AAI Limited t/as GIO v Leverrier
[2025] NSWPICMP 781
•9 October 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Leverrier [2025] NSWPICMP 781 |
CLAIMANT: | Timothy Leverrier |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 9 October 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) determined the claimant’s whole person impairment (WPI) as a result of injuries sustained in the accident was 13%; the insurer made an application under section 7.26 for referral of assessment to the Review Panel; the Review Panel conducted its own examination and found that WPI as a result of injuries sustained in the accident totalled 8%; certificate of MA revoked; Review Panel substituted 8% WPI as a result of the accident. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Peter Giblin, dated 17 February 2025, and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident, gave rise to a whole person impairment (WPI) of 8%. |
STATEMENT OF REASONS
BACKGROUND
History of motor accident
On 21 August 2020, the claimant, Timothy Leverrier (Mr Leverrier), was riding a BMW 1000SR motorcycle at a speed of about 60kmph.
Mr Leverrier was wearing protective gear, riding boots, a padded jacket, leather gloves, a full-face helmet, and dress trousers. He had been stationery at a set of traffic lights and accelerated when the light turned green. Upon acceleration, an oncoming car suddenly turned right across his path and the motorcycle t-boned the car.
Mr Leverrier sustained injury when he was thrown off and slid across the ground.
Mr Leverrier has made this claim for personal injury damages.
On 17 February 2025 Medical Assessor Peter Giblin certified that the injuries caused by the motor accident had given rise to permanent impairment of 13%.
AAI Limited t/as GIO, the insurer, has sought a review of the determination of Medical Assessor Giblin.
Medical dispute
A medical dispute about the degree of Mr Leverrier’s whole person impairment (WPI) has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the Motor Accident Injuries Act 2017 (the MAI Act).
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Giblin for assessment.
On 3 February 2025, Medical Assessor Giblin assessed Mr Leverrier and on
17 February 2025, certified that as a result of the injuries sustained in the accident,
Mr Leverrier sustained a WPI of 13%.
Review procedure
The insurer sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review). The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought: s 7.26(10) of the MAI Act.
A delegate of the President of the Commission determined there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Panel.
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the medical assessment.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
LEGISLATIVE FRAMEWORK
Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Mr Leverrier’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
ASSESSMENT UNDER REVIEW
Medical Assessor Giblin examined Mr Leverrier on 3 February 2025. He had the documents attached to the Application, but no further documents.
The injuries referred to Medical Assessor Giblin were:
(a) right hand – soft tissue injury;
(b) left hand – soft tissue injury;
(c) right ankle – soft tissue injury;
(d) skin - scarring to hands, and
(e) thoracolumbar spine (29 January 2025 added in).
Medical Assessor Giblin summarised the submissions made at [3]-[4].
Medical Assessor Giblin set out the history he took at [8], in which he noted Mr Leverrier’s pre accident history, including:
(a) an injury in 2014, when he went over the handlebars of his bike, with admission to hospital but no significant injury or claim;
(b) right ankle injury in 2016, in a motorbike accident which was successfully managed conservatively;
(c) 2019, playing football, ruptured his rectus femoris, symptoms in his right ankle and right tendo-Achilles were managed conservatively, and
(d) left big toenail lateral wedge re-section on 18 March 2021.
Medical Assessor Giblin summarised a history of the accident at [9].
Medical Assessor Giblin set out the history of symptoms and treatment following the accident at [10].
Medical Assessor Giblin took a note of Mr Leverrier’s current symptoms and treatment and then performed a clinical examination.
Medical Assessor Giblin calculated the active range of Mr Leverrier’s right middle finger MCPJ, which the Panel reproduces.
Middle Finger Movements
Active ROM Measured
RIGHT
Upper Extremity
Impairment %
· MP joint
o Flexion
o Extension
90°
+20°
0
0
· PIP joint
o Flexion
o Extension
100°
0°
0
0
· DIP joint
o Flexion
o Extension
0°
0°
36°
0
“36% impaired middle finger”.
Medical Assessor Giblin commented that:
“(a) The amputation stump was soft, well-healed and with no apparent neuromas. The amputation length was 8mm as opposed to 25mm on the uninjured left middle finger. That is a 2/3rds loss which equates to 33% impairment of the digit. 36% combined with 33% is 57% impairment of the digit, equating to 11% impairment of the hand.
(b) This equates to 10% Impairment Upper Extremity and 6% WPI.”
(c) The examination of his left hand showed full active pain free range of motion of the thumb, index, middle, ring and little fingers. This equates to 0% impairment of the upper extremity. There is a surgical scar measuring 3cm over the distal radius. This scar is well-healed and non adherent but it is keloid and has a slight contour defect. The 5cm surgical scar over the fifth proximal phlanx is dorsal in position, well healed non adherent, with very little if any pigmentation and there is no contour defect or adherence nor any neurological compromise.”
Medical Assessor Giblin summarised the diagnostic investigations on page 10.
Medical Assessor Giblin charted the consequential permanent impairment at [30]:
| 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 motor accident | |
| 1 | Right hand | Yes | 6 | 0 | 6 | |
| 2 | Left hand | 0 | 0 | 0 | ||
| 3 | Scarring | Table 6.8 pg132 Motor Accident Guidelines | Yes | 1 | 0 | 1 |
| 4 | Lumbar spine | DRE1 | Yes | 0 | 0 | 0 |
| 5 | Thoracic spine | DRE2 | Yes | 5 | 0 | 5 |
| 6 | Right ankle | Yes | 1 | 0 | 1 |
He concluded that the following injuries had given rise to permanent impairment of 13%:
· skin – scarring to hands;
· right ankle – soft tissue injury;
· left hand – fracture injury;
· right hand – amputation, and
· thoracolumbar Spine.
MEDICAL EVIDENCE AVAILABLE TO THE PANEL
Report of Dr Todd Gothelf of 19 February 2024
Diagnosis:
“Timothy Leverrier is a 33 year old male who was involved in a motor accident
21 August 2020. As a result of the subject accident Mr Leverrier has the following diagnoses:• Right middle finger laceration and distal phalanx fracture. An x-ray
21 August 2020 revealed a comminuted, displaced fracture through the distal phalanx of the middle finger shaft with undisplaced fracture lines extending to the tip of the tuft, and to the radial border of the base, without definite intra-articular extension. The fracture was an open fracture with partial amputation. Surgery was performed by Dr Wang 23 August 2020 for a right middle finger debridement and terminalisation, with minimal shortening of the P3 and closure. Further surgery was performed
25 March 2021 by Dr Damian Ryan for a right middle finger osteotomy and distal phalanx flap repair. Mr Leverrier underwent physiotherapy. Mr Leverrier reported persistent pain. On the physical examination there was around 2cm removed, but preservation of the DIP joint, with loss of DIP flexion.• Left 5th metacarpal neck fracture. An x-ray 21 August 2020 revealed a volar angulated mildly comminuted acute fracture of the metacarpal neck. Surgery was performed 11 November 2020 for a left 5th metacarpal osteotomy with internal fixation, joint release, and bone graft harvest. On examination there was a full active range of motion of the wrist and little finger.
• Right wrist strain. An MRI 23 October 2020 revealed a late subacute sprain of the dorsal intercarpal ligament towards the medial insertion, with incomplete scar remodelling and minor adjacent synovitis. Mr Leverrier was seen by Dr Ryan 6 November 2020 who stated that the right wrist was treated with a splint. The physical examination demonstrated a full active range of motion.
• Left 12th rib fracture. A CT scan 21 August 2020 revealed a left posterior 12th rib fracture. On examination there was reported pain.
• Left sided flank soft tissue injury, with superficial abrasions.
• Right ankle and heel strain, soft tissue injury. Mr Leverrier underwent physiotherapy treatments. Mr Leverrier reported shooting pains in the ankle and difficulty walking up inclines. The physical examination revealed a loss of active motion.”
Prognosis:
“The prognosis is guarded. Mr Leverrier reported persistent right ankle pain, right wrist pain, back pain which prevent him from performing his activities of daily living and prevent him from returning to his pre-injury employment. I expect that the ongoing symptoms will persist indefinitely.”
Reports of Dr Drew Dixon
18 January 2023
Diagnosis:
“this claimant had multiple injuries in the subject motor bike accident. His diagnoses are;
1. Fracture of the neck of the fifth metacarpal of the left little finger corrected by osteotomy. There is residual stiffness of the digit.
2. Painful tender scar of the dorsum of his right wrist from the site of his bone graft harvest for his osteotomy and a reasonably healed scar at the osteotomy site per se.
3. Traumatic amputation of the right middle finger requiring terminalisation and two revision procedures with the scar reasonably healed but with 2cm of shortening of the digit and no movement of the residual DIP joint.
4. Fracture of his left ribs with lower thoracic back pain with residual stiffness particularly on trunk rotation.
5. Rectus injury to the right thigh now settled.
6. Heel cord injury with residual achilles tendonitis and os calcis bursitis with stiffness of the right ankle and subtalar joint.
7. Post traumatic stress disorder requiring anti-depressants
8. Reliance on analgesia, physiotherapy for his left foot and ankle
9. Impaction of his injuries on his ADL’s.”
Causation: “The above conditions are causally related to the injuries received in the subject motor vehicle accident.”
Prognosis:
“His prognosis for continuing his work duties at present remains satisfactory for the medium term, the next 5-15 years, but with further deterioration in his back, he would have increasing difficulty with prolonged sitting and getting in and out of cars and driving to present vehicles to prospective buyers and he would have difficulty carrying any heavy equipment at work. He would have to adopt a more administrative role at that stage, such as sales manager or doing admin such as arranging car loans, leasing and detailing arrangements.”
12 February 2024
Diagnosis:
“In summary this claimant had multiple injuries in the subject motor bike accident. His diagnoses are:
1. Fracture of the neck of the fifth metacarpal of the left little finger corrected by osteotomy. There is residual stiffness of the digit;
2. Painful tender scar of the dorsum of his right wrist from the site of his bone graft harvest for his osteotomy and a reasonably healed scar at the osteotomy site per se;
3. Traumatic amputation of the right middle finger requiring terminalisation and two revision procedures with the scar reasonably healed but with 2cm of shortening of the digit and no movement of the residual DIP joint;
4. Bilateral de Quervain’s tenosynovitis with a positive Finkelstein’s tests;
5. Fracture of his left ribs with lower thoracic back pain with residual stiffness particularly on trunk rotation;
6. Rectus injury to the right thigh now settled;
7. Heel cord injury with residual achilles tendonitis and os calcis bursitis with stiffness of the right ankle and subtalar joint;
8. Post-traumatic stress disorder requiring anti-depressants;
9. Reliance on analgesia, physiotherapy for his left foot and ankle;
10. Impaction of his injuries on his ADL’s.”
Causation – “The above conditions are causally related to the injuries received in the subject motor vehicle accident.”
Prognosis:
“His prognosis for returning to his pre-injury duties is guarded for the reasons stated above. He had difficulty with prolonged sitting and getting in and out of cars, presenting vehicles to prospective buyers and has left Peter Warren now. He then took a job with Carma which involved less driving and was mainly clerical but even that admin work was difficult due to prolonged sitting which aggravated his back as well as pain in both wrists.”
20 November 2024
Diagnosis:
“In summary this claimant had multiple injuries in the subject motor bike accident. His diagnoses are:
1. Fracture of the neck of the fifth metacarpal of the left little finger corrected by osteotomy. There is residual stiffness of the digit;
2. Painful tender scar of the dorsum of his right wrist from the site of his bone graft harvest for his osteotomy and a reasonably healed scar at the osteotomy site per se;
3. Traumatic amputation of the right middle finger requiring terminalisation and two revision procedures with the scar reasonably healed but with 2cm of shortening of the digit and no movement of the residual DIP joint;
4.Subluxation of the distal ulna of the right wrist which can be reduced manually;
5. Fracture of his left ribs with lower thoracic back pain with residual stiffness particularly on trunk rotation;
6. Heel cord injury with residual achilles tendonitis and os calcis bursitis with stiffness of the right ankle and subtalar joint;
7. Post-traumatic stress disorder requiring anti-depressants;
8. Reliance on analgesia, physiotherapy for his left foot and ankle;
9. Impaction of his injuries on his ADL’s.”
Causation – “The above conditions are causally related to the injuries received in the subject motor vehicle accident.”
Prognosis:
“He had difficulty returning to his job doing prologued sitting and getting in and out of cars to prestige buyers and had left Peter Warren Motors. He eventually found a job selling aircraft and leasing aircraft which, while it does involve some prolonged driving and prolonged flying, he is coping with it by taking Panadol and Ibuprofen, although he back and left lateral hip pain continue to worry him.”
SUBMISSIONS
Submissions of the insurer dated 17 March 2025
The Panel summarises the insurer’s submissions for review of 17 March 2025 by reference to paragraph numbers:
[1.1]-[1.2] The insurer seeks review of the certificate of Medical Assessor Peter Giblin dated 17 February 2025 and submits the Medical Assessor erred by:
(a)failing to correctly apply AMA 4 and the Motor Accident Guidelines;
(b)failing to address inconsistencies between the medical evidence and his examination of Mr Leverrier, and
(c)failing to provide a path of reasoning.
Threshold
[2.1]-[2.4] The insurer submits the certificate was issued 18 February 2025 and this application is within time under s 7.26 MAI Act and that the Medical Assessor’s assessment was “incorrect in a material respect” (s 7.26(2)).
Reasonable cause
[2.5]-[2.6] The insurer relies on Elliot v IAG t/as NRMA Insurance [2014] NSWSC 1848 at [59] where Campbell J held that “reasonable cause to suspect” need only amount to a state of unease. The insurer submits the reasoning in Elliot remains relevant.
[2.7] The insurer submits the threshold for satisfaction is low.
Requirement to provide reasons
[2.8] Section 7.23 of the MAI Act requires Medical Assessors to provide reasons.
[2.9]-[2.13] The insurer relies on Wingfoot Australia v Kocak [2013] HCA 43 and submits s 7.23 has the same effect as the Victorian provision considered in Wingfoot. The insurer submits Wingfoot has been applied in NSW. The High Court held reasons must explain the actual path of reasoning in sufficient detail to show whether an error of law exists. The insurer submits as such, the Medical Assessor must explain their reasoning and provide sufficient detail.
Ground – Failure to apply AMA 4 and Guidelines
[3.1] The insurer submits Medical Assessor Giblin’s thoracic spine assessment did not comply with AMA 4 or the Guidelines.
Spinal dysmetria
[3.2]-[3.5] Table 6.8 of the Guidelines require two planes of motion, reproducibility, consistency, and recording as a fraction/percentage. The insurer submits the Medical Assessor only reported one plane and that he failed to record motion as a fraction/percentage. The insurer further submits he failed to confirm reproducibility or effort.
Spinal guarding
[3.6]-[3.7] AMA 4 requires symptoms of guarding to be significant, intermittent or continuous. The insurer submits the Medical Assessor gave no reasons establishing this.
Failure to identify tables/figures
[3.8]-[3.9] Clause 6.122 requires explanation of how impairment ratings were calculated and the insurer submits no such explanation was given.
[3.10]-[3.13] A table was produced under “Permanent Impairment” and the insurer submits only scarring was referenced. The insurer submits no explanation was given for hands, lumbar spine, thoracic spine or ankle and further submits the thoracic DRE category II assessment is unclear.
Ground – Failure to address inconsistencies
[3.14] The insurer submits Medical Assessor Giblin failed to explain why Mr Leverrier exhibited new inconsistent symptoms.
Requirement to consider evidence
[3.15] The insurer relies on Stanizzo v AAI Ltd t/as GIO [2021] NSWSC 1077 in which procedural fairness requires considering and addressing contrary evidence.
[3.16]-[3.17] The insurer relies on Marsh v IAG t/as NRMA [2021] NSWSC 619 – threshold for review is low and conflicting medical opinions must be referred to a Panel. The insurer submits this principle required referral in light of conflicting evidence.
The evidence
[3.18]-[3.19] The insurer submits earlier examinations found no dysmetria or guarding, further, it submits the Medical Assessor failed to explain how late-emerging symptoms related to the accident, citing inconsistencies with reports of Dr Dixon (2023, 2024), Dr Gothelf (2024), physiotherapists (2020–2021), and medical records.
[3.20] The insurer submits Medical Assessor Giblin failed to reconcile his findings with prior expert evidence.
Inadequacy of reasons
[3.21]-[3.22] The insurer notes the Medical Assessor must expose their reasoning (Moran v MAA [2013] NSWSC 1135). It submits the Medical Assessor failed to evaluate all available evidence.
[3.23]-[3.25] The insurer submits he did not engage with opinions that found no dysmetria/guarding and that he inadequately addressed reports such as
Dr Gothelf’s 2024 report. The insurer submits he ignored Dr Gothelf’s thoracic findings, which were contrary to his own.[3.26]-[3.27]The insurer submits he failed to address inconsistencies in Dr Dixon’s three reports and that he failed to consider relevant expert material.
[3.28] The insurer submits a Medical Assessor must address objective evidence, competing opinions, and submissions (AAI v Fitzpatrick [2015] NSWSC 1108).
[3.29] The insurer relies on Allianz v Francica [2012] NSWSC 1577 regarding the failure to refer to critical evidence implies it was overlooked.
[3.30] The insurer further relies on Campbelltown CC v Vegan [2006] NSWCA 284 in the sense that reasons must explain preference between competing conclusions.
[3.31]-[3.32] The insurer submits that a Medical Assessor must explain the relevance of material relied upon; and without explanation, it may be inferred relevant material was not considered (Moran v MAA [2013] NSWSC 1135). The insurer further submits that by failing to address expert evidence and observations, there is reasonable cause to suspect material error.
Ground – Failure to demonstrate a path of reasoning
[3.33] The insurer submits that Medical Assessor Giblin failed to show a path of reasoning for diagnosis, causation, and impairment findings.
[3.34]-[3.36] The insurer notes that under “Diagnosis and reasons” the Medical Assessor listed injuries, but under “Causation and reasons” wrote only “see above.” The insurer submits there is no explanation for how the accident was found to have caused these injuries, particularly the thoracic spine.
[3.37] The insurer relies on Wingfoot (2013) 252 CLR 480, which requires reasons to set out the actual path of reasoning.
[3.38] The insurer relies on Fitzpatrick [2015] NSWSC 1108, confirming conclusions must be supported by reasons, even if brief.
[3.39] The insurer submits that Medical Assessors must refer to objective evidence, competing opinions, and submissions when addressing causation.
[3.40] The insurer submits that a Medical Assessor is required to give proper reasons for causation findings (Dogon v Redmond & Ors [2010] NSWSC 1329).
[3.41] The insurer relies on Sadsad v NRMA (2014) 67 MVR 601 – reasons cannot be left to inference.
[3.42]-[3.44] The insurer submits Medical Assessor Giblin failed to explain his reasoning and that he failed to provide reasons for WPI findings (cl 6.122). The insurer submits these failures amount to material error under s 7.26 MAI Act.
Submissions of the claimant dated 9 April 2025
The Panel summarises Mr Leverrier’s submissions for review of 9 April 2025 by reference to paragraph numbers:
Introduction
[1]-[3] Mr Leverrier submits that he responds to the insurer’s submissions in support of its application for review. He submits that the insurer alleges reasonable cause to suspect the certificate of Medical Assessor Giblin dated 17 February 2025 is incorrect in a material respect and that the insurer relies on allegations that the Medical Assessor:
(a)failed to apply AMA 4 and the Motor Accident Guidelines;
(b)failed to address inconsistencies between the medical evidence and the claimant’s examination, and
(c)failed to provide a path of reasoning.
[4]-[5] Mr Leverrier notes the insurer further alleges the Medical Assessor failed to address or provide reasons in relation to certain material. He submits that the insurer has not demonstrated reasonable cause to suspect the assessment was incorrect in a material respect, and therefore the application for review should be dismissed.
and the GuidelinesFailure to apply AMA4
[6]-[8] Mr Leverrier submits that the insurer contends the Medical Assessor incorrectly found a DRE category II impairment in the thoracic spine. He further submits that the Medical Assessor recorded asymmetrical active range of motion, pain without prompting, and para muscle tightening and guarding. He submits that a DRE category II finding may be made on the basis of dysmetria and/or muscle guarding.
Dysmetria
[9]-[13]Mr Leverrier submits that Table 6.8 provides that non-uniform loss of spinal motion in one principal plane, caused by muscle spasm or guarding, may qualify as dysmetria if reproducible and consistent. Although both planes of motion should be assessed for the thoracolumbar spine, asymmetry in one plane of motion is sufficient to qualify as dysmetria. He submits that Table 6.7 confirms DRE category II may arise from guarding, non-verifiable radicular complaints, or dysmetria. Mr Leverrier submits there is no evidence the Medical Assessor failed to assess other planes of motion; and that the finding of muscle guarding independently satisfies DRE category II, making dysmetria immaterial.
Muscle guarding
[14] Mr Leverrier submits that the Guidelines define muscle guarding as contraction of muscle to minimise motion or agitation of injured tissue.
[15]-[18]Mr Leverrier submits that AMA 4 provides that findings may include significant or continuous guarding, but this is not mandatory. He continues that AMA 4 does not require guarding to be “significant, intermittent or continuous” to be valid. He submits that the use of “may” shows those additional descriptors are not mandatory and that the Medical Assessor’s finding accords with the Guidelines.
[19]-[20] Mr Leverrier submits that muscle guarding alone is sufficient to support DRE category II, without dysmetria and that the Medical Assessor correctly considered the thoracic spine as DRE category II.
Figures used
[21]-[22] Mr Leverrier submits that the insurer contends the Medical Assessor failed to reference relevant AMA 4 tables and figures. He continues that the Medical Assessor expressly recorded that the determination was made in accordance with AMA 4 and the Guidelines.
[23]-[24]Mr Leverrier submits that the Medical Assessor expressly stated thoracic spine impairment was DRE category II, leaving no confusion and that although not all tables/figures were cited by name, the methodology was set out in detail.
[25] Mr Leverrier submits that with respect to the right-hand impairment, the Medical Assessor:
(a)set out full range of motion findings consistent with AMA 4 figures;
(b)explained a two-thirds digit loss giving 33% impairment;
(c)combined results to calculate 57%-digit impairment = 6% WPI, and
(d)confirmed this calculation in the final table.
[26] Mr Leverrier submits that with respect to the right ankle impairment, the Medical Assessor:
(a)recorded range of motion consistent with AMA 4 tables;
(b)found 10° hindfoot eversion = 2% lower extremity impairment = 1% WPI, and
(c)confirmed 1% WPI in his table.
[27] Mr Leverrier submits that it is abundantly clear how the Medical Assessor arrived at the impairment ratings, and any omission to expressly cite tables is immaterial because:
(a)reasons must be read as a whole and given beneficial construction;
(b)necessary inferences may fill any gaps, and
(c)the data and calculations clearly reveal the tables used.
[28] Mr Leverrier submits that alternatively, if omission of references is considered error, it is only an “obvious error” under s 7.23(9) MAIA and may be referred back for correction.
Purported inconsistencies and failure to address evidence
[29]-[30]Mr Leverrier submits that the insurer contends the Medical Assessor erred by failing to explain inconsistencies between his findings and prior medical reports. He submits that the insurer mischaracterises this as a duty to consider evidence and provide reasons for differing findings.
Requirement to consider evidence
[31]-[32] Mr Leverrier submits that the insurer alleges failure to address evidence and that the insurer relies primarily on other medical experts’ findings.
[33] Mr Leverrier submits that there is no obligation for a Medical Assessor to consider or refer to every piece of evidence, per Allianz v Cervantes [2012] NSWCA 244; 61 MVR 443.
[34] Mr Leverrier submits that in Dunbar v Allianz (2015) 70 MVR 15, Fullerton J confirmed the Medical Assessor need not specify why matters were accepted or rejected, only provide reasons for the assessment.
[35] Mr Leverrier submits that in Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2001] NSWCA 287, the Court of Appeal confirmed Medical Assessors are not resolving disputes but applying expertise to assess impairment.
[36] Mr Leverrier submits that Keen further held Medical Assessors need not arbitrate between competing opinions, only form their own.
[37] Mr Leverrier submits that the insurer’s argument of failure to address evidence is misconceived.
[38]-[39] Mr Leverrier submits that the insurer improperly relies on Marsh as it was a first-instance decision which was overturned on appeal and that the Court of Appeal in Marsh confirmed that conflicting medical opinions do not create reasonable cause to suspect error.
Inadequate reasons
[40]-[42] Mr Leverrier submits that Wingfoot establishes that Medical Assessors must expose their own path of reasoning but are not arbiters of competing opinions. He submits that reasons must show the path of reasoning in sufficient detail for review, but do not require exhaustive explanation and that Wingfoot confirms that Medical Assessors need not explain why they did not adopt opinions they never formed.
[43] Mr Leverrier submits that weight given to evidence is a matter for the Medical Assessor, per QBE v Alawia [2016] NSWSC 1875; 79 MVR 131.
[44]-[45] Mr Leverrier submits that cl 6.21 of the Guidelines requires assessment as at the time of assessment, not earlier findings, and submits that the Medical Assessor properly assessed impairment at the time of examination and was not required to reconcile differences with prior reports.
[46] Mr Leverrier submits that the insurer’s arguments are contrary to binding Court of Appeal authority.
[47] Mr Leverrier submits the insurer relies on Fitzpatrick and Francica, but both are first-instance cases predating Keen and must be read in that context.
[48] Mr Leverrier submits that the insurer also cites Vegan, but Keen rejected reliance on Vegan for reasons adequacy, noting it concerned a different statutory regime.
[49] Mr Leverrier submits that Wingfoot and Keen govern, not Vegan or earlier inconsistent authorities.
[50]-[51] Mr Leverrier submits that Sadsad concerned multiple possible causes, unlike here, so further reasoning was not required. He further submits that Sadsad is distinguishable as only two possible causes exist in this case.
[52] Mr Leverrier submits that reasons must be read as a whole and gaps may be filled by necessary inference, per Zahed.
[53] Mr Leverrier submits that the Medical Assessor discharged his duty by explaining his actual reasoning and was not obliged to address contrary expert opinions.
[54] Mr Leverrier submits that adequacy of reasons must be measured by the issues in dispute, and thoracic spine was not disputed here, per Brown.
[55] Recent authority (Allianz Australia Insurance Limited v Susak [2024] NSWSC 1359) affirms that reasons need only expose the reasoning on contested issues and may be discerned by inference.
[56] As the thoracic spine injury was not disputed before the Medical Assessor,
Mr Leverrier submits the insurer cannot now complain about limited reasoning.[57] Mr Leverrier submits the Medical Assessor based his conclusions on examination and history, including the claimant’s statement of contemporaneous back pain at the accident.
[58]-[59] He further submits that Dr Gothelf’s report confirmed Mr Leverrier recorded back injury in his Application a week after the accident. In this context, he submits the Medical Assessor’s reasons were adequate, coherent, and understandable.
[60]-[62] Mr Leverrier submits the Medical Assessor fulfilled his statutory duty by providing sufficient reasons under the Guidelines. He further submits that if any error exists, which is denied, it is an obvious error only, capable of correction under the obvious error provisions. Accordingly, the insurer’s review application should be dismissed.
Submissions of the claimant dated 23 May 2025
The Panel summarises Mr Leverrier’s further submissions for review of 23 May 2025 by reference to paragraph numbers:
[1]-[2] Mr Leverrier submits that the following physical injuries are to be assessed by the Review Panel:
·right hand – amputation injury;
·left hand – fracture and soft tissue injury;
·right ankle – soft tissue injury;
·skin – scarring to hands, and
·thoracolumbar spine – soft tissue injury with lower thoracic back pain with residual stiffness, and pain in the lower thoracic back referred from the ribs.
[3] Mr Leverrier submits that the insurer’s submissions are largely irrelevant to the re-assessment, as they are directed to persuading the delegate of deficiencies in Medical Assessor Giblin’s reasons rather than issues for re-assessment.
[4] Mr Leverrier submits the insurer’s main complaint is that the Medical Assessor Giblin assessed 5% WPI for thoracolumbar DRE category II, whereas other doctors (including Dr Dixon) had earlier assessed 0%.
[5] Mr Leverrier submits there can be no doubt he injured his back in the accident, pointing to the motorcycle crash, finger amputation, and contemporaneous reports of back pain in his Application lodged eight days later.
[6]-[7] Mr Leverrier submits his statement confirms the contemporaneous back pain, describing awareness of back and leg pain immediately after the crash along with finger amputation. He further submits that no doctor has suggested the back injury is unrelated to the accident.
[8] Mr Leverrier submits that while he was previously assessed under DRE category I, it is a matter of common knowledge and common sense that injuries can deteriorate over time, and there is nothing unusual in the deterioration from DRE category I to DRE category II.
[9] Mr Leverrier submits that cl 6.21 of the Guidelines provides that the evaluation should only consider impairment as it exists at the time of the assessment.
[10]-[11] Mr Leverrier submits that the High Court in Wingfoot Australia Partners Pty Ltd v Kocak confirmed that a Medical Panel must form its own opinion using its expertise, not arbitrate between competing opinions. He submits Wingfoot further confirms that a Medical Panel is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion was reached by others.
[12] Mr Leverrier submits that the Review Panel should acknowledge earlier assessments but, in its own assessment, must rely only on its own examination findings and not those of other doctors at earlier times.
[13]-[14] Mr Leverrier submits that while the Medical Assessor Giblin’s findings and assessment are clear, his reasons could have been better expressed, particularly by citing the specific Guideline references and confirming the mechanism of back injury in the accident. Mr Leverrier submits that notwithstanding this, Medical Assessor Giblin’s WPI assessment was correct, consistent with the findings, and properly based on the accident injuries.
EXAMINATION BY THE PANEL
Medical Assessor Christopher Oates examined Mr Leverrier on behalf of the Medical Review Panel on 17 July 2025.
He noted that the permanent impairment disputes to be assessed were:
· skin – scarring to hands;
· right ankle – soft tissue injury;
· left hand – fracture injury;
· right hand – amputation, and
· thoracolumbar spine.
Medical Assessor Oates took a pre-accident medical history and relevant personal details:
“He is single. He did have a girlfriend previously but no longer. He lives in a two-bedroom unit on the second floor, accessed by stairs, with a pet cat.
He did some tertiary education, including Certificate III in Automotive Sales, and has worked mainly in the field of retail car sales.
He doesn’t smoke and drinks alcohol socially.
In 2014, he went over the handlebars of his motorcycle when he collided with a car. He went to Royal North Shore Hospital. He had a right ankle injury which settled down with conservative treatment. In about 2019, he ruptured his right rectus femoris at the hip whilst playing soccer. He had conservative management. He was able to get back to playing competitive soccer after a few weeks.
His general health has been good.”
He then took a history of the accident, noting that:
“On 21 August 2020, at about 6pm, Mr Leverrier was riding a BMW 1000 SR motorcycle with no pillion passenger. He had riding boots, a padded jacket, leather riding gloves, full-face motorcycle helmet and dress trousers on. He was at a set of traffic lights and when they turned green, he accelerated, when an oncoming car suddenly turned right across his path and he T-boned the car. He didn’t have any time to brake and collided with the car at a speed of about 60kph. The force of the collision split the triple clamp of the motorcycle handlebar, and his right middle finger (inside his riding glove) was crushed between the brake lever of the motorcycle and the motorcycle handle. He was thrown off and slid along the ground, and the sliding motion pushed his right glove proximally towards the wrist.
He was wearing R M Williams dress boots, and the heel of the right boot was wrenched off the sole of the boot. His left hand was painful around the base of the 5th finger, he thinks from contact with the car.
Whilst lying on the grass at the accident scene, he was aware of pain in the left rib and laterally to the middle back, the right Achilles tendon area at the ankle, and right hip from where he hit the road. He doesn’t recall any head injury or loss of consciousness. However, he does not recall the actual impact with the ground but does remember the initial impact with the car.
He was taken to Royal North Shore Hospital by ambulance. The ambulance record indicates no cervical spine pain or tenderness, and no injury to shoulders, back or torso, but grazing to right knee and right shin, and partial amputation of right middle finger, with pain to the left hand and anatomical snuff box tenderness at the wrist, with a GCS (Glasgow Coma Score) of 15/15.
The hospital record refers to near amputation of right middle finger and left-hand 5th metacarpal fracture. X-ray of chest showed mildly displaced left 12th rib fracture, favoured to be acute. CT scan of the brain was normal.
In hospital, he had the tip of the middle finger removed and cleansed. There was conservative treatment for the left 5th metacarpal fracture, and he was discharged wearing a thermoplastic splint.”
He then took a history of symptoms and treatment following the accident, noting that:
“He had fracture follow-up clinic appointments and hand therapy at the Royal North Shore Hospital clinic.
He had an MRI scan of right wrist on 2 November 2020 because he was noted to have difficulty with ulnar deviation of the wrist since the accident. He was given hand exercises and referred to Dr Ryan, hand surgeon, whom he saw on 6/11/2020. He noticed a flexion deformity of the left 5th finger from the healed metacarpal neck fracture.
On 10/12/2020, he had left 5th metacarpal correction osteotomy and bone graft. After recovering, he could make a full fist but still had lack of full extension at the left 5th MCP joint.
In mid-March 2021, he had revision of the amputation stump of the right middle finger with excision of an inclusion cyst adjacent to the bone at the cyst of maximal tenderness. He then continued hand therapy at North Shore Private Hospital.
He also had right ankle Achilles tendonitis and because of ongoing limping from this condition, he had a sore back. He had physiotherapy for the Achilles tendonitis and associated insertional enthesopathy at Physio Evolution, with benefit.
After about five weeks off work, he went back on to reduced duties until the COVID-related restrictions resulted in his company shutting down for three months.
Whilst on restricted duties, he did less handling of cars and more administrative duties. He started having panic attacks when he was taking people out for test drives. He left this job in March 2023. He did six months with another car dealership, which promised him that no test drives were involved, but he left them when he started to be asked to do test drives regularly. He then became a manager for a private jet charter company. He did administration and management work. He worked full-time there from April 2024.”
Medical Assessor Oates recorded Mr Leverrier’s current symptoms:
“The stump of the right middle finger is very sensitive and causes difficulty with typing and picking up and gripping objects. He also has difficulty holding objects involving twisting or gripping with the left hand and reduced left wrist movement. This is mainly noticed at the bone graft donor site.
There is a reduced range of movement, with clicking and grinding in the right wrist, particularly in ulnar deviation. His thoracic back and left rib area are sore.
The heel of the right ankle is sore if he does not wear shoes with heel cushioning, so he has bought a specially designed pair of sneakers. His left hip gets sore when he is walking extra distances to try and lose weight. He is still limping off the right foot sometimes.”
He then undertook a clinical examination, which is reproduced below:
“General presentation
He was of tall solid build with height 188cm and weight 112kg.
Spine
There was full range of movement of the cervical spine in flexion, extension, lateral flexion and rotation. There was a normal amount of thoracic kyphosis and normal lumbar lordosis curve.
There was no thoracic spasm and no guarding. There was no significant chest wall tenderness or pain complaint on springing the chest wall.
Thoracic rotation was equal bilaterally and almost full range when tested while sitting, and when standing with the back flexed to 90° at the waist to eliminate lumbar rotation.
Sensation over the trunk was intact. Lumbar spine showed full flexion and extension, and full range of lateral flexion bilaterally.
Calf girth at 16cm below the patella; right 41cm, left 42cm.
Right and left hips
There was tenderness over the left trochanteric bursa, but full range of movement in flexion extension, internal and external rotation, and abduction and adduction bilaterally.
Right and left knees
There was full range of movement in the right and left knees with range of movement of 0 - 130° flexion measured with a goniometer bilaterally.
Right and left ankles
There was tenderness over the right Achilles at the insertion to the heel, with some thickening from insertional tendinopathy. There was full range of dorsiflexion and plantar flexion bilaterally. Eversion was 15° on the right and 25° on the left. Inversion was 30° on the right and 40° on the left.
Upper extremities
There was full range of movement of both shoulders and elbows.
Wrist Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion
60°
60°
Volar flexion
60°
60°
Radial deviation
35°
30°
Ulnar deviation
40°
40°
Range of movement was measured with a goniometer.
There was full range of movement of the right hand, and of the left hand at the thumb, index, middle and ring fingers.
At the left-hand little finger there was 15° lack of full extension at the MCP joint but full flexion, and the PIP and DIP joints showed 0° to full range of flexion.
There is a partial amputation of the right middle finger, and the stump is sensitive to touch, but otherwise sensation is intact. The distal interphalangeal joint shows 0° flexion. The length of the right middle finger is 70mm compared with the left at 83mm. There is full range of movement at the MCP and PIP joints of both middle fingers.
Scarring
There is a 3cm scar over the radial styloid on the left with hypertrophy and pigmentation, but no tethering.
There is a 5cm well-healed fine scar over the dorsal aspect of the left fifth metacarpophalangeal joint with no trophic changes and no adherence.
There is a 1cm scar over the ulnar right styloid which is well healed and not adherent, and there are no trophic changes or colour contrast.”
Medical Assessor Oates then set out his diagnosis, causation and reasons:
“Right ankle
Causation for this injury is somewhat questionable. There was definitely an injury to the right ankle from an earlier motorcycle accident in 2016 and also injury from soccer in August 2019 to this part. Mr Leverrier’s statement does refer to right ankle and ambulance record refers to grazing of right knee and shin, but not the ankle.
The Panel notes that the accident resulted in damage to his right boot and he reported ankle pain from the time of the accident.
Dr G Nash, the GP, referred Mr Leverrier for ultrasound of right ankle and heel, and physiotherapy, in November 2021. An X-ray followed in December 2021.
The diagnosis is right Achilles tendinosis and insertional enthesopathy. On balance, the Panel accepted that the accident was a cause of a right ankle injury.
Left hand
This was referred as a soft tissue injury but there was actually a fracture of the fifth metacarpal neck confirmed in the hospital record. This was treated conservatively.
The accident was a cause of this injury.
Right hand
This was also referred as a soft tissue injury, but in fact consisted of a near complete amputation of the tip of the right middle finger, which was completed in hospital at the mid-distal phalangeal level.
The accident was a cause of this injury, as it is clearly referred to in the ambulance and hospital records.
Scarring
Scarring occurred to the radial styloid of the left wrist and over the dorsal aspect of left fifth metacarpophalangeal joint, and there was also a small scar over the right ulnar styloid area of the wrist. The accident was a cause of these scars.
Thoracolumbar spine
The ambulance records included no reference to back pain; however the claim form and Mr Leverrier’s Statement do refer to thoracic back pain. The hospital record indicated a twelfth rib fracture with mild displacement.
After consideration of the evidence, it is more likely than not, considering the mechanics of the accident, that a thoracic spine soft tissue injury could have occurred, along with the frank fracture injury to the left twelfth rib.”
He then assessed permanent impairment as follows:
“Thoracolumbar spine
There was no spasm, no guarding, no non-verifiable radicular complaints, and no asymmetric loss of active range of motion, in fact full range of motion in both the thoracic and lumbar spines. There was no radiculopathy.
Symptoms are still present to a small degree.
The descriptors place him in DRE Thoracolumbar Category I giving 0% WPI. An uncomplicated rib fracture does not result in any assessable permanent impairment.
Right middle finger
Medical Assessor Oates assessed 30% impairment of the finger due to the amputation, and 36% impairment of the finger from 0° flexion at the DIP joint. 36 % is combined with 30% using combination table of AMA 4th which is 55%. Middle finger impairment is converted using Table 1 to 11% hand impairment. Table 2 converts 11% hand to 10% UEI. Table 3 converts 10% UEI to 6 % WPI.
Left little finger
He assessed 9% impairment of the little finger from loss of full extension at the MP joint. This gives 1% impairment of the hand, 1% impairment of the upper extremity and this converts to 1% WPI.
Right ankle/hind foot
From the measured range of movement on examination today, there is no assessable permanent impairment.
Scarring
For the scarring taken as a whole, the Medical Assessor determined 1% WPI as the best fit under the TEMSKI table.
The injured person is conscious of the scars and some of the scars have colour contrast with surrounding skin. The injured person is able to easily locate the scars and there are some trophic changes on one of the scars. There are not obvious suture or staple marks visible, but the anatomical location of all the scars would be visible with usual clothing. There is minor contour defect in one of the scars, but no effect on ADLs, no requirement for treatment, and no adherence. The scar in question is over the left radial styloid process.”
POST-EXAMINATION MEETING OF THE PANEL
The Panel met again on 20 July 2025 at 4.00pm and discussed the case, including all aspects of it in addition to the examination and findings of Medical Assessor Oates referred to above, and after such discussion, came to the view that it agreed with the conclusions of Medical Assessor Oates that Mr Leverrier, as a result of the accident, had an 8% WPI.
The significant difference between the conclusions reached by the Review Panel at its second meeting, having discussed the findings on medical examination and clinical review by Medical Assessor Oates, the Panel came to the conclusion that in the thoracolumbar spine, there was no spasm, no guarding, no non-verifiable radicular complaints, no asymmetric loss of active range of motion, and that in fact there was a full range of motion in both the thoracic and lumbar spine without radiculopathy.
On this basis, the Panel came to the conclusion that the descriptors placed Mr Leverrier, in respect of his thoracolumbar spine, at DRE category I, giving 0% WPI.
The Panel has taken into account Mr Leverrier’s submissions on review of 23 May 2025, that:
“There can be no doubt the claimant injured his back in the accident. He came off his motorcycle and landed with such force that part of his finger was amputated…the Application for Personal Injury Benefits filled out only 8 days after the accident recorded the claimant’s symptoms of back pain.”
All of this may be true at the time, as no doubt Mr Leverrier’s recollection of remembering lying on the grass and being aware of pain in his back and right leg.
The relevant time is the time of the examination performed by Medical Assessor Oates, who has comprehensively recorded what he found at the time of such examination.
THE PANEL’S CONCLUSIONS
The Medical Review Panel revokes the determination of Medical Assessor Peter Giblin of
17 February 2025 that the accident gave rise to a permanent impairment of 13% and in lieu determines that the accident gave rise to a permanent impairment of 8%.
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