Allianz Australia Insurance Limited v Rohan
[2025] NSWPICMP 760
•2 October 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Rohan [2025] NSWPICMP 760 |
CLAIMANT: | Colleen Rohan |
INSURER: | Insurance Australia Group Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Tai-Tak Wan |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 2 October 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) determined the claimant’s disputed treatment; left ankle arthroscopy and syndesmosis stabilisation relates to the injury caused by the accident and is reasonable and necessary in the circumstances; the achilles tendon surgery was not related to the injuries caused by the accident and was not reasonable and necessary in the circumstances; dispute about treatment; Held – Review Panel conducted its own examination and concluded that the left ankle arthroscopy and syndesmosis stabilisation was not related to the injury caused by the accident and is not reasonable and necessary in the circumstances; certificate of MA was revoked; Review Panel concluded that the achilles tendon surgery does not relate to the injury caused by the accident and is not reasonable and necessary in the circumstances; certificate of MA was revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the determination of Medical Assessor Doron Sher of 30 August 2024, the left ankle arthroscopy and syndesmosis stabilisation relates to the injury caused by the accident and substitutes the determination that the left ankle arthroscopy and syndesmosis stabilisation does not relate to the injury and is not reasonable and necessary in the circumstances. 2. Further, the Panel revokes the determination of Medical Assessor Doron Sher and substitutes the determination that the left Achilles tendon surgery does not relate to the injury and is not reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Colleen Rohan (Ms Rohan), alleged injury in a motor vehicle accident (the accident) on 28 February 2023.
Ms Rohan last worked at a large supermarket in 2004.
Prior to that job, Ms Rohan had worked with a company operating balloon rides and had been printing signs onto balloons.
She has two grown up children.
She injured her right shoulder at work in 2001, and in 2002 she fell onto a service desk, then fell backwards, striking her right knee and injuring her right shoulder.
Subsequently, Ms Rohan was diagnosed with chronic regional pain syndrome (CRPS) affecting the right side.
She had come under the care of Dr Daryl Salmon, a pain management specialist who was the Director of the Pain Centre at Liverpool Hospital.
Since about 2013, Ms Rohan has been under the care of Dr David Manohar, a pain specialist of Liverpool Hospital at the time.
Ms Rohan had a spinal stimulator inserted in 2013, replaced in 2022, and more recently, on 14 February 2023. She said that the stimulator was inserted to control the pain in her low back and right leg.
The accident
Medical Assessor Margaret Gibson, examining Ms Rohan for the Panel, took the following history.
Ms Rohan had been driving a brand-new car on the day of the accident and was heading out to pick up her daughter so they could both travel to Queensland.
The accident occurred at a roundabout on 28 February 2023 at 11.00am, Ms Rohan told Medical Assessor Gibson that just prior to the impact she had looked across to the right. She did not remember the details of the accident.
Ms Rohan said that she felt no symptoms at the time. The police had not arrived at the scene and her vehicle was driveable.
There was damage to the front and rear passenger doors, but both could be opened.
She drove to her daughter's place about five minutes away.
She and her two daughters decided to make the journey to Queensland, and Ms Rohan did all the driving for about 10 hours (her daughter Rebecca could not drive).
During the journey, Rebecca had commented that Ms Rohan's left arm was swollen.
Ms Rohan said that, at that stage, there was no pain.
Ms Rohan stopped a few times on the way, and they arrived at Mount Gravatt at about midnight.
Once she arrived, Ms Rohan said that she felt unwell.
She took off her shoe and noticed her left ankle was swollen but was still able to walk without difficulty.
Ms Rohan left Rebecca at Mount Gravatt and drove herself back to Sydney.
After arriving she contacted her general practitioner (GP) on the Monday, Dr Riton Deb at the Claymore Medical Centre. An appointment was arranged for the next day. The doctor referred her for plain X-rays of her left wrist and a cortisone injection.
Ms Rohan was later referred to an orthopaedic surgeon, Dr Agus Kadir who told Ms Rohan that she had de Quervain's disease. This condition affecting the tendons on the wrist when two tendons at the base of the thumb become swollen, leading to inflammation. This is called de Quervain's tenosynovitis.
Dr Kadir operated in June 2023, but she is still getting swelling of the left wrist. Dr Kadir reported on 28 June 2023 that Ms Rohan had severe left de Quervain's tenosynovitis, and in his opinion, it was traumatic.
On 5 April 2023, Ms Rohan saw Dr Eugene Khoo.
A medical dispute referred by the Personal Injury Commission (Commission) to Medical Assessor Sher who assessed Ms Rohan on 30 August 2024 and certified that a left ankle arthroscopy and syndesmosis stabilisation related to the injury was caused by the accident, but that Achilles tendon surgery did not relate to the injury caused by the accident.
On 19 November 2024, the delegate of the President being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in material respect, caused the referral of the dispute coverage to a Review Panel.
REVIEW PROCEDURE
The President’s delegate has convened this Panel to conduct a review of the medical assessment by Medical Assessor Sher.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor: s 41(2) of the Personal Injury Commission Act 2020 (the PIC Act).
The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of Motor Accident Injuries Act 2017 (the MAI 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 and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
LEGISLATION
Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Ms Rohan’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
ASSESSMENT UNDER REVIEW
Medical Assessor Sher examined Ms Rohan on 30 August 2024 and issued his certificate on the same day.
There was a dispute between the claimant and the insurer about:
· whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the Act, and
· whether any treatment and care relates to an injury caused by the accident under Schedule 2, s 2(b) of the Act.
Medical Assessor Sher was referred two treatment disputes, being:
· whether the left ankle arthroscopy and syndesmosis stabilisation and repair of Achilles tendon surgery as requested on 6 September 2023 is causally related to the injuries sustained in the accident, and
· whether the left ankle arthroscopy and syndesmosis stabilisation and repair of Achilles tendon surgery as requested on 6 September 2023 is reasonable and necessary in the circumstances.
He took a pre-accident history at [6].
He then took a history of the accident, which the Panel does not reproduce, except:
“…When she arrived in Queensland, … her daughter pointed out to her that her wrist was swollen. She also noticed pain in her ankle at the time. This was a ‘sprained ankle’ type pain and not related … to her Achilles region.”
Medical Assessor Sher then at [8] took a history of the symptoms and treatment following the accident.
Medical Assessor Sher performed a clinical examination. He noted that there was a palpable lump around the distal Achilles, which was tender. The ankle was swollen and the peroneal tendons were tender to touch.
The Medical Assessor reviewed the documentation, commenting:
“The MRI scan was taken several months after the accident after the motor vehicle accident so it [was] not possible to quantify exactly when the ankle injury took place. It could have been at the time of the accident but also could have pre-dated it. Having said that, the car was an automatic car and the patient was able to stand and walk and in fact drive to Queensland … An injury to the ankle ligaments acutely is a relatively high energy injury and one would expect the patient's symptoms to have been much greater in the days after the injury stopped … Achilles tendinopathy is an ‘overuse’ type injury and not an acute traumatic injury.”
The Medical Assessor continued:
“It is highly unlikely that a patient that was able to drive several hours had enough of a distracting injury to her wrist to not notice an acute ankle sprain. Her GP does note a complaint of ankle pain on 5/4/23. He does question whether this relates to the MVA as the issue is with the Achilles and not the ankle itself. She has in the past required the use of a moon boot for the right side and ‘used’ the left side more while the right sided was painful (with a history of nerve damage and CRPS in the right foot). Dr Mittal notes that her ankle feels fairly stable on 6/9/2023.”
Medical Assessor Sher at [13] then summarised the ultrasound findings of 2 June 2023:
“There is focal thickening of the Achilles tendon … in keeping with tendinopathy”…
“The Achilles insertion is unremarkable”…
“No Achilles capital tendon tear”…
“No retrocalcaneal bursitis.”
Medical Assessor Sher concluded that the Achilles issue was not caused by the accident. It was a chronic overuse injury. It was possible that the ankle ligament injuries were caused by the accident, but this was impossible to prove one way or another. In this situation, one must give the benefit of the doubt to the patient.
The treatment of the Achilles was not reasonable or necessary in relation to the accident; however, treatment of the ankle ligaments was reasonable and necessary in the circumstances.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel had available the clinical records referred to in the claimant's index of documents at [R7] – [R13] and considered them in coming to its view of the medical assessment.
The Panel also had available the documents produced by Benefit Legal Lawyers at [A1]-[A12].
Further, the Panel had the report of orthopaedic surgeon Dr Rajat Mittal, of 27 July 2023, his report of 6 September 2023, 18 October 2023, and 19 January 2024, all of which are briefly abstracted.
Report of 27 July 2023 of Dr Rajat Mittal:
“Diagnosis: Left lateral ankle, Achilles tendon pain.
She is a 60-year-old who presents with pain in her left ankle. She had a motor vehicle accident in February 2023. She had a major injury to her left wrist. She does not remember twisting her ankle but she thinks it must have occurred at that time. The pain is around the lateral aspect of the ankle which radiates to the calf. There is another pain around the Achilles tendon which swells after a long day of walking. The pain and symptoms are worse after weight bearing exercises for more than 30 minutes. They improve with rest. She has had some physiotherapy which has helped. There is also associated paraesthesia, changes in temperature and changes in colour of the foot. The pain itself can be sharp/burning in nature.
She has a background of depression. She is a smoker. She is not working at the moment. She lives with her son.
On examination she had neutral hindfoot alignment with increased medial arch. She walked with an antalgic gait. There was a palpable lump around the distal Achilles. This was tender. There was no tenderness around the Achilles insertion. There was tenderness around the lateral ligament complex. The ankle felt more lax compared to the opposite side.
Her X-rays and ultrasound were performed at South West Radiology. The X-rays did not demonstrate any obvious fractures. The ultrasound demonstrated Achilles tendinopathy.
I have asked her to continue physiotherapy and weight bearing in rocker bottom shoes and will review her after an MRI.”
Report of 6 September 2023 of Dr Rajat Mittal:
“Diagnosis: Left ankle syndesmosis injury and Achilles tendinopathy.
Her pain around the lateral aspect of the ankle/syndesmosis continues and radiates up the leg. The lump around the Achilles tendon continues to give her pain. She has been doing physiotherapy but this has failed. Her ankle feels fairly stable.
Her MRI was performed at IMED Radiology. The main findings included injury to the AITFL, PITFL and ATFL. There was a medial talar dome lesion without displacement of the fragment. There were features of Achilles tendinopathy including swelling around the mid-portion of the Achilles tendon.
We discussed the surgical and non-surgical treatment options. She has failed non-surgical management. Thus the surgery indicated will be a left ankle arthroscopy with syndesmosis stabilisation and repair of the Achilles tendon. In particular, there is a higher risk of infection/wound issues because she is a smoker and there is rare chance that she may need a below knee amputation. We discussed the risks of surgery that include infection, neurovascular injury, deep vein thrombosis, persistent pain, incomplete relief or recurrence of symptoms or deformity, further surgery, and will require a general anaesthetic that itself includes risks such as sore throat, nausea and vomiting, cardiac, pulmonary and renal complications. She was given ample opportunity to ask questions. She understood and wished to proceed. I will organise the surgery and keep you updated on the progress. I have given her a referral for obtaining weight bearing X-rays of both ankles. She will call me once the X-rays have been completed. She needs to obtain these prior to surgery. In the interim she should non-weight bear on the ankle as much as possible.”
Report of 18 October 2023 of Dr Rajat Mittal:
“Diagnosis: Left ankle syndesmosis injury and Achilles tendinopathy.
It was a pleasure to review Colleen. I am awaiting approval for surgery for her left ankle arthroscopy, syndesmosis stabilization and repair of the Achilles tendon. In the last communication the surgery was declined and Sharmi, the senior case manager was going to email further questions about the surgery however I have not heard back.”
Report of 19 January 2024 of Dr Rajat Mittal:
“She sustained a considerable distracting injury of her left wrist. Thus it is possible that the ankle injury occurred at the same time, however the wrist pain took precedence. It is common for patients who have undergone trauma to identify other ‘non obvious’ injuries sometime after the accident. She does not recall any other incident that could have cause her ankle symptoms apart from the accident.
The mild Achilles tendinopathy could be age related, however injury to the ankle ligaments are not usually age related.
I do not recall assessing her right knee. Thus I am unable to comment on surgery for her right knee.”
Further, the insurer's Review bundle provides a number of helpful documents including the statement of the insured driver at [A12] and photographs of the claimant's vehicle at [A10].
MRI of the left ankle of 21 August 2023 by Dr Glyn Llewellyn-Jones report:
“No ankle or subtalar effusion. Localised region of marrow oedema at the border of the medial talar dome and medial margin of talus intact overlying articular cartilage and no sign of displaced osteochondral lesion. The calcaneocuboid and dorsal talonavicular ligaments are intact. No midfoot arthropathy. 7 mm ganglion arising medially from the calcaneocuboid joint.
The AITFL shows mild low signal thickening close to its fibula attachment compatible with mature scar remodelling following previous sprain injury. Elongated osteophyte measuring 4 mm arising from the lateral surface of the distal tibia associated with the attachment of the superior bundle of the AITFL suggest bony remodelling following injury. Intraosseous ligament and PITFL are intact with suspected mild low signal scarring of the PITFL. Low lateral ankle ligaments are intact with some subtle mature scar remodelling of the ATFL. The peroneal tendons are intact and remain normally positioned within the retromalleolar groove.
The flexor and extensor tendons are intact. Small tenosynovial effusion surrounding tibialis posterior tendon likely physiological. The deltoid ligament complex and spring ligament complex are intact. Borderline thickening of the mid Achilles tendon with flattening of the anterior surface measuring up to 7mm in thickness with associated subtle thickening of the paratenon compatible with low-grade mid Achilles tendinosis. The insertional Achilles fibres are intact and normal in appearance. No retrocalcaneal bursal effusion or reactive marrow oedema. The plantar fascia is intact. No intrinsic foot muscle atrophy.
Impression
Features of old lateral ankle ligament injury characterised by mature scarring of the AITFL, PITFL and ATFL. No static widening of the syndesmosis.
Medial talar dome osteochondral lesion (grade 1), no displaced osteochondral fragment.
Features supportive of mild mid Achilles tendinopathy, no insertional tendinosis.”
Ultrasound of Dr Aman Arley of 16 June 2023 clinical notes:
“?Achilles tendon injury, ?Bony injury post MVA.
Findings
There is focal thickening of the Achilles tendon associated increased vascularity in keeping with tendinopathy. The Achilles insertion is unremarkable.
No Achilles tendon tear.
No retrocalcaneal bursitis.
Comment
Features compatible with left Achilles tendinopathy. No tendon tear or peri tendinitis/retrocalcaneal bursitis.”
SUBMISSIONS
The Panel summarises the following submissions by reference to paragraph numbers.
Submissions of the claimant dated 28 March 2024
Procedural matters
[1] These submissions relate to the insurer’s denial for a left ankle arthroscopy and syndesmosis stabilisation and repair of Achilles tendon surgery.
[2] Ms Rohan cites Part 2 of Schedule 2 of the MAI Act.
[3]-[4] In a report dated 6 September 2023, Dr Mittal requested approval to perform a left ankle arthroscopy and syndesmosis stabilisation and repair of Achilles tendon surgery to improve the claimant’s pain and function (A2) and the insurer denied the request on 7 December 2023 (A3).
[5]-[6] An Internal Review of this decision was lodged by Ms Rohan’s legal representation on 20 February 2024 (A4). The insurer’s Internal Review outcome dated 5 March 2024 affirmed the decision to deny the surgery (A5).
[7] Ms Rohan seeks a determination from the Commission on whether surgical intervention is treatment and care that is reasonable and necessary in the circumstances.
Background
[8]-[10]Ms Rohan sets out the background of the accident, and notes the following injuries alleged as set out on the Application for Personal Injury Benefits Form of
6 April 2023: traumatic brain injury, post-traumatic stress disorder, aggravation to
pre-existing major depressive disorder, left wrist strain and left ankle strain (A6).Submissions
[11] Ms Rohan submits that the requested surgery is treatment and care that is reasonable and necessary in the circumstances.
[12] An ultrasound of the left ankle dated 2 June 2023 demonstrated features compatible with Achilles tendinopathy (A7).
[13] The initial assessment report of Dr Mittal dated 27 July 2023 diagnosed Ms Rohan with left lateral ankle and Achilles tendon pain (A8).
[14] An MRI of the left ankle dated 21 August 2023 showed injury to the AITFL, PITFL and ATFL (A9). There was a medial talar dome lesion without displacement of the fragment. There were features of Achilles tendinopathy including swelling around the mid-portion of the Achilles tendon.
[15] The report of Dr Mittal dated 6 September 2023 discussed options for surgical and non-surgical treatment. He opined that Ms Rohan has failed non-surgical management, and the best option will be the left ankle arthroscopy and syndesmosis stabilisation and repair of Achilles tendon surgery (A10).
[16] Dr Mittal’s report of 18 October 2023 supports his original surgery request (A11).
[17] The report of Dr Mittal dated 19 January 2024 stated that Ms Rohan sustained a considerable distracting injury to her wrist at the time of the accident (‘A12’). Dr Mittal opines that it is common for patients who have undergone trauma to identify non-obvious injuries sometime after an accident.
Conclusion
[18] Under Section 1.3, the objects of the MAI Act are to encourage early and appropriate treatment and care to achieve optimum recovery of a person with injuries sustained from a motor accident and maximise their return to work or other activities.
[19]-[20] Ms Rohan submits that the delays in approval by the insurer have prevented the claimant from obtaining early and appropriate treatment and care in relation to her injuries and that the proposed left ankle arthroscopy and syndesmosis stabilisation and repair of Achilles tendon surgery recommended by Dr Mittal is reasonable and necessary.
Submissions of the insurer dated 23 April 2024
Background
[1.1]-[1.3] By letter dated 7 December 2023, the insurer declined Ms Rohan’s request for a left ankle arthroscopy, syndesmosis stabilisation, and Achilles tendon repair. On
2 April 2024, Ms Rohan lodged an Application for Medical Assessment of a Treatment Dispute concerning that decision. The insurer submits the treatment requested is not reasonable and necessary, relying also on its Certificate of Determination – Internal Review dated 5 March 2024.Pre-Accident Medical Evidence
[2.1] The insurer submits Ms Rohan’s application contains no reference to her pre-accident medical history. The insurer notes that they hold limited material, but submits that her history includes:
(a)pre-existing bunion on the left foot, with Dr Khoo recording “obligatory overload in compensating for left ankle” (30 January 2023);
(b)MRI left ankle by Dr Llewellyn-Jones (6 August 2023) reporting “features of old lateral ankle ligament injury characterised by mature scarring,” and
(c)references in Dr Khoo’s notes to Ms Rohan being “known to Dr Darell Salmon” at Liverpool Hospital Pain Centre.
[2.2] The insurer submits further assessment cannot proceed without records from:
(a)Lurnea Family Practice;
(b)the medical practice at Minto;
(c)Liverpool Hospital Pain Centre, and
(d)updated records from Claymore Medical Centre.
[2.3] The insurer submits Ms Rohan should provide a proper response to the insurer’s request for particulars dated 7 March 2024, including a complete medical history.
Post-accident medical records
[2.4]-[2.5] The insurer submits causation is a significant issue regarding the alleged left ankle injury. Ms Rohan has been a patient of Claymore Medical Centre since 1 June 2022.
[2.6] Ms Rohan consulted Claymore Medical Centre on 7 March, 14 March, and 22 March 2023, but made no mention of any ankle injury.
[2.7] On 5 April 2023, she first complained of left ankle pain to Dr Khoo, the day before lodging her personal injury benefits application.
[2.8] On 5 May 2023, Dr Khoo noted left ankle pain with possible Achilles bursitis and observed: “I am unsure if this is MVA related … she is likely compensating … but the MVA could have aggravated her left ankle issues.”
[2.9] The insurer submits this demonstrates pre-existing issues in the left ankle.
[2.10]On 18 May 2023, Dr Khoo again recorded ankle pain, described complex pre-existing issues, and referred for ultrasound.
[2.11] On 16 June 2023, Dr Ali performed ultrasound, finding “focal thickening of the Achilles tendon associated increased vascularity in keeping with tendinopathy. The Archilles insertion is unremarkable.”
[2.12] The Insurer notes that Dr Ali does not make any reference to Ms Rohan’s condition being trauma related and confirmed that there was no tendon tear.
[2.13]-[2.14] On 29 June 2023, Dr Khoo noted ultrasound results as “reassuring – nil #/break but distal Achilles tendinopathy noted …”. Dr Khoo then referred Ms Rohan for specialist treatment.
[2.15] On 27 July 2023, orthopaedic surgeon Dr Mittal first saw Ms Rohan, recording she had no recollection of twisting her ankle but assumed it occurred in the accident. He diagnosed Achilles tendinopathy.
[2.16] On 21 August 2023, Dr Llewellyn-Jones MRI reported “features of old lateral ankle ligament injury characterised by mature scarring” and mild Achilles tendinopathy.
[2.17] On 6 September 2023, Dr Mittal recommended surgery but did not address causation. On 18 October 2023, Dr Mittal again reported but without addressing causation.
[2.18] On 19 January 2024, in response to Ms Rohan’s solicitors, Dr Mittal opined the Achilles tendinopathy “could be age related.”
[2.19] On 9 November 2023, in response to insurer’s questions, Dr Mittal accepted syndesmosis injury and Achilles tendinopathy, stating:
“Q: How it is related to MVA injuries? A: The symptoms are after her MVA. There was no other obvious injury.” The insurer notes the correspondence sent by claimant’s solicitors to Dr Mittal has not been provided.
Insurer’s submissions on the medical evidence
[3.1]-[3.2] The insurer submits the proposed left ankle surgery is not causally related to the accident.
[3.3] Neither of the radiologists, Dr Ali nor Dr Llewellyn-Jones, identified trauma-related ankle injury.
[3.4] The insurer notes causation is significant, as reflected by Ms Rohan’s lawyers seeking specific reports from Dr Mittal.
[3.5] The insurer submits neither of Dr Mittal’s reports (9 November 2023 or 19 January 2024) establish a causal link between the accident and the need for surgery.
[3.6] The insurer submits Dr Mittal has not attributed Ms Rohan’s ankle symptoms to the accident in any way that would satisfy the onus of proof.
[3.8] The insurer submits Dr Mittal’s reasoning relies only on the absence of another cause identified by Ms Rohan, which is insufficient for medical diagnosis or causation. The insurer submits this is particularly so given Ms Rohan has failed to provide a full medical history to allow fair assessment of causation.
Submissions of the insurer dated 10 October 2024
[1.1]-[1.3] The insurer applies for Review of Medical Assessor Doron Sher’s Certificate dated
30 August 2024. The application is made under s 7.26, which allows review only if the assessment was incorrect in a material respect. The insurer submits the certificate is materially incorrect due to:(a)failure to adequately assess causation, and
(b)failure to apply the ‘reasonable and necessary’ test and to expose reasoning.
Failure to Adequately Assess Causation
[2.1]-[2.2] The insurer submits s 5D of the CLA applies.
[2.3] The insurer refers to Owen v Motor Accidents Authority, where Campbell J confirmed causation under s 5D involves mixed questions of fact and law.
[2.4] The insurer submits a Medical Assessor must determine, using facts and clinical judgment, whether the accident did or did not cause the injury and need for surgery.
[2.5] The insurer notes Medical Assessor Sher stated the ankle injury could have pre-dated the accident, that Ms Rohan was able to walk, drive, and travel after the accident, and that an acute ligament injury was unlikely given her presentation.
[2.6]-[2.7] The insurer notes, however, that the Medical Assessor then concluded it was ‘possible’ the ankle ligament injury was caused by the accident and gave Ms Rohan the “benefit of the doubt.” Based on this reasoning, the Medical Assessor proceeded to conclude that the proposed treatment as it relates to the ankle ligament was causally related to the subject accident.
[2.8] The insurer submits reliance on “benefit of the doubt” is not a valid causation test.
[2.9] The Medical Assessor explained why it would be most unlikely that Ms Rohan could have suffered an acute injury to the left ankle in the subject accident, however, he then proceeded to determine the injury was causally related; a conclusion the insurer submits is entirely inconsistent with the facts and evidence before him.
[2.10] The insurer submits the Medical Assessor gave consideration whether the accident could have caused the injury to the left ankle, and his comments strongly suggest that it is unlikely that it could have.
[2.11] The insurer submits s 5D of the CLA requires a positive finding on causation, not just a benefit of the doubt.
[2.13] The insurer submits the Medical Assessor’s findings are inconsistent with s 5D and materially erroneous.
Failure to Apply the ‘Reasonable and Necessary’ Test and Expose Reasoning
[3.1] The insurer notes the Medical Assessor recorded Ms Rohan’s significant pre-accident history, including CRPS, a spinal stimulator, and ongoing pain treatment.
[3.2] The insurer notes the Medical Assessor stated that due to her comorbidities, Ms Rohan would likely achieve a poor surgical outcome.
[3.3] Despite this, the insurer submits the Medical Assessor still concluded surgery was reasonable and necessary.
[3.4] The insurer refers to SIRA’s criteria for ‘reasonable and necessary’ treatment, including direct relation, assists the injured at getting back to their usual activities, suitability, provided by a qualified professional, and cost-effectiveness.
[3.5] The insurer submits part of the test requires considering likely outcomes, whether the claimant will benefit, and whether recovery will be aided.
[3.6] The insurer submits that since the Medical Assessor found Ms Rohan would not benefit and would have a poor outcome, he should have found the surgery not reasonable or necessary.
[3.7] The insurer submits the Medical Assessor failed to apply the reasonable and necessary test properly, as the insurer submits a correct application would have led to rejection of surgery.
[3.8] The insurer submits the Medical Assessor gave no reasoning as to how treatment could be reasonable and necessary despite predicting a poor outcome.
[3.9] The insurer relies on AAI Ltd v Fitzpatrick, where Schmidt J held assessors must disclose the path of reasoning behind conclusions.
[3.10]-[3.11] The insurer submits the Medical Assessor failed to disclose his reasoning and that this failure is material given the inconsistency between his opinion and his conclusion.
Conclusion
[4.1]-[4.2] The insurer submits the Review Panel should declare Medical Assessor Sher’s certificate null and void and issue a new Certificate finding the ankle ligament surgery is neither causally related to the accident nor reasonable and necessary.
Submissions of the insurer dated 21 July 2025
[1]-[3] The Review Panel issued directions on 27 June 2026 requiring Ms Rohan to upload by 14 July 2025 all medical notes and reports for two years pre-accident relating to early treatment and chronic pain of the left ankle. On 15 July 2025
Ms Rohan uploaded a bundle of documents in response. The insurer notes the bundle contained records from:(a)Elizabeth Drive Medical Centre [5]-[7] The records range from 5 April 2023 to 20 October 2023. The insurer submits these records were already in the Review Bundle (to 21 June 2024). The insurer submits they do not include any pre-accident consultations as directed;
(b)Claymore Medical Centre [8]-[10] The records range from 2 June 2022 to
9 March 2023. The insurer submits these were already in the Review Bundle. The insurer submits they contain only brief pre-accident consultations and not the specific records sought by the Panel;(c)Minto MediClinic [11]-[13] The records cover only 7 and 8 November 2023. The insurer submits they were already in the Review Bundle and are unrelated to the left ankle. The insurer submits they are not the records requested by the Panel;
(d)JT Physio [14]-[16] The records range from 4 May 2023 to 8 July 2024. The insurer submits they were already in the Review Bundle. The insurer submits they do not contain pre-accident consultations;
(e)iPrana Health Consulting [17]-[18] The insurer notes these records were not previously before the Panel and relate to rehabilitation allocated post-accident. The insurer submits they are not pre-accident records and do not add anything material to the dispute;
(f)Complete Allied Health Care [19]-[20] The insurer submits these records combine JT Physio and Ms Shiva Moshir’s notes, already in the Review Bundle. The insurer submits they do not pre-date the accident, and
(g)Dr Rajat Mittal [21]-[23] The records range from 27 July 2023 to 19 January 2024. The insurer submits they were already in the Review Bundle. The insurer submits they contain no pre-accident consultations.
Submissions
[24] The insurer submits Ms Rohan’s bundle does not include the pre-accident records specifically requested by the Panel.
[25] The insurer submits the Panel required those records, particularly regarding CRPS, and agrees with that view.
[26] The insurer acknowledges Ms Rohan’s solicitor’s message of 18 July 2025 stating all available records were provided, but submits the directions required identification of pre-accident treating providers and obtaining their records, not merely uploading what was available.
[27] The insurer repeats earlier submissions that Ms Rohan had multiple pre-accident co-morbidities and a long medical history.
[28] The insurer notes Medical Assessor Sher recorded a history of nerve damage and CRPS in the right foot.
[29] The insurer submits pre-accident records are relevant to causation of the alleged left foot injury, given Ms Rohan’s longstanding lower limb conditions.
[30] The insurer submits Ms Rohan should be required to produce all relevant pre-accident records from treating providers, particularly those relating to her right foot condition.
RE-EXAMINATION BY THE PANEL
Medical Assessor Gibson examined Ms Rohan for the Panel on 13 June 2025 at 10.00am at her rooms at Suite 4, Level 6, 66 Pacific Highway, St Leonards.
Medical Assessor Gibson noted Ms Rohan's current treatment and that she had had a number of telehealth consultations with Dr Eugene Khoo.
The Medical Assessor referred to Dr Khoo's clinical records, with the first entry being of
5 April 2023 and giving a history of the accident.Dr Khoo recorded that Ms Rohan visited her GP who did an X-ray and ultrasound of her left wrist and other scans.
Medical Assessor Gibson noted the current reported symptoms of headache, left wrist pain, left ankle pain, and psychological symptoms.
Dr Khoo completed a referral for rehabilitation on 5 April 2023. He noted traumatic brain injury, left wrist strain, left ankle strain, post-traumatic stress disorder, aggravation to pre-existing major depressive disorder.
On 5 May 2023, Dr Khoo noted that Ms Rohan was limping, and there was a small lump at her Achilles tendon (?)bursitis.
He was unsure whether it was accident-related and noted that “she is likely compensating with her left ankle, causing this area to be painful, but the MVA could have aggravated her left ankle issues.”
The Medical Assessor noted the referral to Dr Mittal and his report of 20 July 2023, noting that Ms Rohan had had a major injury to her left wrist. She could not remember twisting her ankle but thought it must have occurred at that time. There was pain around the Achilles tendon, which became swollen after a long day of walking. There was a palpable lump around the distal Achilles, which was tender.
On 6 September 2023 Dr Mittal diagnosed a left ankle syndesmosis injury and Achilles tendinopathy and a plan for left ankle arthroscopy with syndesmosis stabilisation and repair of the Achilles tendon.
Medical Assessor Gibson performed a physical examination. Ms Rohan was tender over the lateral aspect of the ankle. There was a palpable lump over the lower third of the Achilles tendon.
Medical Assessor Gibson referred to the MRI scan of the left ankle of 21 August 2023, which showed:
“features of old lateral ligament injury characterised by mature scarring of the AITFL, PITFL and ATFL; no static widening of the syndesmosis. 0.2 medial talar dome osteochondral lesion (grade 1), no displaced osteochondral fragment. 3. Features supportive of mild mid Achilles tendinopathy, no insertional tendinosis.”
After completing the clinical examination and reviewing the documents, as well as the history, Medical Assessor Gibson noted that Ms Rohan had driven for several hours after the accident and was walking normally for some time after it. She had not required any immediate treatment. She could not recall injuring her left ankle in the accident but remembered noticing some ankle swelling at the end of her journey. While she had had an injury to the left wrist, she was still capable of driving for several hours. Medical Assessor Gibson considered it would be unlikely that the left wrist injury was a sufficiently distracting injury causing her not to notice significant left ankle sprain.
Medical Assessor Gibson was of the opinion that the Achilles Tendonitis is a chronic overuse injury which would not result from the accident or from trauma.
While the left ankle arthroscopy and syndesmosis stabilisation and Achilles repair have been suggested since the accident, the nature of the pathology was not consistent with the history of the accident.
The proposed left ankle arthroscopy and syndesmosis stabilisation were not related to the injuries sustained in the accident, nor was it reasonable and necessary for the injuries sustained.
Further meeting of the Panel
The three members of the Panel met again on 5 September 2025 at 4.00pm and discussed the findings of Medical Assessor Gibson.
The Panel considered and accepted the findings of Medical Assessor Gibson and joined in those findings as appropriate in all the circumstances.
The Panel concluded that while the left ankle arthroscopy and syndesmosis stabilisation and Achilles repair had been suggested since the accident, the nature of the pathology was not consistent with the history of the accident for the following reasons.
The history following the subject accident was not in the Panel’s opinion consistent with Ms Rohan having sustained an acute ligamentous injury to her ankle. This was because such an injury would have presented with immediate and significant symptoms, including swelling and pain and difficulty mobilising on the affected limb. Whereas, Ms Rohan could not recall injuring her left ankle in the accident and had described walking normally for some time afterwards and also being able to drive the long distance.
On returning from her journey she had visited her regular GP, Dr Riton Deb, this now about a week since the subject accident and she makes no mention of any left ankle complaint, nor is there any observation that she is limping. She revisited the doctor two days later for left wrist imaging results, and there was still no ankle complaint.
The first mention of any left ankle complaint was by Dr Khoo (5 April 2023) some weeks post-accident.
The left wrist injury, whilst evident, had not impacted her ability to drive the distance and thus would not be regarded as sufficiently distracting to cause her not to notice a significant left ankle sprain.
It was the Panel’s opinion that the Achilles tendinopathy was a chronic and unrelated condition, and again, had there been an acute traumatic injury to the tendon it would have been evident in the days, not weeks post-accident.
Furthermore, the Panel considered that the proposed left ankle arthroscopy and syndesmosis stabilisation were not related to the injuries sustained in the accident for the reasons provided above.
CONCLUSION
The Panel accordingly concludes that:
(a) the proposed left ankle arthroscopy and syndesmosis stabilisation, and
(b) the Achilles tendon surgery does not relate to the injury caused by the accident. This is because it was the Panel’s opinion that the indication for this surgery was for a diagnosis that was not related to the subject accident.
The Panel revokes the determination Medical Assessor Sher of 30 August 2024 that the left ankle arthroscopy and syndesmosis stabilisation relates to the injury caused by the accident and substitutes the determination that the left ankle arthroscopy and syndesmosis stabilisation, does not relate to the injury caused by the accident and is not reasonable and necessary in the circumstances.
Further, the Panel revokes the determination of Medical Assessor Doron Sher and substitutes the determination that the left Achilles tendon surgery does not relate to the injury and is not reasonable and necessary in the circumstances.
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