Usher v Insurance Australia Limited t/as NRMA Insurance

[2023] NSWPICMP 7

DETERMINATION OF REVIEW PANEL

CITATION:

Usher v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 7

CLAIMANT:

Mathew James Usher

INSURER:

Insurance Australia Ltd t/as NRMA

REVIEW Panel

PRINCIPAL MEMBER:

John Harris

MEDICAL ASSESSOR:

Alan Home

MEDICAL ASSESSOR:

Lesley Barnsley

DATE OF DECISION:

10 January 2023

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 3 November 2018; the insured vehicle was travelling at speed and collided with the claimant; this was a medical dispute about whether the degree of impairment of injury caused by the motor accident was greater than 10%; the right knee tibial plateau fracture was assessed at 8% based on loss of flexion contracture; the condition had deteriorated over time because of the seriousness of the injury and the presence of traumatic osteoarthritis; this explained the Panel’s assessment was greater than previous assessments undertaken by some doctors in this matter; the serious right leg injury resulted in altered gait and ongoing effects to the lumbar spine; this consequential effect is ongoing and explains why the current assessment (diagnosis related estimate (DRE) Category II) was worse than previously assessed by other doctors; the impaired gait from the injury to the right knee placed stress on the left knee but caused no assessable impairment in that part; Held – claimant assessed at 14% permanent impairment in respect of the right knee, scarring and lumbar spine.

DETERMINATIONS MADE:  

Medical Assessment – Permanent Impairment

WHETHER THE DEGREE OF permanent impairment OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%
THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS:

The Panel revokes the certificate dated 23 May 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%:

lumbar spine – soft tissue injury and consequential condition due to abnormal gait;
right ankle/ foot – sprain;
left knee – consequential patellofemoral injury;
right knee – intraarticular tibial plateau fracture;
face – scarring;
chest – contusion, resolved;
abdomen – contusion, resolved, and
scarring – post-surgical, right leg.

REASONS

BACKGROUND

1. Mr Mathew Usher (the claimant) suffered injury on 3 November 2018. The insured vehicle (unidentified) collided with Mr Usher. Th exact circumstances of the Mr Usher’s position on the roadway is in dispute and it is unnecessary for this Panel to decide that issue. However, it is sufficient that we observe that the insured vehicle was travelling at speed and collided with Mr Usher.

2. Insurance Australia Ltd (the insurer) insured the owner and/or driver of the unidentified motor vehicle for liability to pay to Mr Usher any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).

3. The issue in dispute are whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%” This constitutes a medical disputes within the meaning of the MAI Act.[1]

   [1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.

4. Mr Usher alleges that he suffered impairment to the following body parts caused by the motor accident:

   (a)    cervical spine;

   (b)    lumbar spine;

   (c)    right foot/ankle;

   (d)    left knee;

   (e)    right knee;

   (f)    face;

   (g)    abdomen;

   (h)    chest; and

   (i)    scarring.

5. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).

6. The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]

   [2] Clause 6.2 of the Guidelines.

7. This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Cameron and dated 23 May 2022. The Medical Assessor assessed the degree of permanent impairment at 8%. The details of the assessment are set out later in these Reasons.

THE REVIEW

1. The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]

   [3] Section 7.26(10) of the MAI Act.

2. The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]

   [4] Section 7.26(5) of the MAI Act.

3. Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).

4. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]

   [5] Section 41(2) of the PIC Act.

5. 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.[6]

   [6] Rule 128 of the PIC Rules.

6. The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]

   [7] Section 7.26(6) of the MAI Act.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Cameron provided a medical assessment certificate dated 23 May 2022. The Medical Assessor determined that the claimant sustained soft tissue injuries to the face, cervical spine, abdomen and chest which had resolved.

2. The Medical Assessor found that the fracture of the tibial plateau with mild collateral ligament laxity gave rise to an 8% permanent impairment. He otherwise found that the remaining body parts were injured, had not resolved, but did not result in any assessable impairment.

MATERIAL BEFORE THE REVIEW PANEL

1. The parties provided bundle of documents in response to the Panel’s direction.

Pre-existing records

1. In late 2015 the claimant fell off a motor bike and injured his right ankle sustaining avulsion fractures and injuring his left knee.[8] The general practitioner noted that the left patella was painful[9] and arranged for an X-ray of the left knee showed appropriate alignment and no fracture or dislocation.[10]

   [8] Insurer’s bundle, p 32.

   [9] Insurer’s bundle, p 348.

   [10] Insurer’s bundle, p 276.

2. Subsequent consultations with the general practitioner in 2016 and 2017 did not refer to left knee and right ankle symptoms.[11]

   [11] Insurer’s bundle, pp 350-358.

Contemporaneous records

1. The ambulance report noted that the claimant was hit by a car and found lying on the road.[12] The claimant complained of pain right leg just below the knee and lower back pain and face. The abdomen was described as soft with small abrasion to the lower chest.

   [12] Claimant’s bundle, p 75.

2. The description of the motor accident in the emergency department notes was:[13]

   “BIBA pedestrian vs car approx. 60 km/hr (as per bystanders from CDA); pt was flung onto hood of car and off; did not get up by self; picked up from ambos”.

   [13] Claimant’s bundle, p 113.

3. Complaints of pain at hospital were to the right leg and the lower back, “mainly above right buttock”.[14] Grazes were also noted to the right upper chest and lest side of face.[15] The cervical spine was examined and found to be normal. The CT scan of the cervical spine showed no acute injury.[16]

   [14] Claimant’s bundle, p 118.

   [15] Claimant’s bundle, p 121.

   [16] Claimant’s bundle, p 137.

4. Examination by Dr Power noted left sided temporal pain and back pain from L2-L5, external evidence of chest injury left lower torso and mid abdomen and swollen right knee, lower femur, ankle.[17] The X-ray showed comminuted depressed fracture of the lateral tibia plateau with extension to the lateral tibial spine with lipohaemarthrosis and large knee joint effusion.

   [17] Claimant’s bundle, p 134.

5. The CT scan of the right knee showed impacted comminuted fracture of the anterior aspect of the lateral tibial plateau with extension to the medial and lateral tibial spine.[18]

   [18] Claimant’s bundle, p 137.

6. The CT scan of the right ankle showed swelling along the medial malleolus and along the medial aspect of the right hind foot with a diagnosis of anterior ankle joint effusion. No acute fracture was seen.[19]

   [19] Claimant’s bundle, p 134.

General practitioner

1. The general practitioner, Dr Simes, noted post-accident attendance on 22 November 2018 with a record of right leg fracture and low back pain.[20] CT scan of the lumbar spine dated 23 November 2018 noted disc bulge at L5/S1 of uncertain significance and minor degenerative changes in both sacroiliac joints.[21]

   [20] Insurer’s bundle, p 66.

   [21] Insurer’s bundle, p 71.

2. The doctor provided a detailed report dated 13 August 2020 noting that he first consulted the claimant on 22 November 2018 and diagnosed soft tissue contusions to the face and right foot and a severely comminuted fracture of the proximal lateral condyle of the right tibia.[22]

   [22] Claimant’s bundle, p 96.

3. Dr Simes opined that imaging suggested imperfect restoration of the joint with post traumatic osteoarthritis inevitable.

4. On 11 February 2021 Dr Simes opined that the degenerative changes in the left knee “could at least be in part due to the shift of weight from his severely damaged right knee”.[23]

   [23] Insurer’s bundle, p 262.

5. Ms Cambourne, exercise physiologist reported in August 2020 that the left knee was becoming “unstable due to the extra weight bearing”.[24]

   [24] Insurer’s bundle, p 227.

Claim form

1. The claim form dated 7 November 2018 specified injuries as:[25]

   -      grazing about left eye;

   -      bruising inside left side of the mouth;

   -      grazes on right foot;

   -      shattered knee requiring surgery.

Specialist treating records

[25] Insurer’s bundle, p 12.

Dr David Cossetto

1. Dr David Cossetto, orthopaedic surgeon, has provided a series of reports. In a report dated 5 May 2020[26] Dr Cossetto noted the pedestrian/motor vehicle collision resulted in an open reduction and internal fixation with bone grafting of a right knee intra-articular fracture which had healed with malunion. Post traumatic lateral compartment osteoarthritis had developed.

   [26] Claimant’s bundle, p 32.

2. The doctor noted the CT scan showed a badly malunited lateral tibial plateau articular surface with a significant depression on the joint line.[27]

   [27] Claimant’s bundle, p 70.

3. The doctor opined that the prognostic outlook was poor, and Mr Usher would require a total knee arthroplasty.[28] He assessed the permanent impairment of the right knee at 16% and allowed a further 1% for the scarring.[29]

   [28] Claimant’s bundle, p 34.

   [29] Claimant’s bundle, p 36.

4. In a report dated 8 February 2021[30] Dr Cossetto confirmed his findings of genu valgum alignment first noted in March 2020. A moderate degree of mediolateral ligamentous laxity was observed. The doctor noted that the symptoms were explained by the presence of significant joint line depression in the lateral compartment.

   [30] Claimant’s bundle, p 69.

5. In a report dated 26 February 2021, Dr Cossetto opined that the left knee symptoms were due to overcompensation due to the significant discomfort affecting the right knee joint.[31]

   [31] Claimant’s bundle, p 71.

Qualified opinions

1. Dr Barold, occupational physician, was qualified by the claimant and provided a report dated 9 July 2020.[32] The doctor made recommendations on treatment. He opined that the injury is expected to lead to accelerated degenerative changes within the knee and will require a total knee replacement at some point in the next 5 to 10 years.

   [32] Claimant’s bundle, p 37.

2. Dr Robin Mitchell, occupational physician, was qualified by the insurer and provided a report dated 4 January 2021.[33] Dr Mitchell noted ongoing right sided knee pain and more recently left knee pain and low back pain. The doctor described the left knee and low back pain as unrelated as they “subsequently developed sometime later”.[34]

   [33] Insurer’s bundle, p 19.

   [34] Insurer’s bundle, p 27.

3. Dr Mitchell diagnosed osteoarthritis in the right knee joint consequential to the motor accident with “ongoing and increasing pain” until total knee joint replacement is undertaken.

4. Dr Mitchell noted range of movement better than that found by Dr Cossetto and assessed nil impairment.

Radiology

1. A CT scan of the proximal tibia dated 20 March 2020 showed a united lateral tibial plateau fracture with some residual depression.[35]

   [35] Insurer’s bundle, p 168.

2. An MRI scan of the left knee dated 25 January 2021 showed grade 3 chondromalacia of the patella with moderate joint effusion and scarred medial collateral ligament.[36]

   [36] Insurer’s bundle, p 332.

SUBMISSIONS

Claimant’s submissions dated 19 April 2021[37]

[37] Claimant’s bundle, p 1.

1. The claimant referred to the opinion of the general practitioner, Dr Simes, that he sustained “terrible damage” from the motor accident. The claimant’s treating specialist, Dr Cossetto, noted the extensive damage to the right knee, the development of post traumatic osteoarthritis, and the likely need for future treatment.

2. Dr Cossetto referred to the genu valgum deformity in the right knee and assessed impairment at 17%.

3. Dr Barold opined that the accident has caused aggressive accelerated degenerative changes and will highly likely lead to a total knee replacement in the next 5 to 10 years.

Claimant’s submission dated 21 June 2022[38]

[38] Claimant’s bundle, p 5.

1. These submissions were filed seeking a review of the medical assessment.

2. The claimant submitted that there were no examination findings for the right ankle. With respect to the right knee, the findings of mild lateral ligament laxity are vague and unclear whether it relates to the collateral or cruciate ligament or both.

3. The claimant submitted that whilst only loss of range of motion in one direction can be used (AMA 4, page 78), flexion deformity and range of flexion can be combined because they are in the same direction. Further this can be combined with valgus as it is malalignment and not loss of range of motion. The submission is based on Dr Cossetto’s report dated 16 June 2022.[39]

   [39] Claimant’s bundle, p 72.

4. The claimant submitted that the Medical Assessor did not include measurements of the left knee for flexion contracture and any valgus deformity.

5. The claimant submitted that the finding that the cervical spine injury had resolved was inconsistent with the finding that movement was 80% of normal.

6. The claimant submitted that the Medical Assessor failed to have regard to Dr Cossetto’s report dated 8 February 2021 which referred to the existence of a valgus deformity.

7. The claimant referred to the findings of facial scarring, surgical scar and skin impairment over the right calf. It submitted that the assessment under TEMSKI only considered the surgical scar and did not address the facial scarring and the discoloured skin over the right lateral calf.

Insurer’s submission undated[40]

[40] Insurer’s bundle, p 626.

1. The insurer accepted that a fractured tibial plateau and soft tissue injuries to the lumbar spine occurred as a result of the motor accident.

2. The insurer referred to the motor accident in December 2015 resulting in injury to the left knee and avulsion fractures of the lateral malleolus and talus in the right foot.

3. The insurer submitted that there was no report of injury to the cervical spine. The neck was examination at hospital and was reported as normal.

4. The insurer accepted that there were complaints of lumbar spine symptoms to the ambulance officer and the hospital. It submitted that the injury resolved or was otherwise assessed at DRE Category I.

5. The insurer submitted that the injuries to the abdomen and chest were soft tissue and resolved within a short period.

6. The insurer referred to the grazing to the various abrasions and surgical scan and submitted that these did not give rise to any assessment but “would not exceed” 1% permanent impairment.

7. The insurer submitted that the right knee gave rise to 0% impairment based on Dr Mitchell’s opinion. It otherwise submitted that if there was crepitus that this may give rise to 2% impairment with a further 2% for an undisplaced tibial fracture. The extent of any impairment of the right lower limb (including the right ankle and foot) was limited to 4%.

8. The insurer submitted that the left knee was not injured in the motor accident and had sustained a prior injury in late 2015. The medical evidence otherwise shows a pre-existing degenerative condition. Furthermore, any symptoms were due to the claimant’s significant weight.

Insurer’s submissions dated 14 July 2022[41]

[41] Insurer’s bundle, p 805.

1. These submissions were made opposing a review of the Medical Assessment.

2. The insurer noted the doctors’ findings on examination for the right ankle were not apparent, the Medical Assessor found 0% impairment consistent with other medical opinion.

3. The insurer submitted that the finding by the Medical Assessor of mild lateral ligament laxity was to the collateral ligament as identified elsewhere in the assessment.

4. The insurer submitted that findings for the left knee and cervical spine reveal no error as there was no assessable impairment of either body part. In relation to the assessment of the scar, it submitted that there was no medical basis to award other than 1%.

RE-EXAMINATION

1. Mr Usher was examined by both Medical Assessors of the Panel. The joint examination report is as follows:

   “Mr Usher was examined by Panel members Dr Barnsley and Dr Home on Monday 19 December 2022.
   Past History
   Mr Usher denies any problems with the currently affected body areas in the past. In particular, he has not had any prior problems with his right or left knee.
   He does report that he sustained a previous injury to the left ankle in a motor vehicle accident several years ago. No fracture was demonstrated. The injury was managed with a moonboot and he was not left with any residual symptoms.
   Details of subject accident
   He was involved in a motor vehicle accident on 3 November 2018 when he was a pedestrian struck by a vehicle, apparently deliberately. He cannot state exactly how he was struck but he was thrown into the air and onto the ground. He recalls having grazes on his face and his mouth and his right knee was immediately painful and swollen. He also had immediate onset of back pain and some right foot pain.
   Details of subsequent treatment
   He was taken to Shoalhaven Hospital and subsequently transferred to Wollongong Hospital where he remained for two weeks.
   He was diagnosed with a comminuted depressed fracture of the right lateral tibial plateau with extension into the lateral tibial spine. He had an open reduction and internal fixation of the fracture on 14 November 2018.
   He then had a prolonged period of non-weight bearing through the right leg for approximately five months. He was then progressively weight-bearing over the next seven months.
   He recalls ongoing pain and swelling in the right knee.
   In terms of his low back pain, this has also persisted since the time of the accident. It is central and he rates the severity as 7-8/10. The pain is mainly located in the midline. There is exacerbation with coughing and sneezing. He has not had any bladder or bowel symptoms. He has not had any symptoms to suggest radiculopathy, such as referred or shooting pain in the leg or persistent neurological symptoms in the lower limb.
   He has had some persistent pain over the lateral aspect of the right ankle, where an effusion was noted on initial x-rays.
   Sometime between six and twelve months after the accident, he began to develop some left knee symptoms with occasional swelling and some crepitus.
   He was initially troubled by some neck pain but this has substantially resolved.
   He had early symptoms of chest and abdominal pain but these settled within several weeks.
   He is currently taking the following medications:

   ·Lovan 20 mg daily

   ·Mobic

   ·Nexium

   ·Panadeine Forte two to eight tablets a day

   ·Diazepam of uncertain strength up to three tablets a day

   ·Oxazepam 60 mg at night.

   He currently is able to walk only 20-30 metres before needing to stop due to his right leg pain. He uses a cane depending upon the severity of his pain. He has a persistent limp with any walking. He climbs stairs sideways, one step at a time, placing both feet on each step in the same order rather than adopting a normal cadence.
   Cervical spine
   Examination of the cervical spine reveals normal spinal curvature without muscle spasm. There is a full range of active motion in all planes. The claimant described end range pain with extreme right-sided motion however there was no dysmetria or guarding.
   Upper extremities
   Neurological examination of the upper extremities is normal. There is normal myotomal power in all muscle groups. There is symmetrical sensibility. Deep tendon reflexes are symmetrically preserved. There is no muscle wasting.
   Lumbar spine
   On examination of the lumbar spine, the claimant is noted to stand with a stooped posture. He could not extend to neutral. His flexion was limited to one-quarter normal range. Lateral flexion was symmetrically performed to half normal range. There is muscle guarding during lumbar extension motion. Tenderness is elicited to palpation overlying the midline and right-sided paravertebral structures at the lowest two lumbar segments.
   Lower extremities
   Neurological examination of the lower extremities reveals normal myotomal power in the ankles and feet. I could not reliably test power across the knees due to local pain. There is normal sensibility beyond a small area of numbness adjacent to his right knee scar due to local factors. There is no muscle wasting. The circumference of the right thigh is 59 cm. The circumference of the left thigh is 59 cm. The circumference of the right calf is 49.5 cm, the circumference of the left calf is 48.0 cm.
   Left knee
   Examination of the left knee reveals 10° varus deformity. There is active motion measured 0° extension to 135° flexion. There is patellofemoral joint crepitus during active knee joint motion.
   Pain is declared with Clarke’s manoeuvre, that is, compression of the patella against the femur during quadriceps contraction reproduces anterior knee pain.
   Ligaments are stable in both AP and lateral planes. There is also a finding of medial and lateral joint line tenderness. There is no joint effusion.
   Right knee
   Examination of the right knee reveals a small joint effusion. There is 7° varus measured in a standing position with goniometer. Active motion is measured -15° extension lag to 95° flexion. Ligaments are stable in both AP and lateral planes. There is no abnormal joint crepitus. There is marked tenderness elicited to palpation over all surfaces of the knee. There is a small area of numbness lateral to the surgical scar.
   Right ankle
   At the right ankle, there is mild enlargement in the anterolateral gutter consistent with a previous sprain injury. Active motion is measured as follows:

Ankle Movements	Active ROM Measured Right degrees (°)	Active ROM Measured Left degrees (°)
Flexion	50	50
Dorsiflexion	15	15
Hindfoot eversion	15	15
Hindfoot inversion	45	45

The range of ankle and hindfoot motion is symmetrical. There is no joint instability evident. The claimant walks with a pronounced antalgic gait in relation to his right knee pain.
Scarring
There is a 1 cm barely visible scar overlying the left forehead slightly paler than the surrounding skin without further adverse features. This was difficult to locate.
There is a 19 cm curvilinear scar overlying the lateral aspect of the right knee extending to the proximal tibia. The scar is pinker than the surrounding skin. It is flat in contour. There is mild trophic change throughout. There are no visible suture marks. There is no abnormal tethering.
There is a further area of hyperpigmentation measuring 16 x 7 cm at the lateral border of the right mid-calf with slightly raised contour but no other adverse features. This is clearly visible at a distance. It is easy to identify by the claimant.
There is a further area of 10 x 12 cm increased pigmentation just posterior to the prior area in the posterolateral distal calf, darker than the surrounding skin flat with no other adverse features.
DIAGNOSIS AND CAUSATION
The claimant was involved in a motor vehicle accident in which he was a pedestrian struck by a car. There is early documentation of multiple grazes and contusions in the face and lower extremities.
He was transferred by ambulance to Shoalhaven Hospital and after 24 hours was transferred to Wollongong Hospital for definitive management. Imaging demonstrated a highly comminuted fracture of the lateral tibial plateau of the right knee, with intra-articular involvement. There has been appropriate surgical management with open reduction and internal fixation of the right knee fracture.
The panel finds that the claimant suffered a material injury to the right knee as listed.
The panel is satisfied the claimant sustained abrasions to the face but these have resolved with minor scarring that is difficult to identify. The panel found that the facial scarring would attract a 0% whole person impairment rating.
The panel did not find evidence of a persistent cervical spine injury.
The claimant suffered early contusions to the chest and abdomen but has made a full symptomatic recovery within several weeks. There are no ongoing complaints at the chest and abdomen.
The diagnosis is chest soft tissue injury - resolved, abdomen soft tissue injury – resolved.
The panel is satisfied the claimant suffered a material injury to the lumbar spine. There is early documentation of back pain. There is early CT scan imaging of the lumbar spine.
The panel found that the claimant has also suffered secondary pain in the lumbar spine due to altered gain described as intrusive pain in the right side of the lower back. There are no radicular features.
The panel is satisfied the claimant has persisting low back pain both due to direct injury and the consequential injury due to his abnormal gait.
The panel found the claimant sustained a sprain injury to the right ankle. There is early documentation of ankle pain in related imaging which showed a joint effusion.
The claimant describes intermittent symptoms at the right ankle however the panel found the claimant has recovered a full range of active motion at the right ankle and foot.
The claimant reports consequential pain in the left knee developing six to twelve months post-accident. The claimant attributes this to his abnormal gait. The panel is satisfied that the claimant has developed a symptomatic left knee condition due to his prolonged abnormal gait over a period of four years including a long period during which he was reliant upon his left knee to mobilise with crutches and subsequent pronounced asymmetrical loading of the left knee.
Whilst the panel is aware of general caution in attributing consequential conditions to abnormal gait, the panel found that the severity of the right knee condition, including a flexion deformity, as well as prolonged period of walking with an asymmetrical gait would have led to increased and abnormal loading of the left knee. These factors have led to a consequential injury to the left knee.
The panel found that there is scarring related to the surgical management of his acute right knee injury and early contusion to the right leg.
Summary of listed injuries caused by the accident:

Lumbar spine – soft tissue injury and consequential condition due to abnormal gait.
Right ankle/ foot – sprain
Left knee – consequential injury.
Right knee – intraarticular tibial plateau fracture
Face – scarring
Chest – contusion, resolved
Abdomen – contusion, resolved.
Scarring – post-surgical, right leg

Summary of listed injuries NOT caused by the accident:

Cervical spine

Permanent Impairment Assessment

Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th Edition) as follows:

‘Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.’

The panel considered this impairment in this case meets the definition of permanency outlined above.

Lumbar spine
The clinical presentation is consistent with a DRE Lumbosacral Category 2 impairment rating. There is spinal dysmetria. There is muscle guarding. The panel found that there were no verifiable or non-verifiable radicular complaints.
A 5% whole person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, page 102.
Right ankle/foot
There is a 0% impairment in relation to the right ankle and foot injuries as there is normal range of active motion at the ankle and hindfoot. There is no other rateable impairment using the methodology set out in the SIRA Guidelines, Section 6.68 to 6.110 and AMA 4, Chapter 3.
Left knee
There is crepitus at the left knee. Whilst impairment could be considered in accordance with footnote in Table 62, AMA 4, page 83, the Panel notes there was no history of direct trauma to the left knee. There are no other rateable findings of impairment in the left knee and therefore it is assessed at 0%.
Scarring
Scarring is assessed using the TEMSKI Scale in the SIRA Guidelines, Table 14.1.
In relation to the scarring in the lower extremities, the claimant is

·Conscious of the scar or skin condition

·There is noticeable colour contrast of scar or skin condition with the surrounding skin as a result of pigmentary change, particularly at the lateral calf.

·The claimant is able to easily locate the scar or skin conditions

·There is minimal trophic change

·There are no visible suture marks

·The location of the scars can be seen when wearing shorts

·There is no contour defect

·There is no affect on activities of daily living

·There is no adherence.

Using the principle of best fit, the panel found that a 1% whole person impairment rating arises.
Right knee
Impairment at the right knee is determined using range of motion methodology as set out in Table 41, AMA 4, page 78. The panel found that there is now a flexion contracture of 15° which attracts a moderate impairment rating, 8% WPI. The panel did not find any impairment in other directions of motion and there was no deformity of the femoral-tibial angle.
An 8% whole person impairment rating arises.
Whist the panel found that the impairment can be assessed using diagnosis based estimates as a 2% whole person impairment rating for a tibial plateau fracture, the impairment assessment derived from the range of motion method provides a greater range of impairment and is preferred in this case.
Combined whole person impairment rating
The combined whole person impairment rating equals 16% WPI.

Body Part or System	AMA Guides/ SIRA Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1.	Lumbar spine	AMA 4 Chapter 3 pg 102	YES	5%	0%	5%
2.	Scarring	Guidelines, Table 14.1	YES	1%	0%	1%
3.	Right knee	Table 62, AMA4	YES	8%	0%	8%
4.	Left knee	Guidelines, Section 6.68 to 6.110 and AMA 4, Chapter 3	0%
5.	Right ankle	Guidelines, Section 6.68 to 6.110 and AMA 4, Chapter 3	0%
6.	TOTAL	Combined values chart page 322, AMA4	14	0	14

Diagnostic imaging
The following additional imaging was provided to the panel:
X-ray right knee, 7 April 2021. Soft tissue swelling noted over the patella. Changes in keeping with an osteotomy with associated plating and internal fixation of the tibia. Lateral joint space compartment in the knee is decreased in height. Normal anatomical alignment. Moderate joint effusion. The panel notes that this is not a weight-bearing x-ray of the knee and therefore cannot be used to assess cartilage loss.
X-ray right knee, 19 November 2021. Internal fixation transfixes the upper tibia. The patella is enlocated but subluxed laterally to a small degree. The position is satisfactory. No perimetallic lucency identified. Bony consolidation is evident.
X-ray left knee, 22 March 2022. Normal findings beyond very sight spiking of the tibial spines. No loose bodies. Marginal lipping is not seen.
Ultrasound right knee, 26 July 2022. Normal.
CT right knee. Patella is subluxed laterally. The patellofemoral joint space is narrowed to a small degree. Slight marginal lipping is demonstrated. Internal fixation transfixes the upper tibia. A very small amount of fluid is noted at the suprapatellar bursa. No loose bodies could be identified. Minor joint space narrowing seen at the medial compartment. There is a genu varum deformity demonstrated. Marginal lipping is seen at the inner aspect of the medial femoral condyle. Bony opacities may represent loose bodies but is not conclusive. Mild to moderate spiking of the intracoronal eminence is demonstrated. There is joint surface irregularity at the lateral tibial plateau. There is a possible loose body adjacent to the articular surface.”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[42] The Panel adopts the examination findings of the Medical Assessors. Given the detail of the examination findings, only further brief reasons are included.

   [42] Section 7.26(6) of the MAI Act.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[43] and Insurance Australia Ltd v Marsh.[44]

   [43] [2021] NSWCA 287 at [40], [41] and [45].

   [44] [2022] NSWCA 31 at [11], [21], [64].

3. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAI Act[45]. In Raina v CIC Allianz Insurance Ltd[46] Campbell J stated:

   “One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

   [45] See s 3B(2) of the Civil Liability Act 2002.

   [46] [2021] NSWSC 13 (Raina) at [65].

4. Various authorities have discussed error made by review panels and medical assessors in determining the issue of causation solely based on the absence or record in contemporaneous notes

5. In Norrington v QBE Insurance (Australia) Ltd[47] the Court held that the panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.

   [47] [2021] NSWSC 548 (Norrington).

6. The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[48] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga[49]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[50]).

Cervical spine

[48] [2016] NSWCA 229 at [64]-[66].

[49] [2004] NSWCA 34 at [35].

[50] [2014] NSWSC 888 (Bugat) at [31]-[32].

1. The cervical spine was not injured in motor accident. There was no contemporaneous complaint, and the body part was not referenced in claim form. An inclusion of injury in the claim form is relevant to establishing causation: Bugat. Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.

Lumbar spine

1. The insurer accepted injury to the lumbar spine. Dr Mitchell’s comment on an absence of post-accident complaint is incorrect. There was complaint to the ambulance officer, hospital and general practitioner who referred Mr Usher for a CT scan.

2. Further, the Medical Assessors on the Panel have explained in their examination report why the serious right leg injury would result in altered gait and ongoing effects to the lumbar spine. This consequential effect is ongoing and explains why the current assessment (DRE Category II) may be worse than previously assessed by other doctors.

Right knee/tibial plateau fracture

1. The Medical Assessors have explained, based on the examination findings, the assessment for the right knee. Given the seriousness of the injury and the presence of traumatic osteoarthritis, the condition has deteriorated since the previous assessment. The range of active motion of the right knee joint has deteriorated. This explains why the Panel’s assessment of impairment is greater than previous assessments.

Left knee

1. The Medical Assessors have explained why the impaired gait from the injury to the right knee has placed stress on the left knee. However, there is no assessable impairment of the left knee.

Other injuries

1. It is unnecessary to add any further comments in respect of the other injuries.

CONCLUSION

1. The certificate which assessed permanent impairment is revoked. The new certificate is attached at the commencement of these Reasons.