AAI Limited t/as AAMI v Tassone
[2025] NSWPICMP 397
•5 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as AAMI v Tassone [2025] NSWPICMP 397 |
CLAIMANT: | Zac Tassone |
INSURER: | Insurance Australia Limited trading as NRMA |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Mohammed Assem |
DATE OF DECISION: | 5 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant was injured in a motor vehicle accident; Medical Assessor (MA) issued a certificate assessing 12% whole person impairment (WPI); a medical dispute arose as to total WPI; insurer sought a review of the MAC under section 7.26; Review Panel conducted an examination and considered the factors contributing to the injury according to clause 6.6 of the Motor Accident Guidelines; MAC revoked; Review Panel substituted the determination that the claimant sustained WPI of 11%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Drew Dixon, dated 10 May 2024, and substitutes the determination that the claimant did establish that he, as a result of the accident, sustained whole person impairment (WPI) in excess of 10%. The Review Panel found an 11% WPI due to the injuries sustained in the subject motor vehicle accident. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Zac Tassone (Mr Tassone), was injured in a motor vehicle accident (the accident) on 16 January 2022.
The Insurer (NRMA) seeks a review of the certificate of Medical Assessor Drew Dixon (the Medical Assessor) dated 10 May 2024.
The Medical Assessor determined that the following injuries had been caused by the motor vehicle accident (the Accident) and gave rise to a permanent whole person impairment (WPI) of 12%:
• left wrist – distal radius fracture and transverse ulnar styloid fracture requiring open reduction and internal fixation surgery/sensory loss in the distribution of the palmar cutaneous branch of the left median nerve;
• left wrist – surgical scarring;
• right knee – residual scarring;
• left knee – residual scarring;
• left knee – soft tissue injury, and
• right knee – soft tissue injury.
The following injuries were referred to the Medical Assessor for assessment:
[2.1] “Left wrist – distal radius fracture and transverse ulnar styloid fracture requiring open reduction and internal fixation surgery/sensory loss in the distribution of the palmar cutaneous branch of the left median nerve
[2.2] Left wrist – surgical scarring
[2.3] Right knee – residual scarring
[2.4] Left knee – residual scarring
[2.5] Left knee – soft tissue injury
[2.6] Right knee – soft tissue injury”
The Accident
The Medical Review Panel (the Panel) took the following history of the Accident
“[9] On Sunday 16 January 2022 he was wearing protective equipment and a full face helmet riding along Sunnyholt Road, Blacktown approaching the intersection of Sorrento Drive. [Mr Tassone] wanted to move into the third lane of the traffic (the right hand turning lane) but as he did so, the front wheel of his bike was struck by a Nissan X Trail which came across from lane number 1, adjacent to the gutter. It crossed over three lanes of traffic, hitting the front wheel of his motorbike from the left hand side. He was thrown into the air and landed heavily on the ground, slid along the road and sustained abrasions to the left knee, lateral aspect of the left ankle and right knee and a fracture to his left wrist.”
THE MOTOR ACCIDENT GUIDELINES
The Motor Accident Guidelines (the Guidelines) identify the test for causation in cls 6.6 and 6.7.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation"; and
"scope of liability".
Assessing "factual causation" and "scope of liability" involves making value judgments.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues determined in Kinchela involved applying the definition of “minor injury” (now referred to as ‘threshold injury’) and involved a question of causation in respect of an amputated toe.
The discussion in Kinchela concerning the correct principles to apply relating to causation follows:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the “gait derangement”, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d)(of the Motor Accidents Compensation Act). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said:
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a ‘left posterolateral annular tear’ with ‘mild disc desiccation’ shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1)‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;
(2)‘a delamination may not fall within the definition of a tear’; and
(3)‘the defect may not be the source of his pain and disability’.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.”’
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
“... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1)a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2)a review of all relevant records available at the assessment;
(3)a comprehensive description of the injured person’s current symptoms;
(4)a careful and thorough physical examination; and
(5)diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1)Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2)the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3)Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgment’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question”.
ASSESSMENT UNDER REVIEW
Medical Assessor Dixon, in his certificate of 10 May 2024, took a history from Mr Tassone predating the Accident and his relevant personal details at [8]:
“[88] At the time of the subject motorbike accident [Mr Tassone] had set himself up in an IT consultancy business called Zectron Web Design Pty Ltd and was self-employed as the Managing Director. He provides assistance for clients designing web sites and provides software support. He was unable to return to work until December 2022 due to the injuries sustained in the subject motor vehicle accident. He lives in a granny flat but does have difficulty doing low cleaning such as cleaning the toilet and bathroom, difficulty with spring cleaning, dusting, cleaning windows and vacuuming. He has difficulty kneeling to do the garden and lawns and difficulty mowing, cleaning the car and returning to recreational activities such as camping, surfing, four wheel driving and playing guitar. He has employed a cleaner for heavy household cleaning chores. His past health includes Asperger’s syndrome diagnosed at the age of 12. He has a history of Vitamin D deficiency for which he takes supplements and has raised cholesterol which is being monitored. He has a history of depression and anxiety in April 2013 and has regular psychiatric review and has infrequent migraines which started in March 2016. He has a past history of mechanical low back pain for which he had physiotherapy and in June 2020 had blunt trauma to his head with a haematoma. He reports no previous injuries to his left wrist or either knee.”
Medical Assessor Dixon then took a history of symptoms and treatment following the Accident and he followed with Mr Tassone’s current symptoms at [12].
Medical Assessor Dixon then undertook a clinical examination at [14]-[17] of his certificate. The Panel sets out his findings below:
Elbow Movements
Active ROM measured RIGHT
Active ROM measured LEFT
Flexion
40°
40°
Extension
0°
0°
Pronation
80°
80°
Supination
80°
20°
Wrist Movements
Active ROM measured RIGHT
Active ROM measured LEFT
Flexion
60°
40°
Extension
60°
50°
Radial Deviation
20°
10°
Ulnar Deviation
30°
30°
Knee Movements
Active ROM measured RIGHT
Active ROM measured LEFT
Flexion
120°
120°
Extension
0°
0°
Ankle Movements
Active ROM measured RIGHT
Active ROM measured LEFT
Dorsiflexion
15°
15°
Plantarflexion
15°
25°
Medical Assessor Dixon then summarised the relevant documentation at [18] and the diagnostic investigations at [19].
Medical Assessor Dixon then set out his determinations at [20]:
“[20] The injury to the left wrist and both knees occurred in the subject motor vehicle accident when he was thrown from his motorbike and dragged down the road sustaining abrasions and a wrist fracture. Because of the nature of the injury when he was knocked off his bike and flew through the air and dragged along the road, he came down on his left wrist with considerable force, sustaining the comminuted fracture of the distal radius and transverse ulnar styloid fracture and has residual mild sensory loss in the distribution of the palmar cutaneous branch of the left median nerve. He has significant surgical scarring at the left wrist as described above and has significant scarring of both knees, more marked on the left where he had a deep abrasion to the knee and had residual scarring at his right knee, which was less marked. He had a soft tissue injury to his left knee with direct blow to his patella with retropatellar crepitus and similarly to the right knee, where he had a direct blow with post traumatic retropatellar crepitus, landing heavily on the road.”
With respect to causation and reasons, Medical Assessor Dixon at [21] noted that:-
“[21] As noted above, there were direct injuries to his left wrist when he fell onto the road after the subject motor vehicle accident, resulting in a fractured distal radius and ulna styloid and residual sensory loss at the thenar eminence. The surgical scarring from his ORIF of the radial fracture and the post traumatic scar of his knees (right more than left) are due to his direct trauma, as is the retropatellar crepitus of the left knee.”
As to causation, Medical Assessor Dixon thought that all of the injuries were caused by the Accident. As to the left wrist, he found: “distal radius fracture and transverse ulnar styloid fracture requiring open reduction and internal fixation surgery/sensory loss in the distribution of the palmar cutaneous branch of the left median nerve” and “surgical scarring”.
Medical Assessor Dixon also referred to surgical scarring at the left wrist, residual scarring to the right and left knees, and soft tissue injuries to the right and left knee.
Medical Assessor Dixon explained his methodology at [24]:
“[24] That for the post traumatic stiffness of the left wrist is from Pie Charts 26, 29 and 35, AMA IV, 9% upper extremity impairment. That for the superficial palmar branch of the median nerve with grade 4 out of 5 sensory loss is 20% of 7%, giving 1% UEI from Table 15, Page 54. Using by analogy the radial palmar digital branch of the thumb, this gives a total from the Combined Values Chart of 11% upper extremity impairment which equates to 6% whole person impairment. That for the retropatellar crepitus of the left knee following direct blow is from Table 62, Page 83, 2% whole person impairment. That for the retropatellar crepitus of his right knee follow direct blow is from the same Table, 2% whole person impairment. This gives a total from the Combined Values Chart of 12% whole person impairment. He has reached maximum medical improvement. There were no symptomatic pre-existing conditions.”
Medical Assessor Dixon set out the values in a table at page 11:
24.
Body Part or System
AMA4 Guides/ Guidelines References(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to Accident
1
Left wrist Superficial palmar cutaneous branch median nerve
Pie charts 26, 29 and 35, Pgs 36-41 Table 15, Page 54
Yes
6
0
6
2
Scarring
TEMSKI Table 6.18 Page 136
Yes
2
0
2
3
Retropatellar creptius left knee
Table 62,Page 83
Yes
2
0
2
4
Retropatellar creptius right knee
Table 62, Page 83
Yes
2
0
2
*WPI = percentage whole person impairment (12%)
THE PANEL’S EXAMINATION OF THE CLAIMANT
The medical examination of Mr Tassone had originally been appointed for 3 December 2024 but Mr Tassone was unable to attend. A new date of 18 March 2025 was appointed and the examination was conducted by Medical Assessor Assem
Medical Assessor Assem took a history of the relevant pre-accident medical events and of Mr Tassone’s relevant personal details.
Medical Assessor Assem then set out the history of the Accident as follows:
“[2.1] On 16 January 2022, Mr. Tassone was riding his Kawasaki Ninja 250cc motorcycle along Sunnyholt Road in Blacktown, New South Wales. He was wearing appropriate protective gear, including a helmet, leather jacket, gloves, and enclosed footwear. He was positioned in the rightmost lane, maintaining a speed of approximately 65 kilometres per hour, with the intention to execute a right-hand turn at the forthcoming intersection with Sorrento Drive. As
Mr. Tassone prepared for his manoeuvre, a Nissan X-Trail, travelling in the far-left lane adjacent to the kerb, abruptly merged across three lanes of traffic in an attempt to access the same right-turn lane. As a result, the vehicle's rear right tyre colliding with the front tyre of Mr. Tassone’s motorcycle. The impact caused Mr. Tassone to lose control, leading to both him and his motorcycle descending onto the roadway, subsequently sliding for a short distance before coming to a halt.[2.2] An ambulance attended the scene and noted pain from his left wrist extending to the biceps region, accompanied by tingling sensations in both his left hand and left foot. There was a deep abrasion over the anterior aspect of the left knee, exposing adipose tissue, consistent with full-thickness skin loss. Additionally, a superficial graze was noted over the anterior aspect of the right knee, and a minor abrasion was present over the lateral aspect of the left ankle. Numbness and tingling were noted in both the left hand and foot.”
Medical Assessor Assem then took a history of symptoms and treatment following the accident:
“[2.1] He was transported via ambulance to Norwest Private Hospital where radiological imaging identified a comminuted intra-articular fracture of the distal left radius and a transverse fracture of the ulnar styloid process. Additionally, he sustained soft tissue abrasions to both knees and the left ankle.A closed reduction of the left wrist fracture was performed, and the limb was immobilized using a plaster back slab.
[2.2] On 18 January 2022, Mr. Tassone was readmitted under the care of Dr Mohammed Baba for an open reduction and internal fixation of the distal radius fracture, which involved the placement of a volar locking plate and screws to stabilize the fracture. Intraoperative wrist arthroscopy identified significant arthrofibrosis, which was excised, and a tear of the triangular fibrocartilage complex which was debrided. During the same procedure, the abrasions on both knees and the left ankle were further debrided and dressed.
[2.3] On 24 January 2022, Dr. Loo (general practitioner) attended to the wound care of the left knee and ankle abrasions, redressing the injuries and prescribing analgesics to manage his pain. He received physiotherapy but his progress was impeded by significant post-operative pain and joint stiffness. There was hypersensitivity over the volar surgical scar.
[2.4] On 5 May 2022, Dr. Baba performed a left wrist arthroscopy and the removal of the previously implanted volar plate and screws. Intraoperative findings included extensive arthrofibrosis, which was excised, and minimal residual pathology of the triangular fibrocartilage complex which was further debrided.
[2.5] On 26 June 2022, during a follow-up consultation, Mr. Tassone reported experiencing ‘shooting pain radiating towards his thumb, especially during hyperextension activities.’ Dr. Baba observed some prominence of the surgical scar and noted numbness over the thenar eminence, accompanied by a positive Tinel's sign at the distal aspect of the scar, raising concerns of irritation to the median nerve or its cutaneous branch. Recommendations were made for scar desensitisation techniques, massage therapy, and nerve glide exercises.
[2.6] On 14 July 2022, Dr. Loo issued a medical certificate noting Left wrist comminuted fracture and soft tissue injury secondary to MVA. The volar surgical scar's persistent hypersensitivity impeded Mr. Tassone's ability to rest his wrist during computer use, significantly limiting prolonged typing and office-based tasks.
[2.7] In addition, there was ongoing left knee tenderness over the anterior scar, with discomfort during prolonged walking or kneeling. There was no associated mechanical instability or locking. An MRI of the left knee on 18 March 2023 revealed no bony injury, with intact menisci, ligaments, and tendons, and preserved cartilage. Findings included subtle oedema/impingement of the anterior fat pads and multiple small foci of susceptibility in the prepatellar soft tissues, suggestive of prior skin laceration in this region, along with minor prepatellar oedema without a focal fluid collection. An MRI of the left ankle was normal.
[2.8] Mr. Tassone remained out of work until January 2023 when he attempted a gradual return to his role as Managing Director of Zectron Web & IT Services Pty Ltd. His duties were modified to avoid heavy lifting, prolonged typing, and repetitive wrist activities. On 11 September 2023, a medical certificate documented improved function, noting ‘Lifting with left hand 15kg’ and ‘Pushing or pulling 15kg,’ but advised to ‘Minimise typing with left hand.’”
Medical Assessor Assem then took a history of Mr Tassone’s current symptoms, then recounted the current symptoms as reported to him:
“[2.1] Mr. Tassone experiences persistent stiffness and pain in his left wrist, especially during gripping, lifting, and rotational movements. Pronation is restricted, and the volar scar remains hypersensitive, causing discomfort during prolonged keyboard use. His left knee is tender with ongoing retropatellar crepitus, leading to discomfort during kneeling, squatting, or extended standing. The right knee, though less affected, is sometimes uncomfortable. He manages symptoms with Panadol or ibuprofen as needed.
[2.2] While he has resumed motorbike riding, he remains apprehensive. Cold weather exacerbates wrist stiffness and pain. Numbness over the thenar eminence has improved.”
Medical Assessor Assem then conducted a medical examination:
“[2.1] Mr Tassone appeared well and in no apparent discomfort. He ambulated with a normal gait. He sat comfortably throughout the interview. He was cooperative during the examination and presented in a straightforward manner. His height was 186 cm and weight 98 kg. He was informed at the time of the examination not to engage in any manoeuvre beyond what he could tolerate or which may cause harm or further injury. All movements performed during the examination were active and voluntary.
[2.2] He has a 5 cm healed surgical scar over the volar aspect of his left wrist. The scar was hypertrophic, with some loss of contour and light discolouration. It was sensitive to light touch. He was conscious of the scar, which was visible under usual clothing.
[2.3] There was slight reduction of sensation to light touch over the thenar eminence in the distribution of the palmar cutaneous branch of the left median nerve. That is Grade 2 sensory loss, equivalent to 15% sensory deficit (AMA4, Table 11, p 48). Tinel’s sign was negative. Muscle strength was normal.
[2.4] Over the left knee, there was a large, circular, pigmented scar measuring 3 x 4 cm. It was tender, pigmented, and easily visible from across the room. A small irregular scar was observed over the lateral aspect of the left ankle measuring approximately 3 cm, and a small scar measuring 1.1 cm x 2 cm was present below the right patella.
Upper Extremities:
[2.5] There was no tenderness over the distal radioulnar joint on compression. There was some discomfort on palpation of the scapholunate interval and over the anatomical snuffbox. Active range of motion was consistent on repeated testing as follows:
Movement
Left Measured
Normal Range
Right Measured
Normal Range
Flexion (Wrist)
40°
0–80°
60°
0–80°
Extension (Wrist)
50°
0–70°
60°
0–70°
Radial Deviation
15°
0–20°
20°
0–20°
Ulnar Deviation
20°
0–30°
30°
0–30°
Pronation
60°
0–80°
80°
0–80°
Supination
80°
0–80°
80°
0–80°
Flexion (Elbow)
Normal
0–150°
Normal
0–150°
Extension (Elbow)
Normal
0°
Normal
0°
[2.6] The right elbow had a normal range of flexion and extension. The right wrist also demonstrated a full range of motion in all planes.
Lower Extremities:
[2.7] Both knees had a normal range of motion in flexion and extension. There was no clinical evidence of instability. There was no measurable difference in circumference of the quadriceps or calves. Occasional coarse crepitus was noted, more prominent on the left.
[2.8] Both ankles demonstrated a normal range of motion in plantarflexion, dorsiflexion, inversion, and eversion.”
Medical Assessor Assem, having considered the relevant documents, taken the relevant history, and having conducted a clinical examination, was of the following view
“[2.1] Mr Tassone sustained multiple injuries as a direct result of a motor vehicle accident on 16 January 2022, in which he was thrown from his motorcycle following a collision with a merging vehicle. The mechanism of injury—impact to the left side of his body during a high-speed fall—is entirely consistent with the left wrist fracture, abrasions to both knees and the left ankle, and the subsequent development of ongoing symptoms. Although there is documentation of a previous left wrist injury in 2013 and a left knee complaint in 2015, these events were remote, resolved, and not associated with any ongoing symptoms, investigations, or treatment in the years preceding the subject accident.
[2.2] The left wrist injury—a comminuted intra-articular distal radius fracture with an associated ulnar styloid fracture. Surgical intervention was required on 18 January 2022, including open reduction and internal fixation and later hardware removal and arthroscopic debridement of arthrofibrosis and a TFCC tear. There was slight sensory loss over the thenar eminence and persistent hypersensitivity of the volar surgical scar. Based on the pie charts method for wrist range of motion (AMA4, Figure 26, p. 36), he has 7% LUEI.
Wrist Motion
Right ROM (°)
Right Impairment (%)
Left ROM (°)
Left Impairment (%)
Flexion
60°
0%
40°
3%
Extension
60°
0%
50°
2%
Radial Deviation
20°
0%
15°
0%
Ulnar Deviation
30°
0%
20°
2%
TOTAL
0%
7%
[2.3] He has a mild restriction in forearm pronation to 60° (normal is 80°). This is related to a distal radius fractur as it was intra-articular and involves the distal radioulnar joint as well as the triangular fibrocartilage complex. As per AMA4, Figure 35 (p. 41), this corresponds to an additional 1% UEI.
[2.4] In addition, he has Grade 2/5 sensory loss over the palmar surface of the left thenar eminence, corresponding to the palmar cutaneous branch of the median nerve. As per AMA4, Table 11 (p. 48), Grade 2 sensory loss = 15% sensory deficit. The maximum sensory loss for this nerve is 7% UEI (AMA4, Table 15,
p. 54). Therefore: 0.15 x 7% = 1.05% UEI, rounded to 1% UEI.[2.5] Using the combined values chart, he has 9% LUEI which converts to 5% WPI.
[2.6] The left knee sustained a full-thickness abrasion with adipose tissue exposure and was debrided in hospital. A large, tender, pigmented scar remains. He continues to experience crepitus, kneeling discomfort, and hypersensitivity over the scar. There was documented retropatellar crepitus with discomfort following direct trauma. As per AMA4, Table 62 (p. 3-83), patellofemoral pain with crepitus equates to 5% Lower Extremity Impairment which converts to 2% WPI.
[2.7] The right knee sustained a superficial graze, as recorded by ambulance officers and confirmed by clinical findings. While symptoms were initially mild, he has reported ongoing intermittent discomfort with load-bearing activity and occasional coarse patellofemoral crepitations giving 2% WPI.
[2.8 ]He also has visible, symptomatic, and functionally limiting scars on the volar aspect of his left wrist, left knee, right knee, and left ankle, and in agreement with the findings of Dr Dixon, he has 2% WPI (TEMSKI).
[2.9] Combined WPI Total: 11%, calculated using the Combined Values Chart from AMA4.”
Medical Assessor Assem then explained what he considered to be the main difference between his assessment and that of Medical Assessor Dixon:
“[1] The main difference between this assessment and that of Dr Dixon lies in the interpretation of joint range of motion and sensory findings. Dr Dixon documented a limitation in left elbow flexion; however, this is anatomically implausible given that Mr Tassone’s injury was confined to the distal radius and did not involve the elbow joint or surrounding musculature. In contrast, the present assessment found a full, symmetrical range of motion in both elbows. A mild restriction in forearm pronation was identified, which is clinically consistent with the mechanism of injury and the documented pathology—including an intra-articular distal radius fracture, triangular fibrocartilage complex (TFCC) tear, and post-operative arthrofibrosis—all of which plausibly affect distal radioulnar joint (DRUJ) articulation and forearm rotation. Furthermore, Dr Dixon incorrectly attributed a grade 4/5 for a slight sensory deficit to the palmar cutaneous branch of the median nerve.”
THE SECOND MRP MEETING
The Panel had a second meeting to discuss and consider the findings of Medical Assessor Assem. This took place on Monday 28 April 2025 at 4.00pm.
The Panel agreed with Medical Assessor Assem’s opinion as set out at [32].
SUBMISSIONS
Submissions of the insurer dated 4 June 2024
The Panel sets out the submissions of the Insurer of 4 June 2024 below:
“The insurer notes assessor Dixon has completed an assessment of the claimant’s whole person impairment in the left wrist by considering his range of motion.
The insurer notes when considering the clinical findings and noted range of motion by assessor Dixon, the assessment equates to an upper extremity impairment of 7%, not 9% as indicated by the assessor.
The insurer notes when describing his method of assessment, the assessor correctly refers to figures 26 and 29, but incorrectly also includes figure 35, which relates to supination and pronation of the elbow.
The insurer notes the correct assessment of the left wrist excludes consideration of supination and pronation and therefore would total 8% UEI (including 1% assessed for sensory impairment) and therefore 5% whole person impairment.
The insurer notes the assessment of reduced range of motion in the left wrist by assessor Dixon which he then converted to an assessment of whole person impairment (which the insurer notes was incorrect as submitted above). The insurer notes assessment of reduced range of motion by assessor Dixon was inconsistent with that of Dr Sekel, relied upon by the insurer, who assessed full range of motion supported by photographic evidence, in the most recent IME assessment in October 2023. The insurer notes save for noting the findings of Dr Sekel in 18. Summary of relevant documentation, the assessor makes no mention of the discrepancy in the assessments and does not provide any reasoning for his acceptance of the reduced range in circumstances where the most recent evidence showed full range of motion. The insurer submits given the medical controversy, a more expansive explanation ought to have been provided.
Furthermore, the insurer notes that assessor Dixon provided an assessment of 2% whole person impairment for each knee using a method of assessment relevant to arthritic impairment.
The insurer notes the assessed range of motion in each knee identified near full range of motion which would amount to 0% whole person impairment. The insurer further notes whilst the claimant has undergone investigations in relation to the left knee, no such investigations were undertaken in respect of the right knee.
The insurer notes the assessor failed to identify why he elected a different method of assessment in circumstances where the claimant displayed 0% whole person impairment on range of motion assessment and in circumstances where there is no evidence of lasting injury to either knee or any consistent complaints of bilateral knee symptoms in the treating medical evidence.
Furthermore, the insurer notes Dr Sekel did not find evidence of crepitus in either knee in October 2023, an inconsistency not considered by assessor Dixon with no path of reasoning provided for his determination.”
Reply submissions of the claimant dated 21 June 2024
The Panel sets out the submissions of Mr Tassone of 21 June 2024 in reply to the insurer’s submissions above by reference to paragraph numbers:
[2.1] The claimant submits that it is apparent that the Medical Assessor had adequately outlined and explained the reasons for his findings regarding the injuries to the claimant’s left wrist, left knee and right knee.
[2.2] The Medical Assessor indicated that he had considered all documents provided to him in the original application and reply, together with the late documentation. This would have included the report of Dr Richard Sekel which the insurer relies upon.
[2.3] The Medical Assessor had the benefit of reviewing the documentation together with the photographic evidence.
[2.4] Notwithstanding the above, the Medical Assessor had conducted his own assessment and noted his findings in section 15 following his assessment of the upper extremity.
[2.5] The claimant respectfully submits that there is no medical controversy as submitted by the insurer, and the Assessor had reached his determination following his physical examination of the claimant and his review of the evidence provided to him.
[2.6] The Medical Assessor conducted his examination of the claimant and set out his findings on paragraphs 15 and 16. Specifically, the Medical Assessor found that:
“There was stiffness of the left wrist with flexion 40 degrees, extension 50 degrees, radial deviation 10 degrees and ulnar deviation 30 degrees… He had tenderness of the arthroscopic portals on the dorsum of his wrist and marked tenderness of his longitudinal 5cm volar scar at his wrist to light touch and to percussion”.
[2.7] With respect to consistency, the Assessor concluded that the claimant was “… consistent in presentation” at section 17 of the certificate.
[2.8] The claimant respectfully submits that there is no reasonable cause to suspect that the findings of the Medical Assessor by way of the certificate are incorrect in a material respect.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Panel considered the documents produced by the parties, summarised as follows:
[1] Police report dated 1 February 2022 stating:
“At around 1:00 pm on Sunday 16th January 2022, VEH 2 was travelling down Sunnyholt road towards Stanhope gardens at a speed of approximately 65 kilometres per hour. After VEH 2 has gone through the intersection of Sunnyholt road and Quakers Hill Parkway, DRI 2 has observed VEH 1 driving at speed, cross all 3 lanes and collide with the front tyre of VEH 2. As a result of the collision, DRI 2 has been admitted to hospital where it was discovered that they had a shattered wrist and grazing to many parts of the body.”
[2] Application for Personal Injury Benefits Claim Form dated 21 January 2022 noting injuries as a “shattered left wrist”, “deep grazing to the left leg, knee, foot, side, shoulder & hip”, and “grazing to right knee and ankle”.
[3] Independent medical examiner (IME) report from Dr James Bodel dated 18 May 2023 found there was sensory loss of the superficial branch of the median nerve as well as rateable restriction of his left wrist movement. He found 3% WPI for scarring from the TEMSKI Scale. There was no restricted range of knee extension found at the date of the report, but there was retropatellar crepitus.
[4] Dr Richard Sekel, in his IME report of 11 October 2023, found a good range of motion of the left ankle and both knees and found no rateable impairment for the left wrist and found 2% WPI for scarring. He did not rate the retropatellar crepitus or residual superficial mild sensory loss at the thenar eminence. He gave 2% WPI for scarring.
[5] Dr Uthum Dias, in his IME report dated 6 June 2023, did grade sensory deficit at the base of the left thumb as grade 2 but Medical Assessor Dixon assessed it to be grade 4 out of 5, noting some improvement and improvement in the wrist motion since. Dr Dias found patellofemoral pain and joint crepitation for both knees as 2% WPI from Table 62 in the American Medical Association (AMA) Guides for each knee.
Included amongst the documents considered were the following diagnostic investigations:
[1] X-ray of the left elbow, forearm and wrist on 16 January 2022 showed a comminuted fracture of the distal radius involving the joint space with some anterior displacement and angulation with a transverse fracture across the base of the ulnar styloid.
[2] CT of the left wrist on 16 January 2022 showed a comminuted mildly displaced intra-articular distal radial fracture with slight impaction, volar subluxation with a mildly displaced comminuted ulnar styloid process fracture.
[3] X-ray of the left wrist on 1 February 2022 showed comminuted distal radial intra articular fracture internally fixed with a contoured anterior plate and multiple screws with near anatomic alignment and no complicating feature. There was a mildly displaced fracture of the ulnar styloid process.
[4] MRI of the left knee on 18 March 2023 showed no bone injury. The menisci ligaments and tendons were intact and the cartilage appeared preserved. There was subtle oedema/impingement at the anterior fat pads of the knee, in keeping with an element of background patella maltracking and there were multiple small foci of susceptibility of the pre-patella soft tissue with prior skin laceration and mild pre-patella oedema.
[5] MRI of the left ankle on 18 March 2023 showed no abnormalities.
HOW THE PANEL DEALT WITH THE SUBMISSIONS
The Panel met on 28 April 2025 via Microsoft Teams and discussed the issues which had arisen and were unanimous in arriving at the conclusion that the WPI was properly assessed at 11%.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Drew Dixon, dated 10 May 2024, and substitutes the determination that Mr Tassone did establish that he, as a result of the accident, sustained WPI in excess of 10%. The Panel found an 11% WPI due to the injuries sustained in the subject motor vehicle accident.
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