Allianz Australia Insurance Limited v Davidson
[2024] NSWPICMP 402
•21 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Davidson [2024] NSWPICMP 402 |
| CLAIMANT: | Jordan Davidson |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 21 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant involved in motor accident when he fell off his motorcycle when trying to avoid a collision with the insured vehicle; injury to left ankle; where the claimant suffered consequential injuries to the pelvis, right hip, right ankle, lower back, and neck when his left ankle gave way and he fell down a set of stairs; re-examination by Medical Review Panel; assessment of permanent impairment; Medical Review Panel found a higher assessment of permanent impairment (21%) than the original assessment (20%); Held – original assessment revoked and new certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. 1. The Review Panel revokes the certificate of Medical Assessor Dixon dated 10 July 2023. 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment that is GREATER THAN 10% (21%): · cervical spine; · lumbar spine; · left ankle – fracture; · right ankle - soft tissue injury; · pelvic/sacral fractures, and · right hip – contusion. |
STATEMENT OF REASONS
BACKGROUND
On 12 January 2019, the claimant, Jordan Davidson, was involved in a motor accident when he fell off his motorcycle when trying to avoid a collision with a vehicle, insured by Allianz, that pulled out of a side street into his path of travel.
The claimant claimed that in the accident, he sustained an injury to his left ankle.
The claimant also claimed that as a result of a fall down a set of stairs at his residential premises on 11 April 2019, he sustained injuries to his lower back, neck, pelvis, right hip and right ankle. The claimant claimed the fall down the stairs happened when his left ankle gave way.
The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of his claim for damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, 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 a motor accident is greater than 10%.
The insurer did not concede that the claimant had suffered a whole person impairment (WPI) exceeding 10% for his injuries caused by the accident.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
The Commission referred the matter to Medical Assessor Drew Dixon for assessment.
On 10 July 2023, the Medical Assessor issued a certificate finding that the following injuries were caused by the accident:
· cervical spine;
· lumbar spine;
· left ankle – fracture;
· pelvis – pelvic fracture;
· scarring – left ankle;
· right ankle – soft tissue injury, and
· right hip – soft tissue injury.
The Medical Assessor certified that the injuries gave rise to a permanent impairment of 20%.
THE REVIEW APPLICATION
On 8 August 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review. Accordingly, the review application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]
[1] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor David Gorman, Medical Assessor Michael Couch and Member Maurice Castagnet (the Panel).
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.[2]
[2] Section 41(2) of the PIC Act.
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. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
RELEVANT LEGISLATION AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.1.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]
[6] Clause 6.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
[7] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]
MEDICAL ASSESSMENT UNDER REVIEW
[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Medical Assessor recorded that the claimant reported that when he was walking down a set of stairs on 11 April 2019, his left ankle gave way at the top of the stairs, and he fell down 17 steps, injuring his pelvis and right hip.[9]
[9] Page 12 of the claimant’s bundle.
The Medical Assessor also recorded that the claimant reported that on 21 March 2020, in an unrelated motor accident, he sustained a fracture dislocation of his right wrist when he was thrown off his motorcycle.[10]
[10] Page 12 of the claimant’s bundle.
The Medical Assessor was of the opinion that the motor accident caused the injury to the left ankle, and that the injuries to the pelvis, right hip, lower back and neck sustained in the fall down the stairs were consequential to his “right” ankle injury. (The Panel notes that the references in paragraphs 25 and 26 of the Medical Assessor’s certificate to a “right” ankle injury, appears to be typographical errors. This is made apparent by the Medical Assessor correctly referring to the left ankle injury at the commencement of paragraph 25 where he expresses his opinion on causation of the left ankle injury).[11]
[11] See paragraphs 25 and 26 of the certificate of Medical Assessor Dixon at page 19 of the claimant’s bundle.
As previously indicated, the Medical Assessor assessed the injuries caused by the motor accident as giving rise to a combined permanent impairment of 20%. In making this finding, the Medical Assessor attributed WPI of 5% to the lumbar spine injury, 4% to the left ankle/subtalar joint injury, 13% to the pelvic fracture/sacral fracture, and 0% to the cervical spine, right ankle and right hip injuries.
MATERIAL BEFORE THE PANEL
The Panel considered the material filed by the parties. The claimant submitted a paginated and indexed bundle of documents comprising 287 pages, and the insurer submitted a paginated and indexed bundle of documents comprising 445 pages.
The Panel also considered a list of weekly payments of statutory benefits (made to the claimant) which was filed by the insurer on 17 June 2024 at the request of the Panel.
SUBMISSIONS
Insurer’s submissions
The insurer’s submissions may be summarised as follows:
(a) The insurer accepts that there was a left ankle injury but disputes that there was a right ankle injury as a result of the accident. The insurer says that any injury to the right ankle would have been caused by a subsequent incident on 7 February 2019 when the claimant tripped on a dog.[12]
(b) The insurer disputes that the fall down the stairs occurred as a result of the claimant’s left ankle giving way and that the injuries sustained from the fall were consequential injuries arising from the accident.
(c) In support of this contention, the insurer relies on various entries recorded in the clinical notes of Prince of Wales Hospital. (These entries are referred to in the Panel’s summary of evidence which appears later in these reasons). The insurer also relies on the absence of any mention of the left ankle giving way, in the clinical notes of St George Hospital.
(d) The insurer contends that the claimant had returned to work as a bartender following the accident, as expected by the certificate of capacity issued by his general practitioner (GP). The GP indicated the claimant could return to work in about mid-March 2019. The fall down the stairs occurred about one month later when he was “rushing to work”, as recorded by clinical notes of the Prince of Wales Hospital. On that basis, the insurer disputes that the fall was causally related to the accident or the left ankle injury.
(e) The insurer noted that the clinical notes of Prince of Wales Hospital recorded the claimant as “fit and well” with no past medical history.[13] On secondary survey, the lower limbs were examined with: “sensation normal. Power bilateral feet normal.”[14] There were multiple neurological examinations of the left leg on 12 April 2019 which reported normal colour, temperature, nil swelling, and good movement and good sensation.[15] A skin assessment on 12 April 2019 noted a skin tear on the right knee from the fall. There were three small sores on the right shin and a covered sore on the right forefoot which were pre-existing to admission.[16] The insurer relies on this evidence to dispute that there were any symptoms in the left ankle at all.
[12] See Page 90 of the insurer’s bundle.
[13] Pages 97 and 109 of the insurer’s bundle.
[14] Pages 144-149 of the insurer’s bundle.
[15] Pages 144-129 of the insurer’s bundle.
[16] Page 140 of the insurer’s bundle.
Claimant’s submissions
The claimant’s submissions may be summarised as follows:
(a) The claimant relies on cl 6.7 of the Guidelines in support of his submission for the causal link between the injuries sustained in the fall down the stairs and the motor accident.
(b) The claimant refers to the decision of State Government Insurance Commission v Oakley (1990) 10 MVR 570 (as confirmed in Slade v Insurance Australia Ltd trading as NRMA Insurance [2020] NSWSC 1031, where the primary judge reasoned that, in the absence of the assistance of the Guidelines, common law principles should be applied by the Court.
(c) In Oakley, Malcolm CJ identified the first of three guiding categories of causation for a consequential injury as follows:
“Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.”
(d) The test of causation, of whether an alleged injury need be a ‘direct consequence of the motor vehicle accident’, was explored in Hunter v Insurance Australia Ltd trading as NRMA Insurance [2021] NSWSC 623. Adamson J stated, at [16]:
“It is well established at common law that for there to be a causal link between a consequence and a cause it is not necessary that the consequence be a direct consequence of the cause as long as it is reasonably foreseeable.”
(e) The claimant’s susceptibility to further injury materially contributed to the damage he sustained in the fall down the stairs. Thus, it may be said that the claimant falls in the first category identified in Oakley.
(f) The claimant was consistent in his reporting to Dr Bodel and Dr Shatwell about the mechanism of the slip and fall. The claim was also supported by contemporaneous records including GP records and physiotherapy notes.
(g) The insurer was in error to allege that the claimant had returned to work as a bartender at the time of the fall down the stairs. A certificate of fitness (issued by Dr D’Souza dated 21 March 2019) stated that the claimant had no current capacity for any work until 15 April 2019.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel relating to the matters under review, may conveniently be summarised as follows.
Pre-accident records
The clinical notes of St Vincent’s Hospital recorded the following entries:
(a) On 11 February 2011, the claimant (then aged 16) was transported by ambulance to the emergency department with pain to left ankle “post skateboarding accident”[17] with a background of “previous #’s from skateboarding & BMX nil else”.[18]
(b) The ambulance report attached to the clinical notes recorded that the claimant had a “fall from push bike.” [19]
(c) On presentation, the triage nurse recorded there was pain to the left ankle; heard a “loud crack” at the time of the fall; a splint was in situ; denied neck or back pain or head injury.[20]
(d) On examination, there was left ankle swelling; bony tenderness and inability to flex or extend the ankle due to pain.[21]
Post-accident records
[17] Page 96 of the claimant’s bundle.
[18] Page 96 of the claimant’s bundle.
[19] Page 98 of the claimant’s bundle.
[20] Page 97 of the claimant’s bundle.
[21] Page 97 of the claimant’s bundle.
Clinical notes of St Vincent’s Hospital
The clinical notes of St Vincent’s Hospital recorded the following:
(a) On 12 January 2019, the claimant presented at the emergency department[22] and the following entry was recorded:
“The diagnosis was fractures – tibia and fibula – shaft, closed - presented with motorbike injury - car pulled out, pt braked, was going about 20km/hr - rear end of bike came out and pt fell to the left - was wearing helmet - no head injury - no loc - left ankle was pinned between the bike and floor - pain and swelling with deformity – anatalgic [sic] gait”…no obvious head injury … no spinal tenderness, full rom of neck …knee intact left side – there is swelling and pain, med mal - sensation of toes intact – painful midfoot, plantar aspect.”[23]
(b) On attendance at the fracture clinic on 15 January 2019, a CAM boot was recommended for the next few days.[24]
[22] Page 109 of the claimant’s bundle.
[23] Page 110 of the claimant’s bundle.
[24] Page 117 of the claimant’s bundle.
Clinical notes of Prince of Wales Hospital
The relevant entries from the clinical notes of Prince of Wales Hospital may be summarised as follows:
(a) A progress note on 11 April 2019 at 6.47pm:
“fall down x 12 steps – wooden and concrete – unsure of exact mechanism of fall – slipped, fell forwards then rolled.”[25]
[25] Page 123 of the insurer’s bundle.
(b) A progress note (by Registrar Frosell) on 11 April 2019 at 7.27pm recorded the following entry:
“This afternoon slipped and fell down a flight of stairs – approximately 12 stairs – remembers entire fall, did not black out…current in pain – mostly right shoulder & elbow, back, buttocks.”[26]
[26] Page 131 of the joint bundle.
(c) A progress note (by Kellie West) on 11 April 2019 at 11.38pm recorded the following entry:
“orthopaedic – event – fall down flight of stairs due to rushing.”[27]
(d) A progress note (by Dr Dan) on 12 April 2019 at 12.14am recorded the following:
“Was getting ready for work (Bartender) when he fell from the top of a flight of stairs (13) Nil Loss of consciousness
Pelvic pain and right shoulder tip pain.
Got up from fall – felt lightheaded
but able to have a cigarette at time
walked into emergency…”[28](e) A progress note on 13 August 2019 at 1.13am recorded the following:
“Called by nurse as Jordan as experiencing discomforting opiod induced pruritis. Attended bedside – Jordan very distressed, and moving around a lot due to itch and exacerbating the pain from fractures. On PCA morphine for rib fractures. On PCA morphine for rib fractures and unstable pelvis, due for tf to St George for pubic symphysis stabilisation.”[29]
[27] Page 129 of the insurer’s bundle.
[28] Page 108 of the insurer’s bundle.
[29] Page 105 of the insurer’s bundle.
Clinical notes of St George Hospital
On 15 April 2019, the claimant was transferred from Prince of Wales Hospital to St George Hospital, for further treatment.
The relevant entries from the clinical notes of St George Hospital may be summarised as follows:
(a) On admission on 15 April 2019, the following diagnoses were recorded: “closed fracture sacrum; closed fracture pelvis, multiple pubic rami - unstable”.[30]
(b) Surgery by way of open reduction, involving internal fixation of a disruption of the pubic symphysis and the right sacroiliac joint was performed on 15 April 2019 by orthopaedic surgeon, Dr Andrew Keeley.[31]
(c) There was a discharge “against medical advice” on 17 April 2019.[32]
[30] Page 124 of the claimant’s bundle.
[31] Page 125 and 156 of the claimant’s bundle.
[32] Page 125 of the claimant’s bundle.
The claimant’s statements
In his claim form for personal injury benefits dated 21 January 2019, the claimant described his injuries from the motor accident as follows:
“Fractured left ankle, grazes along my left leg and left forearm.”[33]
[33] Page 25 of the claimant’s bundle.
The claimant relied on two signed statements dated 10 January 2022 and 2 November 2023 respectively. The relevant evidence from these statements may be summarised as follows:
(a) In February 2011, he sustained an injury to his left ankle when he fell from his bike. He attended St Vincent’s Hospital with one of his parents. He had an X-ray and was told that it did not show any major fracture. He had previously suffered fractures from other skateboarding and bike incidents. He subsequently recovered from that injury.
(b) In the motor accident on 12 January 2019, he was thrown in the air for about 4m before landing on the ground. His left ankle was trapped between the frame of the motorcycle and the road surface. He was in a great deal of pain and his left ankle was very swollen. He was unable to remove his shoe.
(c) He was discharged from St Vincent’s Hospital later the day of the motor accident on crutches and plaster on his left ankle. He attended the fracture clinic on
15 January 2019 and his plaster cast was removed. He was advised to wear a CAM boot and bear weight on his left ankle.[34][34] For matters in (a) to (c) – see page 282 of the claimant’s bundle.
(d) He subsequently attended upon a physiotherapist when he was fitted with a CAM boot. He was advised to try and use the ankle to bear weight. He informed the physiotherapist that he would organise his own rehabilitation and he was given home exercises.
(e) On 26 February 2019, he attended upon his GP for a medical certificate. He was provided a certificate for no current capacity for work until 14 March 2019.
(f) On 21 March 2019, he again attended his GP for a further medical certificate. He was provided a certificate for no current capacity for work until 15 April 2019.
(g) At that time, he continued to suffer pain, stiffness and impaired movement in the left ankle. His ankle would regularly swell, and he would be unable to weight bear on it. Attempting to do so caused the ankle to roll and he would experience loss of balance if he was trying to walk on it.
(h) On 11 April 2019 he was at home , preparing to go out for dinner.
(i) He walked to the stairs at the back of his home and when he reached the top of the stairs, his left ankle lost strength and suddenly gave way and rolled. He subsequently lost balance and fell down the stairs. As he was falling, he attempted to put his hand out to stop himself but missed the handrail. He fell approximately 17 stairs down to a concrete slab.
(j) He had not (at the time of the fall) returned to work since the accident on
12 January 2019. He had not received a clearance to return to work. He was unable to work due to his ongoing left ankle symptoms.(k) After the fall, he was taken to Prince of Wales Hospital where he was admitted. He was in intense pain, and he was given morphine, naloxone and fentanyl during his admission.[35]
(l) He understands that the hospital records show that on 11 April 2019, a note was made by Registrar Frosell stating that he was “unsure of the exact mechanism” of the fall and that he had slipped, fell forwards and then rolled. There was a note from Dr Dan that he fell down a flight of stairs “due to rushing” and a note from Kellie West stating that he “slipped and fell down a flight of stairs…”
(m) He does not have any recollection of speaking with a Registrar, but at the time he was seen in emergency, he was in a great deal of pain from his injuries and was unsure what had happened as he “wasn’t thinking straight”.
(n) He does not have a recollection of speaking to Dr Dan or telling him that he was rushing. He says that he had no reason to be rushing, as he was on his way to dinner and had plenty of time since it was about 4pm.
(o) He does not have any recollection of speaking to Kellie West. He says that he did not slip. His left ankle gave way and he fell down the stairs.
(p) He was asked by hospital staff how he was injured and he replied that he had fallen down stairs. Throughout his hospital stay he was in a great deal of pain and under the influence of a large amount of pain medication. He answered the questions he was asked as best he could in the circumstances.
(q) He has been informed that the Prince of Wales Hospital discharge summary does not refer to his left ankle and noted that he was getting ready for work when he fell from the top of a flight of stairs. The claimant says this is incorrect because he did not tell anyone at the hospital that he was on his way to work. He had not been working at all. He was going to dinner with his friends at an Italian restaurant on Bondi Road.
(r) On 15 April 2019, he was transferred to St George Hospital, where he underwent surgery for his pelvis. He has been informed that the clinical notes of the hospital do not record any complaint about his left ankle in emergency or at any other time. He cannot explain why the hospital has not recorded this issue or not. He was in a huge amount of pain from fracturing his pelvis, as well as injuries to his right shoulder, right elbow and lower back. These injuries were the focus of his energy and the treatment he was receiving. In comparison with the other injuries, a sore left ankle “didn’t even register” for him.[36]
[35] For matters in (d) to (j) – see page 283 of the claimant’s bundle.
[36] For matters in (k) to (q) – see page 284 of the claimant’s bundle.
Clinical records of Dr Anthony Keeley
The claimant had follow-up visits with Dr Keeley on 3 and 31 May 2019. There were further multiple visits in 2021 and 2022 for treatment of pain in right sacroiliac region (and occasionally on the left side) pain in the lower back and sciatic nerve pain in the right leg. He was treated with CT guided injections and referred to physiotherapy.[37]
[37] Pages 189-198 of the claimant’s bundle.
Clinical records of Bondi Junction Medical & Dental Centre
The GP records of this medical practice issued on 23 May 2019, recorded the following consultation notes, complaints and observations:
(a) 15 January 2019 – accident on 12 January 2019 whilst riding motorbike; (he) says left medial ankle fracture confirmed; plaster cast and wearing Moon boot; using crutches.[38]
(b) 31 January 2019 – still limping but feels pain is improving every day; tender medial malleolus; advised to keep CAM boot; has physiotherapy appointment next week. [39]
(c) 7 February 2019 – ongoing pain left ankle; will undergo weekly physiotherapy for 5 weeks; (he) says physiotherapist advised no work for 5 weeks.[40]
(d) 8 February 2019 – suffered injury to right ankle last night; went to emergency department but wait was too long; break to skin and slight bleeding, dirty needs better clean; wound cleaned and dressed.[41]
(e) 9 February 2019 – wound dressing; injured (right ankle) whilst gardening 2 days ago; slight swelling around ankle.[42]
(f) 13 February 2019 – review wound swab results; moderate growth of staph aureus; wound getting better; does his own wound dressing at home;[43]
(g) 26 February 2019 – noted left ankle fracture; having weekly physiotherapy and making good improvements week by week; aiming to go back to work in next 2-3 weeks on reduced hours; advised review on 19 March 2019 for update to light duties/capacity.[44]
(h) 21 March 2019 – repeat workers compensation certificate issued - still unfit for work.[45]
[38] Page 232 of the claimant’s bundle.
[39] Page 231 of the claimant’s bundle.
[40] Page 231 of the claimant’s bundle.
[41] Page 231 of the claimant’s bundle.
[42] Page 231 of the claimant’s bundle.
[43] Page 231 of the claimant’s bundle.
[44] Page 231 of the claimant’s bundle.
[45] Page 231 of the claimant’s bundle.
Certificates of capacity/certificates of fitness
On 21 January 2019, Dr Arshad Hamid, GP, issued a certificate of fitness certifying that the claimant had no capacity for any work until 31 January 2019 and a standing tolerance of 15-20 minutes.[46] Dr Hamid re-issued a certificate of fitness on 7 February 2019 in the same terms with no capacity for any work until 28 February 2019. He stated that the claimant was undergoing physiotherapy for the next 5 weeks.[47]
[46] Pages 371-372 of the insurer’s bundle.
[47] Pages 375-377 of the insurer’s bundle.
On 26 February 2019, Dr Jessica Murphy, GP, issued a certificate of fitness certifying that the claimant had no capacity for any work until 14 March 2019 and stating that he was undergoing physiotherapy with a further “2-3 weeks left” and that he had a standing tolerance of “15-20mins at a time”.[48]
[48] Pages 381-383 of the insurer’s bundle.
On 21 March 2019, Dr Eric D Souza, GP, issued a certificate of capacity certifying that the claimant had no capacity for any work until 15 April 2019, noting that he was having weekly physiotherapy and that he should be reviewed on 15 April 2019.[49]
[49] Pages 362-364 of the insurer’s bundle
Medicolegal evidence
Orthopaedic surgeon, Associate Professor Michael Shatwell was qualified by both parties to assess the claimant. He provided a report on 31 August 2020.
Associate Professor Shatwell noted that as at 21 March 2019, the claimant was certified unfit for work when last seen on 21 March 2019. He recorded that the claimant told him that by
11 April 2019 he was “almost fit for work” when unfortunately, he slipped on stairs coming down an external flight of 14 steps outside his residence on 11 April 2019.[50] The claimant told Associate Professor Shatwell that his left ankle gave way and caused the fall.[51][50] Page 284 of the insurer’s bundle.
[51] Page 289 of the insurer’s bundle.
Associate Professor Shatwell was of the opinion that the claimant sustained a left ankle injury on the motor accident caused by the joint being trapped between the road and the frame of his motorcycle. Associate Professor Shatwell noted that he was able to hobble following the accident but could not walk comfortably. He was allowed to weight-bear as tolerated. He was able to full-weight bear without any ankle support about eight weeks after the accident. The fall down the stairs then occurred when he was “almost fit” for his pre-injury work.[52]
[52] Page 288-289 of the insurer’s bundle.
As to causation of the fall down the stairs, Associate Professor Shatwell stated the following:
“Mr Davidson considers the fall down stairs on 11 April 2019 was caused by his left ankle giving way on the stairs outside his apartment when he descended there. I have no other information regarding this fall. There is no medical information in the file I have reviewed to confirm or deny this history.”
Associate Professor Shatwell considered that the previous injury to the left lower limb in 2011 was not significant or related to (causing) the injury in the accident because it was a sprain or strain.[53]
[53] Page 290 of the insurer’s bundle.
Associate Professor Shatwell attributed a 0% WPI to the left ankle injury and 0% WPI to the pelvic injury.[54]
[54] Page 294 of the claimant’s bundle.
In a later report dated 5 April 2022 (after reviewing further material), Associate Professor Shatwell considered that if it is accepted that the fall down the stairs was due to the left ankle weakness or pain, then the WPI relating to the pelvic fracture would be indirectly related to the accident as a consequential injury.[55]
[55] Page 301 of the insurer’s bundle.
Upon review of the further material, Associate Professor Shatwell revised his opinion regarding permanent impairment attributing 10% WPI for the symphysis pubic/sacral fractures and 1% for scarring, resulting in permanent impairment of 11%.[56]
[56] Page 304 of the insurer’s bundle.
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant. He provided a report dated 26 October 2021, following an assessment on the same day.
Dr Bodel noted that there were injuries to the left foot and ankle in the motor accident.[57]
[57] Page 48 of the claimant’s bundle.
Dr Bodel recorded that the claimant reported that when he was about to return to work, on
11 April 2019, he was walking down a set of stairs, his left ankle gave way at the top of the stairs, and he fell down a distance of 17 stairs and sustained injuries to the pelvis and hip.[58][58] Page 48 of the claimant’s bundle.
Dr Bodel recorded that the claimant reported that he sustained an injury to the right wrist in a motorbike accident on 21 March 2020.[59]
[59] Page 48 of the claimant’s bundle.
Dr Bodel recorded that there were complaints of pain in the pelvis, right hip, lower back, right leg, and pain and stiffness in the regions of the left foot, left foot, right wrist and right hand.[60]
[60] Page 49 of the claimant’s bundle.
Dr Bodel was of the opinion that there was a fracture of the left ankle caused by the motor accident with a consequential injury involving fractures of the pelvis following the fall down the stairs. Dr Bodel was satisfied that there is a causal link between the motor accident and the injury to the left ankle and the consequential injuries to the pelvis and further aggravation of the left ankle.[61]
[61] Page 52 of the claimant’s bundle.
Dr Bodel assessed a WPI of 35% attributable to injuries to the cervical spine, the lumbar spine, the left ankle, the symphysis pubis and left sacroiliac joint.
RE-EXAMINATION FINDINGS
On 31 January 2024, the claimant was re-examined by Medical Assessor Gorman and Medical Assessor Couch at the medical suites of the Commission. The claimant attended in person and was unaccompanied.
Pre-accident employment, education, and work experience
The claimant is a 29-year-old right-handed man.
At the time of the motor accident, he was working in hospitality as a bar manager at Mark and Vinnies Spaghetti and Spritz where he used to work 12-hour days.
Prior to that, he worked at Drake Eatery as a bar tender and manager and at Three Blue Ducks restaurant.
Following his motor accident, he found work as an Assistant Venue Manager at Bondi Bowling Club in 2020.
In 2020, he also found work as an accessory fitter for Adventure Merchants and has subsequently worked as an apprentice mechanic in Automotive Skills in 2021. He is currently working at Kirrawee Automotive, and he has been working there since 2023.
He is currently continuing his Auto Mechanic apprenticeship. His main work restriction is lifting heavy objects.
Pre-accident medical history and relevant personal details
X-rays of the left ankle revealed an old medial malleolar fracture – he recalled that the injury was either from a BMX accident or playing Rugby.
He lives in a unit. He vapes medicinal cannabis for pain relief. He is not a heavy drinker.
History of the motor accident
On 12 January 2019 he was riding a 500cc motorbike down Foveaux Street in Sydney, wearing full protective gear and a full-face helmet. As he was going downhill, a car pulled out of a side street on the left. He had to brake hard to avoid a collision, but lost control of the bike and was thrown to the ground.
History of symptoms and treatment following the motor accident
He injured his left ankle and was taken to St Vincent’s Hospital where a fracture was diagnosed - the foot was then immobilised in a back slab.
He attended the fracture clinic three days later and was put in a Moon boot which he wore for over six weeks. He had physiotherapy treatment.
Details of any relevant injuries or conditions sustained since the motor accident
He was about to return to work in hospitality and was out of the “Moon Boot” when he was walking down a set of stairs on 11 April 2019. His left ankle gave way and rolled in at the top of the external stairs - he fell down 17 steps and injured his pelvis and right hip. The stairs were wooden with concrete at the bottom. He went down the stairs headfirst and his hip hit the concrete slab at the bottom of the stairs. He had not been drinking – he was intending to out to dinner. He waited for his flatmate to return to help him to hospital or go out to dinner – she was a nurse.
He was taken to Prince of Wales Hospital where he was an in-patient for three days and then transferred to St George Hospital on 15 April 2019. On that day, he had an internal fixation of a pubic symphysis pelvic fracture and open reduction and internal fixation of the sacroiliac joint with one large screw with plate and screws across the symphysis pubis. This was performed by Dr Anthony Keeley.
He was in hospital for almost one week and then discharged home non-weight bearing with crutches. He took analgesic medication and had physiotherapy.
He returned to work some nine months after this injury as a bar tender but was working fewer hours.
He did not recall tripping over a dog as reported in the documents.
Subsequent progress
He had a further injury on 21 March 2020 when he was riding his motorbike that had just been serviced. The rear brakes locked up and he sustained a fracture dislocation of his right wrist when thrown off the bike. He had open reduction and internal fixation at Sydney Hospital with a scaphoid screw and at the same time, had carpal tunnel decompression.
That injury was not related to the subject motor accident.
In August 2021 he complained of pain in his left ankle, pelvis, right hip, lower back and right sciatica and neck pain to Dr Geoff Peng, his GP. He complained of right sciatica to his pelvic surgeon on 19 March 2021 who arranged for a CT guided perineural cortisone injection at the right sciatic notch, which was performed on 29 April 2021 and repeated on 26 July 2021.
At that stage, he was prescribed amitriptyline as well as Panadol and Nurofen.
Current symptoms
He has pain over the right buttock and hip. He describes it as a deep pain. It is helped by lying down and also by moving. Pain builds up when he walks. He does not run.
He reports pain and stiffness in his left ankle with difficulty running and jogging with a limp on the left. It can feel unstable on occasions.
He has difficulty with prolonged standing and walking. He has a driving tolerance of more than one hour in an automatic car. His left ankle pain does disturb his sleep on occasions.
He reports pain and stiffness in his midline in the lower back with lumbar stiffness and pain in his right hip posteriorly where his sacroiliac joint was internally fixated with a screw.
He reports his pubic symphysis area is settled.
His right ankle gets “sore”. Because of his left ankle pain, he puts more weight on the right. He did not report neck pain. He did report pain and stiffness of the right wrist, but this was unrelated to the subject accident.
Current and proposed treatment
He takes CBD oil and THC oil and has cannabis flowers which he uses with a vape. This gives him good pain relief.
He takes Endone and Targin 20/10mg as necessary for pain relief.
Current employment details
He is working as an apprentice motor vehicle mechanic at Kirrawee Automotive but does have difficulty lifting heavy objects at work. He still wishes to complete his apprenticeship which he started back in 2021 with Automotive Skills.
CLINICAL EXAMINATION
General presentation
He was a tall thin man whose height is 188cm with a weight of 67kg.
He walked with a slight limp.
Cervical spine
There was a full range of motion of his cervical spine without muscle guarding or spasm and mild tenderness over C6-T1 vertebrae but no trapezial muscle tenderness.
There was no neurological deficit of either upper extremity. His reflexes were symmetrical. His grip was normal and equal on each side. He was not describing non-verifiable radicular complaints in the upper limbs.
His hands were calloused.
His left upper arm measured 28.5cm on the left and 29cm on the right 10cm above the elbow. His forearm measured, 10cm below the elbow, was 28cm in circumference on the right and 27cm on the left.
Lumbar spine
On examination of his lumbar spine, flexion was decreased to one half normal with definite erector spinae muscle spasm more marked on the left. There was pain on back extension which was decreased to two thirds normal, as was lateral flexion to the right and that to the left to two thirds normal.
There was tenderness at the adjacent lumbosacral facet joints and over the upper buttock where his right sacroiliac screw was inserted. Patrick (Faber) test provoked right sacroiliac joint pain.
His straight leg raise on the right was 50 degrees associated with right buttock pain and that on the left was 80 degrees. His reflexes were present and symmetrical. Power and sensation were normal.
There was no wasting of his either thigh or either leg below the knee; they measured 39.5cm bilaterally, 10cm above the knee and 33cm on the right and 32.5cm on the left, 10cm below the knee.
Upper extremities
It is noted that he has had carpal tunnel decompression with a volar scar and two other scars as part of his repair to the fracture dislocation of the wrist including insertion of a scaphoid screw. There was stiffness of the wrist with dorsi flexion to 50 degrees and palmar flexion to 40 degrees, radial deviation 20 degrees and ulnar deviation 10 degrees each. Pronation was full at 80 degrees and supination was also normal at 80 degrees. This wrist injury is not related to the subject motor accident.
There was a full range of motion of the left wrist, both elbows and both shoulders.
Lower extremities
He walked with a mild limp. He was tender over the right sacro-iliac joint.
| Hip Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 100° | 130° |
| Extension | 15° | 15° |
| Adduction | 20° | 30° |
| Abduction | 30° | 40° |
| Internal Rotation | 30° | 30° |
| External Rotation | 40° | 60° |
His ankle and hindfoot movements were restricted on the left as outlined below.
| Ankle Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion | 15° | 0° |
| Plantarflexion | 40° | 25° |
| Hindfoot Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Inversion | 30° | 25° |
| Eversion | 20° | 15° |
Pelvis
There was a pale 7cm scar over the lower abdomen which did not have any suture marks visible.
There was a 2cm scar over the right lateral pelvis.
Comments on consistency
He was consistent in presentation and there was no inconsistency on range of motion testing.
Summary of relevant radiological and medical imaging and other investigations
X-ray of the left ankle on 12 January 2019 - showed a well corticated osseous fragment distal at the tip of the medial malleolus which may represent a remote avulsion fracture with overlying soft tissue swelling. The ankle joint spaces were normal and the talar dome was intact.
CT of the right wrist on 21 March 2020
- showed a trans scaphoid peri lunate fracture dislocation with ulnar styloid process fracture and comminuted triquetral fracture. This is not related to the subject motor accident. It is related to a subsequent motor bike accident on
21 March 2020 and it required open reduction and internal fixation at Sydney Hospital on
23 March 2020.
CT of the sacrum on 27 March 2021- showed no loosening of the sacroiliac screw.
MRI of the lumbar spine on 13 March 2021 - showed no structural abnormality.
MRI of the sacral plexus on 17 March 2021 - noted right sciatic neuropathy extending from just above the greater sciatic notch to the lateral extent of the deep gluteal space without a clear nerve compressive lesion identified.
X-ray of the pelvis on 21 May 2019 - noted a screw extending form the right iliac bone through the upper aspect of the right SI joint across to the first sacral segment. There was plate and screws bridging the symphysis pubis which was slightly widened. There was a healing fracture of the right inferior pubic ramus.
CT of the sacrum on 27 March 2021 - showed some reactive sclerosis and mild lucency about the iliac sacral screw without established loosening and no anterior bony dehiscence to suggest mechanical neural impingement.
Letter from Dr Anthony Keeley, pelvic surgeon, indicated he had referred the claimant to have an ultrasound or CT guided cortisone injection around the region of the sciatic nerve in the sciatic notch deep to the gluteal space.
Further MRI demonstrated some hyper intensity of the sciatic nerve without any thickening.
CT on 29 April 2021 - noted a spinal injection under CT guidance targeting the right sciatic nerve in the greater sciatic notch and injection of steroid and anaesthetic was given. As the needle was inserted the patient indicated that his sciatic pain was reproduced.
A second CT guided spinal procedure on 26 July 2021 noted the right sciatic nerve was injected perineurally into the greater sciatic notch using two ampules of Celestone and local anaesthetic.
MRI of the lumbar spine and sacral pelvis on 13 March 2021- showed a disc bulge at L4/5 without neural impingement and at L5/S1 a disc bulge without neural impingement.
MRI of the sacral plexus on 13 March 2021 - showed type T2 signal with hyper intensity, peripheral non-thickened fascicles of the right sciatic nerve extending from just above the right greater sciatic notch along the posterior acetabular column, which appears more prominent within the visualised deep gluteal space but no nerve compression lesion was identified. No adhesive or compressive fibres or vascular band in the deep gluteal space was detected. Visualised S2 nerve roots exited conventionally. The piriformis muscles were symmetric. The radiologist commented there was right sided neuropathy extending from just above the greater sciatic notch to the lateral aspect of the deep gluteal space without clear nerve root compression.
DETERMINATIONS - PERMANENT IMPAIRMENT
Causation and reasons
The motor bike accident caused the injury to his left ankle when he was trying to avoid a collision with the other vehicle, braking hard, causing him to lose control of his motorbike. He was ejected some 4m before landing on the ground with his left ankle trapped between the frame of the bike and the road.
The injuries to his pelvis, right hip and lower back with right buttock pain occurred when he fell down the stairs. These injuries were consequential to his left ankle injury because the ankle gave way at the top of the stairs, causing him to lose balance and fall.
The Panel is satisfied that there was no other cause for his fall other than the left ankle giving way. The fall occurred soon after the removal of the “Moon boot” on that side. The claimant gave a clear history of instability in the left ankle and of the left ankle rolling in just before the fall.
The Panel accepts the claimant’s evidence that he had not returned to work at the time of the fall because he was still unfit for work. His evidence is consistent with the insurer having made continued weekly payments for a full loss of earnings from the date of the accident to December 2019.
Diagnosis and reasons
Left ankle strain injury with aggravation of medial malleolar fracture fragment with post-traumatic stiffness of his left ankle and subtalar joint with no residual scarring of the left ankle.
Fracture to pelvis when the claimant had the consequential fall down the stairs on
11 April 2019, requiring open reduction and internal fixation of his pelvic fractures as well as sustaining lumbar musculoligamentous strain, soft tissue injury to his right hip and right ankle and right sided neck pain.
In summary, his current diagnoses are:
(a) post-traumatic stiffness of the left ankle due to motor bike injury with an old avulsed medial malleolar fragment;
(b) healed pubic symphysis fracture now reduced with plate and screws remaining in situ and healed sacral fracture with disruption of the sacroiliac joint, now stabilised with internal fixation remaining in situ. The latter injury has been complicated by neuropathy of the sciatic nerve;
(c) cervical spine injury now settled;
(d) lumbosacral injury with post-traumatic stiffness with dysmetria;
(e) contusion to right hip, now settled, and
(f) soft tissue injury to right ankle, now settled.
Summary of injuries referred for assessment
The following injuries WERE caused by the motor accident:
· cervical spine - soft tissue injury;
· lumbar spine – lumbosacral soft tissue injury;
· left ankle – fracture;
· pelvis – pelvic fractures;
· scarring – left ankle;
· right ankle – soft tissue injury, and
· right hip – soft tissue injury.
the following injuries WERE NOT caused by the motor accident:
• right wrist – fracture.
DETERMINATIONS
PERMANENT IMPAIRMENT
The determination as to permanent impairment is made in accordance with the AMA4 and Part 6 of the Motor Accident Guidelines.
He has reached maximal medical improvement. His symptoms have been stable for more than 12 months.
Permanent impairment table
Cervical spine
For his cervical spine is, from Table 73, Page 110, AMA V, DRE category I equalling 0% WPI. He has a good symmetrical range of motion.
Lumbar spine
For his lumbar spine where he has post-traumatic stiffness with dysmetria and erector spinae muscle spasm with right buttock pain is, from Table 72, Page 110, DRE category II equalling 5% WPI.
Left ankle
For the left ankle fracture with post-traumatic stiffness is from Table 42, 3% WPI.
For the post-traumatic stiffness of the subtalar joint is from Table 43, 0% WPI.
This gives a total from the Combined Values Chart of 3% WPI for the left ankle.
Pelvis
That for the consequential injury causing pelvic fracture:
(a) for the pubic symphysis fracture, now reduced, with no residual signs, but with residual displacement on imaging, is from Table 3.4, Page 131, 5% WPI;
(b) for the sacral fracture with disruption of the sacroiliac joint requiring internal fixation is from the same Table, 10% WPI. There are residual signs of tenderness and restriction in right hip movement. The fracture disrupted the sacro-iliac joint and required internal fixation. This injury has also caused neuropathy of the adjacent sciatic nerve as seen on scanning, and
(c) this gives a total of 15% WPI for the pelvic fractures.
Right ankle
The right ankle showed a full range of motion of the ankle joint and subtalar joint and the impairment, from Tables 42 and 43, is 0% WPI.
Right hip
The right hip has been included in the assessment for his pelvic fracture – the restriction in movement is due to the pelvic fracture mainly. The impairment is 0% WPI.
Combined
This gives a total from the Combined Values Chart of 21% WPI.
There were no symptomatic pre-existing conditions.
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | Table 73 on page 110 | Yes | 0% | 0% | 0% |
| 2 | Lumbar spine | Table 72 on page 110 | Yes | 5% | 0% | 5% |
| 3 | Left ankle and sub-talar joint | Table 42 and 43 | Yes | 3% | 0% | 3% |
| 4 | Pelvic/sacral fracture | Table 3.4 on page 131 | Yes | 15% | 0% | 15% |
| 5 | Right ankle/subtalar joint | Tables 42 and 43 | Yes | 0% | 0% | 0% |
| 6 | Right hip | Nil applicable | Yes | 0% | 0% | 0% |
* %WPI = percentage whole person impairment
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination findings of Medical Assessor Gorman and Medical Assessor Couch in relation to the injuries to the left ankle, pelvis, cervical spine, lumbar spine, right hip and right ankle.
CONCLUSION
The Panel has reached different conclusions in their assessments of WPI of the left ankle and pelvic and sacral fractures to those of the single Medical Assessor, resulting a higher combined WPI.
Accordingly, the Panel revokes the certificate of the single Medical Assessor and issues a new certificate. The new certificate of the Panel is attached to these reasons.
0
5
0