Wegen v AAI Limited t/as GIO
[2024] NSWPICMP 142
•8 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Wegen v AAI Limited t/as GIO [2024] NSWPICMP 142 |
| CLAIMANT: | Mai Wegen |
| INSURER: | GIO |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Sophia Lahz |
| DATE OF DECISION: | 8 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motorcycle accident; fractured proximal phlanx; intra-articular displaced fracture of the middle phlanx of the ring finger; post-traumatic stiffness of the right middle ring and middle fingers; hand loss of mobility; shoulder post-traumatic stiffness; wrist post-traumatic ganglion on the dorsum; motorcycle hit from behind; roundabout motor vehicle accident; range of movement of right hand middle and ring fingers; surgical scars; TEMSKI criteria; no tropic changes; no contour defect; no effect on any ADL; no requirement for treatment and no adherence; majority of criteria fall in the zero percent of person impairment column; Held – certificate of Medical Assessor Ian Cameron revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated · cervical spine – 0% · right knee – 0% · right shoulder 0% · right temporomandibular joint – 0% · right upper extremity – 10% · scarring – 0% The claimant has suffered a whole person impairment of 10%. |
STATEMENT OF REASONS
INTRODUCTION
Mai Wegen (the claimant) is a 26-year-old woman who was injured in a motor vehicle accident on 22 February 2021. She was riding a motorcycle when she was hit from behind and thrown onto the roadway. She suffered significant injury to her right hand. The claimant sought a concession from the insurer that her injuries exceeded the 10% whole person impairment threshold established by the legislation which was declined. Noting that the parties agreed that she had suffered non-threshold injury the claimant then made an application for assessment of whole person impairment to the PIC. Specifically, she sought an assessment of the injuries she sustained to her cervical spine, fingers, hand, knee, shoulder and wrist. In due course the claimant was examined by Medical Assessor Ian Cameron on 25 August 2023 who determined that the claimant’s injuries gave rise to a degree of permanent impairment caused by the motor accident of 11%.
The insurer sought a review of this determination which was considered by President’s delegate, Tajan Baba, who issued a certificate dated 3 November 2023 and determining that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect. This was seemingly on the basis that the assessor failed to apply the combined values chart in the assessment of the injuries to her right and middle fingers correctly.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The matter was then referred to the Medical Review Panel convened ………………
The Review Panel had available to it all the material which had been included in both the application and reply lodged by the parties. This was all the material which was before Assessor Cameron. This included radiological investigations and imaging which was brought to the Medical Review Panel for re-examination. Additionally, the Review Panel had the submissions made by both the claimant and the insurer which was uploaded in respect to the application for a review of the medical certificate of Assessor Ian Cameron dated 12 September 2023.
Ms Wegen attended unaccompanied for re-examination by Medical Assessor Oates on 16 November 2024.
HISTORY
Pre-accident medical history and relevant personal details
Ms Wegen said she had not had previous symptoms or problems or injuries affecting the parts of the body referred for assessment.
She had a tonsillectomy aged five.
She was usually on no regular medications.
She is in a defacto relationship but has no children. She recently moved to an apartment with her partner.
At the time of the accident, she worked in a women’s fashion shop where she had been for about three years.
She is a non-smoker and drinks alcohol socially.
She was born in the Netherlands but has been in Australia for several years.
History of the motor accident
Ms Wegen confirmed on 22/02/2021 she was riding a motorcycle, with no pillion passenger, on her way to work. She had a full-face helmet, gloves, Kevlar jacket, jeans and ankle boots. She was in a single lane roundabout travelling at 20kph, when she was hit from behind by a motor vehicle which had entered the roundabout. She was thrown to the roadway and slid across the road. She didn’t lose consciousness. She had immediate right hand pain.
A bystander got her bike off the road. No police or ambulance attended. She walked 100 metres back to her house and her partner took her to a medical centre at Rouse Hill, where she had an x-ray. She then went to Westmead ED but there was a long wait, so then she went to Norwest Hospital ED. The x-ray showed hand fractures.
She went back to Westmead but there was a long waiting time to get surgery, so she re-attended ED at Norwest.
Her motorcycle was repaired but she sold it, not riding it again.
History of symptoms and treatment following the motor accident
She is left-hand dominant.
She came under the care of Dr Yee, hand surgeon, who on 12/03/2021 performed open reduction and internal fixation for right middle proximal phalanx intra-articular fracture, with a de-rotation osteotomy, and an ORIF of the base of right ring middle phalanx fracture, with bone graft for the proximal phalanx fracture at the right middle finger.
She was slow to recover range of movement in the post-operative rehabilitation phase. She estimates she was off work for about six weeks after surgery and then did reduced duties until the time of subsequent surgery, after which she was off work for four weeks and again returned to work on a graduated return to normal duties but avoided heavy lifting thereafter.
She subsequently changed jobs to a real estate buyers’ agent in Mosman and initially she did a short period of part-time retail work as well.
Because she was slow to regain mobility in the fingers, on 13/08/2021 Dr Yee did a removal of right ring finger screw and PIP joint release, and removal of plate and screws from right middle finger with re-plating and PIP joint release.
She attended hand therapy and applied silicone gel for the scarring on the fingers. She still has the internal fixation plate on the dorsal aspect of the proximal phalanx of the right middle finger.
In terms of other injuries, she also had an abrasion to the right distal thigh, adjacent to the lateral knee, which was dressed. She had soft tissue injury to right shoulder and right side of neck for which she had x-rays and saw the physiotherapist and was given exercises for the neck and right shoulder.
She also had a sore right temporomandibular joint on chewing hard food and noted clicking in the left temporomandibular joint but had no treatment for this. A doctor suggested Botox to relax the muscles around the TMJs but this did not proceed.
Details of any relevant injuries or conditions sustained since the motor accident.
Nil relevant.
Current symptoms
She has pain from the middle, ring and little fingers with restricted range of movement, particularly in the middle and ring fingers. Her middle finger goes blue at times and she feels there is some loss of sensation of the fingertips.
There is aching at the end of the in the right middle and ring fingers, towards the MCP joint, if she has used her right hand a lot for carrying. She can’t make a closed fist. She has difficulty using cutlery in her right hand and she finds the little finger does not fully flex.
Her jaw still clicks at times. She had noticed a dorsal right wrist ganglion since the accident, which is of variable size and aches to a variable degree since the accident.
The right shoulder aches if she has to rotate her shoulder when dressing and undressing.
The right knee is OK.
She has scars on the ring and middle fingers but they are asymptomatic.
She can do housework except that involving heavy carrying. There is no yard work to do in the apartment but she couldn’t do it when she was in the house that she was living in at the time of the accident.
Current and proposed treatment
She takes paracetamol or Nurofen (ibuprofen) as required every couple of weeks for hand or shoulder discomfort.
She finds the right shoulder is sore if she lies on the right side in bed.
EXAMINATION
General presentation
She is left hand dominant. She was 177cm tall and 56.7kg in weight, with slim build.
She presented the history in a clear concise manner. Her mood and affect were normal
Jaw
She could open her jaw fully and move it from side to side, but there was a palpable click in the left temporomandibular joint on opening and complaint of some soreness over the right temporomandibular joint.
Cervical spine (cervicothoracic)
There was no dysmetria. There were no non-verifiable radicular complaints, no guarding and no tenderness.
Flexion, extension, lateral flexion and rotation were all of full range.
Reflexes, power and sensation in the upper limbs were normal.
Upper extremities
Shoulder range of movement was checked by screening and found to be full in flexion, extension, adduction, abduction, and internal and external rotation.
There was also full range of elbow movements bilaterally.
Girth of right upper arm 22cm equals girth of left upper arm at 10cm above the elbow.
Forearm girth; right 21.5cm, left 22cm at 5cm below the elbow crease, consistent with stated left hand dominance.
Wrist movements were measured with a goniometer.
| Wrist Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion | 60° | 60° |
| Volar flexion | 70° | 70° |
| Radial deviation | 15° | 20° |
| Ulnar deviation | 40° | 40° |
There was a 1cm central dorsal wrist ganglion with a smaller 5mm diameter ganglion adjacent. The ganglia did not impede active range of dorsi and volar flexion.
Right and left hands
Range of motion was measured using a goniometer.
There was full range of movement of the left hand.
There was full range of movement of the right thumb and index finger.
Right middle finger – MCP joint +10 to 80°, PIP joint 0 to 40°, DIP joint 0 to 30°.
Right ring finger – MCP joint +10 to 90°, PIP joint -10 to 50°, DIP joint 0 to 30°.
Right little finger – MCP joint +10 to 90°, PIP joint 0 to 90°, DIP joint 0 to 70°.
Scarring
65mm pale longitudinal scar dorsal aspect of middle finger from MCP joint to proximal interphalangeal joint, with 25mm dorsal ring finger scar over the proximal phalanx and a 15 x 15mm V-shaped thin healed pale scar over the volar aspect of ring finger.
All scars were thin and white, and there were suture marks visible on the longer dorsal middle finger scar.
There were no trophic changes in the scars, no adherence, and the scars were not irritable with sensation intact. No contour defects.
Right and left knees
Active range of movement measured with a goniometer.
Flexion 0 to 130°. There was no instability in either knee in the anteroposterior or mediolateral directions. There was no crepitus in either knee.
Consistency of presentation
Ms Wegen presented in a straightforward consistent manner.
RADIOLOGICAL INVESTIGATIONS
The following imaging was brought to the Medical Review Panel re-examination:
9/03/2021 – CT scan upper limbs
26/03/2021 – X-ray right hand
29/04/2021 – X-ray right hand
4/08/2021 – X-ray right hand – report attached
16/09/2021 – X-ray right hand
The right-hand x-ray series showed progress of healing of fractures of middle and ring fingers.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnosis is right middle finger fracture proximal phalanx and intra-articular displaced fracture of middle phalanx of ring finger.
The diagnosis for the right hand is right middle finger moderately displaced spiral fracture of base and proximal shaft of proximal phalanx communicating with 3rd MCP joint and comminuted fracture at volar radial aspect of base of ring finger middle phalanx communicating with 4th PIP joint.
The accident was a cause of right hand injury, as this injury was mentioned in the Emergency Department records of 22/02/2021.
There was abrasion to right knee mentioned in the Emergency Department records, hence the accident is a cause of this injury.
The right shoulder was mentioned in the Emergency Department records, hence the accident is a cause of a right shoulder soft tissue injury.
The cervical spine was mentioned to be non-tender in the ED records. However, after consideration of the mechanics of the accident, where she was thrown off her motorcycle onto the road and slid along the road, it is medically plausible that a cervical spine soft tissue injury could have been caused, particularly in the presence of injury to the adjacent part of the body, viz., the right shoulder.
It is also plausible that the accident was a cause of a soft tissue injury to the right side of the jaw, considering the heavy impact on the right side of the body from the accident.
With regards to the post-traumatic ganglion of the right wrist, which was referred for assessment, it is also medically plausible that this was caused by the motor accident. This is after again noting the heavy impact to the right side of the body and the significant injuries to the adjacent anatomical area of the right hand.
Permanent Impairment
At the cervical spine, there are intermittent symptoms present but no dysmetria, guarding or non-verifiable radicular complaints and no radiculopathy. The examination findings are compatible with DRE Cervicothoracic Category I giving 0% whole person impairment.
There is no assessable impairment from the temporomandibular joint injury. There are symptoms of discomfort and clicking but these are not sufficient to give a rateable permanent impairment. There is no requirement for a permanently modified diet.
With respect to the right shoulder, there is full range of movement in all six directions at the right shoulder, hence no assessable permanent impairment.
At the right wrist, 15° radial deviation gives 1% upper extremity impairment (Fig 29, page 38 AMA4).
At the middle finger, MCP joint +10° gives 3% impairment of the finger, 80° flexion gives 6%. Adding these gives 9% finger impairment.
At the PIP joint 40° flexion gives 36% impairment of the finger. At the DIP joint 30° flexion gives 21% impairment of the finger (Fig, 19, page 32 AMA4).
Combining these (9, 36, 21) finger impairments gives 54% impairment of the middle finger, equivalent to 11% impairment of the hand (Combined Values Chart AMA4).
For the ring finger, MCP joint +10° gives 3% impairment of the ring finger (Fig 23, page 34 AMA4), PIP joint -10° extension gives 3%, 50° flexion gives 30% (figure 21, page 33 AMA4). Adding these (30 + 3) gives 33% finger impairment. At the DIP joint 30° flexion gives 21% of the finger (Figure 19, page 32 AMA4). Combining 33% by 21% by 3% gives 49% impairment of the ring finger, equivalent to 5% of the hand.
For the little finger, +10° extension at MCP joint gives 3% impairment of the finger. At the PIP joint 90° flexion gives 6% impairment of the finger. Combining 6% by 3% gives 9% impairment of the little finger, equivalent to 1% impairment of the hand.
Adding hand impairments for each finger, 11% plus 5% plus 1% gives 17% impairment of the hand, equivalent to 15% upper extremity impairment (Table 2, page 19 AMA4).
Combining 15% UEI from the hand with 1% UEI from the wrist gives 16% UEI, which is equivalent to 10% whole person impairment (Table 3, page 20 AMA4).
With respect to scarring and considering the TEMSKI criteria, the injured person is conscious of the scar and there is good colour match with surrounding skin. The injured person is able to locate the scars, there are no trophic changes, there are visible suture marks in one of the scars, the location of the scar would be visible on the hand, there is no contour defect, no effect on any ADL, no requirement for treatment and no adherence.
The majority of the criteria fall in the 0% whole person impairment column of the TEMSKI table, hence the scar is assessed as 0% whole person impairment.
The combined impairment from all physical injuries referred is 10% whole person impairment.
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