Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act)

1. The Review Panel revokes the certificate of Medical Assessor Neil Berry dated

3 October 2023 and issues a new certificate determining that the following injuries were caused by the motor vehicle accident and give rise to a whole person impairment of 7% which is not greater than 10%: * ruptured spleen requiring splenectomy - 3%, and * abdomen - upper digestive tract disease involving superior mesenteric artery false aneurysm requiring stenting and causing ongoing upper gastro intestinal tract (GIT) symptoms - 4%.

1. Mark Wharram (the claimant) is a 63-year-old man who was injured in a motor vehicle accident on 28 October 2016. He sustained significant musculoskeletal injuries and was admitted to Wollongong Hospital by ambulance. He was found to have multiple left sided rib fractures, Grade 5 splenic rupture.
2. The parties did not agree in respect to whether or not the claimant's injuries exceeded 10% whole person impairment (WPI) and, accordingly, he was examined by the Medical Assessment Service in respect to the injuries he sustained. Of relevance to the Review Panel (Panel) proceedings he was examined by Medical Assessor Neil Berry on

29 September 2023 who, in a certificate dated 3 October 2023 determined that the claimant underwent a splenectomy and sustained 0% WPI. 3. The claimant has been assessed by seven medical assessors from the Personal Injury Commission (Commission). What is relevant to this panel's deliberations is that the parties have not agreed that the claimant injuries exceeded 10% WPI. The certificate of Medical Assessor Neil Berry dated 29 September 2023 certified that the claimant had sustained 0% WPI as a consequence of the injuries referred to him for assessment. It is only this certificate which is the subject of this medical Panel deliberation. 4. The claimant sought a review on this assessment and submitted that the assessment of the splenectomy was incorrect as the assessment did not take into account the sequelae of the splenectomy including requirement for prolonged anticoagulation consequent on splenic vein thrombosis. 5. Additionally, the claimant submitted that the epigastric pain he suffered in 2002 which resulted in surgical procedures in August, September and October 2022 was a consequence of the injuries he sustained in the accident. That is, the stent being inserted to address a superior mesenteric artery false aneurysm was a consequence of the motor vehicle accident and accordingly needed to be assessed and considered when WPI. 6. Whilst the insurer opposed any referral to a panel for further consideration the President's delegate, Catherine Freeman, in a certificate dated 15 February 2024, certified that Medical Assessor Berry erred in his assessment of impairment arising from the claimant's splenectomy and accordingly she was satisfied that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect. Accordingly, the matter was referred to this Panel. 7. The Panel met and considered the matter and noted that there was significant material which was required including all the material which was before Medical Assessor Berry. Additionally, the Panel determined that there was a requirement to examine the claimant to confirm the chronology and history of the injuries, physical examination and treatment of the claimant. 8. This material was uploaded to the portal for the Panel to review. 9. 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. 10. 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 Commission. 11. 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. 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 matter solely based on the written application. 13. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.

1. 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.
2. Section 58 and s 60 of the MAC Act together with cls 1.5-1.7 of the Motor Accident Guidelines (Guidelines) set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
3. The claimant was due to be examined by Medical Assessor John Garvey on 17 June 2024 but was unable to attend at this time. The examination was re-scheduled to 28 October 2024.

1. The following injuries, as listed in the referral letter from the Commission, were assessed:
   • abdomen-ruptured spleen-trauma laparotomy;

• upper digestive tract, and
• lower digestive tract.

• Date of examination: October 28, 2024
• Age at examination: 63 years of age
• Hand dominance: Right
• Details of who attended the examination: Mr Mark WHARRAM attended with his partner Christine
• Date of injury: October 28, 2016
• Employer and occupation: Laminex Product, 130 Sharps Rd, Tullamarine as a Truck Driver
• Present treatment: The Claimant said that he is not receiving any treatment at the moment because he is being treated for leukaemia and all other medications needed to be ceased.
• Present symptoms: Stomach pain all the time requiring Endone. With respect to his stomach, he said his diet has changed and he cannot eat certain things because they cause diarrhoea. The Claimant said that he needs to be near a toilet when he has got to go
• General health: 'S..t'.
• Family history: Nil relevant
• Work history including previous work history if relevant: The Claimant has been working as a truck driver for Laminex Products for 17 years. Previously he undertook security work at Melbourne Airport for 10-15 years
• Social activities: Partnered relationship with Christine for about 13 years. One child aged 22 years. Quit smoking cigarettes 2 years ago. Has not drunk alcohol since the accident. Takes no recreational drugs
• ADLs:
• Dressing: Finds it hard to dress himself and cannot put on his shoes
• Bathing and self-hygiene: Finds it hard to bathe himself and cannot do his back
• Toileting: Yes, with effort
• Mobility/transportation: Can walk 100 m; can drive a car no problems
• Feeding and preparing meals: Wife does that
• Domestic duties including washing and hanging clothes: ; vacuuming: ; making/changing beds: ; mopping floor: ; cleaning bathroom: All no
• Grocery shopping: Helps with the trolley with his wife
• Stair climbing: He experiences pain in the back
• Gardening/home maintenance: No
• Sport: No
• Hobbies: Likes watching car racing and football on TV. Does not use social media"

1. Upper gastrointestinal symptoms consist of uncomfortable pain in his upper stomach. Lower digestive system symptoms include going to the toilet in three stages. The first stage is hard, the second stage is soft and the third stage is liquid. He mainly suffers from constipation every couple of days or a couple of times a week and he has been taking Metamucil since 2016 and believes he has had a gastroscopy and colonoscopy by Dr Connolly in 2017/2018 and a second one at St Aubin's Endoscopy Centre.
2. The Panel first considered the causation of the gastrointestinal injuries and agreed that there had been both upper and lower gastrointestinal injuries.
3. There was clearly a serious injury to the spleen resulting in splenectomy. Medical Assessor Berry had determined 0% WPI for this impairment using example 2 on page 7/205 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Edition (AMA4 Guides). It was noted that other assessors, in particular Dr Conrad had assessed 10% WPI, noting "With regards to the Splenectomy, on Table 7-4, 7-5, he is a Class 1 Impairment, giving a 10% whole person impairment." However, the Panel noted that the Guidelines prescribe 3%WPI for splenectomy and the example provided of Class 1 impairment on AMA4 page 205 assesses 0%WPI for "status post splenectomy for splenic rupture."
4. The next issue was whether or not the superior mesenteric artery stenosis had resulted from the subject accident. This was raised by the claimant in the review application, where they stated that the Medical Assessor:

"...despite making reference to the Claimant experiencing episodes of acute abdominal pain in 2022 resulting in eventual stent placement, made no reference to the causative relationship to the subject injury in his ultimate findings nor the link between that condition and his abdominal complaints as outlined by Dr Conrad."

1. Dr Peter Conrad had examined the claimant on 5 May 2023 and obtained a history of the claimant developing increasingly severe abdominal pain throughout 2022, ultimately resulting in a stent being inserted to address a superior mesenteric artery aneurysm. He opined that "In my view, there is no doubt that the dissecting aneurysm was a direct result of the abdominal trauma and the thrombotic episodes consequent on his splenectomy and splenic vein thrombosis." And as a consequence suffered abdominal symptoms in the form of abdominal pain and faecal incontinence for which he was taking a number of medications.

Dr Conrad gave no impairment rating for these symptoms. However, in a supplementary report, in response to an email from the claimant's representative had suggested additional impairment. 2. The Panel noted there was an entry in the Vascular Outpatients Clinic notes by Dr Timothy Wagner who stated_:_

"Subsequent enlarging SMA false aneurysm, treated recently. Last follow-up appointment with Noel Atkinson., patient says that Noel told him that the false aneurysm was a result of the MVA. ........CTA (computed tomography angiography) 26/1/2023 Stent patent, though tapered distally. Discussion: I explained to Mark that we have had a prior consultation last year. He did not recall. and did not get a copy of my letter he says. Although at the time I suggested that fibromuscular dysplasia or other conditions might be responsible for the aneurysm, I agree the history of major abdominal trauma is certainly a compelling explanation, and the lesion itself fits well with a traumatic cause."

1. The Panel also considered the opinion of Dr Philip Truskett who on 30 April 2023 had opined;

"....if superior mesenteric artery stenosis was diagnosed in February 2022, it is most unlikely that this relates to his motor vehicle accident of 21 May 2019 [sic]. Such an injury would have been immediately apparent."

1. Medical Assessor Berry had noted "A laparotomy showed no evidence of any damage to any other structure and the claimant's post-operative symptoms are consistent with irritable bowel syndrome."
2. The Panel noted that blunt abdominal trauma predisposing to a dissecting aneurysm and subsequent superior mesenteric artery thrombosis of the over such a long period as six years was very unlikely. Furthermore, aside from trauma there were numerous possible risk factors for the development of mesenteric artery aneurysm including male gender, age over 65 years, family history, smoking history, hypertension, hypercholesterolemia, atherosclerosis and connective tissue disorder.
3. Nevertheless, they did not regard this as being impossible as the shearing forces arising from such an accident could potentially result in intimal tears resulting in aneurysmal dilatation and over time result in a dissecting aneurysm. Such an aneurysm could impact blood flow leading over time to mesenteric ischaemia and gastrointestinal symptoms.
4. The Panel proceeded to assess the matter further with a re-examination by Medical Assessor Garvey. This was in order to better understand the gastrointestinal complaints arising from the subject accident, with particular reference to the symptoms raised by the claimant as mentioned by Dr Conrad (consequential to the mesenteric artery ischaemia) as opposed to Medical Assessor Berry (who had concluded a diagnosis of irritable bowel syndrome).

1. Medical Assessor Garvey had recorded upper gastrointestinal symptoms as consisting of "uncomfortable pain in his upper stomach". The claimant had a gastroscopy performed on

8 March 2022, and apart from mild erythematous gastritis there were no other abnormalities identified. 2. In reference to the superior mesenteric artery false aneurysm requiring stenting of the superior mesenteric artery:

"This Claimant does not suffer from an overt ischaemic bowel but there are symptoms and signs of ongoing gastrointestinal impairment which include chronic abdominal pain and tenderness, from which this Claimant suffers. The Claimant has multiple gastro-intestinal symptoms such as dietary changes, abdominal pain and changes in bowel habit which may be indicative of chronic mesenteric ischaemia, but they do not appear to be impacting on his nutritional status."

1. Given there were intermittent symptoms (which the panel felt could well relate to ongoing mesenteric ischaemia) and use of fibre supplement and no other dietary restrictions and nutritional status was maintained, his symptoms fitted with the criteria for Class 1 impairment in reference to Chapter 10, p 239, Table 2, AMA4 Guides. The range for Class 1 is between 0% and 9% WPI.
2. The Panel were of the view that, based on the history and symptoms and signs present at re-examination impairment in excess of the 0% awarded by Medical Assessor Berry was reasonable and therefore 4% WPI was assigned.

1. Medical Assessor Garvey recorded lower digestive system symptoms as consisting of;

"..going to the toilet in 3 stages. The 1st stage is hard, the 2nd stage is soft and the 3rd stage is liquid. He mainly suffers from constipation every couple of days or a couple of times a week and he has been taking Metamucil since 2016 ...."

1. In accordance with s 1.248, page 56 of the Guidelines Version 9.3, the assessment of constipation alone results in 0% WPI.

1. Paragraph 1.241, page 55 of the AMA4 Guides state that "Splenectomy is covered in this chapter (page 205). An injured person with post-traumatic splenectomy must be assessed as having 3% WPI. "Whilst the Panel noted Medical Assessor Garvey's findings in relation to sensory impairment, they noted that Para 1.24 under the heading "Impairments not covered by these Guidelines and the AMA4 Guides" state that "A condition may present that is not covered in these Guidelines or the AMA4 Guides....". However the condition of splenectomy and any sequelae is quite specifically prescribed in the Guidelines, therefore any further assessment by analogy is inappropriate.

1. The claimant has difficulty dressing himself and cannot put on his shoes. He finds difficulties bathing himself and has difficulties toileting. He can walk 100m and has no difficulties driving a car.
2. He does not attend to the preparation of meals or domestic duties. He can assist his wife shopping. He has pain climbing stairs and does not undertake any gardening or high maintenance or sporting activities.

1. The claimant said that in 2013 he went to the USA to buy his first Harley Davidson in Albuquerque and rode across the USA in two months. He returned to Australia with this bike and joined a motorcycle club which goes out riding on the weekends for social days out and weekend trips. In 2016 there was a motorcycle group rally on the foreshore of Wollongong so he drove up with four mates on his bike. They had just filled up their bikes with petrol and were going up the Illawarra Highway and he paused to adjust his gloves, so he went up the highway by himself after adjusting his gloves. He was unsure of the road but his mates waited for him at the top of the hill. As he proceeded up the hill and around a bend, a sand and cement B-double truck was coming down and looked like it was speeding and the rear trailer came onto his lane and he does not remember much after that. His bike was lying in the middle of the road and two of his mates came back to look after him and the other two mates did traffic control. An old lady who lives near the road came out with a blanket and an umbrella to try and cover him and the ambulance came and took him to Wollongong Hospital where he spent a week in Intensive Care Unit diagnosed with six to eight fractured ribs. Then he was taken for emergency surgery to have his spleen removed and he was taken back to Intensive Care Unit for another week. After the operation he suffered a clot in his splenic vein and Staph infection in his wound both of which resolved.

History of symptoms and treatment following the motor accident

1. After a couple of months in Wollongong Hospital, he was taken by plane to Melbourne and he lived with Christine for three or four weeks and his mother came from Adelaide and his bike was fixed and he returned to normal. He had to return to work because he got behind on his mortgage
2. After he returned to Melbourne, he was not feeling well with stomach pain and he had a gastroenterologist consultation and dieticians' consultation and three to four admissions to Royal Melbourne Hospital. On an MRI scan it was found that he had a tear in the superior mesenteric artery and there was a bubble of blood which required stenting in 2022. This helped with the severity of his abdominal pain and he had an endoscopy. The superior mesenteric artery symptoms have settled and scans have shown that the superior mesenteric artery stent is tapered but intact.

Details of any relevant injuries or conditions sustained since the motor accident

1. It is noted the claimant is currently being treated for leukemia. Other than this he suffered another motorbike injury in about January 2023 when he was having a weekend away with his motorcycle club and it was the first time on his bike since the 2016 injury. Forty or fifty riders travelled to Bright at the foot of the Victorian Alps. He was riding towards the tail end of the convoy and he came around a corner and got a flashback to the 2016 injury and he lost concentration and his bike hit a guardrail and he fell onto the ground and he suffered four fractured ribs this time on the right side. He was transferred by air to Royal Melbourne Hospital and spent about two weeks at Royal Melbourne Hospital
2. In 2024 he was at work and clocking on and he slipped on a Texta pen and suffered an injury and was taken to Royal Melbourne Hospital and was diagnosed with a 20cm clot in his left leg for which he cannot be treated because he is undergoing treatment for acute myeloid leukaemia.

1. Inspection: there was no cachexia, pallor of anaemia or jaundice. There was no clubbing of the fingers or liver palms. There were no spider naevi or stigmata of liver disease on the chest. There were no Caput Medusae (distended veins in chest or abdomen). The abdomen was symmetrical and obese in shape. There were no abdominal masses visible or discolouration. There was a 26 cm umbilical-sparing laparotomy incision but no sinuses or fistulas and the umbilicus was otherwise normal. There was a supra umbilical divarication of the rectus muscles measuring 8 x 6 cm, but no sign of an incisional hernia
2. Palpation: there were no enlarged lymph glands palpable in the neck, axilla or groin regions. The supraclavicular fossae were normal, the external potential hernia orifices were closed, the femoral pulses were palpable and the external genitalia were normal. Light palpation was normal. Moderate palpation of the abdomen revealed tenderness in the left mid zone. There was no muscular guarding and no rebound tenderness or crossed rebound tenderness. The liver was not palpable, nor was the spleen and the kidneys were not ballotable. There were no abdominal masses palpable.
3. Testing his conjoint tendons by resisted sit-up was normal on each side. His Carnett's test for abdominal wall pain could not be tested on either side because of back pain.
4. There was hypoesthesia in the anterior cutaneous nerve supply from T4-T9 on the right and from T6-T11 on the left the result of his emergency laparotomy incision
5. Percussion: the percussion note was resonant and there was no fluid thrill and no shifting dullness.
6. Auscultation: on auscultation the bowel sounds were normal and there was no aortic bruit and no gastric splash. Rectal inspection (only) was normal and there were no fissures, fistulas or haemorrhoids and no blood. The weight was 115.5 kg and height 182 cm (BMI 34.9). The waist circumference was 128 cm. I showed the Claimant Bristol Stool Chart: and he chose numbers 1Separate hard lumps, like nuts (hard to pass), 4("Like a sausage or snake, smooth and soft") and 7("Watery, no solid pieces. Entirely Liquid") simultaneously at 1 evacuation

Findings on clinical examination and consistency of presentation

1. The claimant's presentation was consistent with the history and examination obtained

1. Relevant imaging studies and other investigations:
   • 31 October 2016, CT scan Wollongong Hospital;
   • Peri splenic haematoma which is extensive;
   • 13 May 2017, post-operative CT scan Wollongong Hospital;
   • No complication after splenectomy;
   • 18 August 2019, Medical Assessor Cameron's MAC did not assess the spleen;
   • 22 February 2022, CT angiogram Royal Melbourne Hospital, and
   • possible dissection of superior mesenteric artery.

1. Operation report 4 November 2016- laparotomy and splenectomy and no other visceral injury was found
2. 17 March 2017 Dr Kenneth Brearley- assessed splenectomy at 10% WPI combined with 2% WPI for scarring. One assumes that the 10% includes splenic vein thrombosis and need for permanent anticoagulation and antibiotics which is not consistent with the methodology in the SIRA or AMA4 Guides.
3. 8 June 2017 Dr Yong- assessed 10% WPI for splenectomy on the basis of portal vein thrombosis, daily anticoagulant treatment, regular vaccinations.
4. 20 November 2018 Dr Peter Conrad - assessed 10% WPI for splenectomy and 2% WPI for scarring. Dr Conrad has probably included splenic vein thrombosis, dissecting aneurysm of the superior mesenteric artery and faecal incontinence as consequences of the operation for splenectomy. He also awards 9% WPI using Table 2, Page 239 of AMA4 Guides for upper digestive tract impairment.
5. 23 July 23 2019 Dr Grant Walker consultant neurologist- awarded 10% WPI for splenectomy based on "symptoms or signs of leukocyte abnormality" which he does not appear to have**,** but opted for a midrange impairment because of the need for to take antibiotics, combined with 2% for scarring.
6. 2 August 2019 Dr Kumar - awarded 3% WPI for splenectomy using the correct references.
7. 8 March 2022 gastroscopy report Dr Daniel Schneider Royal Melbourne Hospital -oesophagus normal. Z line at 41 cm Mild erythematous gastritis in the antrum and biopsies taken of gastric body and antrum (no biopsies have been tendered for examination).
8. 3 April 2023 Dr Philip Truskett - assessed at 3% WPI for splenectomy and 1% for scarring.
9. Surgeon Dr Neil Berry in his report of 3 October 2023 - assessed 0% WPI for upper and lower system (IBS) and splenectomy using AMA4 Guides, page 205 class I. The claimant should be assessed by the SIRA guides as 3% WPI for splenectomy using the SIRA guides.
10. **10 October 2023 Medical Assessor Alan Home -**provided an excellent MAC but did not assess the spleen.

1. The diagnosis is motorbike incident causing blunt abdominal trauma and ruptured spleen (grade 5) requiring emergency splenectomy.
2. The Panel noted that as a consequence of the trauma laparotomy, the claimant suffers from a reduced sensation to pinprick testing of the anterior abdominal cutaneous nerves. The majority determination of the Panel is that such neuralgia is not separately assessable. The majority note its Guidelines that cl 1 .241 of the Guidelines is emphatic in that it states an injured person with a post-traumatic splenectomy must be assessed as having 3% WPI. The majority Panel accepts the insurer's submission that any further assessment of impairment is contraindicated by the guidelines and would be attributing a further impairment, beyond the 3% which follows from a post-traumatic splenectomy of the same injury.
3. The majority Panel determination is that the claimant sustained a superior mesenteric artery false aneurysm requiring stenting of the superior mesenteric artery which is assessed at 4% WPI under the vascular Table 13 (6/197) by analogy. The AMA 4 Guides provides a framework for assessing vascular disorders but this mainly focuses on systemic and peripheral vascular conditions. Given the unique involvement of the superior mesenteric artery, assessment by analogy (cl 1.24, page 9 SIRA guides) is adapted focusing on symptoms and signs of functional impairment. This claimant does not suffer from an overt ischaemic bowel but there are symptoms and signs of ongoing gastrointestinal impairment which include chronic abdominal pain and tenderness, from which this claimant suffers. The claimant has multiple gastro-intestinal symptoms such as dietary changes, abdominal pain and changes in bowel habit which may be indicative of chronic mesenteric ischaemia, but they do not appear to be impacting on his nutritional status.
4. The Panel notes that the injuries listed by the parties include thrombosis, blood clot, and incisional hernia.

Summary of injuries listed by the parties and caused by the accident

1. The following injuries WERE caused by the motor accident:
   • ruptured spleen requiring splenectomy;
   • splenic vein thrombosis has resolved on anticoagulation;
   • superior mesenteric artery false aneurysm requiring stenting, and
   • two broken ribs (7th and 8th) on the left side (no residual impairment).

1. Permanent impairment is defined in the AMA4 Guides (p 315) as follows:

"Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.

A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment."

1. The spleen has been removed and that is permanent and irreversible
2. The superior mesenteric artery stent is permanent to prevent rupture of the superior mesenteric artery.

1. The determination as to permanent impairment is made in accordance with the AMA4 Guides and the Guidelines:

Section 7.4, page 7/205; Clause 1.241, page 55 SIRA guides

There is no indication to apportion WPI between any previous or subsequent conditions

B Pre-existing/subsequent % permanent impairment 0%