failed to assess the claimant’s muscle atrophy in the right lower limb despite acknowledging the injury was assessed in the report of Dr Wallace for the Insurer. The claimant alleges that the exclusion of the assessment of this injury is prejudicial, having regard to the Motor Accident Guidelines cls 6.81 and 6.82 and Table 6.1(b) (Calf). The submission alleges that had the injury been assessed, the Medical Assessor would have found 10% WPI without including the scarring.
[8]-[9]The Medical Assessor failed to provide an adequate path of reasoning as to why he did not assess the claimant’s scarring, which is a ‘material error’ pursuant to s 7.26 of the Act.
[10]-[11]The Medical Assessor failed to assess the aggravation of the claimant’s lumbar spine, cervical spine, and right shoulder which were caused by the Accident. The Medical Assessor stated in his reasoning on page 8 that these injuries “were not documented in the records from Westmead Hospital or Holroyd Hospital” and that there was “no contemporaneous evidence of any aggravation.”
[12]The claimant’s solicitor submits that it was unreasonable for the Medical Assessor to determine that there was no aggravation of any of the injuries to the spine or right shoulder, considering the seriousness of the collision.
[13]-[14]The claimant’s solicitor refers to the Ambulance records on the day of the accident which record “pain to central chest, C spine, right shin.” They also note that radiological investigations made available to the Medical Assessor, in respect of these injuries, that were ‘ignored’ and constituted an ‘error.’
[18]-[19]The Medical Assessor did not consider the multiple diagnostic scans in the claimant’s Application. If he had considered the scans, the Medical Assessor would have found that the accident caused aggravation of the claimant’s spine and right shoulder.
[22]The Medical Assessor assessed that the bulging of the medial meniscus and the left knee joint effusion were not causally related to the accident. The Medical Assessor did not provide an adequate path of reasoning for this assessment.
[23]The claimant referred to the report of Dr Conrad, which was before the Assessor, who assessed that the injury was a “consequential injury resulting from the leg shortening.”
[31]-[32]The Medical Assessor did not provide any determination in respect of the minor injury dispute. The failure to assess both disputes is a material error.
Insurer’s submissions in Reply of 14 April 2023
The insurer provided Reply Submissions on 14 April 2023, which are summarised by the Panel by reference to paragraph number:
[13]-[14]The insurer refers to the message from the Commission of 30 January 2023 which confirmed that no scarring was listed in the injuries referred for assessment. The claimant made no reply or objection to this message.
[18]-[19]The insurer submits that even if scarring was assessed, it would have no material impact on the outcome, namely, WPI would remain under 10%. The Insurer refers to the judgement of Mason P in Brown v Lewis [2006] NSWCA 87 at [20].
[26]-[27]The Insurer refers to the claimant’s submission that the Medical Assessor acknowledged the report of atrophy by Dr Wallace but did not make an assessment. The insurer argues that Dr Wallace’s assessment was based on range of movement loss not atrophy.
[34]The insurer submits that the Medical Assessor provided clear reasoning in respect of the cervical spine, lumbar spine, and right shoulder injuries at [20] of his Certificate.
[40]-[43]The Medical Assessor considered all of the relevant radiological scans which were included in his consideration of the Westmead Hospital records and discharge summary. None of the radiological reports indicated any injury resulting from the accident.
[47]-[49]There was no positive obligation on the Assessor to specifically address the Ambulance report, police report nor specific radiological material. The Submissions refer to Dunbar v Allianz Australia Limited [2015] NSWSC 119 and Roger v De Gelder [2015] NSWCA 211.
[54]-[55]The insurer submits that the injury of the left knee was not listed for assessment but accepts that the left knee bulging medial meniscus was included in the Commission’s message dated 30 January 2023.
[57]-[58]The insurer submits that Dr Stephenson, Dr Conrad, or Dr Wallace listed any permanent impairment for the right knee. On this basis, the inclusion of the injury would not have made any material difference to the assessment.
[61]-[62]The minor injury assessment was for a prior accident on 7 September 2023, which is unrelated to the subject claim. The dispute has no bearing on the WPI certificate of the Medical Assessor and cannot be regarded as a material error.
The Review Panel’s examination of the claimant of 18 September 2023
Medical Assessors Stubbs and Moloney (the examiners) took a history from the claimant which, in so far as relevant, is set out below.
History
The claimant lived in a two-storey housing commission flat which has recently had a lift installed to assist the claimant, given her fractures to her right tibia and fibular.
The claimant stated that she had been well and healthy prior to the subject accident. She had arthritis of the left knee and claimed it had been worn out because of her right knee injury.
The claimant said that she had had two motor vehicle accidents and a fall at home. The first motor vehicle accident was in September 2009, a rear-ender, and she had attended her GP complaining of neck and shoulder pain.
She had had a fall in the yard in 2020, before her second motor vehicle accident in November.
The second motor vehicle accident occurred on 1 November 2020, when she had a head-on collision with a turning vehicle. She could not get out of the vehicle and police, ambulance, and rescue services attended. She was extracted and taken by ambulance to Westmead Hospital. The car was a write-off.
The principal injury was a closed fracture of the right tibia and fibula. There was also an undisplaced fracture of the sternum. The tibial and fibula fractures were treated by an antigrade intermedullary nail introduced through a para-patellar incision with proximal and distal locking screws. The claimant did not have the imaging from Westmead Hospital. She was discharged to Holroyd Rehabilitation Hospital for further management. She thinks it was two months before she could manage or was well enough to return to her flat. As the bedrooms were upstairs the Housing NSW installed a lift. She originally used a wheelie walker but now is on a single walking stick.
Review of the documentation
The claimant’s statement describes injuries to the left knee including bulging of the medial meniscus and fractures of the tibial mid shaft and the medial malleolus of the right leg. The claimant alleges that she sustained an injury to the right ankle (which should be considered part of the one fracture complex). She also reports injuries to the chest that resulted in three months of difficulty in breathing. It is noted that she is a smoker. The statement also alleges that she sustained injuries to the right shoulder, cervical and lumbar spine.
There were no imaging studies available.
The Panel considered the treating practitioners’ reports, the medicolegal reports, and Medical Assessor Assem’s Determination.
The injuries referred to the Medical Review Panel for Review
Medical Assessor Assem was referred eight injuries for assessment. These are listed at paragraph 2 of his Reasons.
(a) leg – shortening of right leg compared to the left leg (approximately 13mm leg length discrepancy);
(b) knee – bulging of the medial meniscus;
(c) cervical spine – contusion/ligamentous injury;
(d) chest – fracture to manubrium sternum;
(e) knee – fracture to tibial midshaft and medial malleolus fracture;
(f) shoulder – aggravation of full thickness tea in supraspinatus;
(g) ankle – bimalleolar fracture, and
(h) lumbar spine – discal injury.
He was not referred “scarring”.
Medical Assessor Assem did [16] refer to a healed 7cm longitudinal scar at the upper end of the tibia and a small four-centimetre scar over the right medial malleolus.
Medical Assessor Assem arrived at an 8% WPI of the right lower extremity.
Scarring not having been referred to him, as an injury, he did not assess it, in arriving at a value for WPI.
In the claimant’s submissions for a review, the claimant submitted that the first error of the Assessor was the failure to assess scarring.
The claimant’s submission argued that “scarring” was referred for assessment as clearly stated in the claimant’s initial application in the claimants list of injuries A1, provided to the Medical Assessor via the Commission.
“Scarring” is included in the List of Injuries in the first Document A1. As a result of clerical error scarring appears as follows:
Scarring
Severe Anxiety/Depression/Post
Traumatic Stress Disorder
Degree of Impairment
The claimant’s submission says… “... the above-mentioned injuries have resulted in a Whole Person Impairment greater than 10%...”
The insurer’s Reply R4 of 23 May 2022 refers to the Applicants Submissions/ Schedule of Injuries but no copy is attached.
When viewed after subsequent provision of the document, it is apparent that the Schedule of Injuries in the initial Application for Determination of WPI does not include “scarring”.
A mere reference to “scarring” in the Submission’s, made on this review, does not constitute it an Injury for review.
The Medical Review Panel can only review injuries which were referred to Medical Assessor Assem for assessment.
The Online portal message from Eric Rus, lists the medical disputes referred for assessment:
“From party
PIC
From
Eric Rus
To
Claimant; Insurer
Subject
M10512695/22 – Elisabeth Tannous – Amended Appointment Referral Letter
Body
REFFERAL FOR ASSESSMENT TO MEDICAL ASSESSORS
Claimant Name – Elisabeth Tannous
Medical disputes referred for assessment
Listed below are the disputes referred for assessment.
(i) Permanent Impairment (M10512695/22) DOA – 23/05/22
Injuries to be assessed:
Permanent impairment
(ii) Lumbar Spine - Discal injury
(iii)Right Ankle - Bimalleolar fracture
(iv)Right Shoulder - Aggravation of full thickness tea in supraspinatus
(v) Right Knee - Fracture to tibial midshaft and medial malleolus fracture
(vi)Chest - Fracture to manubrium sternum
(vii) Cervical Spine - Contusion/ligamentous injury
(viii) Left Knee - Bulging of the medial meniscal
(ix)Right Leg - Shortening of right leg compared to the left leg (approximately 13mm leg length discrepancy)
Eric Rus
Dispute Support Officer
Medical Services Directorate”
The Medical Review Panel notes that under s 58 of the Motor Accidents Compensation Act 1999 (the MAC Act), a Review Panel is empowered to confirm or revoke a Medical Assessor’s Certificate referred to it and issue a new certificate “as to the matters concerned”.
The Review Panel further notes “matters concerned” are those matters specified in s 58 of the MAC Act, which were before the Medical Assessor.[1]
[1] The Review Panel notes the decision of Schmitt J in Wolarczuk v NRMA Insurance Australia Ltd [2017] NSWSC1691 [65] and her reference to McKee v Allianz Australia Insurance Ltd [65].
The Review Panel notes that McKee was a decision of the NSW Court of Appeal. [2]
[2] McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609.
The Review Panel further notes that while the Review Panel is not confined to the particularised grounds for incorrectness [McKee, paragraph 28] at [26] considering the construction of s 63, Allsop P notes:
“… the review panel has power to carry out whatever assessment is necessary in order to come to its own conclusions upon the matter or matters referred for assessment.”
Allsop P continued at [28]:
“…the review panel is in my opinion not limited to the grounds of incorrectness in a material respect particularised in the application for referral of a medical assessment…”
The Panel finds that the injury, scarring, should be assessed as it was causally related to the motor vehicle accident on 1 November 2020.
Examination
The claimant is 154 cm tall and weighs 70 kg. She had a slow, shuffling, gait and marked age-related thoracic kyphosis.
When she walked, she relied on a walking stick in her left hand but does not transfer weight across to the stick.
Cervical spine
The claimant was very reluctant to move her neck on examination. She moved it around more freely when speaking to the interpreter, this was pointed out to her, but she said she was frightened that examination would make her neck worse.
There was diffuse tenderness to light touch, but it did not follow an anatomical distribution.
Side bending and rotation were symmetrical. Her lack of extension was due to compensation for the thoracic kyphosis. She had a low symmetrical range around the midpoint for flexion and extension. The claimant complained of diffuse upper limb pain, which did not follow an anatomical distribution. The girth of the upper limbs was 29 cm in the arms and 24 cm in the forearms. The measurements on both sides were symmetrical. All the upper limb reflexes were present and symmetrical but of low amplitude. There was no consistent area of sensory loss in either upper limb. The claimant had 4/5 grip strength but declined to test other motor groups in the upper limbs. There was no radiculopathy.
Lumbar spine
The claimant was unwilling to bend forward at the waist when standing but was comfortable when seated. In general, her range of movement was restricted on formal examination because of pain, with accompanying sensitivity to even very light touch. Straight leg raising was strongly resisted. Full knee extension was capable of performance when seated. The lower limb reflexes were symmetrical. Girth of the lower limbs was 39 in the thighs and 30 cm in the calf. The left and right sides were symmetrical. There was no radiculopathy. Length levels measured between the anterior and superior spine in the medial malleolus, and any differences were less than 1 cm between the two sides, though the right side measured consistently slightly shorter.
Upper limbs
Elbows, wrists, and finger joints moved normally. There was a complaint of pain in the base of the right thumb. The carpometacarpal joint was warm, and crepitus was noted.
Lower limbs
Movements of the knees, ankles, and feet were inconsistent, and the claimant stated that movement were very painful. Leg length was measured from the anterior superior or spine of the medial talus on three occasions. The right leg was marginally shorter than the left, but the discrepancy was less than 1 cm.
Minor leg length discrepancy. The reflexes are symmetrical. Leg length discrepancy can also be a factor of radiological projection. The leg will appear on short flexion with contracture at the hip or the knee. Either will explain why there is the same portion of shortening the right side compared to left. The clinical examination was therefore that there was minimal shortening which was unlikely to have occurred at the fracture site, given the same degree of shortening was also present in the femur.
It was difficult to make repeatable consistent measurements of the range of motion of both ankles and knees. Knee flexion was at least equal to 90°, and both knees were stable. Ankle dorsiflexion was at least plantigrade position, as this was the position she stood in when she walked. There was no malrotation at the fracture site and the Panel understood that the intermedullary nail screws had been removed at a subsequent operation.
Chest
The fracture of the sternum had fully resolved and no longer caused any symptoms.
Scarring
There was a 15 cm scar over the front of the knee which had a good colour match to the skin but had spread. The scar would not be apparent in normal dress. The claimant was very conscious of the scar but stated that she did not use any emollients on it. There were smaller scars on the lateral side of the distal fibula. This suggested that the surgery was an open reduction of the fractured fibula to restore normal length of the lower limb, combined with an intermedullary nail fixed by screws, proximately and distantly, to provide stability to the tibia.
The distal scars were about 10 cm total in length and had a good colour match. The scar had spread and there were some crosshatching sutures. The scars were not very obvious in normal clothing. Likewise, it did not appear that they required an emollient or interfered with daily activity. There was no pitting oedema present in the right lower limb. Coloured photographs, taken close to the date of surgery, showed extensive fracture blistering, but this had fully resolved on examination.
CAUSATION
Guidelines
With respect to causation, the MAI Guidelines provide:
“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 the Personal Injury Commission) 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 nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following
elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the
occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where the Bench unanimously explained the test of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
In Briggs (No. 2), Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the guidelines (in the context of errors made by the second review panel). His Honour said, at [75] – [77]:
“This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgement” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
Diagnosis and Reasons
The Panel concluded that the following injuries were caused by the motor vehicle accident:
· leg – shortening of the right leg compared to the left (approximately 13 mm in length. The cause of the discrepancy is discussed above. In any case, Table 35 of the American Medical Association ‘Guides to the Evaluation of Permanent Impairment’ 4th Edition (AMAIV) assesses leg length inequality of less than
19 mm at 0% WPI;· tibial fracture – Table 64 of AMAIV would classify this injury as contributing to 0% WPI on the basis that there was no significant rotational or angular deformity;
· ankle fracture - Table 64 of AMAIV would also provide for 0% WPI as there was no residual deformity;
· joint stiffness and changes in gait pattern from the combined effects of both fractures - Range of motion assessment was more beneficial than Table 37, which assesses leg muscular atrophy (0% WPI);
· as noted above there were difficulties in making consistent measurements. Flexion is better than 80° therefore there is mild flexion impairment of 10% lower extremity impairment according to table 41. Similarly gives a mild impairment of 10% LEI 3% lower extremity impairment. (Or possibly a moderate stiffness giving 7% lower extremity impairment). Total lower extremity impairment 21% combined values stable (or 25%), giving 8% WPI, and
· scarring – scarring at three sites with good colour match and no need for daily treatment but the scars had spread, and crosshatching was noted. The claimant was aware of the scars. Staple marks were visible at some sites and some sites could be seen with normal clothing. There was a negligible effect on activities of daily living, normal contouring, no treatment was required however the scars are adherent. TEMSKI: 2 is the best fit, 1% WPI.
THE PANEL’S FINDINGS
Impairment assessment
The Panel finds that the fracture of the manubriosternal joint has healed and leaves no residual impairment. The Panel determines that a 0% WPI impairment arises.
The Panel finds the right leg shortening is less than 19 mm and leaves no residual impairment. The Panel determines that a 0% WPI impairment arises.
The Panels assessment under range of motion measures for the fracture of the tibia leaves residual impairment. Likewise, the ankle fracture healed without residual deformity and there will be no assessable impairment. Diagnosed based methodology, table 64 gives a 0% impairment for each but this is less beneficial than range of motion methodology. There is loss of range of motion which can be assessed for both the knee and the ankle and combined they are impairments in the lower limb. Applying this methodology and using tables 41, gives a 10% lower extremity impairment of the knee and tables 42 and 43 and 16% lower extremity value. Combined value is 24% lower extremity impairment. All tables give the option of choosing an equivalent whole person, 2% for the loss of knee flexion and 8% WPI for the ankle.
In section 3.2 page 75 of AMA IV makes the following direction. If the patient has several impairments of the same lower extremity part, such as the leg or impairments in different parts such as the ankle and a tow the whole person estimates for the impairment are combined. The Panel determines that a 10% WPI impairment arises.
The Panel finds that scarring also attracts an impairment under the TEMSKI methodology. The Panel determines a 1% WPI impairment arises.
Relevant tables Percentage WPI Deductions percentage WPI due to the injury Tibial platform fracture AMA 41 2% nil 2% Malleolus fractures AMA 42 and 43 8% nil 8% Scarring TEMSKI 1% nil 1%
The Review panel had included scarring in its clinical examination and made relevant findings. The Review panel has now included scarring in its conclusions on WPI as although it was not an injury referred for review, this was the result of an obvious error on the part of the claimant’s legal representative.
The Panel finds there is a residual impairment assessed at 11% WPI.
The following injuries were caused by the accident but had resolved:
· fracture to manubriosternal joint;
· right leg shortening;
· right leg shortening;
· fractured tibial mid shaft extending to the plafond, and
· fracture of the medial and lateral malleolus (right ankle).
The following injuries were not caused by the accident:
· bulging of the medial meniscus;
· neck-contusion – ligamentous injury;
· shoulder – aggravation of full thickness tear of supraspinatus, and
· lumbar spine – disc injury.
THE PANEL’S CONCLUSION
The following injuries were caused by the accident:
· fracture to manubriosternal joint;
· right leg shortening;
· fractured tibial mid shaft extending to the plafond, and
· fracture of the medial and lateral malleolus (right ankle).
· scarring
The following injuries were not caused by the accident:
· bulging of the medial meniscus;
· neck-contusion – ligamentous injury;
· shoulder – aggravation of full thickness tear of supraspinatus, and
· lumbar spine – disc injury.
The Panel revokes the certificate of Medical Assessor Mohammed Assem of
1 February 2023 assessing WPI of 8%, and instead substitutes the Determination assessing that the injuries by the motor accident gave rise to WPI of 11%.
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