Allianz Australia Insurance Limited v Bhaskar
[2025] NSWPICMP 792
•16 October 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Bhaskar [2025] NSWPICMP 792 |
CLAIMANT: | Pranav Bhaskar |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 16 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 the accident was 11%; insurer made an application under section 7.26 for referral of assessment to the Review Panel; Held – Review Panel conducted its own examination and found that WPI as a result of injuries sustained in the accident totalled 11%; certificate of MA was confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Medical Review Panel affirms the certificate of Medical Assessor Nigel Menogue of |
STATEMENT OF REASONS
BACKGROUND
History of motor accident
On 4 June 2023, the claimant, Pranav Bhaskar (Mr Bhaskar), was involved in a motor vehicle accident when he was riding his motorbike and a car collided with it at an intersection, resulting in injury (the accident).
Allianz Australia Insurance Limited (the insurer) was the relevant third-party insurer.
A medical dispute about the degree of Mr Bhaskar’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 (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) which then assigned it to Medical Assessor Nigel Menogue for assessment.
On 20 February 2025, Medical Assessor Menogue assessed Mr Bhaskar and on
7 March 2025, certified that injuries to his right leg, right knee, right foot, scarring, and nerve injury sustained in the accident, gave rise to a WPI of 11%.
Review procedure
The insurer sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the Medical Assessment which is the subject of the Review was made on or after 1 March 2021, the new review provisions apply.
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 new 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. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of 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 Bhaskar’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 now applicable are Version 10 which commenced on 15 September 2025 and apply to claims arising from motor accidents occurring after 1 April 2023, and therefore apply to this accident which occurred on 4 June 2023.
Permanent impairment is assessed in accordance with Part 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 AMA 4 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 Nigel Menogue examined Mr Bhaskar on 20 February 2025 and issued his certificate on 7 March 2025. He had the documents attached to the Application, but no further documents.
At [2] of his certificate Medical Assessor Menogue set out the injuries referred by the Commission for assessment, being:
· leg - compound fracture of right tibia and fibula with subsequent fixation and bone loss. Leg length discrepancy. Shortening of right lower limb by 6mm. Prominent hardware over right leg;
· knee - patellofemoral osteoarthritis of right knee;
· foot - right calcaneal fracture with subtalar joint ankylosis;
· ankle - bilateral Achilles Tendonitis, and
· skin scarring minimal - multiple compound scarring with herniation and nerve injury.
Medical Assessor Menogue set out the submissions of the parties at [3]-[4] of his Reasons.
Medical Assessor Menogue took a pre-accident history at [8], noting that Mr Bhaskar was born and studied in India, where he obtained a degree in computer science, working in the IT industry in India until migrating to Australia in 2011. He has worked in cyber security and was working with a large telco at the time of the accident. He is married with two children, lives in a four-bedroom home, and undertakes some outdoor chores with assistance, while his wife manages all indoor domestic duties. His past medical history includes a right elbow fracture treated with plate and screws in 2018. The right elbow was not injured in the accident. The My Health general practitioner (GP) notes contain an entry 22 January 2020 describing a right ankle injury over the lateral malleolus. The X-ray did not reveal any fracture. He later presented with right ankle pain and an entry of 11 May 2023 describes right heel pain which was “sudden onset”. He was referred for an ultrasound which was undertaken on
12 May 2023, noting bony spurring at the Achilles insertion with calcification consistent with calcific tendinosis. His GP had considered this might be gout related, with a recorded isolated raised uric acid level, but no active treatment for this metabolic disorder was undertaken. His treatment for the right ankle calcific tendinosis included a course of Voltaren, although Mr Bhaskar cannot recall whether he was still taking this medication at the time of the subject accident; no physiotherapy was recommended but “as a last resort, he was advised that he may require a steroid injection.” Otherwise, he was not receiving any medical management of a musculoskeletal disorder at the time of the subject accident. His only medication is occasional paracetamol which he might take two times per week.At [9], the Medical Assessor took a history of the accident, noting that he was travelling in a line of traffic at about 4.00pm on 4 June 2023 when a vehicle from his right side knocked him off his bike causing him to fall to the ground. He was taken by ambulance to Liverpool Hospital where he was admitted under Dr Dave. Imaging had identified compound fractures of the right tibia and fibula, and right calcaneum. He was taken to theatre where open reduction and internal fixation of his tibial fracture took place with insertion of an intramedullary nail; the calcaneal fracture was managed conservatively. He remained an inpatient until 9 June 2023 when he was discharged home under the care of the community nurse and his GP.
Medical Assessor Menogue took a history of symptoms and treatment following the accident at [10], noting that the community nurse attended daily until wounds healed, continuing until about two months post hospital discharge. He visited his GP, Dr Malik on 12 June 2023. There was a reference to the community nurse involvement in managing his dressings. He was reviewed by Dr Dave two weeks post-op and sutures removed and serial X-rays commenced. Mr Bhaskar saw Dr Dave on several occasions in 2023. He was satisfied with the post-operative orthopaedic recovery. There was no evidence in any documents studied of the development of deep venous thrombosis involving either leg. He was referred for physiotherapy which continues to this day. He was also referred for podiatry assessment and had 10 sessions of management including the recommendation of rigid orthotics. Mr Bhaskar found the orthotics increased his foot/ankle discomfort. The podiatrist arranged for a leg length assessment, noting minor leg length discrepancy (right leg shorter than left).
At [11], the Medical Assessor noted that Mr Bhaskar had a fall on 24 February 2024. This resulted in an increase of sharp pain over the anterior aspect of his right shin (tibia region). He was taken to theatre and a butterfly fragment removed from the anterior tibia. There had been non-union and certainly fragment symptoms were aggravated by the fall. It was removed. His post-operative recovery was unremarkable and he resumed physiotherapy and podiatry sessions and visits with his GP.
Medical Assessor Menogue noted Mr Bhaskar’s current symptoms at [12] which are reproduced below:
“Right leg (over fracture site) – Nil pain at rest or standing but will develop an ache with walking for longer than 20 minutes or if this region is knocked. He is aware of numbness over the site of the scars but normal sensation surrounding the fracture site scars medially, laterally, proximally and distally.
Right knee – No pain at rest but will develop an anterolateral ache if he walks for longer than 15 minutes, travels down stairs or the area is knocked.
Right ankle joint – Nil symptoms.
Right subtalar joint – He describes an ache over the dorsum of the right foot, particularly with foot movement.
Right hind foot – Symptoms in the same region continue – similar to what he was experiencing prior to the subject accident continue, although he states that the discomfort is worse, particularly with walking.
Left hind foot – He does not describe any pain over the Achilles insertion but does describe discomfort inferior to the lateral malleolus.
Scarring right leg – He describes numbness over the scarring involving the anterior aspect of the right shin in the vicinity of the fracture. He also notes sensory loss over the lateral aspect of the right foot (lesser arch) beyond the laceration in that vicinity. He commented that he tended to walk ( i.e. the stance phase) over the lesser arch of the right foot not the left.”
As to current and proposed treatment, Medical Assessor Menogue at [13] noted that
Mr Bhaskar continued with regular physiotherapy and intermittent podiatry sessions. He no longer saw his orthopaedic surgeon, Dr Dave, but continued with regular visits to his GP.Medical Assessor Menogue undertook a clinical examination at [14]-[16], which the Panel reproduces below:
“[14] On examination he was of average stature and average build. He walked with a normal gait, although Medical Assessor Menogue noted that the stance phase of the right foot was in varus position (in other words he walked on the outer part of the right foot). He stood independently on each leg without support. He was not wearing a brace or corset. He had a normal posture; there was no evidence of pelvic tilt.
The following limb measurements were taken:
Left (cm)
Right (cm)
Umbilicus to medial malleolus
101.5
100.6
ASIS to medial malleolus
91
91
Gait and stance on tiptoe and heel did not show any evidence of loss of agility, muscle weakness or discomfort, but he was only able to perform a half-squat, citing right ankle dorsiflexion restriction as a reason why he could not complete this action.
He was encouraged to demonstrate maximal effort during the assessment process but short of unacceptable symptom levels.
[15] Examination of the lower limbs showed them to be symmetric with no obvious shortening or, wasting. There was obvious soft tissue abnormality involving the anterior aspect of the right shin consistent with obvious scarring. Examination of the pelvis did not demonstrate any pelvic asymmetry or tilt. Examination of the knees did not demonstrate any condylar or patellar expansion, synovial hypertrophy or effusion. The following knee movements were obtained (goniometer verified):
| Measurement RIGHT | Measurement LEFT | |
| Flexion | 130° | 150° |
| Extension | 0° | 0° |
Power throughout the range was equivalent. There was 4° of valgus involving the right and left knees. Repeated flexion extension movements noted sustained retropatellar crepitus involving the right knee but not the left. Power throughout the range was equivalent. There were no bursae or cysts associated with the knee joint. There was discomfort over the lateral joint line of the right knee only, but not the left. There was no evidence of collateral ligament laxity, increased drawer movement or abnormal tibial rotatory movement. There was no abnormal patellar mobility, nor was there pain on retropatellar pressure. The following circumferential measurements were noted involving the lower limbs:
| Measurement RIGHT (cm) | Measurement LEFT (cm) | |
| Thigh | 44 | 43.5 |
| Calf | 36 | 36 |
There were a number of scars involving the right lower limb which have been assessed using the TEMSKI chart. All scars referred to are on the right lower limb and exhibit the following common characteristics:
•He was conscious of the scars.
•There was noticeable colour contrast with surrounding skin as a result of pigmentary changes.
•He was able to easily locate the scars.
•Suture marks were clearly visible.
•Anatomical location is visible with shorts but not with long trousers.
•There is a negligible effect on any activities of daily living.
•No treatment was required.
•There was no adherence.
The following scars exhibited additional features:
1.Right knee laterally – The scar was 3.5 x 0.5cm in dimension, dark and sutures were clearly visible.
2.Right knee medially and inferiorly – The scar was dark, sutures were clearly visible, 2.5 x 0.4cm.
3.Anterior shin – The scar was irregular, 16cm x 3m. There had been some suturing and these suture marks were evident, otherwise healing occurred via secondary intention (this statement means that the wound healing took place without any sutures); there were residual trophic changes that were evident to touch and any contour defect was visible.
4.There was a scar at the anteromedial aspect of the shin which was also irregular, 5 x 2cm in dimension. This had been left open and healed with secondary intention. The contour defect was visible and trophic changes were evident to touch. The scar was not as prominent when considering the colour contrast as were other scars.
5.There was a 3cm linear scar over the greater arch of the right foot with suture marks. There were also three scars over the lateral aspect of the right foot, one scar being 5cm in length. One was dark and the other two were skin-coloured. These scars exhibited lesser features than the scars mentioned above.
Distal to the scar over the lesser arch (lateral aspect of the foot) is an area of numbness which was associated with the proximal laceration.
Examination of the ankle joints did not identify any malleolar expansion, ligamentous or capsular thickening or tenderness. The following ankle joint movements were obtained (goniometer verified):
| Measurement RIGHT | Measurement LEFT | |
| Plantar Flexion | 40° | 50° |
| Dorsiflexion | 10° | 20° |
Measurement RIGHT Measurement LEFT Plantar Flexion 40° 50° Dorsiflexion 10° 20° Power throughout the range was equivalent. Inspection of the ankle and hind foot noted right ankle in 6° of varus and the left ankle in 4° of valgus. Assessment of the ankle joint and subtalar joint did not identify any evidence of ankylosis with range of movements undertaken. Inspection of the alignment of the lower limbs did not identify evidence of tibial malalignment based on today’s assessment. Sensation was assessed involving the right lower leg compared with the left. There was no evidence of sensory loss between the knee and the ankle that demonstrated peripheral nerve injury. There was absent sensation over the scar involving the anterior aspect of the right shin, but this was a loss of cutaneous nerve function rather than an injury to a peripheral nerve. However, the loss of sensation over the lateral aspect of the right foot (lesser arch) and distal to the laceration is consistent with an injury involving the lateral plantar nerve.
[16] He was undemonstrative and there was no inconsistency in his performance.”
Medical Assessor Menogue then set out his causation and reasons at [19]:
“In the motor vehicle/cycle accident of 4/6/2023, Pranav Bhaskar sustained injuries to the right lower limb. These injuries have been well documented.
The reference to ‘blood clot’ in the Personal Injury Benefits Application of 14/6/2023 is not supported. Medical Assessor Menogue could find no evidence of any blood clot – deep venous thrombosis – that might have occurred post-operatively.
There was also a laceration to the right mid foot which required suturing.
There was contemporaneous evidence in the GP documents of pathology involving the right Achilles tendon insertion (calcific tendinosis confirm on ultrasound 4/5/202). He has complained of discomfort in the peri-lateral malleolar region of the left foot, but this is not in the vicinity of the Achilles tendon.
Mr Bhaskar has indicated that he experiences ongoing discomfort in this region and that the clinical pictures is the same as it was prior to the subject accident, only the discomfort is more intense. Medical Assessor Menogue was not satisfied that there was any change to that pre-existing condition, nor was he satisfied there was any evidence of the development of left ankle Achilles tendonitis. In regard to the right foot calcaneus fracture, the range of movement obtained at the assessment was not consistent with the development of any ankylosis, so the application of an ankylosed joint description is incorrect – based on his examination.
Reference has been made to the right leg being shorter than the left – measurements have been in the vicinity of 9mm (supported by my measurement today). This discrepancy is functionally insignificant. Support for this statement is found in Table 35, AMA Guides Edition Four; this table indicates 0 whole person impairment for any discrepancy less than 19mm.
Therefore, causation is not established between the subject accident and any leg length discrepancy.”
At [20], Medical Assessor Menogue set out his diagnosis and reasons:
“The documentation provided for today’s assessment provides clear evidence of a bony injury to the right tibia and fibula by way of compound fracture to the right tibia and fibula. There was also a comminuted compound fracture involving the right calcaneum. Post-reduction imaging of the fractured right tibia and fibular noted satisfactory alignment.
The injuries were treated with open reduction and internal fixation with intramedullary nail and as stated, serial x-rays to follow demonstrated anatomical alignment. The fracture to the right calcaneum was managed conservatively. His injuries included the right knee, right ankle/foot, a nerve injury to the right mid foot (lateral plateau) and residual scarring.”
The Medical Assessor determined at [21]-[22] that the following injuries were caused by the accident:
· right leg – compound fracture right tibia and fibula, with open reduction and internal fixation;
· right knee – soft tissue injury;
· right foot – calcaneal fracture;
· scarring – right lower limb, and
· nerve injury – right foot.
The Medical Assessor determined the following injuries were not caused by the accident:
· right subtalar joint ankylosis;
· bilateral Achilles tendonitis, and
· leg length discrepancy.
Medical Assessor Menogue provided his permanent impairment table at [24]:
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Right Knee | Chapter 3, Tables 41 & 62 | Yes | 2 | 0 | 2 |
| 2 | Right ankle joint, subtalar joint & injury right lateral plantar nerve – minimal shortening | Tables 11, 35, 42, 43, 44 & 68 | Yes | 6 | 0 | 6 |
| 3 | Scarring right leg | TEMSKI | Yes | 3 | 0 | 3 |
The Medical Assessor concluded at [27] that the degree of WPI caused by the accident was 11%.
EVIDENCE AVAILABLE TO THE PANEL
Statement of Mr Bhaskar dated 10 July 2023
The Panel reproduces the relevant sections of Mr Bhaskar’s statement:
[8] I have been riding motorcycles for over 20 years. I rode them in India for about
20 years and have been riding them in Australia for approximately six to seven years.[10] In 2018, I had an injury, resulting fracture to my right elbow. Screws were used to fix the bone.
[11] I did not have any underlying health conditions or hereditary health conditions which I am aware of.
[12] On the date of accident, I was the owner of a BMW Motorbike with registration EDL106.
[14] The accident scene was in Leppington on Ingleburn Road.
[15] The accident occurred at the intersection of Byron Road and Ingleburn Road.
[18] On Ingleburn Road and Byron Road, there is one lane in each direction and the line markings on the road itself are broken.
[19] Ingleburn Road runs in a general east to west direction and it is level. The speed limit is 70kmph.
[21] There is no median strip or traffic control signals. The intersection is controlled by a stop sign facing Bryon Road. Ingleburn Road traffic has right of way because of this stop sign.
[26] At approximately 4:00pm, I was travelling in an easterly direction along Ingleburn Road at a speed of approximately 70kmph. I was heading toward Camden Valley Way.
[27] At the time, the traffic flow was light in the same way I was travelling and in the opposite direction.
[30] I was wearing a full-face helmet, leather bike jacket. jeans and bike shoes. I was unaccompanied.
[33] I had just entered the intersection when I noticed a vehicle on my right-hand side travelling from Byron Road. This vehicle was a BYD electric vehicle with registration EWX21E.
[34] This vehicle was moving quickly and did not appear to be slowing down or stopping. It continued to proceed through the intersection not respecting stop sign at Bryon Road.
[35] I only noticed the vehicle for a split second because before I knew it, the vehicle had collided with me.
[36] The driver drove through the intersection without stopping and collided with the right side of my motorbike, hitting my right leg. This caused my right leg to be crushed between the vehicles.
[37] The impact caused me to fall off my bike and I landed on the road and skidded into a ditch on the northern side of Ingleburn Road.
[38] I was laying in the ditch and remember my right leg feeling very hot and painful.
I could tell I had broken something as I could feel my leg abnormally facing different directions.[39] I did not move until an Ambulance was called and came to assist me.
[42] Ambulance officers conveyed me to Liverpool Hospital from the accident scene where I stayed for five days.
[43] As a result of the accident, I sustained a right open tibia fracture, several open wounds, ankle/heal fracture and fractured fibula. I underwent surgery on my right leg and had a rod put into my leg to repair the tibia injury.
[44] My motorbike was a complete write off and was towed from the scene. As a result of my injuries, I have come under the care of the following practitioners: (a) GP — Dr Zahid Malik at My Family Health Medical Centre in Denham Court.
[45] As a result of my injuries, I now take the following medications:
(a) Cefalexin in 500mg, four times a day;
(b) Enoxaparin sodium 40mg injection, one a day, and
(c) Panadol for pain management.
Supplementary statement of Mr Bhaskar dated 11 April 2025
The Panel reproduces the relevant sections of Mr Bhaskar’s supplementary statement below:
[13] As a result of the motor vehicle accident, I have sustained the following injuries:
(a) right leg ;
(b) right knee;
(c) right foot;
(d) scarring;
(e) nerve injury in right foot;
(f) overcompensation of left leg and knee, and
(g) post-traumatic stress disorder .
[14] As a result of the motor vehicle accident, I now suffer from the following disabilities:
(a) pain in right and left knee;
(b) pain in right foot;
(c) pain in right and left ankle;
(d) crackling noise in right knee;
(e) leg length discrepancy;
(f) unable to stand and walk for extended periods;
(g) unable to run;
(h) numbness over scarring;
(i) unable to engage in chores;
(j) withdrawal from social and recreational activities;
(k) withdrawal from hobbies;
(l) disturbed sleep;
(m) relationship strain;
(n) lack of intimacy;
(o) diminished concentration ;
(p) forgetful ;
(q) fear of driving, and
(r) paranoid and hypervigilant in car.
[15] I continue to consult the following providers:
(a) Dr Zahid Malik, GP, and
(b) New Age physiotherapy in Austral.
[16] I underwent an open reduction and internal fixation of my tibial fracture after being taking to Liverpool Hospital following the accident.
[17] I still attend physiotherapist once a week. My progress at this stage is stagnant.
[18] I take Nurofen as needed.
[19] I have pain in my both knees. I have only what I can describe as a "crackling" noise in my right knee. This occurs when I engage in movements such as lunging.
[20] I have pain in my right foot and both of my ankles. My right foot is not straight and my right leg is 6mm shorter than the left leg, which causes me to walk "wobbly". This puts me off balance.
[21] I also limp when I walk due to the pain, and I cannot walk for extended periods.
[22] I used to be a very active person. I can partake in indoor cycling however, I cannot run or go to gym.
[23] I can no longer ride my bike outdoors.
[24] I used to bring my children out to the park however due to my pain and restrictions I can no longer do this.
[29] I only took five days off work following the accident. I continue to work full-time in my previous role.
[30] I believe that I have not had too much difficulty in terms of returning to work as my employer has been supportive. They allowed me to work from home until I recovered enough to return to the office.
[31] The main difficulty I am having at work is concentrating. I am required to deal with variables and numbers, and it can be hard to stay focused.
Application for Personal Injury Benefits dated 14 June 2023
The Application for Personal Injury Benefits form noted the right leg fractures, injury to the right foot and right shoulder, and the presence of a "blood clot”.
Certificate of Fitness by Dr Hoang
This certificate noted injuries to the tibia and calcaneum by way of fracture, and a laceration to the mid foot. The certificate indicated he was unfit for any work from 4 June 2023 to
10 August 2023.
Medico-legal report of Dr Herald, dated 17 July 2024
Assessment:
(a) compound fracture of right tibia and fibula with subsequent fixation with bone loss;
(b) true shortening of right lower limb by 6mm;
(c) patellofemoral osteoarthritis of right knee;
(d) right calcaneal fracture with subtalar joint ankylosis, fixed in inversion;
(e) bilateral Achilles tendonitis;
(f) prominent hardware over right leg, and
(g) multiple compound scarring with muscle herniation and nerve injury.
Causation – The fracture of his right tib fib and subsequent secondary injuries to his Achilles tendons, right hand, and right ankle have occurred as a result of his motor vehicle accident as described above.
Prognosis - His prognosis is poor. He will likely develop subtalar osteoarthritis and right knee arthritis over time. He may develop secondary back problems due to his limping.
WPI - When using the combined values chart, 0% for his Achilles tendonitis, 0% for his prominent hardware, 4% for his right knee, 8% for his right tibial fracture, 1% for his right calcaneal fracture, and 2% for his scarring, he scores a total of 15% WPI for his injuries.
Medico-legal report of Dr Dias dated 28 May 2025
Diagnosis – With respect to Mr Bhaskar’s compensable physical injuries stemming from the subject motor vehicle accident of 4 June 2023, Mr Bhaskar has symptoms and signs consistent with the following conditions:
(a) Mr Bhaskar suffers from chronic right leg pain and discomfort, with associated significant residual scarring and sensory loss, secondary to a comminuted open compound fracture of the right tibia/fibula. Mr Bhaskar underwent a right tibial shaft open reduction and internal fixation procedure for management of his right comminuted tibial shaft fracture on
5 June 2023. He has continued to suffer with ongoing pain, stiffness and discomfort affecting his right leg, and has been left with shortening of his right lower limb by 8mm (as measured by true leg length), as a consequence of his involvement in the subject accident;(b) Mr Bhaskar sustained a persistent aggravation of pre-existing right Achilles tendinopathy, and consequential left-sided Achilles tendinopathy, as a result of altered gait patterns due to his right lower limb injuries;
(c) Mr Bhaskar suffers from chronic right knee patellofemoral dysfunction, secondary to an acute right knee soft tissue impaction injury;
(d) Mr Bhaskar suffers from chronic right ankle pain, stiffness and discomfort, with associated sensory deficits in the distribution of the right lateral plantar nerve, secondary to an acute right hindfoot/mid foot injury with an associated open comminuted intraarticular calcaneal fracture, and
(e) Mr Bhaskar suffers from consequential left knee patellofemoral dysfunction, secondary to prolonged overcompensation and altered gait patterns as a result of his right lower limb injuries. His left knee symptoms began to manifest over the course of the past six months (at the time of my assessment of Mr Bhaskar on 28 May 2025).
Prognosis - Mr Bhaskar’s prognosis for significant clinical improvement with respect to his accident-related injuries would have to be judged as relatively poor at the present time.
Mr Bhaskar has sustained significant injuries to his right lower limb, and has continued to suffer with ongoing symptoms and disabilities associated with his right lower limb as well as consequential left lower limb symptomatology over the course of the past two years since the subject accident on 4 June 2023. Given the chronicity of Mr Bhaskar’s symptoms and disabilities, and considering the underlying pathology associated with his injuries, in my opinion, it is doubtful that Mr Bhaskar’s accident-related injuries will ever clinically improve to the point where he would be pain free and/or free from functional compromise on a day-to-day basis in the foreseeable future. His right lower limb injuries in particular are likely to be at risk of further degeneration and deterioration into the long-term future, further compromising his occupational, recreational and domestic functioning on a long-term basis.
Report of George Milner, podiatrist, dated 12 September 2023
The report essentially described an exercise program aimed at improving gait and weight-bearing ability.
Report of Dr Dave dated 22 March 2024
This report referred to the previous osteotomy of the tibia where he considered healing to be satisfactory from a surgical perspective. He noted the right ankle issues and that he walked on the outer edge of his foot. Dr Dave considered that podiatry and physio may be helpful. In regard to the right leg, he considered he should return to full mobilisation.
General practitioner records, various dates
22 January 2020 – Right ankle injury (lateral malleolus) – X-ray.
There were a succession of further entries relating to right ankle pain and right heel pain
(11 May 2023 – three weeks prior to the subject accident).The history obtained at this injury was sudden onset right heel pain, query Achilles tendonitis, or query gout. Investigations had noted a raised uric acid.
A review on 26 May 2023 of his right ankle pain noted that imaging had identified bony spurring at the Achilles insertion and that this was consistent with calcific tendinosis. This is clearly a pre-existing condition.
Ambulance report
The report noted left shoulder pain, deformity right lower leg with nil mid-line tenderness involving the cervical spine.
Liverpool Hospital discharge referral
The discharge referred to a right compound tibial shaft fracture requiring open reduction and internal fixation with a tibial nail. Conservative treatment in the form of a Cam walker boot was considered reasonable for his calcaneum fracture.
Allied Health Recovery report of 29 July 2024
This report refers to ongoing treatment relating to the open fracture of the right tibia and fibula, and associated left Achilles tendon pain. Examination noted a full range of movement involving the right ankle, but made no references to whether this included the subtalar joint. The treating physiotherapist was Mr Burkic.
Radiological and medical imaging
12 May 2023 - Ultrasound right ankle – Bony spurring at Achilles insertion with calcification consistent with calcific tendinosis.
4 June 2023 – X-rays Liverpool Hospital.
Chest X-ray – NAD.
CT cervical spine, brain, pelvis, abdo, angiogram – All NAD with no remarkable findings.
CT right leg – There is a transverse compound undisplaced fracture of the right tibia and fibula. There is a compound comminuted intra-articular fracture involving the right calcaneum.
Post-reduction X-rays indicate anatomical alignment.
21 August 2023 – X-ray right leg – Tibial open reduction and internal fixation with rods and screws noted – anatomical alignment.
16 September 2023 – leg length assessment – There is a 2° valgus involving the left and right lower limbs. The acetabular roof on the left side is 3mm higher than the right, consistent with right lower limb shortening.
SUBMISSIONS
Insurer’s submissions dated 31 March 2025
The Panel summarises the submissions of the insurer dated 31 March 2025 by reference to paragraph numbers:
[1.1]-[1.4] The insurer seeks a review of Medical Assessor Nigel Menogue’s certificate of 7 March 2025 and submits that the Medical Assessor failed to correctly apply the motor accident guidelines (‘Guidelines’) when assessing the claimant’s scarring and lower extremity impairment.
[2.1]-[2.4] The insurer submits that the Medical Assessor was asked to assess a right calcaneal fracture and that he referred to Table 64 of AMA 4 but chose instead to use Tables 42, 43, and 44. The insurer submits that no reasons were given for this choice and that given its significance, reasons were required and the failure to provide them amounts to denial of procedural fairness, justifying referral to a Review Panel.
[3.1]-[3.6] As to scarring, the insurer submits that the Medical Assessor misapplied TEMSKI and the best fit principle. The Medical Assessor’s reasons showed scarring consistent with 2% WPI (negligible ADL impact, no treatment, no adherence) and despite this, the Medical Assessor placed scarring in the 3% category based on one feature. The insurer submits this did not meet “most” of the 3% criteria, contrary to the Guidelines. The insurer further submits that given the total WPI was 11%, the 1% error is material.
[3.7]-[3.11] As to the hindfoot, the insurer submits the Medical Assessor alternated between lower extremity and body-part assessments, creating error. The Medical Assessor allowed 3% lower extremity impairment for the subtalar joint (Table 43) and concluded an overall 14% lower extremity impairment (6% WPI). However, the insurer submits the impairment table suggested a body-part rating, though figures were for the lower extremity. The insurer submits the 3% subtalar impairment was incorrectly assessed, or alternatively, the reasons for the method were not sufficient.
[3.12]-[3.16] As to the knee, the Medical Assessor accepted 2% WPI for right knee crepitus (Table 62). The Guidelines require conversion via lower extremity impairment before converting to WPI and the insurer submits that is unclear why the knee was excluded from lower extremity calculation. The insurer submits it should have been 5% lower extremity impairment, not 2% WPI and the failure to do so was an error.
[3.17]-[3.19] If corrected (5% knee, 2% subtalar, 7% ankle, 4% plantar nerve), the right lower limb would be 18% (7% WPI). This reduces overall WPI by 1%, below the threshold and the insurer submits that the error is material.
Claimant’s submissions dated 22 April 2025
The Panel summarises the submissions of Mr Bhaskar dated 22 April 2025 by reference to paragraph numbers:
[1]-[3] Mr Bhaskar notes that the insurer submits the certificate of Medical Assessor Menogue dated 7 March 2025 is materially incorrect. Mr Bhaskar submits the certificate is not materially incorrect, nor has the insurer shown reasonable cause to suspect error. The review should be dismissed.
[4] Mr Bhaskar submits that AAI Limited v Fitzpatrick [2015] NSWSC 1108 confirms a Medical Assessor must form their own opinion, not choose between competing arguments, relying on their own expertise and examination. Reasons must disclose the path of reasoning but need not be scrutinised over zealously (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2).
[5] Further, Mr Bhaskar submits Bratic v Motor Accidents Authority of New South Wales [2010] NSWSC 1244 confirms that reasons need not be extensive; assessments involve judgment within a legitimate range.
[6] Mr Bhaskar lastly submits Bugat v Fox [2014] NSWSC 888 at [32] confirms reasons should not be subjected to minute textual criticism.
[7] Mr Bhaskar submits the principles from above are:
(a)reasons must be provided;
(b)clinical examination considered, and
(c)reasons not scrutinised zealously or at length.
[8] Mr Bhaskar submits the Medical Assessor satisfied these duties.
Use of Tables 42–44
[9]-[11] Mr Bhaskar submits the insurer alleges the Medical Assessor gave no reasons for using Tables 42–44 instead of Table 64. He further submits that no such reasons were required and that clause 6.69 of the Guidelines allows the method most specific to the impairment.
[12]-[13] Mr Bhaskar submits the Medical Assessor determined Tables 42–44 were more specific and that the use of Table 64 was not required. Mr Bhaskar submits no error is established.
Scarring
[14]-[15] Mr Bhaskar submits the Medical Assessor assessed 3% WPI due to boggy prominence, contour defect, and visibility. He further submits that no further detail was required under Vegan and Zahed.
[16]-[18] Mr Bhaskar submits cl 6.265 provides that the skin disorder should meet most, but does not need to meet all, of the criteria. He accordingly submits that 7 of 10 criteria for 3% WPI were satisfied and that no error was shown.
Right lower extremity – hindfoot
[19]-[20] Mr Bhaskar submits the Medical Assessor may have erred by applying ankle motion (foot) rather than hindfoot impairment, but that no error was made in relation to the hindfoot.
[21]-[22] Mr Bhaskar submits the correct calculation should be; ankle 10%, hindfoot 3%, sensory 4% = 17%. He further submits that a 17%-foot impairment equates to 7% WPI.
[23] Mr Bhaskar submits this is an “obvious error” under s 7.23(9) MAA 2017, which may justify referral for a replacement certificate.
Right lower extremity – knee
[24]-[25] Mr Bhaskar submits cl 6.71 requires separate assessment of multiple injuries. He submits the Medical Assessor correctly assessed the knee separately.
[26] Mr Bhaskar submits if the knee should have been combined, the ‘obvious error’ provisions allow correction, giving 19% lower extremity, or 8% WPI.
Insurer’s submissions dated 4 July 2025
The Panel summarises the submissions of the insurer dated 4 July 2025 by reference to paragraph numbers:
[1.1] The insurer relies on submissions of 10 October 2024 and 31 March 2025.
[1.2]-[1.3] The insurer notes Mr Bhaskar lodged additional documents on
27 June 2025, despite directions requiring filing by 1 June 2025. The new documents include:(a)unsigned statement of Mr Bhaskar;
(b)signed statement of Monisha Bhaskar (11 April 2025), and
(c)report of Dr Dias (28 May 2025).
[1.4]-[1.6] The insurer objects to their inclusion. The insurer submits the documents concern new injuries not referred to Medical Assessor Menogue and that the documents do not go to the real issues and should be excluded under PIC Procedural Direction MA6, 13.
Statement evidence
[2.1]-[2.3] The insurer submits the unsigned statement of Mr Bhaskar is unverified and should not be considered and that it is irrelevant to the impairment issues and appears intended for damages. The insurer submits that the statement of
Mrs Bhaskar likewise addresses activities of daily living and psychological symptoms, which are not in issue in this review.Dr Dias’ report
[3.1] The insurer notes that Mr Bhaskar did not rely on Dr Dias’ report at the time of Medical Assessor Menogue’s assessment; it is new.
[3.2]-[3.3] The insurer submits an additional medico-legal report does not assist with the issues in dispute. The report concerns a left lower extremity injury, which was not referred to Medical Assessor Menogue or to the Review Panel.
Claimant’s submissions dated 25 August 2025
The Panel summarises the submissions of Mr Bhaskar dated 25 August 2025 by reference to paragraph numbers:
[1.1]-[1.2] Mr Bhaskar submits the insurer is incorrect in its submissions of 4 July 2025; and that the supplementary statement dated 11 April 2025 was included in the
27 June 2025 bundle.[1.3] Mr Bhaskar submits he recently suffered from an injury to is left lower extremity due to an overcompensation stemming from his injury and therefore his signed supplementary statement of 11 April 2025 should be included under PIC Procedural Direction MA6, 13.
[1.4]-[1.5] Further, Mr Bhaskar relies on Dr Dias’ report of 28 May 2025, which identifies consequential left-sided Achilles tendinopathy and left knee patellofemoral dysfunction due to altered gait from right limb injuries. He submits that Dr Dias’ report should be included, noting the injuries only arose after Medical Assessor Menogue’s assessment.
[2.1] Mr Bhaskar maintains the additional documents are relevant to the dispute and should be admitted, particularly given the insurer contests an orthopaedic review.
THE PANEL’S EXAMINATION
Medical Assessor Shane Moloney examined Mr Bhaskar for the Panel. The findings of the Medical Members of the Panel are reproduced below.
Mr Bhaskar attended the medical suites at the Commission on 6 August 2025 unaccompanied.
Pre-accident history
Mr Bhaskar stated that he was in good health prior to the accident and regularly went running and attended the gym. He was very keen motorbike rider. He was married with two children aged 9 and 15 and was working full-time at the time of the accident in the cyber security industry.
There was a past history of a fracture to the right elbow treated with a plate and screws in 2018 and a diagnosis of right Achilles tendinitis which had been investigated with an ultrasound and diagnosed as calcific tendinosis prior to the accident.
History of motor accident
On 4 June 2023, Mr Bhaskar was riding his motorbike when a car failed to give way and hit him from the right side. He states that he was knocked off his bike and went about 6 to 7m in the air before landing on the road. He was wearing a helmet at the time and the bike jacket. He states that he had immediate pain in the right leg and could see the bend due to the fracture. He was assisted by a passerby and treated by ambulance officers.
History of symptoms and treatment following the motor accident
The ambulance took him to Liverpool Hospital where X-rays confirmed a compound fracture of the right tibia and fibula and right calcaneum. A surgical open reduction and internal fixation took place with the insertion of an intramedullary nail. The calcaneum fracture was managed conservatively. After an admission for five days, he was discharged home and was followed up by his GP and community nurse for dressings. He was on Clexane injections for two months.
He wore a Cam boot for three to four months with routine dressings by the nurse and later treatment by the physiotherapist and podiatrist. The podiatrist fitted him with an orthotic but due to discomfort he discarded it. He continues to have physiotherapy on a weekly basis funded by the insurer.
Further injuries since the accident
On 24 February 2024, he had a fall with increased pain in the right shin. He was taken to theatre and a bony fragment near the skin surface was removed. He recovered from this procedure.
Current symptoms
Mr Bhaskar has persistent pain in the right leg, over the dorsum of the right foot, the lateral heel and sometimes a sole of his foot. He tends to walk on the outer margin of his right foot. After about 10minutes walking there is increased pain in the foot and he drives short distances.
He feels there is a crackling noise in the right knee which is painful and increases in cold weather. The right knee becomes more painful when walking downstairs and he needs the assistance by hanging onto the rails. The knee pain is laterally and in the infra patella region. The left knee occasionally crackles with slight pain. Mr Bhaskar considers that he has poor proprioception as he feels unstable with walking at times. He feels some discomfort at the insertion of both Achilles tendons.
At present, Mr Bhaskar is back working full-time with most hours at home but he attends the office when necessary. He states that the use of an uber taxi for this was paid by the insurance company.
Present treatment
Mr Bhaskar takes an occasional Panadol and states that psychiatrist has treated him with Catapress 100mg in the morning and sertraline 50mg at night for post-traumatic stress disorder and anxiety. This treatment started six weeks ago and he has not noticed any significant improvement yet. He continues to attend a physiotherapist on a monthly basis. No radiological studies were available.
Clinical examination
Mr Bhaskar’s height was 173cm and weight of 79kg.
Mr Bhaskar walked into the rooms with a normal gait and was unaided. He was able to stand on his heels and toes and could squat to 50% of expected range with limitation due to stiffness in the right ankle. The right foot was in a varus position when standing. No muscle wasting was noted in the right leg with the circumference of the lower thighs 43cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 33cm bilaterally.
The following limb measurements were taken: On the right measurements from the ASIS to the medial malleolus was 89.5cm and on the left 91cm.
Knees
Knee Movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Flexion
130°
130°
Extension
0°
0°
Active measurements were obtained using a goniometer. No effusions were apparent and no ligament laxity noted. On palpation there was tenderness over the right lateral joint line and infra patella region with slight tenderness on patella pressure. On passive movement crepitus was noted in the right knee.
Ankles
There was some loss of range of movement in the right ankle and hindfoot.
Ankle Movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Dorsiflexion
10° = 3% WPI
20°
Plantarflexion
40°
50°
Hindfoot Movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Inversion
10° = 1% WPI
20°
Eversion
10° = 1% WPI
20°
Peripheral nerve injury
There was some decrease in sensation around the larger scars and on testing for sensation of the right foot, there was decreased sensation over the lateral right foot and right lateral ankle to light touch and sharp. This is an injury to the lateral plantar nerve.
Scarring
The larger scar is over the anterior right shin which is irregular in shape in approximately
16cm x 3cm. Suture marks are easily identified and trophic changes noted with colour contrast. A contour defect is easily visible on inspection. Mr Bhaskar it easily able to locate all of these scars and they are clearly visible when wearing shorts.Another scar is over the medial side of the right lower leg which is 3 x 2cm in area. A contour defect is evident with trophic changes. There is a smaller scar over the arch of the right foot with suture marks and in two scars over the right lateral heel and right lateral knee.
No treatment was required for any of these scars and there is no adherence the underlying structures. There is a negligible effect on any activities of daily living except for avoiding excess sunlight on the larger scars.
Discussion
Right leg – compound fracture right tibia and fibula
This injury was well documented by the treating surgeon and is associated with a soft tissue injury to the right knee and ankle.
Right knee
The right knee is assessed by range of movement using table 41 and using the footnote table 62, there was crepitation on passive movement was patellofemoral pain. This is a WPI of 2%.
Right ankle
The right ankle is assessed using table 42 and 43 of the American Medical Association Guides to the Evaluation of Permanent Impairment, fourth edition (AMA 4 Guides). There is loss of dorsiflexion and 10° is 7% left extremity impairment (LEI) (3% WPI). Loss of inversion 10° is 2% LEI% (1% WPI). This adds to 4% WPI for the right ankle range of movement loss. There is no ankylosis of the ankle joint.
Achilles tendinitis
There is documentation of calcific tendinosis to the right Achilles tendon prior to the accident. In the medico-legal read reports, there has been some mention of tenderness over the Achilles tendon bilaterally. The ultrasound of the right ankle diagnosing calcific tendinosis was taken three weeks before the accident and the Panel does not consider that the subject accident has changed this condition. At the time of our examination there was minimal tenderness over the Achilles insertion but no definitive diagnosis of Achilles tendinitis bilaterally was made.
Peripheral nerve injury
There is loss of sensation in the distribution of the lateral plantar nerve of the right foot. Using table 68 of AMA 4 Guides, this gives 5% LEI (2% WPI). According to the Guidelines 6.106 peripheral nerve injuries for the lower limb are to be graded using table 11 a of AMA 4 Guides. This was defined as a grade 4 injury which is 80% of 5% LEI is 4% LEI.
Scarring
Scarring is assessed using the Temski chart. Classification of best fit is 3% WPI. Mr Bhaskar was conscious of the scars. There is an easily identifiable colour contrast with surrounding skin and he is easily able to locate the scars. Trophic changes were evident to touch with suture marks clearly visible. The anatomical location of the scars is usually visible with his usual clothing. A contour defect is clearly visible in the scars. There is a minor limitation in the performance of the few ADLs with no treatment required except avoidance of sun exposure to the larger scar on the anterior right shin and no adherence to the underlying structures. Medical Assessor Menogue came to the same conclusion.
The WPI is calculated in reference to Table 6.4 of the Guidelines 2% for the right knee, 4% for the right ankle, 2% loss of sensation. These are then combined using the AMA 4 Guides Combined values table to yield 8%WPI. This is then combined with 3% for scarring. This yields 11% WPI.
FURTHER MEETING OF THE REVIEW PANEL
The full Panel met on 19 August 2025 at 3.00pm and discussed the findings of the medical examiners and all of the issues in the case.
The full Panel concluded that for the reasons articulated by the Medical Assessors above, the total of the WPI was 11% and the findings of Medical Assessor Menogue should be confirmed.
In coming to this finding, the Medical Assessors reviewed the submissions of both the claimant and the insurer.
DETERMINATION
The Medical Review Panel affirms the certificate of Medical Assessor Nigel Menogue of
7 March 2025 that the injuries caused by the accident give rise to a permanent impairment of 11%.
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