Plaintiff v First Defendant

Plaintiff v First Defendant - [2019] VSC 84 - VSC 2019 case summary — Zoe

[49]

(d) Does a hemiparesis, caused by a stroke and with no active movement of the ankle or foot, impact upon the assessment of impairment of the affected ankle and foot? If yes, in what way does a stroke impact upon the assessment of impairment of the affected ankle and foot?

Yes. If one is assessing impairment of the ankle and hindfoot based on the AMA Fourth Edition Guidelines and using the range of motion model, then one is dependent on a patient having the ability to actively move the ankle and hindfoot joints. If they have had a stroke that has led to musculoskeletal weakness, spasticity, deformity etc, then assessing impairment of an injury separate to a stroke would be extraordinarily difficult using the range of motion model.

(e) Is the assessment of impairment of the foot and ankle undertaken pursuant to section 3.2e at page 77 of [the Guides], being the range of motion method, significantly affected by a hemiparesis where there is no active movement of the foot or ankle consequent to a stroke?

Yes. As outlined above.

(f) Is the assessment of impairment of an ankle and foot, in a person with a hemiparesis who has no active movement of the foot or ankle consequent to a stroke, most appropriately undertaken by applying:

(i) section 3.2i, the Diagnosis-Based Estimates assessment method at page 84, and Table 64 of the Guides? or

(ii) section 3.2e, the range of motion method, at page 77 of the Guides? or

(iii) section 3.2f, the joint ankyloses method, at page 79 of the Guides? or

(iv) other, and if so what, section of the Guides?

This is a very difficult question to answer. If one takes the type of ankle fracture that [the defendant] sustained, i.e. a standard closed Weber C fracture, then one would have expected following recovery for him to have had some mild restriction of range of motion, i.e. dorsiflexion and plantar flexion of the ankle joints. One would have expected him to have noted in time some intermittent ankle pain in relation to impact physical activity, prolonged walking and standing etc. The observation or development of flattening of the foot and valgus deformity at the midfoot three months or so post injury is very unusual. Very rarely in association with an ankle fracture, a rupture of the tibialis posterior tendon can occur. If this occurred and was not diagnosed, then in ·time planovalgus, i.e. valgus and flat foot deformity can occur. Investigation of [the defendant] showed that tibialis posterior tendon was intact. Minor tendinopathy at its insertion would be extraordinarily common in a patient of his age. A stroke resulting in a significant hemiparesis throws a large spanner in the works in relation to assessment of range of motion of the ankle joint and hindfoot. In time, in relation to a stroke consequent upon weakness and spasticity, fixed deformity can occur. There is no satisfactory classification in the Guides to allow assessment of impairment in this regard.

(g) In the absence of joint ankylosis, is the application of section 3.2f, the joint ankyloses method, at page 79 of the Guides appropriate in determining impairment?

In my view, [the defendant] did not develop ankylosis of the ankle joint, hindfoot etc consequent upon his ankle injury. I do not believe that one could use ankylosis as a satisfactory measurement of impairment etc in [the defendant's] case.

[54]

I accept that I have the advantage of reading the Medical Panel report in an ivory tower position. I do have to admit however that I am confused by various aspects of the report. In relation to physical examination, it is outlined that there was a fixed fifteen degree varus deformity of the hindfoot. By fixed, this usually refers to a situation where the deformity is incorrigible, i.e. cannot be changed. It is then stated that the so called fixed deformity could be corrected by ten degrees. It is stated that eversion could not be measured because the foot was in varus. It was noted however that the foot was held in eversion, i.e. the opposite to varus. It is stated that [the defendant] has severe dysfunction of the right tibialis posterior tendon. It is stated on investigation that the tendon is intact and at most there is mild degeneration towards its insertion. I cannot reconcile these two statements.

It is stated that [the defendant] sustained fractures of the distal tibia and fibula. This is not the case. He sustained a so called Weber C type injury that involved disruption of the medial ligament, capsule of the ankle joint, inferior tibiofibular joint and fibula. There was no fracture of the distal tibia. It is stated that his fracture of the distal tibia and fibula resulted in avascular necrosis of the talus. In over thirty years of orthopaedic practice, I have never seen a situation where it has been suggested that a fracture of the ankle has resulted in avascular necrosis of the talus. I accept that one should never say never and never say always.

There is no doubt that trying to assess impairment in relation to a fractured ankle whereby a patient subsequently suffers a stroke resulting in a dense paresis is very difficult. [The defendant] sustained what would be considered a standard Weber C type fracture. Around three months later, it was noted that there was developing planovalgus deformity of the hindfoot and foot regions. The cause of this in my view is unclear. Any potential relationship of this condition to the injury and the fracture of the ankle is unclear.

[57]

I would readily accept that a legal practitioner might note that medical practitioners often talk in jargon, unintelligible abbreviations and forked tongues. This Medical Practitioner admits that he cannot understand the flow, logic, reasoning of the latter part of the Medical Panel opinion. The Panel seems to be saying that they have decided on an impairment rating in relation to [the defendant's] right ankle. They provide no figures, calculations etc. They discuss pre-existing impairment or impairment relating to other conditions post injury. The commentary is vague and justified by references to various judgements, appeals etc. They sign off by saying that they do not have to give any further explanation or detailed reasons. They also comment that they do not have to give any opinion in relation to whether or not impairment relates to the alleged injury. I am confused. Why bother having an assessment by a Medical Panel if that Panel does not have to comment on whether or not the claimed impairment relates to the injuries sustained, how they evaluated the level of impairment and how they took into account pre-existing or unrelated medical conditions.

As I have previously noted, [the defendant] sustained a Weber type C fracture of his right ankle in June of 2014. He underwent appropriate treatment in this regard. Several months later it was noted that [the defendant] had developed a planovalgus (flat foot) condition of the mid foot region. It is unclear as to why this occurred. In August of 2015 [the defendant] had a stroke that resulted in a right hemiparesis. X-rays three and a half years following the right ankle fracture show in my view no evidence of osteoarthritic change. They show a healed fracture. There is no evidence of avascular necrosis affecting the talus. It is unclear to me as to the relationship of the tibia-os calcus angle in terms of assessing impairment in relation a Weber C type fracture. You have pointed out that the Medical Panel has a requirement to undertake an impairment assessment pursuant to the Fourth Edition of the AMA Guides. Clearly I am not aware of the various Acts as outlined in the Medical Panel reports. In such a difficult situation, I believe that it would be beneficial for a Medical Panel to acknowledge the complexity of the case, impairment assessment etc. Explaining from a medical point of view that how they arrived at a certain impairment value would again be helpful. It would also allow others to conclude whether or not that assessment was reasonable and had taken into account the complexities of the case.

[88]

In order for a medical panel to assess impairment 'in accordance with the [Guides]' as required by s 91 of the [Accident Compensation] Act, it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.

Some provisions of the Guides, including some tables, provide alternative methodologies or set out ranges, and require the exercise of professional judgment in selecting the most appropriate methodology or in determining where in the range the relevant condition or body part falls. However, the Guides does not permit the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out. Once a particular methodology or table is selected, its requirements, including any limitations, must be applied in the manner set out by the Guides even if the outcome may appear sub-optimal. This is so because the role conferred by the [Accident Compensation] Act on a panel is not to arrive at a correct or fair assessment, but rather to arrive at an assessment that is the product of the application of the Guides.

The Guides itself makes it clear that the protocols and methodologies it sets out are intended to be standardised processes which produce similar outcomes irrespective of who conducts the assessment. In particular, the statement in s 1.2 of the Guides ... highlights that in order for an assessment to be in accordance with the Guides, the Panel must follow the protocols and tables in the Guides.[53]

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