AAI Limited t/as GIO v Mohammed

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Mohammed [2023] NSWPICMP 178
CLAIMANT:	El Mutaz Mohammed
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Paul Curtin
DATE OF DECISION:	3 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) and insurer’s review under section 63; claimant injured in March 2017 when knocked over by car which ran over him fracturing his left ankle; in July 2017 claimant fell down stairs fracturing his right ankle; the issue in dispute between the parties was the cause of the fall and whether the right ankle fracture was an injury consequential to the original injury; the insurer alleged fall was caused by the claimant’s intoxication noting that an ambulance record said the claimant was under the influence of alcohol; Medical Assessor (MA) Dixon had found the right ankle injury was caused by instability or giving way of the left ankle injury which was caused by accident; WPI was assessed at 12% (8% for the left and 4% for the right ankle); Held – the Panel found that the claimant’s consumption of alcohol may have been a cause but was not the only cause of the claimant’s fall; the claimant was prescribed high levels of antibiotics, was taking other medication and was substantially deconditioned and weak as he had been non-weight bearing for a period of time after the first accident; the Panel found the motor accident was a more than a negligible contribution to the injury to the right ankle; WPI assessed at 13%; Medical Assessment Certificate of MA confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Confirms the certificate of Medical Assessor Dixon dated 15 April 2022. 2. Certifies that the degree of Mr Mohammed’s permanent impairment resulting from the injuries caused by the motor accident on 10 March 2017 is greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

El Mutaz Mohammed (the claimant) was involved in an accident on 10 March 2017. He was at work, collecting shopping trolleys when he was knocked over by a car which then drove over his left ankle. On 24 July 2016, as the claimant was recovering from this injury, he fell and injured his right ankle.
Mr Mohammed made a claim for damages against GIO the insurer of the vehicle that Mr Mohammed says caused his accident.
A medical dispute arose in that claim concerning Mr Mohammed’s entitlement to damages for non-economic loss. That dispute was referred to the Personal Injury Commission (the Commission) for determination.
On 15 April 2022, Medical Assessor Drew Dixon determined that Mr Mohammed had a whole person impairment (WPI) of greater than 10%.
GIO was dissatisfied with that result and lodged an application for review with the Commission. On 12 August 2012, the President’s delegate determined there was reasonable cause to suspect a material error in Assessor Dixon’s determination and the President has convened this Panel to undertake the review.

LEGISLATIVE FRAMEWORK

Mr Mohammed’s claim and his entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[2].
[2] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Dixon’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 61, 62 and 63 of the MAC Act.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[4] Section 133 of the MAC Act. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the issues in dispute between the parties being limited, the relevant chapter of AMA4 is chapter 3 in particular section 3.2 of that chapter which provides 13 methods of assessing lower limb impairment depending on the type of injury and the type of impairment.
For the claimant’s right and left ankle fractures, Medical Assessor Dixon used the method of range of motion (section 3.2e) Table 42 of which provides for ankle motion impairments and Table 43 which provides for hindfoot impairments.
The Guidelines modify Tables 40 to 45 of the AMA4 Guides and say at cl 1.85:
“Where there is loss of motion in more than one direction/axis of the same joint, only the most severe deficit is rated – the ratings for each motion deficit are not added or combined. However, motion deficits arising from separate tables can be combined.”
In other words, for Mr Mohammed’s right ankle impairment, one impairment (the highest) is allowed for the ankle motion and one for the hindfoot impairment and they are combined, but Mr Mohammed cannot add or combine the impairments of individual motions within the ankle or hindfoot.

ASSESSMENT UNDER REVIEW

Medical Assessor Dixon issued a certificate on 15 April 2022, three days after his assessment, finding that Mr El Mohammed had a WPI of 13%.
In his reasons, Medical Assessor Dixon noted he was required to assess the following injuries:
(a)    neck – soft tissue injury;
(b)    left shoulder – soft tissue injury / Nguyen principle;
(c)    right shoulder – soft tissue injury / Nguyen principle;
(d)    low back – soft tissue injury;
(e)    right leg – right distal fracture;
(f)    right ankle – right distal fracture;
(g)    left knee – soft tissue injury / patellofemoral dysfunction;
(h)    left ankle – bi-malleolar left ankle fracture, and
(i)    scarring left and right legs.
Medical Assessor Dixon noted the issue with the causation of the right leg injury and confirmed receipt of the claimant’s supplementary submissions (7 February 2022).
In terms of the history obtained from the claimant, Medical Assessor Dixon records:
(a)    the claimant had worked as social worker in Sudan before migrating to Australia in 2002 when he commenced work as a casual painter and maintenance worker. The claimant did not work and received the disability support pension due to mental health issues between 2004 and 2016. The claimant found work part time as a casual maintenance worker and then a trolley collector a few days before his accident. He was injured while at work;
(b)    the claimant was diagnosed with schizophrenia in 2004 or 2005 and was medicated;
(c)    he had a history of liver cirrhosis and “falls following alcohol abuse between 2011 and 2016” but was not medicated. He notes that the claimant also has diabetes, high cholesterol and high blood pressure and obstructive sleep apnoea;
(d)    the claimant has received the disability support pension since 2005 and National Disability Insurance Scheme (NDIS) benefits since 2017,[5] and
(e)    the claimant had previous falls and attendances at hospital in 2011 (head injury), 2014 (fractured left elbow) and 2016 (fracture of the humerus).
[5] Cleaning and gardening assistance.
Medical Assessor Dixon has a history of the accident and the claimant’s treatment noting he was taken to Liverpool Hospital by ambulance. The claimant’s left ankle fracture was reduced and fixed in surgery on 13 March 2017, and he was discharged two days later. The injury was complicated by infection and further surgery on 17 May 2017. The claimant had a further two months in hospital.
Medical Assessor Dixon then records:
“On returning home on 24 July 2017, he fell down a set of stairs at home in the early hours due to his left ankle giving way, injuring his right leg.”
The claimant was reported to have had surgery to fix his fractured tibia and fibula and spent four days in hospital. He had further surgery to the leg and to his left ankle on 7 August and 15 November 2018.
The claimant reported pain and stiffness in both ankles and both knees and pain in his lower back. Medical Assessor Dixon took from the claimant a history of his neck and shoulder complaints settling and no radicular symptoms in his upper or lower limbs. The claimant was said to use a Canadian crutch when outside his home, he had difficulty standing for more than five minutes, difficulty walking for more than 10 minutes and he has stopped driving. He reports difficulties with household duties.
The claimant continues with his pre-accident medication regime and Lyrica for his neuropathic pain and an anti-inflammatory.
On examination:
(a)    neck – the claimant had a full range of motion with no neurological or radicular symptoms;
(b)    lower back – there was stiffness and restriction of motion but no dysmetria or neurological deficits;
(c)    arms – both shoulders had full range of motion with no pain or tenderness. Shoulder girdle power was grade 5 (out of 5) on the right and 4 out of 5 on the right, and
(d)    legs – there was weakness, tenderness and stiffness in the left ankle with scars noted. In the right leg there were scars which –Assessor Dixon noted in terms of size and characteristics. Knee ankle and hindfoot measurements were measured and reported. The claimant used the Canadian crutch during the examination with a “bilateral limp more marked on the left”.
Medical Assessor Dixon reviewed the medico-legal reports and summarised the radiology and found the left ankle fracture and low back strain caused by the accident. He noted the neck and shoulder injuries had settled and that there was significant surgical scarring. He found the right leg fracture was related to the left ankle giving way on stairs which was “consistent with his left ankle condition at the time” and noting that the claimant was using a stick or crutch at that time. Medical Assessor Dixon found the following impairments:
(a)    left ankle and foot – 8%;
(b)    left knee – 0%;
(c)    right ankle – 4%;
(d)    scarring – 1%, and
(e)    lumbar spine – 0%.

ISSUES FOR DETERMINATION

Insurer’s submissions

The sole focus of the insurer’s submissions is Medical Assessor Dixon’s finding of causation of the right ankle / leg fractured tibia and fibula.[6] In essence, Medical Assessor Dixon found the claimant’s left ankle was unstable and gave way leading to the claimant falling down the stairs and fracturing his right leg.
[6] The submissions dated 20 May 2022 are found at page 13 of the insurer’s bundle.
The insurer says:
(a)    Medical Assessor Dixon did not consider the supplementary submissions lodged by the insurer and the clinical records and reports of Drs Harris and Herald;
(b)    there is documentation suggesting the claimant’s fall on 24 July 2017 occurred because he was intoxicated and not because of the any instability in his leg, and
(c)    other doctors’ findings on causation, such as Dr Dias, cannot be accepted if their opinions were based on incorrect histories.
The insurer’s supplementary submissions in support of the original application for assessment[7] quote from the ambulance report of 24 July 2017 as follows:
“Pt[8] fell down 3 – 4 steps at residence whilst under the influence of alcohol – admits to drinking half a bottle of sherry tonight. Pt now C/O pain to right lower leg. Pt denies any LOC or hitting his head. Family on scene can confirm nil LOC – heard Pt fall and check in [him] straightway. Pt denies any dizziness or chest pain prior to fall”.
[7] Dated 13 August 2021 and found at page 16 of the insurer’s bundle.
[8] Pt is a common abbreviation of the word patient.
The insurer had submitted the only accident-related injuries were the left ankle fracture and an abrasion to the right elbow. The insurer says the injuries to the neck, left shoulder, right shoulder, right leg and right knee injury are not related due to the absence of contemporaneous complaints.
The insurer provided final submissions[9] which:
(a)    quote the ambulance report and the Campbelltown Hospital triage comment concerning the fall and the half a bottle of sherry;
(b)    refer to the claimant discharging himself and having minimal treatment between July 2017 and August 2018;
(c)    cite Dr O’Carrigan’s report of 16 August 2018 that the claimant was not experiencing pain in the right leg and his left leg symptoms had improved by 50%;
(d)    noted that the physiotherapy record, as at 16 November 2018 that the claimant had been mobilising independently, and
(e)    Dr Dias’ report should not be given any weight as to causation because he did not have the relevant ambulance and hospital records.
[9] Document AD 24 in the Commission’s file and dated 14 November 2022.

Claimant’s submissions

The claimant provided submissions in respect of causation.[10] He refers to his general practitioner (GP) notes and the entry on 30 July 2017[11] “follow up right lower leg fracture on 24 July 2017 from loss of balance from earlier left ankle”. The claimant notes there is no reference to alcohol in this report.
[10] Dated 23 August 2021 at page 1233 of the claimant’s bundle.
[11] Page 253 claimant’s bundle of documents.
In terms of the ambulance report the claimant says there was no blood alcohol level recorded and there was nothing in the ambulance record to suggest even if the claimant had been drinking that this had affected him. The claimant says the reference to half a bottle of sherry does not have a time frame to indicate for how long the claimant had been drinking.
The claimant maintained that it was the weakness in his left leg that caused his left leg to give way, and this is “the more likely and more medically plausible explanation” for the fracture of the right leg.
The claimant also submitted that the claimant’s lower back, neck, thoracic spine and shoulders should be assessed.
In response to the insurer’s application for review, the claimant[12] restated his views on causation that his right ankle fracture was caused by the accident. The claimant’s submissions say at [5] the claimant has “constantly said [his right ankle injury] was as a result of his left ankle giving way”. The submissions quote at [6] Medical Assessor Dixon who says the accident occurred “due to his left ankle giving way” and at [13] that the claimant was “having difficulty walking and needed an assistive device, such as a stick or crutch.” The submissions also refer to the claimant’s original submissions made in support of the application before Medical Assessor Dixon that the cause of the right ankle fracture was “related to the Claimant losing balance and falling downstairs, due to his left injured ankle giving way”.
[12] The submissions are dated 30 June 2022 and are found at page 1237 of the claimant’s bundle.

Procedural matters

After the first meeting of the Panel (on 16 September 2022) the Panel issued a report to the parties requesting the production of documents (including a full copy of the hospital notes and ambulance record) and submissions addressing whether the parties agreed that the only injuries to be assessed were the left and right ankle and the claimant’s scarring. Documents were provided and both parties responded confirming that the assessment of the lumbar spine (0%) and scarring (1%) was agreed and that the real issue in dispute was causation of the right ankle injury.
The Panel met again on 25 October 2022 and issued a report to the parties dated 1 November 2022. The Panel noted at [12] that:
“… it is to undertake a de novo assessment and noting the agreement of the parties does not intend to consider further the scarring and the claimant’s lumbar spine injury. As the parties have successfully narrowed the issues for the Panel, it would appear the Panel is to undertake:
(a)an assessment of left lower limb impairment (no issue of causation) and
(b)an assessment of the right lower limb impairment (with the issue of causation between the accident and the fall).”
The parties were advised of the re-examination date and asked to provide further documentation and final submissions on the issue of causation of the right lower limb injury.
The claimant does not appear to have provided any further submissions however the insurer provided short additional submissions dated 14 November 2022 providing a copy of the Campbelltown Hospital notes, the ambulance report and the Hurstville Private Hospital records. The insurer says that the claimant’s right ankle fracture occurred while the claimant was intoxicated, and that Dr Dias did not have the full history and therefore his opinion should be given little weight.

REVIEW OF THE EVIDENCE

Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[13] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.^{- endnotes}) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical.As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[13] [2022] NSWSC 1079.
There are over 5,000 pages of hospital notes, close to 1,250 pages in the claimant’s bundle and 475 pages of documents in the insurer’s additional bundle. The parties have, helpfully, agreed that the only injuries for the Panel to consider are the claimant’s left ankle and right ankle in particular causation of the right ankle injury and the impairment related to the claimant’s scarring. As a result, the Panel does not intend to summarise all of the records within these reasons and will only refer to those documents relevant to the issues in dispute.

Claim form and claim documents

The personal injury claim form is dated 30 August 2017[14] and notes the attendance at hospital and discharge date on 15 March 2017 and lists injuries to the left ankle and knee, right elbow, whole of back and neck, psychological issues and scarring. While the claim form was completed after the July 2017 fall, the right ankle injury is not listed.
[14] Page 1 of the claimant’s bundle.
The claimant refers to having had a mental illness for 10 years and diabetes as a relevant condition.
The medical certificate for the claim form is dated 15 March 2017 and was completed by a doctor at the Liverpool Hospital and the only listed injury is the fractured ankle.

Treating medical records and reports

GP notes

Dr Ahmed from Campbelltown is the claimant’s pre-accident GP and his records commence in December 2009. At that time the claimant was being treated for diabetes, schizophrenia and hiccoughs. Mr Mohammed was prescribed a variety of medications including Valium.
In 2012 the claimant was seen for anxiety, depression and schizophrenia and high cholesterol. In August that year he had hiccoughs and was shaking and perspiring after ceasing alcohol for five days. In January 2013, Mr Mohammed attended saying he wanted to cease drinking.
There is a history on 3 February 2013 of, “slipped down stairs 2 days ago, hit R ribs against steps” and an X-ray was ordered.
There is a history in September 2013 of him drinking half a bottle of whiskey per day and he was taking Valium. He complained of hiccoughs. Further consultations suggest the hiccoughs are not controlled.
In January 2014 the claimant was having withdrawal symptoms from alcohol and sought a prescription for Valium. There are two reports of his wife throwing the Valium away. He was given dietary advice in May 2014 for control of his diabetes, but he said he had stopped drinking for six months.
On 12 June 2014 there is a history of him drinking and falling on the ground and in August 2014 he expressed the desire to stop drinking. There is a further fall reported (slipped and fell in bathroom) on 25 August 2014 after drinking alcohol. The Panel notes this would appear to be the occasion where he fractured his left elbow as mentioned in Medical Assessor Dixon’s determination.
In 2014 and 2015 there are further issues with his hiccoughs, panic and stress and the claimant was reported taking three times his prescribed dose of Lyrica. There are regular requests for Valium and on 19 April 2015 he reports taking all 50 tablets of Valium in two days.
On 25 July 2015 the claimant reported falling over and hurting his lower back in the toilet after drinking the night before. There was another fall in November 2015 noted when he slipped and fell in the bathroom and hurt his back.
On 8 January 2016 the claimant smelt of alcohol and on 10 January he reported to his doctor he had stopped drinking but had started again in the last four to five days.
On 6 February 2016 the claimant complained of being dizzy and sweating. The claimant’s hiccoughs continued and he said they were getting worse in April. On 1 June 2016 he had fallen and fractured his humerus and been to Liverpool Hospital.
On 16 June is a reference to suboptimal glycaemic control. This is repeated on 6 October 2016.
In August 2016 the claimant reported hearing voices. There are similar attendances in the past and the claimant appears to be non-compliant with his psychiatric medication (Seroquel). On 31 August he was reported to have been overdosing on Seroquel.
There are over 20 attendances after Mr Mohammed was discharged from hospital on 15 March 2017. Several of these concern form filling relevant to the claims process but there are other attendances for his pre-accident conditions including hiccoughs. The Panel has reviewed the entries and notes there is no suggestion in these notes between March and July 2017 of any falls, giving way of the ankle or loss of balance.
There is an entry from 14 May 2017 that the claimant was drinking again and on 17 June 2017 is an entry regarding an injury to his face with swelling and pain around the left eye and a severe subconjunctival haemorrhage.
The claimant’s glycaemic control had improved as at 21 June 2017. The Panel notes this is likely to be related to his hospital admissions where his diet and medications would have been supervised and his access to alcohol limited.
On 2 July 2017, the claimant wanted an extension of his workers compensation claim (certificate of fitness) and a certificate was issued. The last attendance before the fall was 18 July 2017 when Mr Mohammed attended for his medications.
On 30 July 2017, after his discharge from hospital, the claimant attended on Dr who records:
“Follow up [right] lower leg [fracture] on 24/7/17 from loss of balance from earlier left ankle. Been to hospital [open reduction and internal fixation done. Depressed stressed from new leg [fracture]. Will go to hospital for follow up to see Dr Sameer.”

Liverpool Hospital notes for admission on 10 March 2017[15]

[15] The notes relevant to the motor accident commence at page 232 of the insurer’s bundle. A different and small bundle with additional documents is included at page 71 of the claimant’s bundle.

The admission notes record that a history and examination was performed with an Arabic speaking interpreter in attendance.[16] Apart from the left ankle, the claimant was tender on the left knee and had abrasions on his right elbow.
[16] Page 94 of the claimant’s bundle.
The claimant was admitted for surgery by Dr Dave following his bimalleolar ankle fracture dislocation. On admission he could not name his medications (but knew he took one for hiccups, antidepressants and depot for schizophrenia) and was uncertain as to his compliance.[17]
[17] Page 264 of AD22.
The claimant was agitated and confused, and a CT scan of his brain was ordered on 11 March 2017. The claimant’s falls risk soon after admission was assessed as zero[18] although it rose to 21 after his surgery on 13 March 2017.
[18] Page 266 of AD22.
The claimant was discharged on 15 March 2017[19] to be non-weight bearing and follow up with his GP and specialist (Dr Harris).
[19] The discharge summary is at 292 of AD 22.
On 3 May 2017 he had further surgery to revise the fixation device.[20] After this operation he was complaining of significant pain and numbness in his toes however he was confused about which toes.
[20] Notes start at page 305 of AD 22.
The handwritten notes[21] include a physiotherapy note which suggests the claimant was given a cam boot and that the claimant was independent with axillar (under arm) crutches. The claimant and his wife were seen with an Arabic interpreter and educated about the claimant’s non-weight bearing status.
[21] Page 76 of the claimant’s bundle.

Dr Harris

Dr Harris is an orthopaedic surgeon who has treated the clamant. His records[22] include the following:
(a) 15 March 2017 letter to Dr Dave (orthopaedic surgeon) – the claimant’s left ankle was fixed with a bridge and two screws on 13 March 2017 (three days after the accident and after the open wound was debrided). The fracture was said to be comminuted and difficult to reduce. The claimant was placed in a plaster cast, and
(b)
29 May 2017 – the claimant had been reviewed regularly and had been in plaster and then a boot. Initial X-rays showed the fracture healing well but subsequent

X-rays suggested that one of the screws had loosened. Further surgery took place on 3 May 2017 to replace three new screws and the claimant was advised not to weight bear for six weeks.
[22] Commencing at page 23 of the insurer’s bundle.
There are no further records from Dr Harris but nothing in his records to suggest weakness, giving way or losing balance.

Campbelltown Hospital notes including admission 24 July 2017[23]

[23] Documents AD23 and AD25 in the Commission’s electronic file.

The Campbelltown Hospital records includes a letter from Professor Gosbell to the claimant’s GP dated 18 July 2017[24] which reported on his consultation with Mr Mohammed on 17 July 2017. The claimant had developed a staphylococcus aureus infection and was treated with six weeks of intravenous antibiotics and then oral antibiotics. Professor Gosbell was an infectious diseases expert and was managing the infection.
[24] Page 17 of AD 23.
When examined, the claimant’s ankle “was quite swollen … [and] really quite hot”. He gave the claimant a further script for antibiotics and a letter requesting the orthopaedics team give consideration to removing the internal fixing devices and the claimant was to return in six weeks for review.
Triage at the Campbelltown Hospital occurred at 11.44pm. The triage note[25] says: “[brought in by ambulance] fell down few steps injuring R ankle. Admits to half bottle of sherry tonight. Denies [cervical] spine pain [on examination] mild deformity to ankle …”
[25] Page 15 of AD 25.
The claimant was said to be unable to feel his foot or move his toes.
The emergency department case history notes[26] has this history:
“44 year old male brought in by ambulance after unwitnessed fall down stairs. Wife heard bang, found patient lying on stairs with obvious R ankle deformity, no LOC. Had consumed ½ bottle of spirits prior. Patient unable to give details of fall. Denying pain anywhere aside from R ankle.”
[26] Page 17 of AD 25.
The Panel has carefully considered the hospital records and there is no other history provided in respect of the mechanism of the fall. The Panel notes there was concern on admission about the claimant’s alcohol intake and the possibility of withdrawal.[27]. Throughout the notes is a reference to the claimant’s history of “ETOH” (alcohol) abuse. The Triage team also had a history of no preceding chest pain, dyspnoea (shortness of breath) or palpitations presumably undertaken to ascertain what might have caused the fall. Mr Mohammed denied any known head strike or loss of consciousness.
[27] Page 17 of AD 25.
A mental health progress note dated 28 July 2017[28] records the claimant’s background and that Mr Mohammed is an active client of the local Community Mental Health Team. The claimant was said to be “pleasant, settled and reactive” denying depression, denying abusing drugs and alcohol and was in a normal (euthymic) mood. While his insight and judgment was said to be good, the claimant wanted to go home. Mr Mohammed’s medication was adjusted but there were “no grounds to detain under the [Mental Health Act 2007]”.
[28] Page 20 of AD 25.
The Panel also notes a falls risk screening assessment undertaken on 25 July 2017[29] and the associated falls risk screen[30] which records the claimant had fallen in the last two months and that the claimant’s mobility score was “immobile”. His risk of falls score was 13 which, at greater than nine indicates a high risk of falls.
[29] Page 21 of AD 25.
[30] Page 5 of AD 23.
The Panel notes the claimant was discharged on 28 July 2017 with this note[31] “Patient was NOT cleared by physiotherapy as could not mobilise with frame independently. Patient SELF-DISCHARGED AGAINST MEDICAL ADVICE.” The claimant removed his own IV according to the nursing note on 28 July 2017.[32] The orthopaedic note is “patient left hospital weight bearing on leg against advice given”.[33]
[31] Page 13 of AD 25.
[32] Page 32 of AD 23.
[33] Page 37 of AD 23.
Within the other bundle of notes is a record on 27 July 2017 from the hospital’s physiotherapist[34] that the claimant had crutches and a wheelchair at home following his previous left leg fracture. On 28 July there was a note that the claimant had been observed weightbearing and using the wheelchair and was declining instructions or not co-operating at times. He was said to be unsteady on crutches with poor control and was a high falls risk and it was recommended he use a wheelchair only.
[34] Page 29 of AD 23.
The nursing and other notes in this bundle report the claimant was at times confused, aggressive and refusing to take advice in particular with regards to his desire to leave hospital before it was safe for him to do so.

Dr Herald, Dr O’Carrigan and other specialists

Dr Herald consulted the claimant at the request of his GP Dr Ahmed on 13 April 2018 letter to Dr Ahmed suggests the claimant fractured both legs in the shopping trolley accident however Dr Herald notes the claimant does not speak English and so communication was difficult. Infection was present in the wounds in both ankles and the claimant complained of right ankle swelling. Mr Mohammed was using a stick and wanted to have the hardware removed but had no records with him. Dr Herald referred the claimant to Dr O’Carrigan who was practising in the Campbelltown area.
On 20 June 2018, Dr O’Carrigan wrote a lengthy letter to Dr Herald. He did have a history of the two separate incidents / accidents. The claimant reported constant pain and swelling in the left ankle and occasional pain on the right side. Dr O’Carrigan was concerned about the claimant’s general health and referred him to a gastroenterologist and advised Mr Mohammed to stop smoking. He recommended removal of the hardware in the right leg as well as removal of the left hardware and significant further surgery to address issues in the foot. He wanted to see the claimant with Dr Al Muderis in a “complex Orthopaedic Clinic” at Hurstville Private Hospital.
On 5 July 2018, Dr O’Carrigan explained the plan for future surgery and the need to control the claimant’s diabetes and for Mr Mohammed to stop smoking before that surgery.
Dr O’Carrigan reported on 2 August 2018 that the first stage of the operation had been done and on 16 August 2018 the claimant reported to Dr O’Carrigan that he had no pain in his right ankle and had a 50% reduction in the pain in his left, “his balance is extremely poor and he is very, very deconditioned”. He recommended physiotherapy and further surgery.
On 13 September 2018 Dr O’Carrigan outlined the proposed further surgery noting the claimant would be six weeks non-weight bearing and three months in a moonboot, and on 15 November 2018, Dr O’Carrigan’s operation report was provided.
Within Dr O’Carrigan’s records there is a letter dated 16 August 2018 addressed to the Housing Commission requesting Mr Mohammed be relocated to a home with no steps noting he was to have surgery and “has a significant risk of falls”. There is also a letter dated 13 December 2018 addressed to the Department of Immigration in support of a visa being granted to the claimant’s mother so that she could provide care to the claimant as he recovered from his surgery. Repeat letters were written in January 2019.
In a letter to Dr Ahmed dated 29 January 2019, Dr O’Carrigan suggests the claimant was doing “very well from his left ankle point of view”. There was swelling but no pain however the claimant had developed a partial radial nerve palsy because he had been using a stick to help him mobilise. Mr Mohammed was referred for physiotherapy and to a hand surgeon.
Other issues that arose during the course of Dr O’Carrigan’s care were “significant back pain” on 3 September 2019, a need for podiatry services in respect of his left foot and he was advised he was at risk of developing arthritis. The last record is dated 12 November 2019 at which stage the claimant was doing well but was to be seen again in six months’ time. There are no further records of treatment from Dr O’Carrigan.
Within Dr O’Carrigan’s records is a report from Dr Scott, hand surgeon dated 20 February 2019 following the claimant’s development of a radial nerve palsy. He noted the right forearm “had a somewhat wasted appearance” suggesting a more longstanding problem. Further correspondence suggests the development of elbow bursitis. The Panel notes the claimant’s pre accident history of left upper arm fractures in 2014 and 2016 but has no record of any right arm injuries of significance.
Dr Donnellan, neurologist reported to Dr O’Carrigan about the claimant’s back pain and left lower limb symptoms since the motor accident. The claimant reported pain in the lower back on working or standing which was worsening and not improving.
Dr Donnellan noted lumbar spasm with normal power in the right leg but global weakness in all foot movements and an absent left ankle jerk. He requested an MRI and reported back to Dr Ahmed that the claimant had an end plate fracture or disc herniation at L2 and disc prolapse at L5/S1.

Non-accident related hospital admissions

Below is a summary of many but not all of the claimant’s hospital admissions[35].
[35] Note LH is a reference to Liverpool Hospital and CH is a reference to Campbelltown Hospital.
(a)    12 May 2004 – LH - scan of brain background of headache.
(b)    10 August 2004 – LH – scan of brain with history of convulsion and tremor.
(c)    4 October 2004 – LH – scan of brain with history of “intoxicated with period of unconsciousness. Fell over. Felling weak. History of subdural haematoma”.
(d)    7 April 2011 – LH – scan of brain with history of assault with right temporal cerebral haematoma and alcohol abuse. The claimant had been found wandering around near his home. References to multiple admissions for intoxication and surgery performed to release cranial pressure.
(e)    29 December 2012 – LH – fracture of facial bones after presenting to emergency after a fall nine days ago whilst intoxicated.
(f)    27 February 2015 – LH – attendance at emergency for review of hiccoughs and epigastric pain. Noted he smokes but is an ex-drinker.
(g)    8 August 2015 – CH – generalised abdominal pain.
(h)    10 August 2015 – CH abdominal pain three days ago associated with vomiting. Last alcohol was a bottle of whisky the day before. Ambulance report says blood glucose has been high over the last two days and he is very thirsty.
(i)    2 September 2015 – CH – brought in by ambulance, vomiting for four hours after drinking 750ml of vodka last night. Hyperglycaemic and agitated.
(j)    6 September 2015 – CH epigastric pain. Denies drinking since last presentation. Patient alert and orientated but hyperglycaemic.
(k)    7 September 2015 – CH vomiting past day hiccups and general body pain denies recent alcohol intake.
(l)    17 September 2015 – CH vomiting blood and hiccups, alcohol abuse, no vomits. Admits to bottle of wine tonight.
(m)     21 September 2015 – CH vomiting and diarrhoea and hiccoughs. States has not had alcohol past 18 months (the Panel notes that the 10 August, 2 September and 17 September admissions suggest this may not be correct).
(n)    22 October 2015 – CH bought in by ambulance, vomiting and awoke with same after one bottle of wine last night.
(o)    17 November 2015 – CH wife concerned re high blood glucose level. Has reduced ETOH consumption but did have some yesterday. Unwell for two days, drowsy, was able to walk. NO known injury.
(p)    10 January 2016 – CH brought in by ambulance drank two bottles of vodka last night complains of epigastric pain and vomited multiple times tonight – looks clammy. Related ambulance report 10 January 2016 – at home developed breathing problems, alcohol and so on.
(q)    2 February 2016 – CH patient’s wife states patient vomiting since last night, responding to pain but refused to open eyes or talk.
(r)    1 June 2016 – CH states fell at home after tripping on wet floor, landed on left shoulder, c/o shoulder pain, distressed supporting arm.
(s)    2 June 2016 – LH – tripped and fell yesterday while walking. Landed on left shoulder and now pain to same.
(t)    2 June 2016 – CH requesting mental health review, recent left shoulder fracture and not coping. Wife kicked him out of home, patient states he his depressed.
(u)    11 June 2016 – CH history of traumatic brain injury, drinking vodka states only had half a bottle tonight complains of vomiting and abdominal pain.
(v)    21 June 2016 – CH brought in by ambulance, vomiting with hiccups since yesterday after drinking vodka history of post-traumatic stress disorder, alcoholic seizures and hyperglycaemic.
(w)   21 July 2016 – CH brought in by ambulance with two-day history of vomiting, not drinking today.
(x)    5 August 2016 – CH brought in my ambulance “admits drinking a bottle of whisky and one vomit” discharged against medical advice.
(y)    14 September 2016 – CH chest pain, intoxicated, hyperglycaemic “seeing councillor for ETOH abuse”. The related ambulance report – patient history of regular ETOH abuse. Last night patient stated consumed large bottle of whisky. Patient smells strongly of ETOH – staggered gait and slurred speech. Hyperglycaemic. Poor historian.
(z)    2 October 2016 – LH poor and vague historical with painful perianal lump which is worsening. Also worsening hallucinations and suicidal ideations. States stopped alcohol. Crying on hearing voices. Seen by psychiatric registrar and admitted. Abscess incised and drained. The claimant had surgery for the anal fistula. The Panel has read the nursing notes which suggests the claimant wanted to discharge himself against medical advice however he was convinced to stay but left the ward several times for smoking breaks. There is a repeat attendance on 19 October 2016 for continued anal pain.
(aa)    29 January 2017 – LH difficult historian – left sided chest pain – last alcohol a bottle of whiskey a week ago however denies recent alcohol consumption. Vomiting. Seeking mental health admission poor sleep and hearing voices, suicidal thoughts.
(bb)    10 March 2017 – LH following accident.
(cc)     24 March 2017 – CH open fracture two weeks ago, been mobilising on same – complaining of left ankle pain.
(dd)    14 April 2017 – CH brought by ambulance due to three days of epigastric pain with vomiting.
(ee)    29 April 2017 – CH brought in by ambulance nausea and vomiting, alert slow speech, slow to answer but is oriented denies ETOH.
(ff)    3 May 2017 – LH for revisionary surgery.
(gg)    14 May 2017 – CH brought in by ambulance history of left leg radiating to groin since this pm patient requesting morphine – history of ETOH abuse but says has not been drinking lately and no alcohol today.
(hh)    18 June 2017 – CH sent by GP left eye hit on door when fell over two days ago nil other injury cervical spine tenderness.
(ii)    25 June 2017 – CH did not answer call for triage.
(jj)    29 June 217 – CT brought in by ambulance chest pain, worse on movement. Obvious pain denies injury. Denies dizziness, shortness of breath and nausea.
(kk)     16 July 2017 – CT brought in by ambulance from home with vomiting and burning epigastric pain since drank two bottles of sherry tonight.
(ll)    28 July 2017 – CT discharge summary (page 365 insurer’s bundle) “Fall down approx 2 – 3 stairs at home earlier this morning. Patient denies any preceding chest pain, dyspnoea or palpitations. Patient denies any known head strike or LOC”.
(mm) 1 August 2017 – CT brought in by ambulance in wheelchair right with lower leg pain.
(nn)    25 October 2017[36] – LH wearing moon boot and currently using a walking aid. Ongoing sleep disturbance and nightmares. Continues to use ETOH – last drink yesterday two bottles of wine. Wife confirms he is up and down in mood.
(oo)    30 October 2017[37] – LH anal fistular issue. The claimant complained of left lower leg weakness. The claimant discharged himself against medical advice saying there was an emergency at home.
(pp)    27 November 2017[38] LH – the claimant reported abdominal pain and rectal bleeding. As the symptoms had resolved the claimant asked to be discharged against medical advice.
(qq)    26 December 2018[39] CH – brought in by ambulance due to alcohol intoxication. He appeared “very drunk, slurring speech, blood shot eyes” .[40] The history according to the claimant was that he had consumed three bottles of sherry, had become aggressive and was sectioned. The claimant had failed to meet a scheduled community health team meeting and acknowledged he needed to address his alcohol intake. He was cleared and discharged. At this admission Mr Mohammed also complained of right wrist symptoms (numbness and hand swelling) which were suggestive of radial nerve palsy.
(rr)   3 January 2019 CH[41] – admission for abdominal pain, associated nausea and admitted he had been drinking alcohol all day. There was a similar attendance at about midnight on 6 January 2019[42] after consuming three bottles of sherry that night. There was another attendance on 11 March 2019[43] following a further three bottles of sherry “since this morning” although admitted it appears he refused treatment and left the hospital. Another attendance 15 January 2019[44] where the claimant left before being seen.
(ss)     27 January 2019 CH[45] – admission for epigastric pain and alcohol abuse. Claimant was said to be non-compliance with his usual medication and it was noted he appeared intoxicated. He discharged himself against medical advice.
(tt)    28 January 2019[46] CH for perianal pain. The claimant was noted to be a poor historian.
(uu)    6 February 2019[47] CH for left sided chest pain and due to him being a “very poor historian” his wife gave a history of several episodes of vomiting. Mr Mohammed left against medical advice. He attended again on 11 February 2019 with chest pain. On 17 February 2019 he was brought in by ambulance having consumed two bottles of sherry. On 28 February 2019 There was another left sided chest pain admission with an admission of alcohol. The claimant was observed ambulating around the department and “when asked patient states nil chest pain”. The claimant signed himself out against medical advice[48]. There are further attendances in respect of alcohol abuse (wine and sherry) on 13, 19 and 29 March 2019. On 1 April 2019 the claimant presented at Triage with a history noting of vomiting with streaks of blood for three hours. Admits to drinking 3 bottles of sherry today. The claimant also had a swollen and painful right elbow and was noted to smell of alcohol, with slurred speech and vomiting.[49]
[36] Page 334 of AD 22.
[37] Page 336 of AD 22.
[38] Page 357 of AD 22.
[39] Page 5,522 of AD 22.
[40] Page 5,541 of AD 22.
[41] Page 5,514 of AD 22.
[42] Page 5,506 of AD 22.
[43] Page 5,494 of AD 22.
[44] Page 5,486 of AD 22.
[45] Page 5,479 of AD 22.
[46] Page 5,466 of AD 22.
[47] Page 5,449 of AD 22.
[48] Page 5,423 of AD 22.
[49] Page 5,263 of AD 22.

There are approximately 20 further attendances in 2019 primarily for excessive intoxication, vomiting, including vomiting blood.
On 14 October 2019 the Campbelltown Hospital records[50] state that the claimant had fallen in the shower three days previously and was unable to describe the context of the fall, but on triage there is a history of two bottles of sherry consumed the day before. Mr Mohammed had developed chest pain and X-rays revealed an undisplaced sternal and rib fracture. There are seven further admissions for intoxication for the remainder of 2019 and a handful for 2020.
[50] Page 4,976.

Psychiatric records

Dr Benjamin first saw the claimant in March 2003 following which a diagnosis of Paranoid Schizophrenia and Alcohol Abuse disorder was made and the claimant was advised to totally abstain from alcohol. He was seen on two further occasions and advised to stop drinking.
Dr Benjamin wrote his next report to Dr Ayoub on 29 May 2013. The history he had from the claimant was of community health centre treatment but the claimant “continued to drink alcohol heavily” with frequent hiccupping. A further report dated 10 September 2013 records the claimant consuming large amounts of alcohol three to four times a week. The claimant was experiencing “frequent blackouts in addition to loss of balance, vomiting and frequent falls”. The claimant was advised to seek professional help however he preferred to reduce his alcohol intake at home “slowly”.
On 18 March 2015, Dr Benjamin recorded that the claimant had ceased drinking for eight months and he was more alert and appropriate however with “notable cognitive impairment”. He was continuing to abstain when seen on 19 February 2016. The Panel notes this report of abstinence may not be correct. On 10 August 2015 the claimant had attended hospital having drunk a bottle of whisky. On 2 September 2015 he attended hospital after drinking a bottle of vodka and on 17 September and 22 October 2015 he attended hospital admitting to having drunk a bottle of wine. On 10 January 2016 the claimant attended Campbelltown Hospital after having consumed two bottles of vodka.
Dr Benjamin saw the claimant after the motor accident on 2 June 2017 and had a record of the claimant not drinking for the past three weeks.
In the notes are these handwritten attendances:
(a)    5 August 2016 – wife called and cancelled appointment he was hospitalised yesterday;
(b)    14 September 2016 – going to Sudan, “last 7 months binge drinking continued but spaced out”;
(c)    2 June 2017 – no reference to alcohol;
(d)    18 August 2017 - “started to drink alcohol again. 20 days ago fractured right ankle fell downstairs. Stopped drinking a week ago”;
(e)    5 October 2017 – relapsed last two weeks, smoking 40 cigarettes;
(f)    13 December 2017 – continues to drink;
(g)    20 March 2018 – last three months, continues to drink alcohol and smoke. Leg healing can walk with a stick;
(h)    28 June 2018 – commenced drinking heavily again. Wife is unhappy was involved in fight, got injured, was in possession of cannabis;
(i)    2 October 2018 – still drinking heavily;
(j)    8 March 2019 – still drinking alcohol excessive;
(k)    9 July 2019 – alcohol continued, mental state unchanged;
(l)    14 November 2019 – wife attended because he could not, NIS rejected, got brand new Department of Housing flat. Discussed medication to reduce his craving – no narcotics were to be taken, and
(m)     20 January 2020 – last two months hiccups and alcohol three bottles of sherry per day.
On 13 December 2017, the claimant’s wife reported to Dr Benjamin that the claimant was drinking excessively and smoking. The records from Dr Benjamin suggest the claimant continued to drink alcohol to excess throughout 2018.
Within Dr Benjamin’s notes is a fact sheet relating to an offence committed on 15 May 2018 by Mr Mohammed. The claimant was charged with two offences one of which was possessing a prohibited drug (cannabis)[51] which the claimant is said to have admitted to possessing for the purposes of smoking it.
[51] Page 344 of the insurer’s bundle.

Medico-legal reports

Dr Dias provided a report dated 6 December 2017 to the Claimant’s solicitors.[52] He provides at page four of his report a list of the documents he has considered, and these appear to be limited to documents concerning the initial admission to Liverpool Hospital and no documents (such as the ambulance report or Campbelltown Hospital notes) following the fall at home.
[52] Page 13 of the claimant’s bundle.
Dr Dias take a history of a hypoglycaemic episode in 2011 when the claimant fell and hit his head.
Dr Dias has a report from the claimant of “left ankle instability” and that in “around September 2017, Mr Mohammed tripped and fell.” The claimant expressed the view to Dr Dias that his right leg injury is related to his left leg injury. Dr Dias describes this (at page 13) as a “consequential injury” due to left ankle instability and says, “the causal chain stemming from the subject motor vehicle accident … has not been broken”. The Panel notes Dr Dias had no records in relation to the fall and relied on the claimant’s history which included an incorrect date.
In his later report of 20 July 2020 Dr Dias has a larger number of documents including the discharge summary from Campbelltown Hospital but not the notes from the Hospital or the ambulance report from 24 July 2017. Dr Dias again expressed the view the claimant has a “consequential injury to his right ankle and leg due to left ankle instability” and are causally related to the accident. He does not engage with the issue of alcohol and the Panel has the impression that Dr Dias has accepted the claimant’s history without testing it.
Dr Barrett orthopaedic surgeon provided a report for the insurer dated 4 March 2020. He also appears to have limited documentation. He has a consistent history of the first accident and treatment and then notes, “as a result of favouring his left leg, Mr Mohammed had a fall a few months later in which he apparently sustained a fracture to his right tibia which involved his right ankle.” Dr Barrett records the claimant has continued symptoms in both ankles, the left more than the right and that he had poor balance and walked with a shuffling gait. Dr Barrett said, “it is difficult to state whether his subsequent injury” related to the accident.
The insurer’s occupational therapist, Ms Piebenga, records that from 16 March 2017 to 23 July 2017 the claimant was mobilising with axilla (under arm) crutches and after the revisionary surgery on 3 May 2017 he had continued to mobilise with crutches.[53] During this assessment “he mobilised with a crutch and used door and window frames for support”. He had concerns about balance, relied on his wife for personal care and avoided stairs. The report indicates that the claimant was now using a Canadian (forearm support) crutch.
[53] Page 440 of the insurer’s bundle.
Dr George, the psychiatrist for the insurer was given a history in March 2020 that “because he was somewhat unsteady on his feet, sometime later, he had a fall and fractured his right ankle”.
Dr Rastogi, psychiatrist in his report dated 15 June 2020 has a history of the second accident as follows “two months after the surgery he had a fall due to poor balance and incoordination and sustained fracture of right ankle”. The Panel notes Dr Rastogi records a history of the claimant consuming a bottle of wine on a daily basis since the accident but that before the accident “he was abstinent for five years”.

Other assessments

Medical Assessor Paul Friend diagnosed an adjustment disorder with anxious mood and assessed WPI at 4% on 30 August 2021. No application for review has been lodged in respect of that assessment.

RE-EXAMINATION FINDINGS

Medical Assessor Curtin re-examined the claimant on behalf of the Panel on 14 April 2023. Mr Mohammed was accompanied by his wife and an Arabic interpreter. Mr Mohammed’s command of English appeared to be greatly limited, and the interview was conducted almost exclusively with the aid of the interpreter.
Mr Mohammed was difficult to communicate with, even with the interpreter. Medical Assessor Curtin formed the view this was likely due to his previous head injury, his alcoholism and his mental health issues. The Panel notes that the hospital and medical records contain many entries noting the claimant is a difficult historian. The claimant’s wife was at the examination as her husband’s carer, helping the claimant in and out of the examination room. She did not volunteer information herself or otherwise participate in the examination however, Medical Assessor Curtin found it necessary to obtain some information from the claimant’s wife during the course of the examination in order to undertake a proper assessment of the issues in dispute and Mr Mohammed’s injuries.

History from the claimant.

Mr Mohammed lives with his wife and three children. He no longer works and is in receipt of a disability pension due to schizophrenia diagnosed in 2004. He attended school in Sudan, completed tertiary education, worked as a sociologist and became involved in politics. He was imprisoned, apparently tortured, and arrived in Australia as a refugee in 2002.
His medical history is complex. As well as schizophrenia, he suffers from type II diabetes, hypertension and sleep apnoea, for which he receives treatment. In 2011 he sustained a subdural haematoma and a CT brain in 2004 showed bi-frontal burr holes and frontal lobe gliosis. He has had multiple hospital admissions for medication overdoses and alcohol abuse. His schizophrenia is currently well-controlled with depot medications. There is no history of prior injury to his legs and no history of any significant further injury after 24 July 2017.
On 10 March 2017, while he was working as a trolley collector at a shopping centre, Mr Mohammed was struck by a car in the car park. When asked about this, he was only able to respond that the car “came from the back and hit me”. The records show that he was subsequently treated at Liverpool Hospital and underwent an open reduction and fixation of a fracture-dislocation of the left ankle. Following his discharge from hospital, he developed an infection of the left ankle which required a two-month hospital admission for antibiotic therapy and a surgical revision of the internal fixation on 5 May 2017.
After returning home, he injured his right leg on the 24 July 2017 when he fell down some stairs resulting in a mid-shaft right tibial spiral fracture and a distal fibula fracture affecting the right ankle. The records reveal that the claimant was taken by ambulance and admitted to Campbelltown Hospital. The fractures were treated with surgery on 27 July 2018 and 15 November 2018. Mr Mohammed’s left ankle required revision surgery on the 7 August 2018 and 15 November 2018.
Mr Mohammed was shown the ambulance report and the statement “Pt fell down 3 - 4 steps at residence whilst under the influence of alcohol - admits to drinking half a bottle of sherry tonight”. This was translated by the interpreter, and he was asked for his comments. He stated that it was “less than half” and that the amount was a “coffee cup full of sherry”.
Mr Mohammed said that at the time he fell he was reliant on using a stick or crutch and that he fell because of problems caused by his injured left leg. He could not provide any further detail than that. When she was asked, the claimant’s wife said that the claimant was, after his discharge from hospital and at the time of the fall, unsteady on his feet. She did not see him fall.
The claimant and his wife denied that hypoglycaemic attacks had been a problem for Mr Mohammed and certainly not on the night of the fall.
Mr Mohammed was asked about a police charge in 2018 for possessing cannabis, and whether cannabis or some other drug may have contributed to his fall. He strongly denied that he had ever taken cannabis or other recreational drugs of that nature.

Current symptoms

Mr Mohammed reported continuing pain and discomfort in both feet and ankles, with symptoms worse on the left side. He said that he could walk no longer than about 10 minutes before he needed to rest because of pain. He said that if he is walking any distance he will use a walking stick, and when he goes shopping with his wife, he uses a wheelchair.
The claimant’s wife commented that her husband’s symptoms appear to be worse in cold weather, and that his feet and ankles are sometimes so swollen that he is unable to get his shoes on. She said that he is very dependent on his special orthopaedic footwear, which he wears all the time because he is very unsteady on his feet without them.
Mr Mohammed also complained of ongoing intermittent pain and discomfort in his lower back.
Mr Mohammed continues to take a range of medications which he was unable to detail. When asked, his wife could not remember them either. He did say that he is now less dependent on pain medication (analgesics) and tries to take them intermittently, rather than on a regular basis. He said that he was depressed because of his current situation and loss of mobility. Mr Mohammed’s wife said that there did not appear to be any immediate health problems but that he visits his GP twice a week.

Imaging

Within the file is an X-ray of the claimant’s left ankle dated 10 March 2017 which showed an oblique fracture with minor comminution of the distal fibula, and a fracture through the base of the medial malleolus. Both malleoli are displaced laterally. The talus is displaced laterally and tilted. There is widening of the inferior tibiofibular interval suggesting tearing of the anterior tibiofibular ligament and the interosseous ligament.
There was also an X-ray of the right ankle dated 24 July 2017 showing a mid-shaft tibial spiral fracture, long posterior spike, slight valgus angulation. Displaced Webber B distal fibula fracture and posterior malleolus fracture.
There is no recent imaging (within the past two years) of either ankle included in the documents. The most recent letter of his treating Orthopaedic surgeon, Dr Tim O Carrigan,[54] includes the comment “he is having an MRI scan and x-ray of his ankle (left) to assess the stability of the syndesmosis and also to determine the state of the articular cartilage in his ankle because given his history there is a significant risk of arthritis in the ankle developing”.
[54] 3 September 2019.

Examination

Mr Mohammed was a tall, thin African man who was very frail which was surprising, considering his age of only 50 years. He had a BMI of 21.4 (70 kg and 181 cm). He walked in a slow shuffle and appeared unsteady on his feet. He did not appear to be in any way intoxicated, but his conversation was quite stilted, and communication with him was very difficult.
In view of the concessions regarding his other injuries (including the scarring), the examination was confined to his lower extremities.
There was a full range of hip and knee flexion and extension on both sides. There was no evidence of retro patellar crepitus or any abnormal swelling or tenderness about the knees. There was a prominent scar passing vertically over the right knee and further small scars more distally over the tibia.
There was pitting oedema above the ankle on each side, but the oedema did not extend into the ankle or foot, probably due to support provided by Mr Mohammed’s special footwear.[55]
[55] The shoes were heavy leather shoes from the USA brand Drew footwear.
The left ankle was noticeably more swollen when compared to the right. Mr Mohammed’s bi-malleolar circumference on the right was 25.5cm left 29.0cm. The left ankle was also noticeably stiffer than the right. The range of movement (and the associated degree of impairment is detailed in the chart below.

Movement

Left

WPI

Right

WPI

Ankle

table 42

Dorsiflexion

5°

(mild)

3%

10°

(mild)

3%

Plantar flexion

8°

(mod)

6%

15°

(mild)

3%

Hindfoot

table 43

Inversion

5°

(mod)

2%

15°

(mild)

1%

Eversion

0°

(mild)

1%

5°

(mild)

1%

There was no evidence of any discrete sensory loss in the lower limbs.

CAUSATION OF INJURY AND IMPAIRMENT

Guidelines and the approach to causation

There is no issue between the parties that the claimant injured his left ankle in the motor accident. There is also no issue between the parties that the claimant injured his right ankle when he fell down some stairs more than three months after the accident at home. The real issue in dispute between the parties is what caused the claimant to fall.
The Guidelines provide as follows in relation to causation:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under s 58(1)(a) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court [or the Commission] in considering such issues.
1.6 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 judgment.
1.7 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.”
The Panel would be in error if we approached the question of causation of injury (and impairment) by considering whether the right lower limb injury was caused by the claimant’s intoxication on the night of 24 July 2017.
The Panel is of the view that it must ask and answer the following questions:
(a) could the motor accident on 10 March 2017 have caused or materially contributed to the injury to the right lower leg? and
(b) did the motor accident cause or materially contribute to the right lower leg injury?

Consideration of the issue

Previous falls and admissions

The claimant has had previous episodes of dizziness (2016) and falls in 2012, 2015, 2015, 2016 some of which appear to have been associated with intoxication. There was, for example, an attendance at Campbelltown Hospital on 18 June 2017 which suggested the claimant had fallen over two days before and hit his left eye.
There have been multiple ambulance trips and admissions to hospital before and after the accident associated with the claimant’s drinking habits but not all (in fact only some) of these have been associated with falls.
As the claimant has had several falls when intoxicated and sustained injury as a result, including one the week before the accident, there is certainly an inference to be drawn as to how the fall on 24 July 2017 occurred and that alcohol and intoxication may have played a part in the fall.

Ambulance and hospital

The Panel notes the ambulance report refers to the claimant falling down three to four steps at home “whilst under the influence of alcohol – admits to drinking half a bottle of sherry tonight”. The claimant was attended to by his family and Medical Assessor Curtin had found that Mr Mohammed’s wife is currently better able to communicate than her husband.

The triage note, repeats much of the history without the “under the influence of alcohol” comment. The emergency department note reports the fall being unwitnessed but that the claimant’s wife heard it and found the claimant on the stairs. The hospital writes the claimant had consumed half a bottle of spirits (not sherry) and that the claimant “was unable to give details of fall”. This last comment mirrors what occurred with Medical Assessor Curtin in that the claimant could not give Medical Assessor Curtin many details of his fall.
The Panel notes that the claimant’s English is poor. He required at the assessment and has had, on admissions to hospital, an Arabic interpreter. It is not clear who gave the history to the ambulance and if it was the claimant, whether it was properly translated and if it was not the claimant, whether it was correct.
The Panel notes there was no blood alcohol report in the hospital files. The admission summary at Campbelltown Hospital does not mention whether the claimant was under the influence or not, although there are multiple references to the claimant’s past abuse of alcohol. Previous and subsequent admissions to hospital for alcohol related issues have often included observations such as slurring of words, glazed eyes or smelling of alcohol but there are no such comments in respect of the 24 July 2017 attendance.
Of significance to the Panel is that the ambulance record suggested the claimant was intoxicated and the hospital records did not, and that the hospital records the claimant was unable to give further details of the fall. Whether this was because he did not remember it or because there was no translator present is not clear.
The Panel is not satisfied that the ambulance and hospital records are a reliable record of how the claimant fell and why he fell.

The claimant’s experience with alcohol

The claimant did not deny to Medical Assessor Curtin that he was under the influence at the time of the fall, he did however challenge the ambulance record and the “admission” he had drunk a half a bottle of sherry before he fell. He said it was less than half and about a coffee cup full.
The Panel does not accept the claimant’s evidence as to the amount of alcohol he had consumed. Mr Mohammed has been an unreliable historian in the past in terms of his alcohol consumption. For example, he told Dr Benjamin in February 2016 he had been abstaining from alcohol when the hospital admissions suggest otherwise. On 28 July 2017 when seen by the psychiatrist in Campbelltown Hospital, the claimant denied abusing alcohol whereas the claimant had been taken to that hospital less than two weeks before with abdominal issues having consumed two bottles of sherry. Dr Rastogi in June 2020 had a history from the claimant that he had been abstinent for five years before the accident which is also not clearly correct based on the claimant’s hospital admissions since 2015.
The claimant has long standing alcohol issues. He admits to drinking some alcohol and did not deny being intoxicated on the night in question.
The Panel notes there is no evidence of how long Mr Mohammed had been drinking before he fell and there is no evidence of the alcohol strength of the sherry he was drinking.
Triage was undertaken at close to midnight. Assuming he had drunk half a bottle of sherry on the evening of the fall, half a bottle of sherry in the hour immediately before falling may have a greater influence on the claimant’s ability to negotiate steps compared to half a bottle of sherry over several hours before the fall.
There is no expert pharmacological or other evidence as to how half a bottle of sherry, in whatever period of time he had consumed it, could have affected someone like Mr Mohammed who was, before the accident regularly consuming whole bottles of spirits, wine and sherry (or multiple bottles) in a day.
While the Panel is prepared to accept the claimant had been drinking on the night of the accident, and alcohol could have played a part in the fall, the Panel is not satisfied that this was the only cause of the fall on 24 July 2017.

The state of the left ankle and the claimant’s health at the time of the accident

Dr Dias (December 2017) has a report of left ankle instability and the claimant tripping and falling, and Medical Assessor Dixon (April 2022) took a history that the claimant fell down some stairs “due to his left ankle giving way”.
There is no evidence of the claimant tripping and falling on or over any object, although it is possible the claimant could have tripped over his stick or crutch. The claimant was a difficult historian and did not provide much in the way of a description of the accident, and his wife did not see it. There are no GP or specialist records from the period between the car accident and the fall of any history of episodes of the claimant’s left ankle “giving way” or of their being episodes of instability. The claimant had fallen once on or about 16 June 2017 and attended Campbelltown Hospital.
Dr Barrett (March 2020) has a history of the claimant favouring his left leg and falling, Dr George (March 2020) has a history of the claimant being unsteady on his feet and having a fall and Dr Rastogi (June 2020) has a history of the fall caused by poor balance and lack of coordination. The claimant’s wife said her husband was unsteady on his feet and Dr O’Carrigan and Dr Barrett have reported in 2018 and 2020 that Mr Mohammed was unsteady on his feet. There are no records in the GP notes of the claimant being unsteady on his feet, although the GPs clinical notes are rather brief.
The claimant told Medical Assessor Curtin that he fell down some stairs, that he was using a crutch or walking stick and that his fall was because of his left leg issues. Mr Mohammed’s wife did not see the fall but said her husband had been unsteady on his feet at the time.
Leaving aside the ambulance and the hospital records, the most contemporaneous record of the fall is the 30 July 2017 entry in the GP records suggesting the claimant fell because he lost his balance.
The claimant had a badly fractured left ankle which had been complicated by infection and a lengthy period of recovery. Mr Mohammed had by no means recovered from his left ankle fracture at the time of the fall.
A nursing entry on 25 July 2017 records Mr Mohammed’s weight at 70 kg and a BMI of 20.4 and his presentation at the examination with Medical Assessor Curtin (albeit more than five years later) was of someone who was frail beyond his years. With his history of chronic alcoholism, it is the Panel’s view he did not enjoy robust general health at the time of the accident.
The ambulance personnel who attended upon Mr Mohammed ruled out a loss of consciousness and the claimant denied to them dizziness or chest pain before the fall. Hospital staff confirmed with the claimant he had no chest pain, dyspnoea (shortness of breath) or palpitations which might explain the fall.
The Panel notes the claimant had at least two attendances at hospital in 2016 for hypoglycaemic attacks[56] and the GP’s notes confirm the claimant had poor glycaemic control at the same time. However, by 21 June 2017 the claimant’s control of his blood sugar levels had improved corroborating the claimant and his wife’s history that hypoglycaemic attacks were not an issue for the clamant at the time of the fall.
[56] Caused by low blood sugar which can lead to dizziness, confusion and even loss of consciousness.
According to hospital records the claimant was discharged on 15 March 2017 to be non-weight bearing and Dr Harris’ records on 3 May that following the revision surgery, the claimant was to be non-weight bearing for a further six weeks. This would suggest that at the time of the fall, the claimant would have had up to two months of non-weight bearing and might only have been weight bearing since mid-June 2017. It is the clinical experience of the medical members of the Panel that the claimant would have been significantly deconditioned at that stage and without having had much in the way of physiotherapy since leaving hospital, Mr Mohammed would have been very weak in his lower limbs.
The Panel notes the claimant gave both Medical Assessor Dixon and Medical Assessor Curtin a history of using a crutch or stick to mobilise at the time of the accident. It is the medical members of the Panel’s clinical experience that navigating stairs while using crutches or sticks, in particular without assistance, is a falls risk.
The claimant had undergone surgery on 3 May 2017 and was receiving high doses of intravenous antibiotics for the ankle infection as recently as 29 June 2017. On 17 July 2017, a week before the accident his left ankle was swollen, red and hot, and high doses of oral antibiotics were prescribed. At the time that he fell, Mr Mohammed was also taking antidepressants and antipsychotic medication. The medical members of the Panel note that in their experience, polypharmacy puts patients at a significant risk of falls.
If Mr Mohammed was unsteady on his feet for whatever reason, it is the medical members of the Panel’s view that the support provided by Mr Mohammed’s injured left ankle is likely to have been unreliable and unlikely to enable him to stabilise himself sufficiently and avoid falling.
The Panel is of the view that the state of the claimant’s left ankle, combined with the polypharmacy (and in particular the high level of antibiotics he had been taking), his general deconditioning and likely weakness were medically plausible and material contributing factors to the fall and the consequential injury to the claimant’s right ankle. As all of these factors are related to the injury sustained in the car accident, the Panel is satisfied that the car accident was a more than negligible contribution to the claimant’s fall and his right ankle injury.

ASSESSMENT OF IMPAIRMENT

It is now 12 months since the assessment carried out by Medical Assessor Dixon on 12 April 2022. The stiffness of the claimant’s left ankle appears to have deteriorated since that time. This deterioration has however not affected the impairment ratings. The Panel notes that in September 2019, Dr O’Carrigan expressed the view the claimant would likely develop arthritis and it is the clinical judgment of the medical members of the Panel that the claimant’s ankles are likely to deteriorate further as time goes by.
Page 75 of the AMA4 Guides provides that:
“If the patient has several impairments of the same lower extremity part, such as the leg, or impairment of different parts, such as the ankle and a toe, the whole person estimates for the impairments are combined … If both extremities are impaired, the impairment of each should be evaluated and expressed in terms of the whole person, and the two percents should be combined.”
Reference is made to the Combined Values chart on page 322 of AMA4 when combining two or more values.
When calculating the lower extremity impairment due to loss of range of motion, cl 1.65 of the Guidelines says:
“Tables 40 to 45 (page 78, AMA4 Guides) are used to assess range of motion in the lower extremities. Where there is loss of motion in more than one direction/axis of the same joint, only the most severe deficit is rated – the ratings for each motion deficit are not added or combined. However, motion deficits arising from separate tables can be combined.”
Mr El Mohammed’s left WPI is therefore calculated as follows:
(a) ankle motion – most severe deficit – 6% WPI
(b) hindfoot motion – most severe deficit – 2% WPI
Combined total = 8% WPI
Mr El Mohammed’s right WPI is calculated as follows:
(a) ankle motion – most severe deficit – 3% WPI
(b) hindfoot motion – most severe deficit – 1% WPI
Combined total = 4% WPI

CONCLUSION

When the impairment from the left ankle is combined with the right ankle this produced a total impairment of 12%.
When the agreed 1% for scarring is included, the claimant has a WPI of 13% which is of course greater than 10%.

Movement	Left	WPI	Right	WPI
Ankle table 42	Dorsiflexion	5° (mild)	3%	10° (mild)	3%
Ankle table 42	Plantar flexion	8° (mod)	6%	15° (mild)	3%
Hindfoot table 43	Inversion	5° (mod)	2%	15° (mild)	1%
Hindfoot table 43	Eversion	0° (mild)	1%	5° (mild)	1%

[2023] NSWPICMP 178

3 May 2023