Watts v Allianz Australia Insurance Limited
[2024] NSWPICMP 157
•14 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Watts v Allianz Australia Insurance Limited [2024] NSWPICMP 157 |
| CLAIMANT: | Thomas Watts |
INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Tania Rogers |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 14 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; injury in motor accident on 3 April 2020; claimant hit by vehicle and thrown onto windscreen causing multiple abrasions; assessment of permanent impairment; first right toe impairment caused by onset of septic arthritis following treatment of wounds at hospital; right toe at first joint assessed due to ankylosis; second joint of that toe assessed due to loss of movement; delayed onset of back pain; Panel adopted opinion of insurer’s qualified doctor that altered gait from big right toe placed strain on lower back and causing symptoms; observations of Basten JA in Bishop v State of New South Wales applied; Allianz Australia Insurance Ltd v Salucci referred to; Held – claimant assessed at 10% permanent impairment due to physical injuries; assessment combined with a separate medical assessment certificate not the subject of review; Medical assessment confirmed as over 10% threshold. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment Certificate 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: 1. The Panel revokes the medical assessment certificate dated 13 June 2023 and certifies that the following injuries caused by the motor accident give rise to a permanent impairment not greater than 10%: (a) multiple soft tissues and abrasions; (b) low back, and (c) ankylosis of the great right toe at the metatarsophalangeal joint and loss movement at second joint. Medical Assessment – Permanent Impairment Combined Certificate 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: 1. The Panel revokes the combined medical assessment certificate dated 13 July 2023 and issues a new combined certificate certifying that the following injuries caused by the motor accident give rise to a permanent impairment greater than 10%: (a) multiple soft tissues and abrasions; (b) low back; (c) ankylosis of the great right toe at the metatarsophalangeal joint and loss of movement at second joint; (d) scarring, and (e) loss of sensation in right leg. |
REASONS
BACKGROUND
On 3 April 2020 Mr Thomas Watts (the claimant) was hit by the insured vehicle and thrown onto the bonnet and windscreen of the car.
Allianz Australia Insurance Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Watts any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Mr Watts’ “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
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).
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.
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 Hyde Page (MA) and dated 13 June 2023 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
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; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission 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 (Commission).
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.
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.
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.
The parties filed bundles of documents for the Panel’s consideration. The claimant objected to certain material filed by the insurer.
The Panel issued a further direction dated 6 November 2023 which relevantly provided:
“The Panel issues the following further directions: admitting the objected material:
1. The insurer is to file and serve by close of business, 9 November 2023, a short submission referring to critical aspects of the objected material.
2. The claimant can file any further evidence in reply, by close of business 23 November 2023.”
There was no proper basis for the objection. The evidence had been served some time previously and the claimant could not point to any prejudice. The material was not “late” although it was not before the original Medical Assessor. The evidence was otherwise relevant.
On 23 November 2023 the Panel advised the parties that:
“1. The insurer’s review submissions raise injury/cause of any impairment to the lumbar spine and left knee.
2. There is no review from the original certificate of Medical Assessor Curtin based on the assessment of the skin and right leg sensory loss.
3. We accept that we are undertaking a new assessment of Medical Assessor Hyde Page although we are bound by any agreement of the parties.
4. To avoid the necessity of undertaking a new medical examination, the Panel directs the parties to advise whether they accept:
(a)The impairment findings of all body parts assessed by Medical Assessor Hyde Page; and
(b)The only issues for determination by the Panel are whether the impairment of the left knee and lumbar spine are caused by the motor accident.
5. If the parties agree with direction 4 (or a similar version of same), then the Panel will proceed by asking questions by way of audio-visual link. It is intended that one of the Medical Assessors and the Principal Member will ask the claimant some questions pertaining to the matters raised in the submissions, probably prior to the end of term.”
In response to this Direction, the insurer stated:
“The insurer does not make any concession with respect to the determinations made by Assessor Hyde Page in his certificate dated 13 June 2023.
The insurer requests the claimant be referred for re-examination of all alleged physical injuries arising out of the subject motor vehicle accident."
Accordingly, it was necessary for the claimant to be medically examined.
STATUTORY PROVISIONS
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.[8] In Raina v CIC Allianz Insurance Ltd[9] 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.”
[8] See s 3B(2) of the Civil Liability Act 2002.
[9] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“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 motor 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.”
ASSESSMENT UNDER REVIEW
The current symptoms described by the MA were:
“In his cervical spine, he has some ongoing stiffness with the extremes of movement. There is no radiation of pain.
In his left wrist, he has had no ongoing symptoms at all. Once the grazes healed up, his wrist got back to normal. He has not noticed any increased stiffness in the left wrist and no change in the function of the left hand, which was already significantly affected by his ulnar nerve injury and tendon injuries many years ago.
In his lumbar spine, he has had ongoing stiffness and finds it uncomfortable to bend forward. He has had no treatment and overall, he feels the low back pain and stiffness has not improved significantly since the motor vehicle accident.
He has no symptoms in his right knee, but he has had persistent pain around his left patella and finds its uncomfortable squatting and kneeling and climbing up and down stairs.
In his right foot and big toe, he is happy that the fusion of the big toe has been successful and there is no persistent pain. However, with a stiff big toe, the function of his right foot has been affected. He cannot squat and kneel, and he cannot run. This means he cannot interact with his children very well.”
The relevant clinical findings were:
“On examining his lumbar spine, he indicated general pain and discomfort. He had flattening of his lumbar spine with loss of normal lumbar lordosis. He had some reduced rotation and tilt to the left and right. On flexing, he could only flex forward to reach his mid shin level and was uncomfortable coming back to full extension. There appeared to be some general muscle guarding in the lumbar spine.
He had normal straight leg raise with negative sciatic tension in both legs. There was normal neurological examination of his lower limbs with normal power, sensation and reflexes.
…
On examining his right knee, he had no patellofemoral discomfort or crepitus. He had a range of movement of 0° to 130° flexion and normal alignment of the knee. All ligaments were intact. There was no swelling or tenderness.
In his left knee, I noted an abrasion over the front of the patella that had healed up well. He had some patellofemoral crepitus and discomfort. Otherwise, he had a completely normal examination of the left knee with normal alignment, all the ligaments were intact and a range of movement of 0° to 130° flexion. He had strong quadriceps muscle power in each thigh.
On examining his right foot, he has had an arthrodesis or fusion of the right first MTPJ in extension. There is scarring on the medial side of the joint and a small split skin graft has been applied and taken very well.
In the IPJ of his right big toe, he has a range of movement of 0° to 15° flexion.
The rest of the examination of his right ankle and foot was completely normal. There was no stiffness in the ankle joint or subtalar joint and normal movement in the mid tarsal joints. There was normal examination of his lesser toes.”
The MA concluded that the claimant presented with muscle guarding and stiffness in the lumbar spine caused by the force of the motor vehicle accident when the claimant was thrown onto the windscreen. The Medical Assessor assessed permanent impairment of the lumbar spine at 5%, the right foot and toe at 5% and the left knee at 2%.
OTHER ASSESSMENT UNDER REVIEW
Medical Assessor Curtain provided a separate medical assessment certificate dated
11 July 2023. The Medical Assessor found that the permanent impairment of the skin caused by the motor accident was 1% and the partial loss of sensation in the right foot was also 1%.Medical Assessor Curtain provided a combined certificate dated 13 July 2023. That certificate combined the medical assessment certificate of Medical Assessor Hyde Page dated 13 June 2023 with the certificate of Medical Assessor Curtain dated 11 July 2023 which resulted in a combined permanent impairment of 14%.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
The insurer filed further submissions following objection by the claimant to various clinical records.
Pre-existing conditions
The pre-accident medical records of the general practitioner (GP) do not show any medical condition relevant to the injuries caused in the motor accident.[10]
[10] Insurer’s bundle, pp 428 – 445.
Medical records post-accident
The ambulance report dated 3 April 2020 records the following history:[11]
“Intoxicated male hit by the motor vehicle at low speed. Per male on scene (Jeff Cohen) his son collided with Pt. Pt rolled onto windscreen and off car bonnet. No apparent loss of consc. Pt just stood up and walked home accompanied by Mr Cohen. Pt has no recollection of the event. Pt states has drank a large amount of alcohol (beer and whiskey) last two days. Also daily smokes cannabis. Pt ambulant without assistance. Pt C/O pain in both ankles and knees, large abrasion to ball of right foot and right knee. Small superficial lac to neck. Abrasions to both ears. Initially C/O headache but more comfortable post Panadol, TX for investigation, stable en route.”
[11] Insurer’s bundle, p 10.
The record by the ambulance officer noted “left and right ear abrasion/graze; right toes (generalised) abrasion/graze; neck (generalised) laceration 3 cm; left and right ankle pain described as dull; right knee pain described as dull”.[12]
[12] Insurer’s bundle, p 11.
Mr Watts was admitted to Coffs Harbour Base Hospital on 3 April 2020 and discharged the following day.[13] On presentation the nurse noted lacerations to the right neck, right ankle, right knee pain, left forearm (old wound), and right foot grace graze.[14] The claimant was described as intoxicated and unable to remember the event resulting in hospitalisation.[15]
[13] Claimant’s bundle, p 61.
[14] Claimant’s bundle, p 71.
[15] Claimant’s bundle, p 70.
The hospital notes refer to a motor vehicle accident at low speed when the claimant was a pedestrian hit by a motor vehicle presenting with injuries to the head, right limb and foot/ankle. Bruising was observed to the “back of the head and neck and occipital haematoma”.[16]
[16] Claimant’s bundle, p 67.
The CT scan of the brain showed no intracranial haemorrhage or fracture.[17]
[17] Claimant’s bundle, p 63.
The claimant was again admitted to hospital on 5 April 2020 with complaints of right foot pain and left-sided abdominal pain. Mr Watts was discharged on 27 May 2020 with a presenting complaint and a diagnosis of osteomyelitis. The hospital notes recorded a number of operations of debridement of multiple wounds in the right leg and left hand/arm.[18]
[18] Claimant’s bundle, pp 18 – 23.
A certificate of capacity dated 19 May 2020 completed by Dr Summersell referred to the motor accident causing “multiple surgeries to debride wounds and joint” and “1st MTP fusion right foot”.[19]
[19] Claimant’s bundle, p 86.
The claim form dated 20 May 2020 referred to an absence of memory of the motor accident and that the claimant woke up in hospital. The claim form referred to injuries to the right foot and knee, multiple cuts and abrasions, glass embedded in back of head with eight surgeries and one skin graft.[20]
[20] Claimant’s bundle, p 95.
An MRI scan dated 10 August 2020 noted septic arthritis at the first metatarsophalangeal (MTP) joint with adjacent osteomyelitis.[21]
[21] Insurer’s bundle, p 47.
A clinical note of the GP dated 10 November 2021 noted the claimant had chronic pain in the lower back and bilateral knees.[22]
[22] Insurer’s bundle, p 518.
An X-ray of the lumbar spine dated 25 November 2021 was basically normal as were the X-rays of both knees.[23] The X-ray of the right foot showed the previous arthrodesis of the first MTP joint with minor osteoarthritis present in the carpometacarpal, mid carpal and radiocarpal joints.
[23] Insurer’s bundle, p 547.
A clinical note of the GP dated 18 January 2022 noted the claimant’s main concern was chronic low back pain and that he requested pain relief which was not satisfied with either Ibuprofen or Panadol.[24]
[24] Insurer’s bundle, p 516.
Qualified opinions
Dr Zbigniew Poplawski, orthopaedic surgeon, was qualified by the claimant and provided a report dated 24 January 2022.[25] The history recorded by the doctor was that the claimant was walking along the road and was struck from behind by the insured vehicle rolling onto the windscreen then off the car bonnet onto the road. The injuries caused by the motor vehicle accident were bruising to the back of the head and neck, an occipital haematoma, abrasions to both ears, abrasions to the front of the left knee and abrasions to the right foot and ankle with degloving of the right big toe.
[25] Claimant’s bundle, p 8.
Dr Poplawski diagnosed soft tissue injury to lower back, post-traumatic left chondromalacia patella, septic arthritis of the first NT joint big toe resulting in fusion of the IP joint. The doctor made various permanent impairment assessments resulting in a combined impairment of 16%.
Dr Simon Kinny, orthopaedic surgeon, was qualified by the insurer and provided a report dated 23 March 2021.[26]
[26] Insurer’s bundle, p 24.
The doctor noted that the claimant had good health prior to the motor accident although he had sustained a head injury some 13 years previously and a laceration of the left forearm when he fell through a plate glass window in approximately 2003. That injury left him with some residual weakness of the abductor digit minimi muscle of the left hand and a partial reduction of sensation in the ulnar nerve distribution on the left.
Dr Kinny noted that the claimant’s main problem was residual pain in the right foot with weight-bearing due to the right first MTP fusion. The claimant walked with supination deformity gate pattern involving his right foot with reported secondary pain in the right ankle, right knee and lumbar spine.
Dr Kinny stated:[27]
“Mr Watts walks with a slight limp due to pain in the region of his first MTP fusion site. As a consequence, he bears all his weight on the outer aspect of his right foot and the lateral metatarsal heads.”
[27] Insurer’s bundle, p 27.
Dr Kinny opined:[28]
“Mr Watts’ current symptomatology is essentially confined to pain in the region of the fused right 1st MTP joint with weight bearing but not when non-weight bearing. He also reports an altered gait pattern as a result of his joint fusion and painful right foot, such that he now experiences secondary discomfort in his right ankle, right knee and lumbar regions when attempting to walk. Were it not for the injury of 3 April 2020 and the resultant 1st MTP joint fusion, Mr Watts would not be suffering the pain symptoms he now reports.”
[28] Insurer’s bundle, p 28.
Dr Kinny repeated the conclusion later in his report that the altered gait pattern caused secondary symptoms in the right ankle, knee and lumbar spine.
Dr Kinny impairment of the right lower limb at 4%, and the scarring on a best fit analysis of 3%. There was no impairment as a result of the injuries to the left upper limb. The doctor has not assessed impairment of the lumbar spine noting there were no examination findings in respect of that body part.
SUBMISSIONS
Claimant’s submissions dated 28 August 2023[29]
[29] Claimant’s bundle, p 2.
These submissions were filed opposing a review of the medical assessment.
The claimant noted that the insurer’s submissions relied on the assertion that the motor accident did not cause either the lumbar spine or left knee injuries. He noted that the insured did not identify any medical opinion in support of that proposition.
The claimant noted that he suffered a degloving injury to his right toe and was hospitalised for two months following the accident, undergoing seven operations to washout infection in the toe and ultimately coming to an arthrodesis. It was submitted that the “right foot and left-hand injury injuries were, of necessity, taking precedence in the days and weeks following his motor vehicle accident on 3 April 2020”.
The claimant noted the insurer’s submissions that the ambulance report, hospital discharge summary on readmission, and GP notes did not mention the lumbar spine injury. However, the claimant noted that the insurer was “conveniently silent” in respect of the contemporaneous nursing progress notes dated 3 April 2020 which referred two lacerations to the right sided neck, right ankle, right knee, abrasion to right top of foot, ulcer to left forearm and multiple small lacerations to back (emphasis in submission).
The claimant noted that the personal injury claim form dated 20 May 2020 listed injuries which included “multiple cuts and abrasions”.
The claimant also noted the report of Dr Kinny, dated 23 March 2021 who was qualified by the insurer. Dr Kinny opined that the altered gait pattern as a result of the joint fusion and painful right foot caused “secondary discomfort in his right ankle, right knee and lumbar regions when attempting to walk”. This opinion was confirmed by Dr Kinny later in his report when he stated:
“The claimant has suffered permanent impairment, particularly in relation to his right 1st MTP joint fusion. This has altered his gait pattern and causes discomfort both in the local area of his right foot and secondarily in his right ankle, knee and lumbar regions when walking.”
The claimant submitted that the absence of radiological investigations of the lumbar spine was of no concern as he suffered soft tissue injury to the lumbar spine and radiological investigations would be of little assistance.
The claimant submitted that the various doctors who examined him found him to be consistent and the insurer’s submission that the claimant’s history was erroneous or unreliable was misconceived.
The claimant submitted that the nature of the motor accident when he was thrown up and onto the bottom of a car was sufficient to cause a lumbar spine soft tissue injury. It was submitted that due to the clear history of ongoing pain and discomfort in the lumbar spine since the subject accident and in the absence of any prior or subsequent injury to the lumbar spine, the appropriate finding was that the claimant’s lumbar spine impairment was wholly attributable and caused by the motor accident.
In respect of the left knee injury the claimant relied on his consistency of presentation. It was also submitted that there were contemporaneous complaints to the left knee which appeared to be in the nature of abrasions to the front of the left knee in accordance with the opinion of Dr Poplawski.
The claimant submitted that in the absence of any prior or subsequent injury, the appropriate finding was that the motor vehicle caused a left knee injury.
The claimant noted that there was a combined medical certificate of Medical Assessor Curtin dated 13 July 2023 which found a combined assessment of 14%.
Insurer’s submissions undated[30]
[30] Insurer’s bundle, p 1.
These submissions were filed seeking leave to review the medical assessment certificate.
The insurer submitted that the Medical Assessor failed to have regard to the contemporaneous medical evidence when finding that the motor accident caused injury to the left knee and lower lumbar spine.
The insurer submitted that the claimant was unaware of how the accident occurred yet relied on the history provided by the claimant as to how he sustained injury.
The insurer referred to the ambulance report noting there was no complaint of any low back or left knee pain and no record of bruising to the low back or left knee.
The insurer referred to the hospital notes which revealed lacerations to specific parts of the body and noted bruising to the back of the head and neck with a suitable haematoma. There was no recorded complaint of any low back or left knee pain in the observations or any lacerations, grazers or bruising to those body parts.
The insurer noted there was no complaint of any low back and left knee pain when the claimant was readmitted to Coffs Harbour Base Hospital on 5 April 2020.
The insurer submitted that Dr Poplawski failed to have regard to the ambulance, hospital and GP records when making a diagnosis of low back and left knee injury.
Insurer’s submissions undated
These submissions were filed following the preliminary conference with the parties concerning the admissibility of further materials.
The insurer noted that the review application was essentially directed to the findings by the Medical Assessor with respect to injury to the low back and left knee.
The insurer understood that the claimant’s usual GP practice was Galambila Aboriginal Health Service, and the claimant did not disclose consulting any other practice for treatment. It noted that there appeared to be attempts of phone contact between the medical practice with the claimant on 15 and 16 June 2020 but that the first contact appeared to be on
20 October 2021, that is some 18 months after the accident. At that time the claimant presented with significant low back and left knee pain. These complaints were repeated on presentation of the practice on 10 November 2021 when he was said to be on a Merit program following assault charges. Insurer noted that it was unclear what the nature of the assault charges were and whether the claimant was a victim or perpetrator and whether he sustained any injuries by reason of the alleged assault.The lumbar spine and left knee complaints were referenced in attendances at the medical practice on 18 January 2022 and again on 8 March 2022. The clinical notes appear to cease following a consultation on 9 March 2022 noting that the clinical notes were provided in
May 2023.The insurer noted the radiologist report dated 25 November 2021. A My Aboriginal Health Check summary dated 10 November 2021 noted various issues impacting the claimant involving chronic pain secondary to the motor vehicle accident affecting the ankle and hands. The insurer emphasised the absence of any reference to the low back or knees.
The insurer submitted that the absence of any report to the low back or knees until
October 2021 is significant. Given the temporal delay of complaint to these body parts, it submitted that the symptoms in the low back and left knee were not causally related to the motor accident.The insurer otherwise submitted that the alleged assault be raised by the Panel with the claimant.
RE-EXAMINATION
Mr Watts was examined by Medical Assessor Gibson on 23 February 2024. The examination report is as follows:
“Mr Watts attended as arranged. He was unaccompanied to the assessment. He brought no imaging studies with him today.
Mr Watts said that he was ‘as fit as a fiddle’ prior to the subject accident.
There was a past history of a significant laceration to his left forearm at 19 years of age, when he had tripped and fallen through a glass window. He sustained nerve and tendon damage. Despite surgical repair he was left with partial ulnar nerve palsy.
Mr Watts said that he had been involved in a number of motor vehicle accidents over the years. Following these, he had ‘got out and walked away’ and worked the next day. He maintained that the most significant injury he had ever sustained was a laceration to the anterior aspect to his neck.
He suffered a degloving injury to the dorsum of his right index finger when working in a sawmill over 20 years ago.
He was diagnosed with hepatitis C which was treated medically.
Mr Watts had left school at 17 years of age. He had subsequently worked in various different occupations including kitchen hand, road work, general labouring. His last full-time job was with Shipman Sawmillers.
He lives with his mother, his 12-year-old daughter and 20-year-old son. He has a 14-year-old son who is living with his mother. He is currently in receipt of a Carers Pension as he is looking after his 12-year-old daughter who had suffered a serious accident aged 9.
Mr Watts said that he could not recall anything about the subject accident, apart from waking up in hospital. He remembered he had been using a ride-on mower to mow a nearby property on the day of the accident. He had parked the mower on his friend's land and then went over to the pub. The last thing he remembered was walking home after visiting the pub.
He said his mate (the driver of the vehicle at fault) had then put him into his car and drove him back to his place and then back to his own house from where an ambulance was contacted. He then was conveyed to Coffs Harbour Hospital. He had later signed himself out and returned home where he had consumed a bottle of Scotch and had some beers.
Mr Watts said the police arrived the following morning and he was advised that he had been involved in the accident.
The ambulance report from the day of the accident noted that he had been intoxicated when he was struck by a motor vehicle at low speed and had rolled onto the windscreen and off the car bonnet. Mr Watts maintained that it was high speed as his head had gone through the windscreen. The ambulance report had noted complaints of pain in both ankles and knees and headache. There had been a large abrasion to the ball of his right foot, small laceration to his neck and abrasions to both knees. There had been no mention of his low back or left knee. When asked about this, he maintained that he was more focused on the injury to his right foot.
At Coffs Harbour Hospital, he was noted to have lacerations to the right side of his neck, right ankle, right knee pain, left forearm, right foot graze and bruising to the back of the head and neck and an occipital haematoma. Cerebral CT scan had shown no concerning features.
Mr Watts had re-presented to the hospital on 5 April 2020 complaining of pain in his right foot and left-sided abdominal pain. He said his right foot had been dressed at the first attendance at the hospital but after he had returned to the hospital, he was then an inpatient for some weeks. He had been diagnosed with osteomyelitis and had required multiple operations to debride wounds to his right leg, left hand and arm and ultimately first MTP fusion right foot.
Following discharge, he had required further IV antibiotic treatment which was managed by the Outpatient Department of the Kempsey Coffs Harbour Hospital. He said this treatment had continued for some months.
He said that it was not until his foot started to improve that he noticed the low back pain. He had taken Nurofen and paracetamol for the back pain, and he was also obtaining some Endone tablets from a relative.
He had come under the care of Dr Nicholas Aalders at the Aboriginal Medical Centre.
Mr Watts said that he generally takes 2-3 paracetamol a day, but at times he has taken up to 8 tablets per day. He would have 1-2 ibuprofen tablets per day. He would take an Endone tablet as required, no more than one per day, and he obtains these from a relative. There was no other treatment at this time.
His general practitioner, Dr Aalders has referred him for an MRI scan of his lumbar spine, but this is yet to be performed. He understands that following this scan the general practitioner will decide on an appropriate ongoing management plan.
Mr Watts’ current complaints were of intermittent neck pain, which he notices more if he sits in a bad position, and this extends to the infrascapular region. There is constant low back pain which he rated between 4-10/10 severity. He finds the back pain is worse after performing general household duties such as washing dishes. He added that if he misses a step and jars his back, he can suffer with quite severe pain for a number of days.
There is constant stabbing pain felt under the left kneecap which is worse when climbing stairs. There is clicking and grinding in the knee, but there was no history of giving way and he hadn’t noticed any swelling.
His right knee is ‘usually pretty good’ but can become symptomatic when the left knee is troubling him.
There is cramping and pain in the right foot. There is a hard callus at the tip of the right great toe. He has difficulty lying prone in bed as this exacerbates the right foot pain.
There is clicking in the left wrist but no pain and no loss of movement. He was unsure whether the left wrist related to this accident.
The claimant was asked about the reference in the clinical notes to a MERIT program. The claimant was candid in admitting that he had been on a MERIT program due to assault charges. He also stated that he suffered no injury as a consequence of that incident.
PHYSICAL EXAMINATION
Mr Watts was 183cm tall. He weighed 70.5kg. He had a normal gait. He was able to stand on his heels but had difficulty standing on his toes due to his stiff great right toe. He could squat to three-quarters normal but reported a feeling of instability.
On examination of his neck, there was no tenderness. He volunteered, that at times he does notice neck pain which then spreads into the back of his head, precipitating headaches. Neck movements were to full normal range and pain free. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. Upper arms measured 26cm, right forearm 27cm and left forearm 26cm. There was normal power, sensation and reflexes bilaterally, apart from some residual abnormalities pertaining to the old ulnar nerve injury.
On examination of both shoulders there was no deformity, swelling or scarring. Active shoulder movements were as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
180 °
180 °
Extension
50 °
50 °
Internal Rotation
80 °
80 °
External Rotation
80 °
80 °
Abduction
180 °
180 °
Adduction
50 °
50 °
On examination of the low back, there was mild tenderness over the lower lumbar spine, centrally and paracentrally. Forward flexion was to two-thirds normal. Extension was to one-third normal. There was some muscle guarding with extension. Lateral flexion was to three-quarters normal bilaterally, rotation was to normal range bilaterally. Straight leg raise was to 70 degrees bilaterally with some hamstring tightness, but sciatic stretch was negative bilaterally.
On examination of the lower limbs, circumferential measurements were equivalent, 40cm at the thighs, 35cm at the calves. There was normal power, reflexes and sensation apart from sensory changes around the right great toe which was shortened compared to the other toes, and the left great toe. There was a large callus on the distal end of the toe.
On examination of both knees there was well-healed scarring over the front of the left knee. The more proximal scar he said had occurred in childhood and the patellar scar had followed the subject accident. There was no swelling or instability of either knee. There was crepitus on movements of the left, but not the right knee. Knee movements were as follows:
Knee movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
130 °
130 °
Extension
0 °
0 °
On examination of the right foot, there was arthrodesis of the right first metatarsophalangeal joint. Movements at the interphalangeal joint of the right great toe were from 0-15 degrees flexion. Ankle and foot movements were as follows:
Ankle Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion
30 °
30 °
Plantarflexion
45 °
45 °
Hindfoot Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Inversion
30 °
30°
Eversion
20 °
20 °
SUMMARY AND OPINION
Mr Watts was involved in the subject accident on 3 April 2020. There was contemporaneous evidence of injury to right foot and ankles and knees bilaterally. There were superficial injuries to the head and neck. There were some abrasions noted over the low back. He had developed septic arthritis of the right great toe and had gone on to require debridement and right first MTP fusion. Mr Watts maintained that his low back complaints were not evident to him until his right foot recovered. There had been evidence of soft tissue injuries to the knees at the time of the accident as per the ambulance and hospital records.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[31]
[31] Section 7.26(6) of the Act.
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[32] and Insurance Australia Ltd v Marsh.[33]
[32] [2021] NSWCA 287 at [40], [41] and [45].
[33] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by Medical Assessor Gibson supplemented by the following further reasons.
The nature of the motor vehicle accident is clear from the precise history taken by the ambulance officer and set out earlier in these reasons.[34] Whilst the claimant has no recollection of the motor accident, the ambulance report, consistent with the nature of the physical injuries reported at the time, explain how the accident and injuries occurred.
[34] See at [30] herein.
The Panel, like any decision maker, is required to determine causation based on the totality of the evidence. The insurer’s submission that the claimant had no recollection of the motor accident and therefore the nature of the accident is unknown is rejected given the precise history recorded by the ambulance officer from an eyewitness.
The findings by Medical Assessor Gibson for the great right toe are similar to that recorded by Medical Assessor Hyde Page. The ankylosis of the great toe at the metatarsophalangeal joint is 10% lower extremity impairment (Table 61 of AMA4) combined with loss of flexion at the interphalangeal joint of less than 20 degrees is 2% lower extremity impairment (Table 45 of AMA4). This results in a combined lower extremity impairment of 12% which is 5% whole person impairment (Table 6.4 of the Guidelines).
These impairments are due to the development of septic arthritis following treatment at the hospital for the injuries to the right lower extremity caused by the motor accident.
There was no assessable loss of range of movement of the right ankle and hindfoot (Table 42 and 43 of AMA4).
The left knee again had crepitus on physical examination The claimant also referred to constant stabbing pain felt under the left kneecap which is worse when climbing stairs which is a complaint of patellofemoral pain.
The claimant otherwise identified a scar on the left patella which he stated was caused by the motor accident.
The mechanism of injury could cause trauma to the left patella from the dramatic nature of being thrown over the bonnet and into the windscreen. The ambulance officer otherwise referred to complaints of pain in both ankles and knees. That history cannot detract from a subsequent absence of complaint of left knee problems in subsequent records.
However, contrary to the claimant’s history is the precision in the hospital notes concerning the specific wounds suffered by the claimant in the motor accident. The hospital notes refer in detail to the multiple wounds and the seven operations the claimant underwent in the period from 5 April 2020 to 27 May 2020.[35] Those wounds were identified in the hospital notes to the right lateral leg, right lateral ankle, right anterior knee, right medial first MTPJ, left hand and left dorsal forearm.
[35] Insurer’s bundle, pp 49-53.
The precision of the hospital notes relating to the various wounds extends over five pages identifying specific parts of the body. We are not persuaded that there was a left knee abrasion caused by the motor accident as the claimant reported to the Medical Assessor.
There could be a multitude of other causes for the left knee condition. Accordingly, we are not satisfied that the left knee impairment was caused by the motor accident.
The remaining issue is whether the lumbar spine condition is caused by the motor accident.
The mechanism of injury was dramatic and capable of causing injury to the low back. However, as the insurer correctly submitted, there is no reference to lumbar spine symptoms in the hospital records and subsequent clinical records. That submission is subject to the observation that the notes refer to abrasions to the back.
The insurer stressed the absence of contemporaneous complaint without acknowledging the opinion of Dr Kinny as to the cause of the low back pain. That detailed opinion is summarised earlier in these Reasons.[36]
[36] See [46]-[49] herein.
As Basten JA noted in State of New South Wales v Bishop[37] in relation to the delay in the onset of symptoms where an incident is said to have caused a subsequent condition:[38]
“The mere passage of time may in some circumstances be determinative; in other circumstances it may be irrelevant.”
[37] [2014] NSWCA 354 (Bishop).
[38] Bishop at [20].
In Allianz Australia Insurance Ltd v Salucci[39] the Court described the common law principles of causation discussed in Nguyen v Motor Accidents Authority[40] and stated:[41]
“There Hall J discussed the common law principle of causation and how it is picked up by the statutory formulation, the error there identified having been the failure to recognise that an injury may have a proximate cause and that in order for there to be a causal relationship between an accident and impairment, there need not be a primary and related injury to a particular body part.”
[39] [2023] NSWSC 1593 (Salucci).
[40] [2011] NSWSC 351.
[41] Salucci at [58].
The Panel is comprised of two medical experts who must form its own opinion. That does not mean that we cannot agree with a medical opinion.
The medical opinion expressed by Dr Kinny is detailed, well-reasoned and we agree with it. The nature of the injury and the development of septic arthritis in the right big toe was significant and would likely cause significant limping over an extended period which would place strain on the lower back due to the altered walking gait. This altered walking gait would impact on the lower part of the lower spine and result in the nature of the symptoms found by Medical Assessor Gibson.
The onset of symptoms would not be expected to occur in the period when the claimant was present at hospital, particularly as we would have anticipated that there would have been significant rest during that period particularly considering the various operations for the abrasions. It is medically plausible and logical that the delayed onset of the record of symptoms is explicable from the prolonged limping. In these circumstances lower back symptoms would not arise for some time after the motor accident. Accordingly, the absence of delayed complaint, is, in our view, consistent with a causal relationship between the motor accident causing an altered gait and the delayed development of the lumbar spine condition.
The clinical findings of Medical Assessor Gibson of muscle guarding, similar to that found by the MA, means that the claimant’s lumbar spine is assessed as DRE Category II.[42]
[42] Table 6.8 of the Guidelines and AMA4, p 102.
Based on the findings of Medical Assessor Gibson, there is no assessable impairment of the cervical spine, left wrist and right knee.
The insurer raised the suggestion of injury from a subsequent assault. The claimant denied any injury from the assault when asked by Medical Assessor Gibson. There is also no reference in the clinical notes that the claimant sustained an injury in circumstances where he is on a MERIT program for an assault. We do not accept that there was a subsequent injury from this incident.
There is no basis to make any deduction for any prior or subsequent injury.
The impairment is stabilised and permanent within the meaning of cls 6.19 and 6.20 of the Guidelines due to the duration of and the consistency of symptoms over an extended period. There is no suggestion of treatment in the future that would affect our findings. Based on the clinical experience of the Medical Assessors on the Panel, we do not expect any change in impairment over the next 12 months.
CONCLUSION AND ORDERS
The Panel has concluded that the motor accident has caused a 10% permanent impairment. Accordingly, it is necessary to revoke the medical assessment certificate of Medical Assessor Hyde Page.
The impairment assessed by the Panel is combined with the separate medical assessment certificate provided by Medical Assessor Curtain dated 11 July 2023 pursuant to s 7.26(8) of the MAI Act. The combined medical assessment certificate dated 13 July 2023 is revoked as the combined permanent impairment is different. A new combined medical assessment certificate is issued certifying that the injuries caused by the motor accident give rise to a permanent impairment greater than 10%.
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