Wahab v Allianz Australia Insurance Limited
[2024] NSWPICMP 444
•5 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Wahab v Allianz Australia Insurance Limited [2024] NSWPICMP 444 |
| CLAIMANT: | Zurana Wahab |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 5 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; medical dispute about permanent impairment; claimant was a front seat passenger in a vehicle when a front tyre blew out causing the vehicle to lose control and roll over; Medical Assessment Certificate (MAC) found the claimant sustained numerous soft tissue injuries including to lumbar spine and left wrist scaring which was assessed at 6% whole person impairment; Held – MAC is revoked; Review Panel found a total of 8% permanent impairment; left wrist at 3% and cervical spine injury at 5% permanent impairment; in the related proceedings the other Medical Review Panel assessed permanent impairment at 8%; 2% for face disfigurement, scarring and deformity; 3% for right trigeminal nerve injury; 3% for left trigeminal nerve injury; combined certificate results were 15% permanent impairment. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Woo dated 21 March 2023 regarding permanent impairment. 2. The Review Panel issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a permanent impairment of 8% whole person impairment : (a) sternum fracture (no assessable impairment) – 0% WPI; (b) cervical spine (DRE category II) – 5% WPI; (c) lumbar spine (DRE category I) – 0% WPI; (d) left shoulder (no assessable impairment) – 0% WPI; (e) left wrist scarring – 1 % WPI; (f) left wrist – 2 % WPI, and (g) left thumb Bennett fracture (no assessable impairment) – 0% WPI. 3. The Review Panel revokes the combined certificate of Medical Assessor Curtin dated 17 August 2023. 4. The Review Panel, using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, issues a new combined certificate determining that the following injuries were caused by the motor accident and give rise to a combined permanent impairment of 15% as follows: (a) the Review Panel’s finding of a 8% impairment for the cervical spine, left wrist and left wrist scarring in these proceedings R-M10532254/22-02-02, and (B) the Review Panel’s finding of a 8% impairment for face disfigurement, scarring and deformity – 2% WPI; right trigeminal nerve injury– 3% WPI and left trigeminal nerve injury – 3% WPI in the related proceedings R-M10532254/22-02-01. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 24 December 2020 Zurana Wahab (the claimant) was a front seat passenger in a vehicle travelling on the Sturt Highway Balranald when a front tyre on the vehicle blew out causing the vehicle to lose control and roll over.
In her personal injury claim form dated 23 February 2021 Ms Wahab says that as a result of the accident she sustained numerous injuries.[1] She described her injuries as including: blow to head, laceration to forehead, right eye, neck, left shoulder, fractured left hand, lower back and psychological trauma.
[1] Insurer’s bundle R 2 p 13.
Ms Wahab has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Wahab under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Ms Wahab as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
There were two disputes as to permanent impairment. One was initially referred to Medical Assessor Woo and the other to Medical Assessor Curtin.
Medical Assessor Woo assessed Ms Wahab and issued a certificate dated 21 March 2023.
Medical Assessor Curtin assessed Ms Wahab and issued a certificate dated 20 June 2023.
Medical Assessor Curtin issued a combined certificate dated 17 August 2023.
There has been two applications for review for these certificates. Both review applications have been accepted. There have been two medical review panels constituted to review each of the medical assessments by Medical Assessor Woo and Medical Assessor Curtin.
Medical Assessor Woo assessed the degree of permanent impairment and found that the injuries caused by the motor accident did not result in permanent impairment greater than 10%. Medical Assessor Woo found that the claimant’s injuries were caused by the subject motor accident and gave rise to a total permanent impairment of 6%.
Medical Assessor Curtin assessed the degree of permanent impairment and found that the injuries caused by the motor accident did not result in permanent impairment greater than 10%. Medical Assessor Curtin found that the claimant’s injuries were caused by the subject motor accident and gave rise to a total permanent impairment of 4%. These injuries were assessed as: face-scarring and deformity – 2% whole person impairment (WPI), and trigeminal nerve injury, left and right – 2% WPI.
In his combined certificate dated 17 August 2023 Medical Assessor Curtin found that the claimant’s injuries were caused by the subject motor accident and gave rise to a total combined permanent impairment of 10%.
This review with its certificate and reasons is a review of the medical assessment of Medical Assessor Woo. The Review Panel in this case is composed of Medical Assessors Thomas Rosental and Drew Dixon and Member Ray Plibersek.
A differently constituted Review Panel has been appointed to review the medical assessment of Medical Assessor Curtin and it has provided its certificate and reasons separately. That Review Panel issued its decision dated 20 June 2024 and assessed those injuries as: face-scarring and deformity – 2% WPI; and trigeminal nerve injury, left and right – 3% and 3% WPI for each giving a total WPI of 8% WPI.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Woo was lodged within 28 days of the date on which the certificate of was made available to the parties.
On 5 October 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Medical Review Panel (the Panel).
The grounds for review advanced by the claimant and addressed by the President’s delegate included that the Medical Assessor Woo found that the claimant had normal range of motion of the left shoulder and assessed 0% whole person impairment. This finding was inconsistent with the reduced range of motion noted on examination for internal and external rotation. The claimant also submitted that she should have been assessed as having 1% WPI for the left shoulder based on the range of motion recorded by the Medical Assessor. The claimant also submitted that Medical Assessor Woo’s assessment that the claimant had 0% WPI for her cervical spine was inconsistent with his finding on examination that the claimant had non-verifiable radicular complaints in the left hand.
The current proceedings
Each of the two assessments under review arose out of the referral of a dispute to the Personal Injury Commission (Commission). The two Panels have determined the two review matters separately.
The two review proceedings were each commenced separately, at different times and were given a separate matter number by the Commission. The two proceedings were not consolidated under Rule 64 of the Personal Injury Commission Rules 2021.
The Panels have decided to issue separate decisions in each matter. A combined certificate is included at the commencement of these reasons.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt 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.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
1. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
2. '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:
3.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
4.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
5. This, therefore, involves a medical decision and a non-medical informed judgement.
6. 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.”
The Panel also notes that when considering the issue of causation of injury it had regard to the recent decision in: AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371. When assessing the causation of injuries the Panel has taken into account the whole range of views argued by the parties and it has reached its decision and conclusions based on the whole of the material before it. [3]
[3] Per Elkaim AJ at [45]-[46]. Refer also to Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 and Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41]-[44].
ASSESSMENT UNDER REVIEW
The dispute was referred to Medical Assessor Woo who assessed Ms Wahab and issued a certificate dated 21 March 2023.
Medical Assessor Woo assessed the degree of permanent impairment and found that the claimant’s injuries were caused by the subject motor accident and gave rise to a total permanent impairment of 6%.
Medical Assessor Woo determined the following injuries were caused by the subject accident and gave rise to a permanent impairment of 6%:
(a) sternum fracture (no assessable impairment) – 0% WPI;
(b) lumbar spine (DRE category II) – 5% WPI;
(c) cervical spine (DRE category I) – 0% WPI;
(d) left shoulder (no assessable impairment) – 0% WPI;
(e) left wrist scarring – 1% WPI, and
7. (f) left thumb Bennett fracture (no assessable impairment) – 0% WPI.
Medical Assessor Woo found that based on the history of accident, mechanism of injury, clinical and medical imaging findings, Ms Wahab has the following injuries:
(a) sternum (manubrium) fracture;
(b) lumbar spine – transverse process fractures L1 and L2;
(c) cervical spine – soft tissue injury;
(d) left shoulder – soft tissue injury;
(e) left wrist – distal radius fracture, and
(f) left thumb – Bennett fracture (CMCJ reduction).
Medical Assessor Woo found that all those above listed injuries were caused by the motor accident. He also found the cervical spine – soft tissue injury had resolved.
Medical Assessor Woo also found that the based on the MA Guideline Table 6.18 (TEMSKI) the left wrist scarring best fit was 1% WPI.
EVIDENCE BEFORE THE PANEL
The Panel issued Directions to the parties on 23 January 2024 requesting the claimant to attend for a re-examination by the Medical Assessors on the Panel. The Panel also directed the parties to file an indexed, paginated bundle of documents. The Panel also directed the parties on or before 5pm Friday 21 February 2024, to send to the Commission physical copies or copies on CD discs of relevant MRI, CT scans, X-rays or other imaging studies of the claimant’s shoulders or spine.
The Panel noted that each party had filed an indexed, paginated bundle of documents. However neither party supplied any physical copies or copies on CD discs of relevant MRI, CT scans, X-rays or other imaging studies of the claimant’s shoulders or spine.
Unfortunately details of these ultrasounds, CT scans and imaging studies were not included in the bundles of evidence supplied to the Panel by the parties.
Pre-accident treatment medical evidence
There are limited pre- accident treatment medical records available for the claimant.
Application for Personal Injury Benefits
The Application for Personal Injury Benefits dated 23 February 2021 the claimant alleged injuries to the head, forehead, left hand, right eye, neck, left shoulder, lower back and psychological trauma.[4]
[4] Insurer’s bundle R 1 pp 2-4.
Ambulance and police reports
The NSW ambulance report dated 24 December 2020 noted the claimant sustained injuries including: head injury, various lacerations, and had pain to the head, cervical spine and left hand/wrist.[5]
[5] Claimant’s bundle pp 34 -36.
Hospital reports
The claimant was initially taken by ambulance to Balranald airport and then airlifted to Royal Melbourne Hospital on 24 December 2020.[6] The hospital notes record the claimant injuries as: closed fracture of a left closed Bennet’s fracture, sternal fracture, closed fracture of lumbar vertebrae and closed fracture of facial bone.[7] On 25 December 2020 the claimant had an open reduction internal fixation of left distal radius, left brachioradialis tenotomy and bone graft left radius. A closed reduction was also performed and K-wires inserted into the left thumb. The K wires were removed on 6 February 2021.
[6] Claimant’s bundle pp 34-42 and 43-336.
[7] Claimant’s bundle pp 44-336.
On 26 December 2020 hospital notes note the claimant’s cervical spine was cleared and the neck had very mild tenderness to palpation and full active range of motion without pain.
Medico-legal evidence
Dr Anil Nair orthopaedic surgeon prepared two reports on the claimant dated 18 May 2022.[8]
[8] Claimant’s bundle pp 16-27.
Dr Nairn’s examination of the claimant via video telehealth. The range of motions measured by Dr Nairn were estimated only due to the limitation of assessment via video telehealth.
On examination Dr Nairn found in approximately 20% global reduction in the cervical spine range of motion and approximately 30% global reduction in the lumbar spine range of motion. He found the claimant had full and symmetrical shoulder range of motion bilaterally in all planes.
Using AMA 4 Guides Dr Nairn found DRE cervical spine category II as well as DRE lumbar spine category II. This gives a 5% WPI for both the cervical spine and 5% WPI for the lumbar spine. Dr Nairn also found the loss of range of motion in the upper extremity to be 10% which converts to 6% WPI. This gives a total combined WPI of 15%.
X-ray, CT scan and MRI evidence
Imaging records from the Royal Melbourne Hospital include the following:
(a) X-ray right forearm, wrist and hand – displaced fracture through the scaphoid waist, although its acuity is indeterminate, favoured acute;
(b) CT left radius and ulnar – distal radial fractures noted with about 5mm of impaction and 4mm of volar displacement of the distal radius and wrist;
(c) CT chest, abdomen and pelvis – subtle suspected manubrial fracture and fractures of the left L1 and L2 transverse processes, and
(d) CT brain, face and cervical spine – no acute intracranial injury, no acute cervical spine injury or soft tissue swelling, no facial bone fracture, acute avulsion of the 11th tooth, definitive associated fracture of the alveolus and extensive scalp injuries.[9]
[9] Claimant’s bundle pp 44-336.
SUBMISSIONS
Claimant’s submissions
The claimant’s solicitors made submissions dated 28 August 2023 and then sent to the Commission in January 2024.[10]
[10] Claimant’s bundle pp 5-6.
The claimant’s submissions referred to the findings of Medical Assessor Woo about the claimant’s shoulders. The claimant’s solicitors submitted that in applying Table 3 on page 20 of AMA 4, an upper extremity impairment of 2% equates to 1% WPI. Medical Assessor Woo assessed the WPI for the left shoulder at 0% when in fact the claimant submits that it should have been 1% using his range of movement findings at page 5. It is submitted that his comment that range of movement for both shoulders was normal is not correct and is inconsistent with his findings on range of movement. A normal range of movement is one where there is no restriction on each of the six planes of movement. In this claimant’s case Medical Assessor Woo found a restriction for both internal and external rotation and this, in the claimant’s submission, he should have found 1% WPI for the left shoulder.
The claimant’s submissions then referred to the findings of Medical Assessor Woo about the claimant’s cervical spine. Medical Assessor Woo found that the claimant had sustained an injury to her cervical spine in the accident (paragraph 21 on page 6). Medical Assessor Woo commented at page 7 that the injury to the cervical spine had resolved. However this is inconsistent with his findings on clinical examination at paragraph 15 on page 4, where he found non-verifiable radicular complaints, being numbness of the left thumb, index and middle finger as a consequence of the cervical spine examination. The claimant submits that using the DRE Categories for the cervical spine at page 104 of AMA 4 Guides, a category II finding for the cervical spine requires a history and findings compatible with a specific injury, which Medical Assessor Woo has found and then if there is non-verifiable radicular complaints, then that equates to a 5% WPI.
The claimant submits that a finding of the non-verifiable radicular complaints is sufficient to place the claimant in DRE category II for the cervical spine provided it relates to an initial specific injury to the cervical spine. In Medical Assessor Woo’s clinical examination of the claimant’s cervical spine, he found non-verifiable radicular complaints. In the claimant’s submission this finding is inconsistent with the suggestion that that injury has subsequently resolved.
The claimant submits that her cervical spine should have been assessed as DRE Category II which equates to 5%.
Finally, the claimant submits that the errors it has identified would take the finding from 10% to greater than 10%. The finding for the left shoulder alone places the claimant above the 10% WPI threshold.
Insurer’s submissions
The insurer’s solicitor provided two written submissions dated 13 September 2023 and 12 September 2022.[11]
[11] Insurer’s bundle pp 2-4 and 5-8.
In the submissions dated 13 September 2023 the insurer submits that the claimant takes issue with the left shoulder injury. The insurer submits there was full range of motion in the left shoulder and there is no error made by Medical Assessor Woo.
The insurer disputes there was “non-verifiable radiculopathy” from the cervical spine and submits the left-hand complaints were attributable to the left wrist injury, as the claimant fractured her left wrist. The insurer submits any symptoms in the left thumb and hand, including weakness and numbness in the left thumb, index and middle fingers, were related to the left-hand fracture and not the cervical spine.
The insurer submits that Medical Assessor Woo’s assessment of DRE category I for the cervical spine was correct.
The insurer submits that the left wrist fracture had no assessable impairment due to normal movements and alignments (at paragraph 17), and the left wrist scarring was assessed at 1% WPI (at paragraph 27).
The insurer submits that the claimant’s application for review is without merit does not identify any error that is material to the outcome of the assessment.
In the submissions dated 12 September 2022 the insurer submits that the medico-legal report of Dr Anil Nair, orthopaedic surgeon, dated 18 May 2022 should be given little or no weight.
The insurer submits that after the accident the claimant had limited medical treatment and no further radiological investigations. The insurer refers to a Certificate of Capacity dated 22 February 2021, two months post-accident. The only diagnosis was left closed Bennett’s fracture and the only treatment was hand therapy.
The insurer submits any physical injuries arising from the subject accident are not of sufficient severity to exceed the permanent impairment threshold.
Regarding the left wrist the insurer referred to the report of Dr Nair who reported the left wrist has a loss of range of motion. Dr Nair allocates 10% for upper extremity which converts to 6% WPI. This is disputed by the insurer, on the basis that examination took place via video conference and for that reason Dr Nair could not accurately measure the reduced range of motion.
The insurer submits the claimant’s left wrist fracture has healed and the range of motion found by Dr Nair cannot be relied upon.
The insurer submits the claimant’s WPI does not exceed 10% for the injuries allegedly sustained in the subject motor vehicle accident.
MEDICAL EXAMINATIONS
On 27 March 2024 Ms Wahab was examined by Medical Assessor Thomas Rosenthal and Medical Assessor Michael McGlynn at the Commission’s rooms, at 1 Oxford Street, Darlinghurst.
A Malay interpreter attended via telephone, Rita Ormsby (NAATI No: CPN4KF05V).
HISTORY
Ms Wahab confirmed the history previously provided of the motor vehicle accident that occurred on 24 December 2020. She was the front seat passenger with her seatbelt on in a Toyota Prada. The car was travelling at some speed when a tyre blew out and caused the vehicle to roll four times. The accident occurred at Balranald near Mildura. She did not lose consciousness. An ambulance attended and she was taken by helicopter to Royal Melbourne Hospital.
She sustained a number of injuries as diagnosed initially by Royal Melbourne Hospital which included a large forehead laceration, a fracture of her dental plate upper. A left distal radius fracture and left thumb Bennett fracture required open reduction and internal fixation. An old right scaphoid fracture and manubrial fracture were diagnosed and transverse process fractures of L1 and L2.
She underwent repair of her forehead laceration and open reduction and internal fixation of the left distal radius fracture. She said a wire at the base of the thumb was subsequently surgically removed from the left Bennett fracture.
She was discharged after two weeks and then stayed with a friend in Robinvale.
At the time of the accident, she was working in a chicken factory.
CURRENT SYMPTOMS
She could not recall a neck injury but says she gets occasional soreness, and is still getting some symptoms radiating from the neck down her left arm into the forearm region (non-verifiable radicular complaint).
She has been left with a painful left wrist and left thumb and has difficulty grabbing things with her left hand. She is right handed.
She said her tooth fracture has been repaired and is causing her no symptoms now.
She is still getting some low back pain but denies any radiation into her legs. The back pain comes on more after prolonged sitting and standing.
She also continues to state there is pain that radiates down into the left arm, stops at the mid forearm, described more as pins and needles, and numbness around her thumb, index and middle fingers which comes and goes.
She believes that her left shoulder was injured or dislocated. There are ongoing symptoms still present around the left shoulder with some pain and discomfort.
In regards to scarring, she reported numbness above the scar on her forehead and some pain around the scar on the volar aspect of her left wrist.
CURRENT TREATMENT
She takes Panadol when required.
She has not had any specialist treatment since her discharge from hospital.
OCCUPATIONAL HISTORY
She is currently working on an almond farm doing process work using a ride-on forklift. She does 46 hours a week.
She stopped working in the chicken factory last July (2023) because it was too cold and made her injuries worse.
SOCIAL HISTORY
She lives in Robinvale in a house with a friend. She can do some household chores – cook, clean and wash. She goes jogging. She can drive. She can go shopping with her friend but avoids heavy lifting activities.
PHYSICAL EXAMINATION
On examination, Ms Wahab weighed 70kg. She was 156cm tall.
She walked with a normal gait and posture and was in no obvious distress.
Neck range of motion was marginally restricted to the right by one quarter, with pain recorded on right rotation. She was tender in the left upper trapezius region. All other neck movements were of normal range.
She had no neurological deficits in the upper limbs. Muscle power, tone and reflexes were normal and there were no sensory changes reported at the time of the examination.
Her grip strength was slightly weakened in the left wrist due to pain and discomfort. The pain was mainly experienced just below the wrist around the scar.
Upper arm measurements were 28.5cm on both sides, 10cm above the olecranon. Forearm measurements were 23.5cm on both sides, 10cm below the olecranon.
Wrist movements were marginally impaired, measured with a goniometer:
| Wrist Movements | Active ROM Measured LEFT |
| Extension | 65° |
| Flexion | 65° |
| Ulnar Deviation | 20° |
| Radial Deviation | 10° |
There was a full range of supination and pronation to 80° and a full range of elbow movements.
There was a full range of movement of the left thumb.
At the shoulder, she had a full range of motion with no restriction. Movements are recorded in the table below:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Abduction | 180° | 180° |
| Flexion | 180° | 180° |
| Extension | 50° | 50° |
| Adduction | 50° | 50° |
| External rotation | 90° | 80° |
| Internal rotation | 80° | 80° |
There was a full range of left internal rotation which was previously recorded as reduced by Medical Assessor Woo.
At the lumbar spine, she had a full range of movement with no particular tenderness, spasm or guarding. Flexion, extension, lateral flexion and rotation of the lumbar spine were of normal range.
Straight leg raise was 80° on both sides. Lasegue’s signs were negative.
Muscle power, tone and reflexes in her lower limbs were normal. She could get up on her heels and toes and squat.
Thigh measurements were 54cm on both sides, 10cm above the superior patellar pole. Calf measurements were 37cm on both sides, 10cm below the inferior patellar pole.
A full range of hip, knee and ankle movements were present.
The Panel also examined and assessed the scaring on left wrist.
DIAGNOSIS, CAUSATION AND SUMMARY OF THE PANEL’S OPINION
In the motor vehicle crash on 24 December 2020 Ms Wahab was a front seat passenger in a vehicle travelling on the Sturt Highway Balranald when a front tyre on the vehicle blew out causing the vehicle to lose control and roll over.
As a result of the accident she sustained numerous which were caused by the accident. She was taken to where her injuries were assessed to include: head injury, various lacerations, and had pain to the head, cervical spine and left hand/wrist . Her treatment at the Royal Melbourne Hospital included: an open reduction internal fixation of left distal radius; left brachioradialis tenotomy; a bone graft left radius; and a closed reduction and K-wires inserted into the left thumb.
Taking into account all of the evidence before the Review Panel together with the results of its re-examination the Panel finds as follows.
Cervical spine
The Panel accepts that Ms Wahab sustained an injury to her cervical spine caused by or materially contributed to by the accident.
The Panel’s examination of Ms Wahab neck found movements were reduced in right rotation by one quarter. Flexion, extension and lateral flexion all reduced. There was no paraspinal spasm or guarding but there was tenderness over the facet joints. There were no ongoing radicular symptoms or signs in either upper limb. The Panel did not find any complete or partial rupture of tendons, ligaments, menisci or cartilage. In summary there was a normal neurological examination with no radiculopathy. Having considered all the evidence on balance the Panel did not find sufficient evidence to support a diagnosis of radiculopathy. Therefore, the appropriate assessment for her cervical spine was that it was a soft tissue injury.
The Panel is of the opinion that there was sufficient evidence from the clinical notes of the hospital, Dr Nairn and its re-examination to support a finding of DRE category II given the presence of non-verifiable radicular complaints. The Panel was of the view that this would meet the criteria for DRE category II, therefore result in a 5% WPI. The claimant’s neck movements were consistent with DRE II cervicothoracic spine, Table 73, page 110. She has asymmetry of neck movements and non-verifiable radicular complaints in the left arm. Symptoms radiate from the upper arm to midforearm in a radicular pattern. This results in a finding of 5 % WPI.
Left wrist and left thumb
The Panel accepts that Ms Wahab sustained an injury to her left wrist and left thumb caused by or materially contributed to by the accident.
In its re-examination the Panel found an impairment at the left wrist with Figure 29. 10° of radial deviation gets 2% upper extremity impairment and 20° of ulnar deviation gets 2% upper extremity impairment. This results in a finding of 4% upper extremity impairment which converts to 2% WPI.
The Panel found no impairment in relation to the left thumb injury.
The wrist scar was assessed by as follows. Left anterior forearm/wrist longitudinal scar 60mm x 2mm, hypopigmented with some colour contrast, flat with no contour defect, with barely visible suture marks, minimal trophic feature, and no adherence. It has negligible effect on activities of daily living (ADL) and requires no or intermittent treatment.
Using the TEMSKI, in the Panel’s opinion the best fit is 1% WPI for this skin scar.
Lumbar spine
The Panel accepts that Ms Wahab sustained soft tissue injury to her lumbar spine caused by or materially contributed to by the accident.
At the re-examination of the lumbar spine, the Panel found she had facet joint tenderness She reported but no radicular pain extending down to her feet. The claimant had a full range of movement with no particular tenderness, spasm or guarding. Flexion, extension, lateral flexion and rotation of the lumbar spine were of normal range.
There were no neurological deficits in her lower extremities. Muscle power, tone and reflexes were normal and there were no sensory changes.
The Panel’s finding for the lumbar spine is consistent with DRE category I. There are reported transverse process fractures of L1 and L2 but to qualify for 5% WPI they need to be displaced. There is no evidence of displacement. This results in a finding of 0% WPI.
Left shoulders
The Panel accepts that the claimant experienced a left shoulder injury caused by the subject motor accident. At the re-examination the Panel finds that there was no impairment at the left shoulder which has a full range of motion.
Having considered all the evidence, on balance the Panel did not find sufficient evidence to support any finding of any abnormality in the left shoulder. Therefore, the appropriate assessment for her left shoulder was that she sustained a soft tissue injury in the subject motor accident.
In conclusion Ms Wahab has a total impairment comprised of 5% WPI for DRE category II in the cervical spine and 2% WPI for the left wrist impairment together with 1% WPI for the left wrist scarring. This results in the Panel finding a total 8% WPI for these injuries.
The total degree of permanent impairment caused by the subject motor accident is 8% WPI which is not greater than 10%.
COMBINIDED CERTIFICATE
The Panel, using the Combined Values Chart at page 322 of AMA 4 Guides, will issue a new combined certificate determining that the following injuries were caused by the motor accident and give rise to a combined permanent impairment of 15%:
(a) the Panel’s finding of a 8% impairment for the cervical spine, left wrist and left wrist scarring in these proceedings R-M10532254/22-02-02, and
(b) the Panel’s finding of a 8% impairment for face disfigurement, scarring and deformity – 2% WPI; right trigeminal nerve injury – 3% WPI and left trigeminal nerve injury – 3% WPI in the related proceedings R-M10532254/22-02-01.
CONCLUSION AND CERTIFICATION
As a result of the above findings the Panel revokes the certificate of Medical Assessor Woo dated 21 Mach 2023 regarding permanent impairment and issues a replacement certificate in accordance with these reasons.
As a result of the above findings the Panel revokes the combined certificate of Medical Assessor Curtin dated 17 August 2023.
The new certificates are attached at the commencement of these Reasons.
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