DETERMINATION OF REVIEW PANEL	
	
CITATION:	QBE Insurance (Australia) Limited v O'Byrne [2022] NSWPICMP 427	
		
CLAIMANT:	Cormac O’Byrne	
		
INSURER:	QBE Insurance (Australia) Limited	
		
REVIEW Panel	 	
		
MEMBER:	Belinda Cassidy	
		
MEDICAL ASSESSOR:	Ian Cameron	
		
MEDICAL ASSESSOR:	John Carter	
		
DATE OF DECISION:	24 October 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (2017 Act); medical assessment of whole person impairment (WPI) and insurer’s review under section 7.26 of the 2017 Act; claimant sustained leg and hand fractures in pedestrian vs car accident; original Assessor (Gorman) had determined claimant’s WPI at 12%; no real issue of causation; methodology issues and additional injuries not previously assessed; Held –  claimant’s WPI not greater than 10%; error in calculation of hip motion WPI (4% not 8%); right shoulder, hand and wrist (3%); scarring (2%); diabetes not caused by accident and no impairment for erectile dysfunction; no issue of principle.	

DETERMINATIONS MADE:  	
1.	Revokes the certificate of Assessor Gorman dated 2 May 2022.
2.	Certifies that the degree of Mr O’Byrne’s permanent impairment resulting from the injuries caused by the motor accident on 3 May 2019 is not greater than 10%.

STATEMENT OF REASONS
Introduction
1.	Cormac O’Byrne was involved in an accident on 3 May 2019. He was crossing a road when an allegedly speeding and drunk driver collided with him but did not stop to render assistance.
2.	Mr O’Byrne made a claim for statutory benefits under the Motor Accidents Injuries Act 2017 (the MAI Act) and then a claim for damages. QBE, the insurer of the at-fault vehicle has admitted liability for both claims.
3.	A dispute has arisen in Mr O’Byrne’s damages claim about whether he is entitled to damages for non-economic loss. That dispute was referred to the Personal Injury Commission (the Commission) for assessment and on 2 May 2022, Assessor David Gorman determined the claimant had a whole person impairment (WPI) of 12% and therefore an entitlement to claim non-economic loss damages.
4.	The insurer was dissatisfied with that result and lodged an application seeking a review of that decision by the Commission. The delegate of the President of the Commission determined there was reasonable cause to suspect a material error in Assessor Gorman’s assessment and the President has now convened the Panel.
Legislative framework
5.	Mr O’Byrne’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
6.	Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13 and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
7.	If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination. 

Dispute resolution
8.	Under schedule 2, cl 2 of the Act, the determination of disputes about the degree of permanent impairment are declared to be medical assessment matters.
9.	Chapter 7, Division 7.5 of the MAI Act provides for the determination of medical assessment matters by the Commission including provisions relevant to an original medical assessment such as Assessor Gorman’s, further medical assessments and the Review of medical assessments by a review panel such as this one.
10.	Rule 128 of the Commission’s Rules provides a degree of flexibility in the review process noting that the panel can “conduct and determine the proceedings in accordance with procedures determined by the panel”.
Permanent impairment assessment
11.	Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines) which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4).
12.	The relevant provisions applicable to Mr O’Byrne’s assessment will be set out in the assessment details part of these reasons.
Assessment under review
13.	Assessor Gorman assessed the claimant on 14 April 2022 and issued his certificate and reasons on 2 May 2022. He was asked to assess the following injuries:
(a)	right femur – fracture;
(b)	right hand – metacarpal and thumb fracture;
(c)	right hip – fracture;
(d)	right knee – soft tissue injury;
(e)	scarring to leg, hand, hips and knee, and
(f)	post-traumatic diabetes.
14.	He noted the claimant’s assessment of 37% from Dr Dryson and the insurer’s assessment of 7% by Dr Wallace.
15.	Assessor Gorman took the following history:
(a)	the claimant was 22, studying at Newcastle University in his fifth year but was two years behind his peers;
(b)	he worked in a factory and on campus for 24 hours a week in total before the accident but does not work now. He had trialled working part time but found it stressful;
(c)	he had a previous history of a burn to his hand as a child and diabetes mellitus but had been off insulin at the time of the accident however had to return to insulin soon after;
(d)	the claimant was knocked unconscious, woke up on the side of the road and was taken to John Hunter Hospital where he remained for two weeks;
(e)	the claimant went to live with his parents for a year after the accident, and
(f)	he was diagnosed with “Latent Autoimmune Diabetes in Adults” in 
May 2019 and had a right herniated muscle repaired in May 2021.
16.	The claimant’s main complaints were said to be pain in the right hip, right sided lower back pain and pain in the right gluteal region. He gets pain in the femur on stairs. He has pain when he picks things up and notices that his grip is poor. He felt that his right shoulder was weaker, and he had pain with lifting.
17.	The claimant was seeing his general practitioner (GP), a psychiatrist, psychologist, orthopaedic surgeon, physiotherapist and exercise physiologist. He was prescribed an antidepressant and took pain medication both prescribed and over the counter.
18.	On examination:
(a)	the claimant’s right shoulder movements were restricted in five of the six planes of motion;
(b)	flexion and extension of the right wrist were impaired;
(c)	right thumb movements at the carpo-metacarpal (CMC) joint were normal but in the metacarpophalangeal (MCP) joint and at the interphalangeal (IP) joint there was restriction;
(d)	right finger movements were normal;
(e)	there was a previous right palm scar;
(f)	there were surgical scars around the right thigh and leg described as:
(i)	10 cm scar with visible suture marks on the buttock;
(ii)	13 cm scar over the lateral right thigh as well as a 11 cm scar from his muscle hernia repair;
(iii)	5 cm scar over the right thigh, and
(iv)	12 cm scar over the right knee with stitch marks and a slightly widened scar.
(g)	the claimant’s right leg was 1 cm shorter than the left;
(h)	right hip movements were restricted in all planes of movement, and
(i)	right knee flexion was also impaired but the ankle and hindfoot were not.
19.	Assessor Gorman reviewed the documentation, in particular explaining why he found a different WPI to Drs Wallace and Dryson.
20.	Assessor Gorman found all of the physical right upper and lower limb injuries caused by the accident. He did not accept that the onset of the claimant’s diabetes was caused by the accident saying, “the substantial cause of the diabetes mellitus is his genetic propensity to develop this condition”. While he does consider the stress of the accident might have brought it on earlier it is not the cause of it.
21.	In the table at page 11, Assessor Gorman appears to have found the following:
(a)	right femur fracture – 0%;
(b)	right hand – metacarpal and thumb fracture – 1%;
(c)	right hip – 8%;
(d)	right knee – no assessable impairment, and
(e)	scarring – 3%.
22.	Assessor Gorman noted he was not asked to examine the right wrist but said the restriction of right wrist movement would attract a 2% WPI in addition to the above.
23.	The total WPI was 12% (not including the wrist) and there was no adjustment for treatment or any previous or subsequent injuries.
Matter summary and submissions 
Insurer’s submissions (applicant)
24.	The insurer’s submissions are dated 30 May 2022 they are relatively short and straightforward and argue:
(a)	Assessor Gorman did not record the claimant’s hip stress fracture when playing tennis and running (referred to in Assessor Samuel’s determination), and
(b)	while noting the claimant had a right muscle hernia repaired in May 2021, Assessor Gorman did not consider whether there was any impairment caused by it.
25.	The insurer says therefore that the Assessor failed to comply with cl 1.34 of the Guidelines. While these two injuries may not have led to any impairment, the Assessor has not given any reasons at all in relation to these subsequent injuries and their effect on the claimant’s impairment rating implying that in the insurer’s view the muscle herniation and hip stress fracture were not related to the injuries sustained in the accident.
Claimant’s submissions (respondent)
26.	The claimant’s submissions are dated 6 July 2022. 
27.	The claimant says the insurer has suggested the Assessor should have considered whether a deduction or apportionment concerning the claimant’s right hip fracture in June 2020 and the muscle hernia in May 2021. 
28.	The claimant draws attention to the following reports of Dr Cornford and others:
(a)	6 June 2019 – claimant was progressing well and the fractured femur was healing in good position. Dr Cornford encouraged cycling and swimming;
(b)	5 September 2019 – the femoral neck fracture had united, but the femur fracture had not – strength and endurance improvement was recommended;
(c)	13 February 2020 – the claimant was continuing to progress but with twinges in the muscles of his right thigh;
(d)	13 August 2020 – in the three months before this, the right hip pain had increased which the claimant’s solicitor says corresponds with a history from the claimant of a game of tennis in June 2020. The claimant had noticed two lumps on his thigh at the level of the fracture and “a recent ultrasound confirmed two fascial herniations” diagnoses by Dr Cornford as “post traumatic muscle hernias”. In addition to this the claimant notes 
Dr Cornford diagnoses “a new stress fracture on the medial of the femoral neck … consistent with a compression-sided stress fracture of the femoral neck”. Dr Cornford advised the claimant to stop sporting activity except swimming;
(e)	8 October 2020 – physiotherapist Nicholas Hewitt refers to a “recent bone stress response” which the claimant’s solicitor suggests it was not a subsequent injury but a response to the original injury or complication;
(f)	12 November 2020 – Dr Cornford noted “The pain in his hip has settled suggesting that his stress fracture has responded well to a reduction in his physical activities”;
(g)	11 February 2011 – Dr Cornford noted the traumatic muscle herniation was causing distress but the stress fracture was causing less trouble, and
(h)	18 May 2021 – Dr Cornford had performed the “anterior thigh fasciotomy and medial thigh fascial repair”.
29.	The claimant submits that cl 6.34 of the Guidelines provides that there must be both a subsequent injury and an injury which is an unrelated injury or condition. The claimant says the muscle hernias are traumatic (as described by Dr Cornford) and accident-related noting that the insurer paid for the muscle fasciotomy surgery as part of this claim.
30.	The claimant relies on his statement and says that he received advice from both 
Dr Cornford and his physiotherapist that he could return to sport and so he had one game of tennis in June. This caused him pain and he complained to Dr Cornford and his GP about this after the game of tennis and he was given advice to stop exercising. 
31.	The claimant argues that this is a complication or temporary complication that commenced in June 2020 and was resolved by February 2021 and is a subsequent injury, but an injury related to the original injury.
Procedural matters
32.	The claimant’s current solicitors wrote to the Commission on 26 July 2022 requesting that the Panel include within its assessment, an assessment of the claimant’s right wrist noting that this appeared to have been omitted by the claimant’s previous solicitor.
33.	The Panel also notes that the original application form completed by the claimant included “erectile dysfunction” as an injury and requested the claimant be seen by a urologist and upon making enquiries with staff at the Commission discovered that injury had not been referred for assessment.
34.	The Panel convened on 19 August 2022 to discuss the Review and on 23 August 2022 the Panel issued to the parties a report of its discussions with directions.  The Panel advised:
(a)	there did not appear to be an issue with the assessment of 0% for the claimant’s diabetes and queried whether this was agreed;
(b)	it would assess the right wrist;
(c)	it would assess the claimant’s erectile dysfunction, and
(d)	there was an issue of causation of the muscle herniation and stress fracture to the hip and medical evidence from Dr Cornford (the claimant’s treating doctor) and Dr Wallace (for the insurer) addressing that issue would be helpful.
35.	The insurer was directed to provide a supplementary report from Dr Wallace and any final submissions by 16 September and the claimant was directed to provide a supplementary report from Dr Cornford by 30 September. Nothing had been received from either party by that date. The claimant had sought an extension of time to provide a report from Dr Cornford referring to multiple attempts to obtain it. 
36.	The purpose of the directions after the Panel’s 19 August 2022 meeting was, in accordance with s 42 of the Personal Injury Commission Act 2020, to identify the real issues in dispute in advance of the re-examination so that the Panel is sure of whether any resolution was possible (e.g. causation of the stress fracture and the muscle herniation) and what injuries are to be the subject of the re-examination and its determination (e.g. the wrist and the erectile dysfunction). 
37.	The directions of 23 August 2022 were varied. The insurer was directed to provide any final submissions and any other readily available and relevant documentation by close of business 5 October 2022. The claimant was to provide any final submissions and any other readily available and relevant documentation by close of business 
8 October 2022. 
38.	The parties were advised that the Panel would proceed on the basis of a re-examination of all assessed injuries as well as the wrist injury and the erectile dysfunction injury in the absence of submissions. 
39.	No further communication or correspondence has been received from either party.
Review of the evidence
Treatment records and reports
40.	The Panel has not been provided with a copy of the claim form or any of the records from the first responders.
41.	There is no controversy in respect of the injuries or causation generally (with the exception of the muscle herniations and the stress fracture) and therefore the Panel is of the view there is little utility in providing a summary of all of the medical evidence provided by the parties.
42.	A discharge summary from John Hunter Hospital notes “poly trauma” including two fractures to the femur, the right third metacarpal (middle finger) fracture and the right thumb proximal fracture. The hospital notes have also been provided.
43.	There was treatment from Dr Joshua Hunt orthopaedic hand surgeon. The fractured right thumb was fixed with a plate and screws and on 22 July 2019 the claimant was discharged from Dr Hunt’s care.
44.	The claimant had physiotherapy treatment whilst in Forster (while living with his parents) until August 2019 when it was reported his capacity was improving but he had poor pelvic control and slight external rotation of his lower right leg.
45.	Physiotherapy was continued in Newcastle and there are documents from Ethos Health provided including a report dated 8 October 2020 which refers to a “recent bone stress response in Cormac’s hip” and continued progress.
46.	The claimant’s right lower limb fracture and fractured femur were managed by 
Dr Lachlan Cornford. His records have been summarised in the claimant’s submissions (see paragraph 28 above). Of interest to the Panel are these:
(a)	6 June 2019 – the claimant had an infection in the hip wound which resolved with antibiotics, the claimant was required to have Clexane injections to prevent clotting, there is a device (de-rotation screw) fixing the fractured neck of the femur and the femoral fracture was fixed with a nail. The claimant was advised “to commence strength training and do aggressive range of motion exercises” but he was warned not to “engage in jarring activity such as running or contact sport” at that time;
(b)	5 September 2019 – the claimant had returned to university and obtained a high distinction in one subject. The femoral neck fracture had united, but the femur fracture had not yet healed. Dr Cornford was concerned about the rotation of the foot and was of the view further surgery may be required to correct this;
(c)	13 February 2020 – radiographs show union of both fractures;
(d)	13 August 2020 – on examination, Dr Cornford could feel fascial defects (muscle herniations) and while there was good range of motion in the hip there was irritation on flexion and internal rotation;
(e)	12 November 2020 – the pain in the hip had settled, the issue of leg length discrepancy arose, and further tests were ordered, and
(f)	11 February 2021 – the CT scan shows 10 mm limb shortening in the affected leg and Mr O’Byrne was wearing a heel raise.
Medico-legal reports
47.	The claimant obtained a report from Dr Evan Dryson dated 2 November 2020. 
Dr Dryson has a consistent history of the claimant’s work and study and the accident. 
48.	Under the heading ‘current symptoms’, Dr Dryson records:
(a)	right femur fracture – the leg is 1 cm shorter and this causes low back pain and his right leg is weak and painful;
(b)	right hand – he has a lack of strength and drops objects and has scarring;
(c)	right hip flexion – the hip is still painful, and he has limited standing and walking;
(d)	right pelvic fracture – no mention of a fractured right pelvis;
(e)	cuts and bruises – multiple scars and muscle hernia in the right thigh;
(f)	psychological issues;
(g)	erectile dysfunction, and
(h)	a post-accident diabetes diagnosis.
49.	He found a 37% WPI based on:
(a)	leg length discrepancy – 2%;
(b)	right hip – 14%;
(c)	right knee – 15%;
(d)	right wrist – 8%, and
(e)	scarring – 4%.
50.	The insurer obtained a report from Dr Wallace dated 16 April 2021. He has a similar history to that of Assessor Gorman.
51.	He records the claimant has no pain, numbness or swelling in the right hand but some weakness of grip and stiffness in the right thumb. In the right hip there was an intermittent aching pain reported which worsened with activity. Mr O’Byrne also complained of weakness of the right leg and stiffness in the right hip. There was pain in the right knee worse on stairs and with swelling.
52.	Dr Wallace examined the claimant and in particular noted his legs were equal in length. He did not refer to the radiology when assessing this.
53.	He thought the prognosis was poor but considered Mr O’Byrne fit to resume work on the basis of part-time and light duties.
54.	He found WPI at 7% on the basis of:
(a)	right thumb – 1%;
(b)	right hip – 4%;
(c)	right knee – 0%, and
(d)	scarring – 2%.
Other assessments
55.	Assessor Samuell issued a certificate of assessment on 6 August 2022 following an assessment on 29 July 2022. He was asked to assess the claimant’s post-traumatic stress disorder, major depression and anxiety.
56.	There is a consistent history of before and after the accident noting that before the accident the claimant says he was a distinction average student.
57.	The claimant reported mental health issues developing about one to two months after the accident. He saw a counsellor in hospital, lived with his parents for nine months and was reminded of the accident every day.
58.	He recounted some strange (to him) symptoms when he went back to university.
59.	After the hip fracture and thigh muscle surgery he moved back to his parents and had a “complete mental breakdown”.
60.	He was worried that he was never going to get better, his sleep had been poor, his appetite had varied, and his mood and concentration had been affected.
61.	The claimant reported consulting a psychologist and psychiatrist and prescription medication.
62.	The claimant reported increased issues since his most recent surgery, his relationship had broken down, he had issued with his housemates, and found work difficulty.
63.	Assessor Samuell had some issues with consistency and considered the claimant’s condition had not yet stabilised due to the recent surgery.
64.	Assessor Samuell diagnosed post-traumatic stress disorder but thought the major depression was in partial remission. WPI was assessed at 5% with an additional 2% for the effect of treatment.
Statements
65.	The claimant’s statement dated 5 July 2022 explains the history of the muscle hernias and the single game of tennis and stress fracture which the claimant relates to his accident.
Re-examination findings
66.	Mr O’Byrne was re-examined by Assessor Cameron at Ultimo on 11 October 2022. He attended unaccompanied.
History of injury
67.	Mr O'Byrne was a pedestrian who was hit by a vehicle.  He had a loss of consciousness and was assessed by ambulance and taken to John Hunter Hospital.  
68.	At John Hunter Hospital the diagnoses were multiple fractures of the proximal phalanx of the right thumb, a fracture of the right third metacarpal, a subcapital fracture of the right femur and a mid-shaft fracture of the right femur.  There was open reduction and internal fixation of these fractures.  There was a hospital admission for approximately two weeks.  
69.	Mr O' Byrne subsequently stayed with his parents on the New South Wales north coast for almost a year.  
70.	Mr O' Byrne said there were abnormal blood sugar levels at the time of hospitalisation and he was commenced on insulin.  Subsequently he had an opinion from an endocrinologist that he had "late onset adolescent diabetes".  
71.	In May 2021 Mr O' Byrne had muscle herniation in his right thigh repaired.  In 
August 2020 he was also diagnosed with a "stress" fracture of the right proximal femur.  
72.	Mr O' Byrne said that the stress fracture was diagnosed after he developed right hip pain after recommencing tennis following his accident.  There were also symptoms from the right knee at that time.
73.	Mr O' Byrne has had ongoing symptoms in his right lower limb.  
Background
74.	Mr O' Byrne is currently living in a share house. He has obtained employment in accountancy and finance from May 2022. This is an office-based job and is a full-time position.  He has one day study leave a week to allow him to complete a law degree. He estimates that it will take him a further 12 to 18 months to complete the law degree. He has possible longer-term employment as an in-house lawyer with the company with which he is working.
75.	Mr O' Byrne's past health has been good. He had a significant burn to the palm of the right hand as a six-month-old child. This required extensive treatment and skin grafting.
Current status
76.	Mr O' Byrne has residual problems from the right thigh and hip. There is pain and weakness and restricted movement. There is also limited movement at the right knee. Mr O' Byrne said he has a limp, and the right leg tends to turn outwards.  
77.	In the right upper limb, there is reduced range of motion at the right wrist and some restriction of the movement of the right thumb and slight restriction of the right middle finger.  Another problem reported by the claimant is reduced range of motion and pain in the right shoulder.
78.	Mr O' Byrne reported limited sitting and standing and driving tolerance.  He travelled to the appointment with a friend and shared the driving. He uses an ergonomic set up at work.  
79.	There is ongoing treatment with an exercise physiologist and his GP is Dr Morgan. 
Mr O’Byrne’s current medication is mirtazapine but he takes no prescribed analgesics.  
80.	Mr O' Byrne occasionally continues to use insulin but at a dose of only one or two units and not everyday.
81.	With reference to erectile dysfunction Mr O' Byrne said this had occurred following the accident.  He wondered whether the pelvic injuries had contributed to this. Dr Morgan has prescribed Viagra and that has been helpful.
82.	Mr O' Byrne said that after the motor accident he had gained approximately 
15 kg. His current weight is about 10 kg more than his pre-injury weight likely due to a lack of activity and exercise caused by his accident-related injuries.
Examination
83.	Mr O' Byrne is left-handed, 173 cm in height and weighs 70 kg.  
84.	Mr O' Byrne was co-operative and provided a clear history. There was no evidence of cognitive impairment, and his orientation and memory were within normal limits. 
85.	All of Mr O’Byrne’s movements were measured three times with a goniometer.
86.	Spine - at the cervical spine there was mild and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
87.	No abnormality at the thoracic or lumbar spine was detected.
88.	Shoulders - there was a full range of motion of the left shoulder. At the right shoulder range of movement was recorded as follows:
(a)	flexion 160 degrees (20 degree restriction in movement); 
(b)	extension 50 degrees (normal range); 
(c)	abduction 180 degrees (normal range);
(d)	adduction 50 degrees (normal range);
(e)	external rotation 80 degrees (10 degree restriction in movement), and 
(f)	internal rotation 80 degrees (10 degree restriction in motion).
89.	Elbows - there was a full range of movement of both Mr O’Byrne’s elbows.
90.	Wrists – there was a full range of movement of the left wrist. At the right wrist, the claimant’s movements were recorded as follows:
(a)	extension 60 degrees (normal range); 
(b)	flexion 50 degrees (10 degree restriction in movement); 
(c)	ulnar deviation 40 degrees (30 degrees is normal range suggestion no restriction in movement), and
(d)	radial deviation 20 degrees (normal range).  
91.	Hands and digits - there were accident-related surgical scars over dorsum of the right hand and over the right thumb proximal phalanx. While there was significant scarring from a childhood burn in the right palm there was no contracture from the burn and therefore no effect on range of hand or digit motion from that burn.   
92.	In the thumb, the metacarpophalangeal joint measured from +10 (extension) to 40 (flexion) and the interphalangeal joint flexed from 0 (extension) to 40 (flexion).  
93.	There was a full range of motion otherwise except for the right thumb lack of adduction of 1cm.  
94.	The right middle finger metacarpophalangeal joint flexed from +20 (extension) to 90 degrees (flexion).
95.	Lower limbs - at the right hip, the range of movement measured and recorded was:
(a)	flexion 60 degrees; 
(b)	extension 0 degrees; 
(c)	abduction 20; 
(d)	adduction 30; 
(e)	external rotation 40 degrees, and 
(f)	internal rotation 10 degrees.  
96.	At the right knee range of movement was 0 to 120 degrees. The joint was stable and there was no crepitus.  
97.	The right femur was 1.5cm shorter than the left and there was no significant rotational deformity of the right femur. 
98.	Circumferences of the lower extremities were equal on both sides measured above knee at 41cm and below knee at 38cm. There were no neurological deficits detected in the lower extremities or pelvic or sacral region.
99.	Scarring - there were multiple accident-related surgical scars over the right lower extremity well described by Assessor Gorman. There was no evidence of muscle hernia in the right thigh due to the successful surgery undertaken by Mr O’Byrne.
Imaging
100.	 X-rays dated 13 April 2022 showed multiple fractures right thumb distal phalanx with internal fixation, a right middle finger metacarpal fracture with internal fixation, a right femoral shaft fracture with an intramedullary nail that was united, a right basicervical proximal femoral fracture with compression screw and plate and separate femoral neck screw. 
101.	The scans reveal a possible healed right inferior pubic ramus pelvic fracture.
Diagnoses and causation of injuries
102.	Fractures - Mr O' Byrne sustained serious musculoskeletal injuries in the motor accident including: 
(a)	right femur – proximal femoral fracture;
(b)	right femur – shaft fracture, and
(c)	right hand – third metacarpal and thumb distal phalanx fractures.
103.	Soft tissue injuries - given the nature of the injuries sustained (severe injuries due to major trauma as a pedestrian versus car), there were also:
(a)	right knee – soft tissue injury, and
(b)	right shoulder – soft tissue injury.
104.	The soft tissue injuries caused to the right knee and right shoulder in the Panel’s view are likely to have been overshadowed by the fractures, and therefore not mentioned in the records. The Panel accepts the claimant’s history that he has been experiencing symptoms in the right knee and right shoulder since the accident.   
105.	Muscle herniation and stress fracture - the Panel notes that the claimant developed muscle herniation and a stress fracture in the hip after the accident. The insurer’s submissions suggest (without any evidence) that these were unrelated injuries and conditions. It is the Panel’s clinical judgment that these injuries are related to the original injuries sustained in the accident for the following reasons:
(a)	muscle herniation occurs as a result of a defect in the fascial sheath of the muscle (that part of the muscle next to the bone) caused by injury. The muscle bulges as a result forming a palpable mass and causing pain. The location of the claimant’s muscle herniation was in the right leg which was seriously injured in the accident, and
(b)	the stress fracture occurred near the site of the fracture in the femoral neck and was caused by the original fracture not healing completely at the time the claimant returned, on his doctor’s advice, to activity (tennis). Upon developing pain and reporting this to his doctor, the claimant was advised to rest and given time to allow the fracture to heal. It is also likely that the claimant’s leg length discrepancy led to abnormal forces being placed on his injured leg which would have further contributed to the stress fracture.
106.	Scarring – the claimant’s multiple surgeries have left him with scars to the right leg and right hand.
107.	Erectile dysfunction – the Panel accepts the history given by the claimant of erectile dysfunction developing after the accident. This could be related to the claimant’s orthopaedic injuries or a psychological injury but in the light of the assessment finding, it is not necessary for the Panel to be definitive about the caused.
108.	Diabetes - Mr O’Byrne says he developed diabetes following the motor accident. It is not severe and currently requires very limited treatment. The Panel notes the John Hunter Hospital discharge summary refers to a six month history of increased thirst, increased urination and weight loss before the accident. In addition, there is a haemoglobin A1c test result (HbA1c) of 13.4% which is high and is based on an average blood glucose level over the previous three months.  It is the Panel’s view that this is a clear indication that the claimant’s diabetes was present before the accident but not yet diagnosed at the time of the accident. It is the clinical judgment of the medical members of the Panel that 
Mr O’Byrne’s diagnosis is LADA (latent autoimmune diabetes in adults). The Panel is therefore of the view that the claimant’s diabetes was not caused or aggravated by the motor accident.
109.	While the Panel has not found the claimant’s diabetes was caused by the accident, if the Panel had found causation was satisfied, the injury would be assessed with reference to s 12.6, page 271 of AMA4. Class 1 impairment related to diabetes mellitus provides a range of 0% to 5% for someone with non-insulin-dependent type II diabetes controlled by diet. The Panel would have been inclined to assess this at 0% WPI because minimal treatment is required, and the claimant’s evidence was that he takes insulin sporadically.
Permanent impairment evaluation
Right femur – proximal femoral fracture
110.	There are hip motion impairments related to this fracture that are assessed with reference to Table 40, page 78 AMA4 as follows:
(a)	flexion 60 degrees - moderate impairment 4%;
(b)	extension 0 degrees – nil;
(c)	abduction 20 – mild impairment 2%;
(d)	adduction 30 – nil;
(e)	external rotation 40 degrees – nil, and
(f)	internal rotation 10 degrees – nil.
111.	Clause 6.85 of the Guidelines provides that tables 40 to 45 can be used to assess range of motion in the lower limbs. Where there is loss of motion in more than one plane of movement from the same joint, only the most severe deficit can be used, and multiple deficits cannot be added or combined. Therefore, as the claimant’s flexion impairment is the most severe of his hip motions, it is to be used without adding the impairment due to the loss of abduction.
112.	Assessor Gorman over-assessed the impairment by combining the restriction of the right hip flexion with the right abduction impairment contrary to cl 6.85 of the Guidelines.
113.	The range of motion measured by Assessor Cameron in the claimant’s hip and knee was greater than that found by Dr Dryson during his examination nearly two years ago. This is to be expected and reflects this young person’s continued excellent recovery from a very serious accident.
Right femur – shaft fracture
114.	There is a 1.5cm limb length discrepancy from the left leg due to this fracture. With reference to Table 35, page 3/75 AMA4 this is assessed at 0% WPI.
115.	The Panel also notes that the radiology refers to a possible healed right inferior pubic ramus pelvic fracture. Table 64 in AMA4 provides 0% WPI for undisplaced, non-articular and healed pelvic fractures. 
116.	A zero impairment does not mean that the claimant did not sustain an injury, or that the injury was insignificant, or that the claimant is not experiencing continued symptoms as a result of the injury. The Panel notes that the claimant’s fractures have been expertly and appropriately treated and, as a result, there is limited permanent impairment resulting from them calculated in accordance with the AMA4 Guides and the Guidelines.
Right upper extremity 
117.	Hand - there is reduced range of movement at multiple joints as a result of these injuries as follows:
(a)	right thumb:
(i)	interphalangeal joint flexed from 0 extension to 40 flexion resulting in 3% thumb impairment (figure 10 page 3/26 AMA4);
(ii)	metacarpophalangeal joint measured from +10 extension to 40 degrees in flexion resulting in 2% thumb impairment (figure 13 page 3/27 AMA4);
(iii)	lack of adduction of 1cm results in 0% thumb impairment (table 5 AMA4), and
(iv)	the thumb impairments are added to give 5% thumb impairment which converts to 2% hand impairment and this converts to 2% UEI.
(b)	right middle finger metacarpophalangeal joint movements from +20 (extension) to 90 degrees (flexion) which is assessed at 0% (figure 23 page 3/34 AMA4). 
118.	Right wrist – Mr O’Byrne does have restricted movement at his right wrist which is caused by the motor vehicle accident in view of the multiple fractures to the right hand. Both soft tissue trauma at the time of the motor accident and subsequent immobilisation would also have contributed to the restriction in movement.  The restriction of motion method of assessment results in the following:
(a)	extension 60 degrees – 0%;
(b)	flexion 50 degrees - 2% UEI;
(c)	ulnar deviation 40 degrees – 0%, and
(d)	radial deviation 20 degrees – 0%.
119.	The claimant alleges impairment to his grip and says that he regularly drops things. The Panel notes that cl 6.67 of the Guidelines does not permit impairment assessment based on strength evaluations and table 34 of AMA4.
120.	Right shoulder - the Panel has accepted the claimant’s complaints of pain and restriction of movement in the right shoulder as accident related but notes that the right shoulder that was not listed by the parties as an injury to be assessed. 
121.	The range of motion method of assessment is appropriate for a soft tissue shoulder injury and Assessor Cameron recorded the following at the examination:
(a)	flexion 160 degrees (20 degree restriction in movement – 1% UEI); 
(b)	extension 50 degrees (normal range); 
(c)	abduction 180 degrees (normal range);
(d)	adduction 50 degrees (normal range);
(e)	external rotation 80 degrees (10 degree restriction in movement – 0% UEI), and 
(f)	internal rotation 80 degrees (10 degree restriction in motion – 0% EUI).
122.	Because the outcome of the impairment assessment with that soft tissue injury included remains below 10%, the Panel has included the injury and its impairment for completeness. 
123.	The claimant’s impairment of 2% (hand), 2% (wrist) and 1% (shoulder) are combined to give a total 5% UEI which converts to 3% WPI in accordance with Table 3 AMA4.
Right knee – soft tissue injury
124.	Again, the Panel notes that the claimant has made an excellent recovery from his leg injuries and in particular his knee injury. 
125.	With reference to Table 41, page 3/78 AMA4, with 120 degrees of flexion in the knee, 
Mr O’Byrne’s restriction of movement from what would be expected does not attract an impairment of greater than 0%.
Multiple body regions – scarring
126.	Mr O’Byrne has sustained primarily surgical scarring as a result of this accident. The scarring of the multiple areas of his body is assessed with reference to the skin overall and hence all accident-related scarring of the right leg and right wrist / hand is considered together. 
127.	The AMA4 Guides provide in chapter 13 for the assessment of injuries to the skin. Table 2 identifies five classes of impairment ranging from class 1 which attracts a WPI of between 0 – 9% and class 5 which attracts a WPI of between 85 and 95%.
128.	It is the Panel’s view that the claimant’s scarring falls within class 1 because while there are scars present, they do not limit the claimant’s activities and there is no treatment currently being provided.
129.	Because class 1 contains a relatively wide range of percentage impairments, the Guidelines provide at table 6.18 for the TEMSKI which is a method of determining minor skin impairments. There are 10 criteria to be applied and a rating is given to each in order to obtain the “best fit”.  In Mr O’Byrne’s case the ratings were:
TEMSKI CRITERIA as per the table	Relevant Evidence from The claimant and your Examination 	Rating	
Consciousness	The claimant is well aware of the scars	2	
Colour Match	There is mild colour contrast for all of the scars	2	
Ability to locate	The claimant is easily able to locate the scars	2	
Trophic changes	There are no visible trophic changes	0	
Visibility of staple or suture marks	Suture marks are visible (although now faint)	2	
Anatomical location	The scars are visible with usual clothing	2	
Contour defect	There are contour defects, and they are visible	2	
Effect on any activities of daily living	There is no effect on activities of daily living, the claimant is able to work and socialise.	0	
Treatment	There is no treatment at present for the scars	0	
Adherence	There is no adherence of the scars to underlying bodily structures	0	
130.	It is the Panel’s view that the “best fit” is a 2% whole person impairment. While Assessor Gorman gave a 3% rating, it is the medical members of the Panel’s clinical judgment that the scars have improved over time in particular the suture marks which are now quite faint.
Erectile dysfunction
131.	Mr O’Byrne reports erectile dysfunction following the accident which has been successfully treated with medication. Clause 6.175 of the Guidelines states “sexual dysfunction is assessed as an impairment only if there is an associated objective neurological impairment”. This is not the case for Mr O’Byrne and hence there is no assessable impairment related to this injury.
conclusion
132.	Thus, in total, there is a 9% WPI made up as follows:
(a)	right leg (including hip and pelvis) – 4%;
(b)	right arm (including, digits, hand, wrist and shoulder) – 3%, and
(c)	scarring – 2%.
133.	It follows therefore that the certificate of Assessor Gorman must be set aside, and a fresh certificate issued.