DETERMINATION OF REVIEW PANEL	
	
CITATION:	Piccione v Allianz Australia Insurance Limited [2024] NSWPICMP 427	
		
CLAIMANT:	Maria Piccione (estate of the late (EOTL))	
		
INSURER:	Allianz Australia Insurance Limited	
		
REVIEW Panel	 	
		
MEMBER:	Elizabeth Medland	
		
MEDICAL ASSESSOR:	Margaret Gibson	
		
MEDICAL ASSESSOR:	Shane Moloney	
		
DATE OF DECISION:	2 July 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of a medical assessment as to whether physical injuries caused by the motor accident are greater than 10% permanent impairment; issues of causation; claim made a number of years after the motor accident; assessment on the papers; absence of contemporaneous complaint; symptoms unrelated to the accident; Held – Medical Review Panel not satisfied that the claimant suffered a left wrist injury caused by the accident; total permanent impairment assessed at 8% and therefore not greater than 10%; Medical Assessment Certificate revoked.
	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
Certificate issued under s7.26(7) of the Motor Accident Injuries Act 2017
1.	The Review Panel revokes the certificate of Medical Assessor Home dated 8 May 2023 and issues a new certificate as follows: 
The following injuries caused by the motor accident give rise to a whole person impairment of 8% and IS NOT GREATER THAN 10%:
•	right wrist;
•	chest;
•	right lower extremity (knee), and
•	scarring.
The following injury was not caused by the motor accident:
•	left wrist.

STATEMENT OF REASONS
BACKGROUND
1.	The late Ms Maria Piccione (the claimant) suffered injury on 3 December 2019 in a motor vehicle accident. She was the passenger on a bus when she fell forwards to the floor of the bus due to the driver accelerating. The claimant unfortunately died on 6 August 2022. 
2.	A claim was lodged upon Allianz Australia Insurance Limited (the insurer) who is the insurer of the bus involved in the motor accident. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act 2017 (MAI Act). 
3.	The subject issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This is a medical dispute for the purposes of the MAI Act.
4.	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).
5.	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. 
6.	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 Alan Home dated 8 May 2023. The Medical Assessor conducted the assessment on the papers and certified that injuries caused by the accident gave rise to a permanent impairment of 9%.
7.	The injuries referred for assessment by Medical Assessor Home were as follows:
(a)	leg – right lower extremity injury;
(b)	wrist – bilateral upper extremity injury;
(c)	ribs – multiple rib fractures, and
(d)	skin scarring – scarring of right lower extremity.

THE REVIEW
8.	The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought. 
9.	The President’s delegate 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. 
10.	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).
11.	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. 
12.	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. 
13.	The review is by way of new assessment of all matters with which the medical assessment is concerned. 
14.	Interim directions were issued by the Panel requiring the parties to lodge bundles of all documents relied upon. Those bundles were received in compliance with the direction. 
15.	The Panel convened via preliminary conference on 26 March 2024. A further Panel preliminary conference occurred on 22 April 2024. 
ASSESSMENT UNDER REVIEW
16.	The assessment was necessarily conducted “on the papers”. 
17.	Medical Assessor Home found the claimant suffered a consequential chest injury due to a consequential fall in June 2020 that led to multiple rib fractures and a haemothorax, which required drainage. He found that based upon the assessment of Medical Assessor Grainge on 28 May 2021, the rib fractures had healed and there were no persisting respiratory symptoms. 
18.	The Medical Assessor found the claimant suffered an injury to the right wrist as a result of the motor accident. In reaching this conclusion, the Medical Assessor noted Dr Hay on 
10 March 2020 and Dr Tringali in May 2020 refer to right wrist pain, which were listed amongst the injuries discussed related to the accident. Therefore, on balance of probabilities the Medical Assessor found the injury causally related. 
19.	However, in respect of the left wrist, Medical Assessor Home was not satisfied that the claimant suffered an injury to the left wrist as a result of the motor accident. He found that it was not plausible that the injury occurred in the absence of any recorded complaint between the date of the motor accident and an assessment of Dr Lee in 2022. 
20.	The Medical Assessor therefore found that the claimant suffered the following injuries caused by the accident:
(a)	right knee – contusion and local skin necrosis, requiring grafting;
(b)	right wrist – soft tissue injury;
(c)	scarring – right lower extremity, and
(d)	multiple rib fractures (consequential injury from fall in June 2022). 
21.	Utilising the examination findings of Dr Yuk-Kai of June 2022, the Medical Assessor found a 2% whole person impairment (WPI) of the right upper extremity. 
22.	A 0% WPI was found in respect of the healed rib fractures. 
23.	In respect of scarring, Medical Assessor Home used the assessment of plastic and reconstructive surgeon, Dr Giles and a review of photographs attached to the application in determining a 3% WPI for scarring. Medical Assessor Home applied the TEMSKI Scale. 
24.	A 4% WPI was found in respect of the right knee, noting that both Dr Lee and Medical Assessor Curtain found restricted range of flexion of the knee. 
25.	A total WPI of 9% was found. 
SUBMISSIONS
Applicant’s submissions dated 22 November 2022
26.	These submissions were lodged in support of the original WPI dispute application. 
27.	The alleged injuries sustained as a direct consequence of the motor vehicle are set out. The submissions also note the circumstances of alleged consequential injuries occasioned on 
28 June 2020, when she fell whilst being examined by her general practitioner (GP), 
Dr Tringali. 
28.	A further consequential injury of 4 August 2022 is set out. It is submitted the claimant was slowly walking to her bedroom when her right knee gave way, she fell and hit her head on the tile. Sadly, this incident led to the claimant’s death. 
29.	The submissions refer to the opinion of Dr Giles who assessed a 3% WPI for scarring. Also relied on is the assessment of Dr Yuk Kai Lee dated 6 June 2022 who assessed a total 14% WPI. 
30.	It is noted the claimant had surgery to her right knee around 30 years prior, and whilst flare ups of pain were experienced occasionally, it is submitted that the claimant’s legs were stable at the time of the motor accident. 
31.	It is submitted that the claimant was in an “extremely weakened state” as a result of the accident and consequential incident and suffered immensely from pain, sensitivity and reduced mobility of the right leg. 
32.	In respect of scarring reference is made to the assessment of Dr Giles in his report of 
2 May 2022. Also referred to is cl 6.263 of the Guidelines.
33.	In respect of alleged bilateral wrist injuries, it is submitted “the claimant sustained an injury to her bilateral wrists as a result of the continued stiffness”. 
34.	It is submitted that the symptoms were reported to Dr Hay and to Dr Tringali and the injuries are set out in the report of Dr Lee dated 6 June 2022.  
35.	Referring to the rib fractures injury, the submissions note the consequential fall of 
28 June 2022. The opinion of Medical Assessor Ian Cameron set out in his reasons of 
20 November 2021 is referred to, wherein he found that the right knee injury was the cause of the fall and the resultant rib fractures and therefore satisfied that same were causally related to the motor accident. Similar submissions are made in respect of the findings of Medical Assessor Grainge in his report of 13 October 2021. 
Claimant’s submissions dated 3 August 2023
36.	These submissions are addressed to the President’s delegate in support of the application for review that was ultimately accepted. 
37.	The first point raised is an assertion that Medical Assessor Home was in error in finding that the alleged left wrist injury is not causally related to the motor accident. It is acknowledged that Medical Assessor Home relied on the lack of recording of any complaint in regard to the left wrist until the report of Dr Lee in finding that the injury is not accident related. It is submitted, however, that there was evidence before the Medical Assessor that the claimant had complained of left wrist pain and restriction. In this regard, the following is noted:
“a.	in her statement dated 21 November 2022, the claimant’s daughter, Ersilia Di Santo, stated that accident [sic] caused ‘mum to be flung forward onto her face, arms and legs’. The same description of the accident is contained in the Claim Form. Injury to both arms is therefore consistent which [sic] the mechanics of the accident. 
b. 	Ms Di Santo further stated that the claimant suffered bilateral upper extremity injury. 
c.	Ms Di Santo further stated that Dr Tringali GP ‘gave Mum some management techniques for the injuries to her right leg and both wrists’. 
d. 	Following discharged from RPAH after the second fall, Ms Di Santo stated that ‘Mum was advised to attend hydrotherapy to regain some strength in her legs and wrists’. 
e. 	Dr Lee took a history that the Claimant ‘fell injuring her face, arms and right knee’.” 
38.	On the basis of the above, it is submitted that there was left wrist complaints. Further, if there was another explanation for such complaint, Medical Assessor Home did not identify same.  It is submitted that it was incumbent upon the Medical Assessor to explain why he treated the absence of recorded complaint as decisive of causation. 
39.	It is further submitted that relying on the absence of radiological examination of the left wrist at the hospital when such investigation was not carried out on the right wrist, yet the Medical Assessor comfortably found the right wrist injury to be accident related. 
40.	In addition, the submissions note that the Medical Assessor observed that in the context of the treatment to the right leg it was not surprising that the right wrist was not listed on the Certificates of Capacity. It is submitted that the “same thing can be said about he left wrist, which clearly has never been a medical focus”. 
41.	It is submitted the Medical Assessor failed to correctly apply cls 6.51 and 6.52 of the Guidelines. The Medical Assessor deducting the left wrist impairment from the right to arrive at the assessed WPI for the right wrist. It is asserted that there is no reasonable explanation for the restriction of movement in the left wrist and it is incumbent on the Medical Assessor when applying cls 6.51 and 6.52 to engage in some analysis of why the apparently uninjured limb should be factored into the assessment. Essentially it is submitted that the absence of rationale resulted in the Medical Assessor not applying the Guidelines correctly. 
42.	Lastly, it is submitted that the Medical Assessor was in error in failing to make his own independent assessment in respect of scarring based on the photographs and history taken by Dr Giles. It is submitted the Medical Assessor simply adhered to the TEMSKI evaluation of Dr Giles in his report of 2 May 2022. A number of submissions are made to support a submission that the Medical Assessor ought to have found more than 3% WPI in respect of scarring. It is asserted that the Medical Assessor did not apply the “best fit” principle and did not explain why he selected one category over the other. The following points were made in respect of scarring: 
“a. 	There can be no doubt that the Claimant was conscious of her scarring. She said so to Dr Giles. This feature attracts between 1% and 9% WPI.
b. 	There is no doubt, and indeed Assessor Home found, that there was distinct colour contrast of the scar with surrounding skin as a result of pigmentary or other changes. This category attracts an impairment value of between 5% and 9%. 
c. 	Assessor Home found that the Claimant could easily locate the scarring on her body. This feature attracts an impairment value of between 2% and 9%. 
d. 	Assessor home found minor trophic changes only. This is an error. The Clamant submits, based on the photographs contained in Dr Giles’ report, there are visible trophic changes, particularly around the right knee split skin graft. There is clear evidence of thinning and glossy skin around the scar tissue. The Claimant says there should have been a finding of between 5% and 9% WPI for this category.
e. 	The claimant accepts that there are no suture marks visible (nil WPI). 
f. 	Assessor Home found that the anatomic location of the scar “can be seen when wearing shorter clothing”. This accords with the history reported to Dr Giles that the Clamant “tends to keep [the right knee] covered”. This feature attracts a finding of between 2% and 4% WPI. 
g.	Assessor Home found visible contour elevation (2% WPI). 
h. 	The Assessor was correct to find that there was a minor impact on the activities of daily living attributable to the scarring (2% WPI). 
i. 	The Assessor was correct to find that there was some treatment required for the scarring (the application of topical ointments). This feature attracts a finding of between nil and 9% WPI, although the Assessor fails to explain where on the severity scale it might fall. 
j. 	There is clear evidence of some adherence to underlying structures (3% to 9% WPI).”
Insurer’s submissions dated 18 August 2023
43.	It is submitted that contrary to the claimant’s assertion Medical Assessor Home was not required to state why the claimant had a restriction of movement in her left wrist when applying the Guidelines.  It is however noted that the claimant was 84 at the time of examination and had a reasonably significant medical history including a number of falls. 
44.	In respect of scarring, the insurer notes that Medical Assessor Home relied on the findings of Dr Giles and “quite frankly there is nothing else that Assessor Home could have done. We reiterate that Dr Giles was in fact qualified by the claimant’s solicitors”. 
45.	In respect of the causation findings of the left wrist, the insurer notes the first record of complaint is the report of Dr Lee dated 2022. In respect of the claimant’s daughter’s statement it is submitted:
“with the greatest respect to the claimant’s solicitors, that simply cannot be a ground upon which it could be found that Assessor Home fell into error. Indeed, in our submission if he did prefer the statement from the daughter as opposed to the clinical records, then that would have constituted an error.” 
46.	In respect of the claimant’s submission that cls 6.51 and 6.52 were not applied correctly, the insurer submits that it does not understand such submission noting the guidelines are clear. The Medical Assessor made no error in deducting the restriction of movement in the left wrist from the right wrist. 
47.	In respect of the scarring the insurer submits the submission that the Medical Assessor simply adhered to the TEMSKI evaluation of Dr Giles, it is noted that Medical Assessor Home did in fact state that he used the assessment of Dr Giles and his own review of the photographs to determine the WPI. 
48.	The insurer concludes by stating that if the Review is to proceed, it is requested that causation of the right wrist injury be considered by the Panel. It is submitted that for the reasons Medical Assessor Home rejected the left wrist injury, then he could “quite easily” have rejected the right wrist injury. 
DOCUMENTATION
49.	The Panel has considered the bundle of documents lodged by the claimant’s representatives on 16 April 2024 in response to directions issued by the Panel. The Panel has also considered the insurer’s submissions mentioned above. It is noted that the insurer, by way of message dated 17 April 2024 confirmed that the documents relied upon are “the same documents submitted in the claimant’s bundle dated 16 April 2024”. 
Claim documentation 
50.	The application for personal injury benefits dated 10 January 2020 has been completed by the claimant’s daughter. The description of the motor accident is provided as follows: 
“…Mum pressed the stop button to get off at the next bus stop across the road from Norton St Plaza. As she stood up to get of the bus driver suddenly braked and mum flew forward onto her face, arms and legs…” 
51.	In respect of description of injuries, the following is stated: “…Mum had facial bruising as well on arms and knee. Right knee swelled up and she got her right knee surgically cut open 2 times and then skin graft from fall on bus.” 
Hospital documentation
52.	The claimant was transported to the Royal Prince Alfred Hospital (RPAH) by her son-in-law. She was discharged several weeks later on 16 January 2020. The discharge referral from RPAH listed the principal diagnosis as “R knee Haematoma on Anticoagulation” after a fall onto knees. It is indicated that she underwent a haematoma evacuation and debridement. Instructions included guidance on medication, and an instruction to follow up with GP for wound review for operation site on the right knee. 
53.	A number of radiological investigations were undertaken as (relevantly) follows: 
•	X-ray to the right knee (3 December 2019) – soft tissue swelling overlying the patella suggestive of haematoma. No fracture or dislocation and mild background vascular calcification noted; 
•	X-ray to the chest (3 December 2019) – no abnormality noted;
•	CT of the brain (3 December 2019) – no abnormality noted; 
•	CT of the right knee (4 December 2019) – it is reported as follows: 
“No fractures are identified. 
There is a soft tissue lesion in keeping with haematoma at the anteroinferior aspect of the knee measuring 3x5x7cm and is contained within the subcutaneous fat. Additional soft tissue swelling is seen surrounding the medial and lateral aspects of the knee at the level of the patella also within the subcutaneous fat. 
Previous medial tibial osteotomy with metal fixation is noted. 
There is severe joint space narrowing, subchondrial sclerosis and osteophytes of the lateral knee compartment. Osteophytes are seen at the medial compartment without compartment narrowing. Small osteophytes and joint space narrowing is also seen at the patellofemoral compartment. There is chondrocalcinosis. Small knee joint effusion noted.
Conclusion
No acute fracture. There is a soft tissue lesion in keeping with haematoma at the anterioferior aspect of the knee.
Knee chondrocalcinosis and osteoarthrosis”;
•	X-ray of the chest (8 December 2019) – no abnormality noted; 
•	X-ray of the abdomen supine (13 December 2019);
•	X-ray of the hip left (16 December 2019) – compared with previous film of 
11 May 2017. Left femoral head appears enlocated at the left hip joint. No definite acute fracture or dislocation is appreciated;
•	X-ray of the knee left (19 December 2019) – “there is no sizeable joint effusion. No fracture is detected. There is chondrocalcinosis and moderate degenerative change in the tibiofemoral compartments”, and
•	Venous Duplex study (16 January 2020).
54.	Following a fall the claimant was again admitted to RPAH on 28 June 2020 and discharged on 30 July 2020. Principal diagnosis noted as 7th-8th rib fractures complicated by recurrent haemothorax. Non –specific left groin/thigh pain.  In the referral letter to the claimant’s GP it is stated that the claimant was admitted for investigation and management of “mechanical fall in the context of anticoagulated atrial fibrillation”. It was noted that the claimant lived with her daughter and son-in-law and mobilised with a walking frame and required help with activities of daily living. 
55.	An X-ray of the pelvis was performed on 17 July 2020 with no fracture of dislocation shown. 
56.	An X-ray of the left knee of 17 July 2020 did not demonstrate any fracture of dislocation. 
57.	A Nuclear Medicine (NM) bone scan was carried out on 23 July 2020. It noted no fractures apart from the left sided rib fractures including the 6th – 10th. Mild degenerative arthritis was seen in the lumbar spine. Additionally it was noted that degenerative arthritis was seen elsewhere in the distribution. In this regard, it is reported “…there is marked increase in tracer uptake seen at the right acromioclavicular joint, sternoclavicular joints, and right knee”. 
58.	The claimant was again admitted to the RPAH on 6 October 2021 and discharged on 
13 October 2021. The claimant is reported to have presented with chest pain, bilateral leg swelling and general decline in mobility. A lower limb Doppler showed no deep vein thrombosis. 
59.	It was further noted that included in issues during admission was deconditioning with physiotherapy input provided whilst an inpatient. 
60.	In addition, it was noted the claimant had ongoing lower limb pain since the motor accident with cramping worse at night. Pain was noted down the back of the legs which gets better with walking and paracetamol. 
61.	Also included in the material is a resuscitation plan from RPAH dated 4 August 2022 with the notes stating “end of life care”. 
Norton Street Medical Centre
62.	The clinical file of this medical centre is provided, with the claimant’s usual GP being 
Dr Tringali. Active past history is noted to include various ailments including right knee pain and degenerative changes in 2011, tendonitis in 2023, left elbow and shoulder pain in 2012 with a supraspinatus tear to the left. 
63.	Prior to the motor accident the claimant attended upon Dr Tringali with complaints of a psychological nature and various physical ailments including dermatitis, headaches, and in 2018 acute back pain, intrascapular pain, left shoulder pain, right sciatica and cervical pain. 
64.	Right shoulder pain intrascapular pain, with cervical pain was noted on 19 March 2019. Ongoing back pain was noted on 31 May 2019, in addition to cervical pain and left shoulder pain. 
65.	The first recorded consultation after the motor accident is 17 December 2019. Noted the claimant had back pain and knee pain following fall. 
66.	Ongoing consultations occur with complaints of back pain, intrascapular pain and cervical pain. 
67.	The claimant attended upon Dr Tringali on 26 May 2020 and the following is recorded: 
“whilst on bus suddenly slammed on brakes causing to fall forward severely lacerating right knee DOA 3/12/19 at about midday. 
Lacerated right face submental area
Right wrist pain cervical R>L shoulder pain intrascapular pain
Lumbar pain
Right hip pain > left hip pain
Right knee pain laceration +++ left knee pain
Right leg pain graft site
Graft right knee area
PTSD
Anxiety depression 
Insomnia
Difficult management problem” 
68.	The claimant next attends on 28 May 2020 complaining of right leg pain, right hip pain, back pain, right knee pain, right leg pain, cervical pain and intrascapular pain. Similar complaints are made on 2 June 2020 and again on 16 June 2020. 
69.	Ongoing regular consultations occur with complaints consistent with the above noted previous complaints. On 22 March 2021, complaints of left knee and leg pain are included. 
70.	The last recorded visit to Dr Tringali is 20 July 2022 with a note of back pain, intrascapular pain and cervical pain. Prior consultations have consistent recorded complaints of pain to the back, cervical spine, intrascapular pain and right leg/knee. There is no mention of either wrists or arms. 
Your Doctors – Summer Hill
71.	The clinical file of this practice is included in the claimant’s bundle of material. The consultations generally focus on issues of cardiac nature. A report of rheumatologist, 
Dr Matthew Parker dated 3 December 2020 noted a conversation with the claimant’s daughter. The claimant’s hip pain was noted to be better than previously, with main issue at the time being related to bilateral lower limb peripheral oedema. 
72.	A further report of 6 May 2021 noted ongoing pain in the knees. She was noted to have ongoing hip and right lower back pain with intermittent radiation down the right leg. It was further stated that the knee symptoms were most likely osteoarthritis. 
73.	Pre accident entries also note falls with an entry of 8 February 2019 noting the claimant to have had a “couple of falls” twice over right ankle. No fractures were evident. There are also several entries related to swelling of the legs. 
74.	The motor vehicle accident is referenced in a surgery consultation note dated 3 March 2020. The claimant is described as suffering a “terrible” right knee injury and had been without any rehabilitation for a few weeks. She was noted to have been complaining of many aches that the doctor felt were posture/inactivity related. 
75.	The claimant attended on 10 March 2020 and the knee was examined. She was noted to doing lots of sitting, was reluctant to move and was sitting in chair. The doctor noted some right wrist tenderness with no fracture evident. 
Certificates of Capacity 
76.	The material includes certificates completed by GP, Dr Hay of Your Doctors. One dated 
3 March 2020 lists the accident diagnosis as “right knee haematoma”, with further mention that the claimant suffered “significant injuries, primarily to R knee”. 
77.	The next certificate is dated 26 May 2020 and includes a diagnosis description that includes: shock, facial laceration, cervical, right/left shoulder pain, back pain, right and left hip pain, right knee pain, laceration to right leg/graft, post-traumatic stress disorder. 
Statement of Ersilia Di Santo, daughter of claimant dated 21 November 2022
78.	The claimant is said to have had surgery to her right knee after a fall “about 30 years ago”. Flare ups of knee pain is described, with the claimant nonetheless being “completely independent” and able to manage the flare ups. 
79.	It is stated that at the time of the accident the claimant’s knees were stable, and she was not suffering from any pain or disability. A stroke occurred in 2011 caused by fibrillation. The issue was managed with blood thinners and blood pressure medication. 
80.	The motor accident is described along with a subsequent incident of 28 June 2020 when the claimant had a consequential injury. This involved an examination with her GP, Dr Tringali. 
81.	An additional consequential fall is described of 4 August 2022, when the claimant fell at home as a result of a decreased mobility in her right leg. Unfortunately, this ultimately led to the death of the claimant. 
82.	The statement lists the following injuries said to be caused by the accident including the consequential incidents:
(a)	bilateral upper extremity injury;
(b)	knee injury;
(c)	permanent disfigurement of the right lower extremity;
(d)	severe scarring of the right lower extremity;
(e)	psychological injury;
(f)	multiple rib fractures;
(g)	lung injury – haemothorax; 
(h)	fatal brain haemorrhage, and
(i)	death.                                          
83.	The statement lists a number of disabilities suffered by the claimant prior to her death. These included (relevantly): 
(a)	continued discomfort and pain in the right lower extremity, bilateral upper extremities, bilateral wrists and chest;
(b)	disfigurement of the right lower extremity;
(c)	reduced ability and tolerance in sitting, standing, walking and lifting;
(d)	constant right leg weakness;
(e)	constant instability of the right lower extremity;
(f)	bilateral wrist stiffness, and
(g)	stiffness and loss of movement in the right lower extremity and bilateral upper extremities. 
84.	After the claimant was released from hospital she is said to have consulted with Dr Tringali for management of injuries. Whilst she was referred to physiotherapy and a chiropractor, due to COVID-19 the claimant did not attend. 
85.	The claimant is said to have lost her mobility as a result of the motor accident which led to depression and an inability to carry out activities of daily living. The following is stated at paragraph 29-30: 
“As Mum had a lot less mobility, her whole body began getting weak due to lack of use. Mum suffered from bilateral wrist pain from stiffness, as she wasn’t using her hands much anymore.
Dr Tringali just gave Mum some management techniques for the injuries to her right leg and both wrists. It was during this time that mum had her consequential incident and suffered the rib and lung injury.”
86.	Ms Di Santo describes the claimant’s life changing after the accident, with it taking away her quality of life being unable to enjoy mobility and activities that she previously enjoyed. 
Medico-legal evidence
Report of Dr Giles, Plastic & Reconstructive Surgeon dated 2 May 2022 addressed to the claimant’s legal representatives
87.	On examination, Dr Giles noted the claimant to have obvious difficulty walking. 
88.	Dr Giles includes photographs and descriptions of the scarring. He noted the following:
“There was a slightly depressed and adherent, but poorly defined split skin graft, which covered an area measuring 3x5 cms over the patella of her right knee. The graft was somewhat hyperpigmented, as was the surrounding skin and on the medial aspect of her knee, there was a pale, longitudinal scar, 14cms long, but this was caused by the surgery for her previously fractured knee. 
The skin graft donor site was situated on the anterior aspect of her right thigh. It measured 19 x 14.5cms, it was slightly atrophic and paler than the adjacent skin and it was very well defined on its medial and inferior borders.”
89.	Dr Giles confirmed the scarring had stabilised. 
90.	In his impairment assessment, Dr Giles notes that the claimant was conscious of her scarring and could locate it. He found there to be an easily identifiable colour contrast, with slight contour deformity with graft adherence to the underlying structures. The graft required regular moisturiser application and some trophic changes were noted to be present. Dr Giles also notes the claimant was reluctant to show her knee because of the scarring. He concluded: “the scars do not conform neatly to the TEMSKI criteria but, in my opinion, the ‘best fit’ for the impairment they have caused would be 3%.” 
Report of Dr Yuk Kai Lee, orthopaedic surgeon, dated 6 June 2022 addressed to the claimant’s legal representatives
91.	Dr Lee was not able to understand the claimant, however, the claimant’s son-in-law acted as an interpreter. The history of injury is described as the bus driver braking suddenly and the claimant falling injuring her face, arms and right knee. 
92.	Dr Lee notes under the sub hearing “current complaints” that the claimant felt weak and pain in her right knee and required help with living. 
93.	On examination, Dr Lee notes the presence of facial scars that were well healed and inconspicuous, in addition to the skin grafted area over the right knee. 
94.	Both knees are recorded as being able to extend straight. The claimant could flex 90 degrees on the right and 115 degrees on the left. 
95.	Dr Lee notes some pain and stiffness in both wrists with diffuse tenderness especially at the dorsum of the wrists. The following table was provided: 
Wrist	Right	Left	
Flexion	40 degrees = 3 % UEI	50 degrees = 2 % UEI	
Extension	35 degrees= 5 % UEI	40 degrees = 4 % UEI	
Radial deviation	25 degrees = 0 % UEI	15 degrees = 1% UEI	
Ulnar deviation 	25 degrees = 1 % UEI	45 degrees = 0 % UEI	

96.	In his summary of injuries, Dr Lee states the claimant injured her right knee as a result of the accident. He also states the claimant injured both wrists. 
97.	He provides a whole person impairment assessment comprised of a 4% WPI for the right knee (table 41 page 3/78 AMA4). He notes the assessment of Dr Giles for scarring. In addition, he found a 4% WPI in respect of the right wrist (fig 26 & 29, page 3/36-38, and table3, page 3/20 AMA4), and a 3% WPI in respect of the left wrist (Fig 26 & 29, page 3/36-38, and table3, page 3/20 AMA4). Amounting to a total WPI of 14% utilising the combine values chart (page 322-324, AMA4). 
Personal Injury Commission Medical Certificates and Reasons 
Medical Assessor Curtin dated 31 March 2021
98.	Medical Assessor Curtin found the injuries of knee-swelling from surgery and grafting and skin scarring of the right leg to be minor (now known as “threshold”) injuries for the purposes of the MAI Act. 
99.	Current symptoms were recorded as being related to the right knee. 

Medical Assessor Fukui dated 10 May 2021
100.	The Medical Assessor certified that an adjustment disorder was a minor injury for the purposes of the MAI Act. He notes a history of the motor accident with the claimant falling face first onto the floor of the bus, resulting in injuries to her upper and lower limbs, especially her right knee. 
Medical Assessor Grainge dated 13 October 2021
101.	The claimant was examined on 28 May 2021 in respect of the haemothorax – lung injury. Medical Assessor Grainge certified such injury to be a minor injury for the purposes of the MAI Act. 
102.	The motor accident is described as the claimant falling to the floor of the bus onto her face, arms and legs. 
103.	Current symptoms are recorded as knee and back pain. Occasional chest pain was described. 
Medical Assessor Cameron dated 20 November 2021
104.	The Medical Assessor certified the injury of rib fractures as being a non minor injury for the purposes of the MAI Act. 
105.	Current symptoms are described as chest and back pain, with significant pain to the right leg. Epigastric pain and nausea were also described. 
CAUSATION
Right knee and scarring 
106.	Contemporaneous medical evidence establishes that the claimant fell in the motor accident injuring her right knee leading to skin grafts. The Panel finds that the claimant injured her right knee and suffering resultant scarring as a result of the motor accident. 
Consequential chest injury
107.	The medical evidence before the Panel sufficiently establishes that the claimant suffered a consequential fall in June 2020 that resulted in multiple rib fractures and a haemothorax, requiring drainage. The Panel finds that the claimant suffered a chest injury as a result of the motor accident. 
Right wrist 
108.	The insurer has raised the issue of causation in respect of the right wrist. It is essentially submitted that for the same reasons Medical Assessor Home did not accept the accident caused an injury to the left wrist, a similar finding should be made in respect of the right wrist. 
109.	The Panel notes, unlike the left wrist, that right wrist symptoms are mentioned to treating doctors within the first months after the motor accident. It was mentioned by Dr Hay in 
March 2020 and Dr Tringali in May 2020 as injuries in the context of the motor accident. 
110.	There is a period of delay, and therefore some doubts do arise as to whether the injury to the right wrist is causally related to the motor accident, however, the Panel accepts on the balance of probabilities that the claimant suffered an injury to her right wrist as a result of the motor accident. 
Left wrist
111.	There is a significant delay in the recording of left wrist symptoms by health professionals, and therefore there is an issue as to causation. 
112.	Unlike the right wrist symptoms, there is no mention of left wrist symptoms within the treating medical documentation before the Panel.  The left wrist is first mentioned as part of the assessment of Dr Lee. 
113.	Dr Lee concludes that the claimant suffered injuries to the wrists but does not include a description of the mechanism of injury other than the accident being described at the beginning of the report as the claimant falling to her knees, face and arms.  
114.	The Application for Personal Injury Benefits lodged on 20 January 2020 does not make mention of an injury to the left wrist, whilst only mentioning a fall onto face, knees and arms. 
115.	The original submissions lodged in support of the whole person dispute describes the injury to the wrists as being due to continued “stiffness”. 
116.	Whilst the statement of the claimant’s daughter alleges injury to the wrists, such statement is not consistent with the medical evidence. Furthermore, the statement suggests that the injury to the wrists is due to the ongoing stiffness rather than any direct relationship to the motor accident. 
117.	The Panel finds that there is no available evidence to support a suggestion that the claimant sustained an injury to her left wrist as a consequence of accident related stiffness. 
118.	Ongoing wrist stiffness in a lady in her 80’s is not unexpected. Dr Lee recorded this 2.5 years post motor accident. There have been several falls apart from the motor accident which could contribute to this. Furthermore, a bone scan six months after the accident did not show any acute changes in her wrists which makes it more likely that the reduced ROM is due to age related degeneration not recent trauma.
119.	In summary, and taking into account all of the evidence, the Panel is not satisfied on the balance of probabilities that the claimant suffered an injury to her left wrist as a consequence of the motor accident. 
ASSESSMENT OF WHOLE PERSON IMPAIRMENT
Right wrist
120.	On ROM using Dr Lee’s findings = 9 % UEI. Figures 26 and 29 of AMA 4. It is reasonable to assume that both wrists would have same ROM at her age and no evidence of an injury to left wrist so 9% - 7 % UEI = 2 % UEI which converts to 1 % WPI for right wrist. This is derived using MAA Guidelines 6.51,6.52
Chest
121.	Healed rib fractures with no respiratory impairment is 0 % WPI (using Ax Grange’s assessment).
Scarring
122.	The assessment by Dr Giles is to be used. Which is 3 % WPI according to best fit on TEMSKI chart. Mrs Piccione would have been conscious of the scars to right knee with easily identifiable colour contrast and easy to locate. Minor trophic changes but no suture marks visible. Scarring was visible when knees are exposed such as when wearing a short dress. Contour defect was easily visible and there was some adherence. There was minor limitation of activities of daily living and some treatment was required. 
Right knee
123.	Using ROM of Dr Lee’s report of 90 degrees of flexion. Table 41 in a mild impairment = 4 % WPI. 
CONCLUSION 
124.	Total WPI is 8% (slight variation to Medical Assessor Home who incorrectly recorded 2% UEI for ulnar deviation of 25 degrees. This should be 1 % (table 29).
125.	Due to the slight variation to the findings of Medical Assessor Home the Panel revokes the certificate dated 8 May 2023.