Allianz Australia Insurance Limited v Halteh
[2025] NSWPICMP 798
•17 October 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Halteh [2025] NSWPICMP 798 |
CLAIMANT: | Anton Halteh |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 17 October 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant was a motorcycle rider injured in the subject accident in 2018 and again in 2020; both accidents involved serious fractures to his upper and lower limbs requiring internal fixation and nails; claimant assessed by original Medical Assessor (MA) as having 10% whole person impairment (WPI) for the musculoskeletal injuries; no reference made to subsequent accident in 2020; the claimant’s peripheral nerve injuries were assessed by another MA as 7% whole person impairment (WPI); insurer’s review application on the peripheral nerve assessment was declined by the Delegate; Review Panel re-examined and found 6% WPI for the musculoskeletal injuries related to the subject accident; Review Panel expressed an opinion that the causation decision regarding the peripheral nerve injuries was likely to be correct; Held – Review Panel combined its assessment with the peripheral nerve injury assessment to find 13% WPI which is greater than 10%; MAC revoked; new certificate and combined certificate issued. |
DETERMINATIONS MADE: | AMENDED CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Nigel Menogue dated (a) The Review Panel certifies the following injuries were caused by the motor accident: (i) left femur – displaced fracture; (ii) left ankle – fracture of the talus; (iii) left tibial plateau – fracture; (iv) left clavicle shaft – fracture, and (v) skin scarring. (b) The Review Panel finds that the above injuries result in a whole person impairment of 6%. COMBINED CERTIFICATE Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel combines the following assessments: 1. Certificate of the Review Panel dated 17 October 2025: (a) the degree of permanent impairment in relation to the following injuries caused by the motor accident is 6%: · left femur – displaced fracture; · left ankle – fracture of the talus; · left tibial plateau – fracture; · left clavicle shaft – fracture, and · skin scarring. 2. Certificate of Medical Assessor Robin Fitzsimons dated 3 August 2025: (a) the degree of permanent impairment in relation to the following injuries caused by the motor accident is 7%, · multiple peripheral mononeuropathies – lower limb. 3. Using the Combined Values Chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, the combined permanent impairment is 13% and IS GREATER than 10%. |
STATEMENT OF REASONS
BACKGROUND
Anton Halteh (the claimant) was involved in a motor accident on 15 March 2018 (the subject accident). He was the rider of a motor cycle travelling along a road when a vehicle travelling in the opposite direction turned into his path resulting in a T-bone collision.
He was taken by ambulance to St George Hospital where he was diagnosed with multiple fractures to the left side of his body.
The claimant was involved in another motor vehicle accident on 2 May 2020 (the 2020 accident). On this occasion, he was reported to have been travelling at high speed on a motorcycle when he collided with the kerb and was flung approximately 5m into a steel pole, landing onto the kerbside concrete area. He sustained fractures to his arms and legs and was transported by ambulance to Liverpool Hospital.
He made a claim for personal injury benefits with Allianz Australia Insurance Limited (the insurer), the third-party insurer of the vehicle that he says caused the subject accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. If there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor for determination.
[1] See Division 4.3 of the MAI Act.
On 11 September 2024, Medical Assessor Nigel Menogue assessed the claimant’s musculoskeletal injuries as 10% WPI which is not greater than 10%.
An application for further medical assessment was made in relation to the claimant’s alleged left lower limb pain and sensory disturbance. This application was accepted by the President’s delegate.
On 3 August 2025, Medical Assessor Robin Fitzsimons assessed the claimant’s lower limb multiple peripheral mononeuropathies as 7% WPI.
As the claimant’s combined impairment was now 16% and greater than 10%, the insurer lodged an application with the Personal Injury Commission (Commission) seeking a review of the medical assessment of Medical Assessor Menogue. As the application was made outside the statutory time frame, the claimant sought an extension of time under Rule 133A of the Personal Injury Commission Rules 2021.
On 11 June 2025, a delegate of the President (Ms Melinda Drew), granted the extension of time and accepted the application for review. The matter was referred to this Review Panel (the Panel) to conduct the Review proceedings.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Menogue found that the following injuries were causally related to the subject motor accident:
· left clavicle – fracture and soft tissue injury;
· left foot – fractured talus;
· left knee – soft tissue injury and tibial plateau fracture;
· left leg/thigh – fractured femur and soft tissue injury, and
· scarring – ankle, left leg, left clavicle.
The Medical Assessor found loss of range of motion in the left shoulder (2% WPI) and surgical scarring (2% WPI).
There was loss of motion in the left hip joint (5% lower extremity impairment (LEI)), loss of motion in the left ankle joint (7% LEI) and left subtalar joint (2% LEI). 14% LEI converts to 6% WPI.
The total combined WPI was therefore 10%.
As will be made apparent below, the Medical Assessor did not refer to the subsequent accident of 2 May 2020 nor to the extensive documentation relating to this accident. The certificate reasons state that there were “nil” injuries sustained since the subject motor accident and there was “nil” subsequent impairment.
SUBMISSIONS
Insurer’s review application submissions dated 20 May 2025
The insurer refers to the following records which were before Medical Assessor Menogue:
(a) Ambulance report and Liverpool Hospital records relating to the 2020 accident, and
(b) Bossley Park Medical Centre records.
The insurer says the above records indicate that the claimant was involved in another motorbike accident on 2 May 2020 where he sustained the following injuries:
· right forearm - open right proximal ulna and radial shaft fracture. Closed right distal ulna shaft fracture;
· left forearm – closed left distal radial shaft fracture. Closed ulna styloid fracture;
· right femur - open right femoral shaft fracture, and
· left femur – closed left femoral shaft fracture with bent femoral nail (inserted following the subject accident).
The insurer details the documented history of treatment following the 2020 accident as follows:
· on 9 June 2020, the claimant saw Dr Walker who noted the further fracture of the left femur which had previously undergone a femoral nail procedure after the subject accident. Dr Walker stated that surgery following the 2020 accident to the left femur had result in sciatic nerve palsy;
· Dr Walker reviewed the claimant on 20 October 2020 and noted that the nerve pain in the left foot was reasonably well controlled with medication;
· in the report of Dr Powell dated 3 November 2021, the claimant stated that following the subject accident and post-operative period, he could not feel the sole of his left foot extending onto the dorsum of the toes. He said he was told this was likely due to a nerve injury and that it may recover over a year but may remain with him;
· however, Dr Powell noted that Dr Keeley assessed the claimant following the operative management of his fractures at St George Hospital and noted that he was neurologically intact. Subsequent follow up assessments extending to March 2019 made no mention of sensory alteration in the left foot or lower limb;
·
Dr Powell noted in a letter to the claimant’s local doctor on 9 June 2020 that
Dr Walker indicated that the sciatic nerve palsy developed following the attempted close reduction of the periprosthetic fracture and bent nail in relation to the 2020 accident, and
· Dr Powell accepted that the ongoing restriction of movement in the left ankle and hind foot related to the injuries sustained in the subject accident and assessed 5% WPI.
In relation to the medical assessment under review, the insurer says it is abundantly clear that the Medical Assessor failed to consider the additional documents relating to the 2020 accident. The Panel notes that it is not necessary to summarise the submissions relating to the alleged failure of the Medical Assessor to consider the relevant documentation as the review proceedings is conducted de-novo and the said documents are before the Panel now.
The insurer sets out specific errors in the medical assessment as follows.
Left femur fracture and scarring
The insurer says it was an error for the Medical Assessor to find reduction in left hip range of motion and assess 5% LEI caused by the subject accident. The insurer submits Dr Keely examined the claimant on 25 March 2019 and found normal range of movement in his left knee. There was no reference to any reduction to left hip range of movement.
The insurer refers to the operation report of 4 May 2020 which noted “after operation on 2nd May 2020 – noted left sciatic nerve palsy post closed reduction attempt”.
Furthermore, the insurer refers to the Discharge Summary at Liverpool Hospital where it was noted that following the 2020 accident, the claimant was experiencing sciatic nerve palsy in the left lower limb during his admission. The claimant was discharged on 19 May 2020.
The insurer again refers to Dr Walker’s opinion with respect to causation of the left lower limb symptoms which are summarised above in the dot points above.
In addition, the insurer submits that a significant portion of the scarring to the claimant’s left leg is related to the surgeries undertaken following the 2020 accident. The insurer notes
Dr Walker’s report dated 9 June 2020 where it stated “The previous bent femoral nail was cut to facilitate removal of the nail through the knee and through the fracture site”.
Left arm
The insurer relies on the report of Dr Keeley dated 29 October 2018 which found full range of motion in the left shoulder. The insurer also refers to Dr Powell’s opinion which acknowledged Dr Keeley’s findings and added that …”it is possible (and likely) that this [left shoulder] stiffness arise from some component of the motorbike accident of 2020”.
Insurer’s original reply submissions dated 26 September 2019
These submissions were drafted before the insurer was in possession of the documentation relating to the 2020 accident. The Panel has read the submissions but they do not add to the Panel’s understanding of the issues in dispute.
Claimant’s review reply submissions (undated)
The claimant submits that Medical Assessor Menogue has properly considered all relevant documents and relied on his findings made on the day of the assessment.
The Panel noted the claimant’s additional WPI submissions (undated) regarding the additional injury of multiple traumatic mononeuropathies and the request for the claimant to be referred to a Medical Assessor in the speciality of neurology for assessment.
REVIEW OF THE EVIDENCE
General observations
On 16 June 2025, the Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. The Panel stated that unless documents are uploaded to the review file, the Panel would not be able to read and consider those documents. The parties responded with the lodgement of bundles – the insurer’s bundle comprising of pages 1-1,062 and the claimant’s bundle comprising of pages 1-16.
The Panel has read the documentation relied upon by the parties. Given the voluminous nature of the material, the Panel will only specifically refer to material that is relevant to the resolution of the permanent impairment dispute and the issues in dispute.
Certificate of Medical Assessor Fitzsimons
In the parties’ written submissions, the Panel noted that the claimant saw Medical Assessor Robin Fitzsimons on 15 July 2025 who subsequently issued a certificate dated
3 August 2025.
At the request of the Panel, the Commission’s case owner provided the Panel with the certificate and reasons of Medical Assessor Fitzsimons dated 3 August 2025 for the related matter M2189/25.
Medical Assessor Fitzsimons was asked to assess the following injury:
· injury to lower limb: multiple traumatic mononeuropathies.
Medical Assessor Fitzsimons assessed the above injury and found that the claimant’s impairment from the injury “multiple peripheral mononeuropathies – lower limb” was 7% WPI and is not greater than 10%.
Medical Assessor Fitzsimons also provided a combined certificate dated 4 August 2025 which combined the impairments from her assessment and that of Medical Assessor Menogue.
The combined certificate certified the following:
“The following injuries caused by the motor accident give rise to a permanent impairment which is greater than 10%
· Multiple peripheral mononeuropathies – lower limb
· Left clavicle – fracture and soft tissue injury
· Left foot – fractured talus
· Left knee – soft tissue injury and tibial plateau fracture
· Left leg/thigh – fractured femur and soft tissue injury
· Scarring – ankle, left leg, left clavicle.”
Medical Assessor Fitzsimons combined the three lower limb WPIs comprising of the 7% WPI for the multiple peripheral neuropathies; 3% WPI for the left ankle loss of range of motion; 1% for the left subtalar loss of range of motion and 2% WPI for the left hip loss of range of motion. The total combined WPI for the left lower limb was therefore 13% WPI (7 x 3 x 2 x 1).
The 2% WPI for the scarring and the 2% WPI for the left clavicle loss of range of motion was then combined with the 13% WPI to give a total of 17% WPI (13 x 2 x 2).
Insurer’s review of the Certificate of Medical Assessor Fitzsimons
The insurer made an application to lodge additional documents attaching its detailed submissions made to the President’s delegate, setting out the alleged material errors in the certificate of Medical Assessor Fitzsimons. Central to the insurer’s argument was the alleged failure by the Medical Assessor to properly determine causation of the multiple peripheral neuropathies, the injury that was referred to her for assessment.
The insurer refers especially to the evidence following the subsequent (and unrelated to the subject accident) high speed motorbike accident in 2020 and submits that it was this accident that caused the claimant’s multiple peripheral neuropathies.
The Panel has read the insurer’s submissions and has provided an opinion on its view on causation of the multiple peripheral neuropathies, given the Panel’s re-examination observations on peripheral nerve injury. However, as will be shown below, even if the Panel’s findings on causation of the multiple peripheral neuropathies differed to that of Medical Assessor Fitzsimons, the Panel cannot disturb the conclusive nature of her certificate.
Subject accident – 14 March 2018
Ambulance report dated 14 March 2018 – motorcycle collision. Obvious limb injuries to left humerus, left femur and left lower leg. Secondary survey of left ankle pain; left femur pain; left fibula pain; left humerus pain; left tibia pain; left femur deformity; left shin deformity; left knee bruising/haematoma; left humerus bruising/haematoma. Initial assessment of open and closed fractures.
St George Hospital emergency clinical notes dated 14 March 2018 – high speed motorbike accident T-boned car. Estimated riding speed > 60kmph, oncoming car apparently turning right in front. Left clavicle pain/deformity. Left lower limb thigh pain and swelling to left thigh and knee. Wound to posterior left knee below popliteal crease. Left thigh deformity and shortening. Posterior left leg wound oozing blood. Sensation to left lower limb intact. X-ray - open tibial plateau fracture. Displaced distal 3rd femur fracture. Comminuted talar fracture.
Operation report of surgeon Dr Anthony Keeley dated 15 March 2018 – performed left retrograde femoral nail; left side tibial plateau open reduction + internal fixation; left calf wound washout; left clavicle open reduction + internal fixation; left talus open reduction + internal fixation.
Reports of Dr Anthony Keeley, treating orthopaedic surgeon:
· 28 March 2018: Two weeks post operation. Wounds all well healed. Left upper limb and left lower limb are neurologically intact;
· 29 October 2018: Seven months post-accident. Patient says he is progressing very well. Only pain is his ankle when he starts walking. It settles down quite quickly. Some restriction of range of movement, particularly ankle dorsiflexion. Otherwise no functional difficulty. Plates not removed, and
· 25 March 2019: 12 months post-accident. Progressing reasonably well. Some stiffness of left ankle first thing in the morning which settles quickly after a few minutes of walking. Also occasional pain over lateral aspect of knee. On examination, good range of movement of ankle from 10º dorsiflexion to 40º plantarflexion. Normal range of motion of left knee.
Bossley Park Medical Practice – March to December 2019: Approximately seven entries to general practitioner (GP) with nil relevant regarding 14 March 2018 subject accident.
Statement of claimant dated 22 August 2019 – pain and restriction in left leg. Numbness on the inner side of my left leg from the knee down to the mid shin. Swelling in left ankle.
Subsequent accident – 2 May 2020
Ambulance report dated 2 May 2020 – vehicle related trauma (motorcycle). Patient states travelling at high speed (approx. 100kmph and collided with kerb and flung approx. 5m into steel pole, landing onto concrete. Major deformities to all limbs. Absent radial and pedal pulses bilaterally ? due to trauma. Upper limbs: bilateral ulnar/radial # with compound to R) side. Lower limbs: bilateral femur #’s, compound R femur and L) vascular compromise with poor perfusion. Secondary survey: R femur major open, fracture; R forearm major open, fracture; L) forearm close fracture; L femur closed fracture >> poor perfusion to limb – neurovascular observations distal pulse not present, capillary refill < 2 secs. Pain to all limbs described as sharp.
Liverpool Hospital – admission 2 May 2020; discharge 19 May 2020. High speed motorbike accident. Lost control around round about. Blunt impact to ? road side pole. Obvious L femur deformity. Identified injuries: 1. R Grade 1 open forearm fracture; 2. L both bone forearm fracture; 3. R open Grade 2 comminuted femur fracture; 4. L closed comminuted femur fracture with compromised vasculature. Operations performed – surgeon Dr Richard Walker: 7 May 2020. R femur derotation, right cannulated screws x 2. 4 May 2020. L removal of femoral nail and nail exchange; L radial shaft ORIF; R both bone ORIF. 2 May 2020. Attempted closed reduction of bent left femoral nail – unsuccessful. Debridement of R femur open fracture, reduction of segmental femur fracture, insertion of nail. Progress notes: difficult to assess neurovascular status as pt not responsive to questions. 5 May 2020. Left LL – ongoing sciatic nerve palsy (foot drop, and no sensation spn, dpn, tibial nerve or sural nerves) – full sensory deficit, except saphenous nerve sensation present. Nil motor function sciatic nerve. 19 May 2020. L lower limb. Sciatic nerve affected. SPN slow recovery. DPN sensation returning. Planter nerves not working.
Bossley Park Medical Practice – 27 May 2020 – MBA noted. Multiple fractures including left femur mid shaft comminuted fracture with previous nail bent. Left foot drop. Dr Samy Erian letter dated 26 August 2020 recorded left foot burning pain and foot drop as a complication of the surgery performed following 2020 accident.
Report of Dr Richard Walker dated 9 June 2020 – MBA in 2020 with multiple fractures including a peri-prosthetic fracture of L femur. He had previously undergone a femoral nail in 2018. The nail was still in place and he fractured his femur and bent the previous nail. This was a closed injury. L femur underwent an initial attempted closed reduction of the bent nail. This failed. Following this operation unfortunately he developed a sciatic nerve palsy. He then required subsequent surgery involving removal of the femoral nail via an open procedure. The previous bent femoral nail was cut to facilitate removal of the nail through the knee and through the fracture site. He then required ante grade femoral nail on the left side. There has been some recovery of L sciatic nerve palsy with ankle dorsiflexion and great toe dorsiflexion. The power is Grade 4 at this point. He has significant neuropathic pain on the left side and he is taking Lyrica for this.
Report of Dr Richard Walker dated 20 October 2020 – five and a half months following injury. Further improvement. Main complaints are nerve pain in the left foot which is reasonable controlled with medication. Still absent sensation on the sole of left foot. Has had recovery of the common perineal component of sciatic nerve but minimal recovery of the tibial component.
Cecil Hills Medical Centre Dr Salman Mansoor dated 18 January 2021 – left ankle/feet/calf swelling for the last three days. Left ankle and left foot pain. Left ankle swollen, tender, no deformity, movement restricted. Past history of MBA, May 2020, 2019. Diagnosis of “neuropathic pain”.
Patient self-referral to Justice Health & Forensic Mental Health Network dated
28 August 2022 – Mr Halteh handwritten completion of form “I had a serious motorbike accident on 2nd May 2020 and broke both my femurs, tibia and fibia, ankle and both forearm. I have rods, plates and screws throughout my limbs. I have been having problems with my left ankle and the bottom of my left foot…”Referral letter from Dr Htun to Dr Borire dated 20 September 2024 – tingling and numbness of left foot with loss of sensation of all toes since motorbike accident in 2018. No mention of May 2020 accident.
Medico-legal report (x2) of Dr James Powell, orthopaedic surgeon, dated
3 November 2021 – assessed injuries related to the subject March 2018 accident. Left clavicle found to have full range of motion in the post injury period and any subsequent stiffness arises from some other source not related to the accident. Left lower limb had no impairment associated with the femoral or tibial plateau fractures as both proceeded to union in anatomical position. Knee flexion not less than 110º and therefore 0% WPI. Left ankle had limitation of dorsiflexion and rated as 7% LEI. Left hindfoot had limitation of inversion and rated as 5% LEI. Conversion of 12% LEI is 5% WPI. Scarring assessed as 0% WPI. Total WPI therefore is 5%.
RE-EXAMINATION REPORT
At the initial teleconference on 1 August 2025, the Panel determined that the claimant be re-examined. This took place on 20 August 2025 and the re-examination report of Medical Assessor Moloney is as follows:
“Anton Halteh
MVA 15 March 2018
Mr Halteh attended the medical suites at PIC on 20 August 2025. He was unaccompanied.
Pre-accident history
Mr Halteh was working full-time as a mechanical engineer prior to the accident in various jobsites. He stated that he was in good general health at that time but played no active sports. He had been living with a partner prior to the accident but is now single.
There was a past history of a fracture of the left elbow in 1994 which was treated with an internal fixation. He sustained a laceration to the right lower leg in 2010 in another motorcycle accident.
History of motor accident
Mr Halteh was driving his motorcycle on 15 March 2018 when a vehicle coming from the opposite direction turned into his path causing a T-bone collision. He hit the rear passenger side of the car and was thrown over the car on impact. He has no memory of this event until waking up after the surgery.
History of symptoms and treatment following the motor accident
Mr Halteh was taken by ambulance to St George Hospital and under an orthopaedic specialist, Dr Keeley was treated for displaced fracture of the femur by the insertion of an intramedullary nail, internal fixation with screws to the fracture of the talus bone, an open reduction and internal fixation of the left clavicle shaft fracture. There was also a fracture of the left tibial plateau which was stabilised with screws.
He was discharged 4 days later in a wheelchair which he used for 6 weeks and had a cam boot on the left foot for 3 months. He states that immediately after the surgery he was ‘walking on eggshells’ and had numbness around the knee and left foot and toes. None of the surgical hardware has been removed since the time of the accident.
A further motor vehicle accident
In 2020, Mr Halteh was involved in another motorcycle accident when he hit a pothole and was thrown into the gutter. This resulted in fractures to both femurs and fractured forearms. The left intramedullary nail was bent in this accident and had to be removed surgically and replaced. The right femur was treated by an intramedullary nail as were the forearms. Initially a right posterior interosseous nerve injury was diagnosed which settled with rehabilitation.
Current symptoms
Since the 2018 accident, Mr Halteh experiences pins and needles in the soles of the left foot when walking barefooted and particularly when he alights from a truck he works in. In cold weather he gets pain and swelling in the left knee and ankle and over the left tibia.
He states that he has no lumbar or hip pain at present.
Mr Halteh is now employed as a full-time truck driver with his work starting at 2 AM. He has been doing this job for the past 6 months and has no problem driving a car.
Since the 2nd accident he has now moved in with his parents for financial reasons.
Current treatment
Mr Halteh takes no medications at present and has no manual therapy. He had been taking Lyrica for nerve pain but stopped due to side-effects.
Clinical examination
Mr Halteh walked with a normal gait and sat comfortably during the interview. He states that he is right-handed with a height of 162 cm and weight 73 kg.
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and there was a linear surgical scar over the left clavicle with slight tenderness on palpation of the superior border but no crepitation was noted on active movement of the shoulders. Active measurements were made using a goniometer.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 150°= 2% UEI =1% WPI |
| Extension | 50° | 50° |
| Adduction | 50° | 40° |
| Abduction | 180° | 170° |
| Internal Rotation | 80° | 80° |
| External Rotation | 90° | 80° |
Lumbar spine
Mr Halteh walked with a normal gait and can stand on his heels and toes. On testing range of movement there was a full range of flexion/extension, side bending and rotation with no asymmetry. On palpation no guarding was noted in the lumbar musculature and straight leg raise was 70° bilaterally with negative sciatic nerve root tension signs. On neurological examination of the lower limbs, knee reflexes were brisk and equal with a normal right ankle reflex but diminished left ankle reflex. Power was equal bilaterally except for weakness in the left tibialis anterior muscle. No sensory changes were noted except the left lower limb where there were peripheral nerve changes.
Hips
On palpation there was no pain over the hip joints and active movements were measured using a goniometer.
| Hip Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 110° | 100° |
| Extension | 20° | 20° |
| Adduction | 20° | 20° |
| Abduction | 40° | 40° |
| Internal Rotation | 40° | 30° |
| External Rotation | 50° | 40° |
Knees
On inspection of the knees no effusions were apparent with crepitus on palpation of the left patella with some lateral patella tenderness No ligament laxity was noted on testing
| Knee Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 140° | 120° |
| Extension | 0° | 0° |
Ankles
| Ankle Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion | 20° | 15° |
| Plantarflexion | 40° | 30° |
| Hindfoot Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Inversion | 30° | 20° = 2% LEI |
| Eversion | 20° | 20° |
Muscle wasting was apparent in the left leg. The circumference of the lower thighs 37 cm on the right and 35 cm on the left (10 cm above the superior. Patella pole) and at the maximum circumference of the calves 31.5 cm on the right and 29 cm on the left.
There was weakness on testing of the left tibialis anterior muscle with wasting on palpation with a soft swelling at the level of the midcalf over this muscle.
Peripheral nerve injury
There was little wasting of the left tibialis anterior muscle compared with the right with 2 ½ cm of atrophy at the maximum circumference of the calf. There was mild weakness in the left ankle and in particular foot eversion.
There was decreased sensation to light touch on the sole of the left foot and dorsum of the left foot including some loss of sensation over the lower lateral calf. This indicates sensory impairment in the distribution of the lateral plantar and medial plantar nerve for decreased sensation in the sole of the foot.
These nerves have a maximum of 5% Lei and are classified by using table 11 of AMA 4th edition. This would be a grade 3 both of these nerves due to decreased sensibility with abnormal sensation when walking barefooted and irritating his feet when getting out of his work truck. The MAA guidelines direct the maximum sensory deficit of 60% multiplied by 5% equals 3% Lei for each nerve. There is also decreased sensation over the dorsum of the left foot which is supplied by the peroneal nerve. This sensory loss of the peroneal nerve is 5% Lei and grade 2 due to decreased sensibility without abnormal sensation of pain. 5% Lei x 25% equals 1.25% Lei. This is associated with minor weakness in the motor distribution in the peroneal nerve which gives a maximum 42% Lei. It is reasonable to apply 25% (grade 4 multiplier to the peroneal nerve which gives 10.5% Lei.
The total nerve damage is now 3% Lei for each of the medial and lateral planner nerves equals 6% Lei. Peroneal nerve is 1.25% Lei +10.5% Lei equals 12% Lei. 6% +12% Lei equals 18% Lei which converts to 17% Lei using the combination table. This is added to 2% Lei for loss of range of motion of the ankle which combines to 19% Lei using the combination chart.”
RELEVANT PROVISIONS
Assessment of permanent impairment
The assessment of the degree of permanent impairment is to be made in accordance with the Guidelines.[2]
[2] See section 7.21 of the MAI Act.
Version 10 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address by where they are silent on an issue, the AMA 4 Guides should be followed.
Causation
It is necessary for the Panel to consider whether the accident caused or contributed to the claimant’s physical injuries.
The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines.
The provisions state:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (the Commission) in considering such issues.
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 biological 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;
(a)the alleged factor could have caused or contributed to the worsening of the impairment, which is a medical determination, and
(b)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.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
FINDINGS
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 and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[4]
[4] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessor Moloney. The Panel reconvened on 7 October 2025 and discussed the re-examination report findings before collectively making the below determinations.
Causation and diagnosis of injuries
The Panel was satisfied that the claimant sustained fractures to his left clavicle, left foot, left knee and left leg/thigh as a result of the subject accident of 14 March 2018. The injuries are well documented in the St George clinical notes and the reports of the treating surgeon, Dr Anthony Keeley.
The subsequent motor bike accident on 2 May 2020 resulted in fractures to the claimant’s left forearm, left femur, right forearm and right femur.
The Panel was satisfied that there was some overlap in the injury to the left femur as while the subject accident resulted in a displaced fracture requiring a femoral nail, this nail was still in situ and was bent when the femur was again fractured in the subsequent accident.
The Panel noted that Medical Assessor Menogue did not find any peripheral nerve injury. The Panel however, found decreased sensation on the sole of the left foot and the lower left calf consistent with a peripheral nerve injury. The decrease in sensation involved a number of the peripheral nerves as detailed in the Panel report above and results in a significant impairment of 19% LEI. The Panel notes that this degree of impairment is not dissimilar to that found by Medical Assessor Fitzsimons in her recent certificate dated 3 August 2025.
The Panel notes the insurer’s view that subsequent accident was more significant, involved more complex surgery and, in the words of the operating surgeon Dr Walker, caused the development of a sciatic nerve palsy.
The Panel notes Medical Assessor Fitzsimons’ opinion that because the site of the first injury involved multiple trauma around the knee and ankle on the same side (i.e. the left), the injury to the peripheral nerve branches in the lower leg (Panel’s emphasis) is more likely to have been caused by the first (subject) accident.
The Panel’s view is that the claimant gave a clear history of “walking on eggshells” since the first subject motor accident. The peripheral nerve damage started at knee level (tibial plateau fracture etc). The replacement of the nail after the second accident did not cause nerve damage below the nail.
Notwithstanding the Panel’s view on the multiple peripheral nerve injuries, the Panel is not conducting a review of Medical Assessor Fitzsimons’ medical assessment.
As such, the conclusive nature of the Certificate of Medical Assessor Fitzsimons as it pertains to her certification of the injuries referred to her for assessment, namely the “multiple peripheral mononeuropathies – lower limb” found to be causally related to the subject accident should not be disturbed. It is noted that the insurer’s attempt at reviewing this certificate has been declined by the President’s delegate.
The Panel is therefore confined to its assessment of the musculoskeletal injuries referred for assessment. The Panel’s comments on the peripheral nerve injuries are there to help address the parties’, and in particular, the insurer’s concerns.
Summary of injuries referred by the parties
The following injuries were caused by the motor accident:
• left femur – displaced fracture;
• left ankle – fracture of the talus;
• left tibial plateau – fracture;
• left clavicle shaft – fracture, and
• skin – scarring.
PERMANENT IMPAIRMENT
Left knee and left ankle
The left knee is assessed using table 62 footnote as there was a history of direct trauma with patellofemoral pain and crepitation on passive movement which is 5% LEI. This is related to the tibial plateau fracture sustained in the accident in 2018.
The left ankle is assessed using range of movement using table 42 and 43 of AMA Guides. Inversion of 20° is 2% LEI. The left ankle as assessable due to the fracture of the tibia and talus bone.
5% LEI for the left knee is combined with 2% LEI for the left ankle which gives 7% LEI which converts to 3% WPI using table 6.4 of Guidelines.
Left leg
The Panel found no loss of motion in the left hip joint.
Left shoulder
The left shoulder is assessed using range of movement and is causally related due to a fracture of the left clavicle sustained in the accident in 2018. Loss of flexion of 150° is 2% UEI according to figure 38 of AMA 4 Guides. This converts to 1% WPI using table 3.
Scarring
There is a 20 cm scar over the anterolateral aspect below the left knee. Sutures marks are clearly evident with noticeable colour contrast compared to the surrounding skin and slight trophic changes evident to touch. Contour defect is slightly visible. The scar is clearly visible when wearing shorts and the claimant is easily able to locate the scars and is conscious of the scars. There is a 5 x 5 cm scar posterior to the left knee and a surgical scar over the left clavicle. There is no adherence to any of these scars and no treatment is required with minimal limitation in the performance of any ADLs.
This is assessed using the TEMSKI chart. Classification of best fit is 2% WPI.
CONCLUSION
The total WPI for the subject accident on 15 March 2018 is 3% for the left knee and ankle with 1% of the left shoulder and 2% for scarring. This gives a total of 6% WPI.
The Panel’s findings on impairment are different to that found by Medical Assessor Menogue. The Panel therefore revokes the certificate of Medical Assessor Menogue dated 11 September 2024.
A new certificate along with a new combined certificate are issued at the front of the Panel’s determination.
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