Allianz Australia Insurance Limited v Theobald
[2025] NSWPICMP 412
•10 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Theobald [2025] NSWPICMP 412 |
CLAIMANT: | Katrina Theobald |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Thomas Rosenthal |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 10 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); permanent impairment dispute; claimant was a pedestrian in a parking lot when she was hit by a car and her left foot was trapped under the car tyre; Medical Assessor assessed 11% whole person impairment (WPI) comprising of left ankle fusion, left hindfoot fusion, and left fourth and fifth toe fractures and surgical scarring; Held – Review Panel found 5% WPI to the lumbar spine due to dysmetria, left hindfoot arthrodesis 4% WPI, stiffness in lesser toes 2% WPI and surgical scarring 1% WPI; Review Panel found the left ankle fusion to be related to an old fracture which was not aggravated by the motor accident; total WPI was 12%; MAC revoked. |
DETERMINATIONS MADE: | 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 Alexander Woo dated 23 September 2024 and issues a new certificate as follows: (a) the Review Panel certifies the followng injuries were caused by the motor accident: · lumbar spine – soft tissue injury/persistent aggravation of pre-existing degenerative lumbar spondylosis; · left hindfoot – fusion of left hindfoot; · toes – abrasions to all toes with fractures to 2nd and 5th toes, and · post surgical scarring to left hindfoot. (b) The Review Panel finds that the above injuries result in a whole person impairment of 12% which is greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
Katrina Theobald (the claimant) was involved in a motor accident on 31 January 2020. She was at an Aldi supermarket carpark and was walking towards her parked car. She had reached the section of the paved road where the cars are parked (denoted by a different colour in the paving), when a vehicle came around the corner and was moving closely to the parked cars.
The vehicle hit the claimant in the back and she fell, landing on her left elbow and her left leg ended up beneath her. She later discovered that her left leg was under the front driver’s side tyre of the vehicle that hit her.
As a result of the motor accident, the claimant says she suffered two broken toes (4th and 5th) in her left foot, a broken foot (where the 5th toe extends into the left foot), two fractures in her lower back and bruising down the back of her left leg, left elbow and left foot and ankle.
The claimant made a claim for personal injury benefits with Allianz (the insurer), the third-party insurer of the vehicle that she says caused the 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/s for determination.
[1] See Division 4.3 of the MAI Act.
On 23 September 2024, Medical Assessor Alexander Woo assessed the claimant’s injuries as having a WPI of 11% which results in a WPI of greater than 10%.
The insurer lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Woo’s assessment.
On 19 November 2024, a delegate of the President accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Woo was referred the following injuries for assessment:
· lumbar spine – soft tissue injury/persistent aggravation of pre-existing degenerative lumbar spondylosis, secondary to an acute impaction injury with an associated L3 vertebral body superior end plate fracture Lower back fractures and widespread bruising;
· left ankle – soft tissue/aggravation of pre-existing left ankle and hindfoot osteoarthritis;
· left hindfoot – fusion of left hindfoot;
· toes – fractures to the 4th and 5th left toes acute fractures, and
· post surgical scarring to left hindfoot/ankle.
The Medical Assessor noted that the claimant had undergone left foot and ankle fusion surgery over 12 months ago. The impairment evaluation was as follows:
(a) left ankle fusion in neutral position – 10% lower extremity impairment;
(b) left hindfoot fusion in neutral position – 10% lower extremity impairment, and
(c) left 4th and 5th toe fractures – 5% lower extremity impairment.
The Medical Assessor indicated that the maximum WPI of two or more lesser toes of one foot is 2% WPI or 5% lower extremity impairment (LEI).
The combined left LEI was 24% (10% combined with 10% to 19%, 19% combined with 5% to 24%)
The 24% LEI converted to 10% WPI.
Ther post-surgery scarring was assessed as 1% WPI due to a minor contour defect.
The total combined WPI was 11% and was therefore greater than 10%.
ISSUES FOR DETERMINATION
Insurer’s review application submissions
Assessment of the toes
First, the insurer says the evidence did not support any fracture to the left 4th toe as found by the Medical Assessor. Therefore, it was incorrect to attribute impairment to the 4th toe.
Second, the insurer notes that the Medical Assessor incorrectly applied the American Medical Association Guides (4th edition) (AMA 4 Guides) as it relates to the assessment of the toes. The insurer notes that the Medical Assessor used Table 45 on page 78 of the AMA 4 Guides. The insurer says this table refers to the evaluation of toe impairments in accordance with range of motion. The insurer refers to the Medical Assessor’s examination findings which found “All the toes on the left foot had normal range of motion”.
Third, the insurer refers to a note in Table 45 which says: “The maximum whole person impairment percent for impairments of 2 or more lesser toes of one foot is 2%.” The insurer therefore submits that it is unknown how the Medical Assessor concluded that it is appropriate to assess the maximum attributable impairment to the 4th and 5th toes which have been examined to have no abnormalities. It is contended that the correct assessment of any and all toes on the left foot can only give rise to a 0% WPI.
Assessment of the left ankle/foot
The insurer submits that the Medical Assessor incorrectly to attribute a 10% LEI each to both the left ankle fusion and the left hindfoot fusion. It is submitted that while an ankle fusion was recommended by Dr Symes, the records confirm that the claimant has only undergone a left hindfoot fusion.
As a fusion of the left ankle has not been performed, it is submitted the Medical Assessor was required to assess the left ankle by range of motion which, was not conducted at any point in the assessment reasons. It is contended that Dr Dias had correctly assessed the hindfoot on the basis of a fusion and went on to assess the left ankle by way of range of motion.
Insurer’s original application submissions dated 2 July 2024
The insurer provided a comprehensive summary of the documentation relevant to the claimant’s alleged injuries sustained as a result of the motor accident. This included the documentation regarding pre-accident injuries to her lumbar spine and left ankle.
For the lumbar spine, the insurer accepts that the claimant had low back complaints as a result of a soft tissue injury from the motor accident. The insurer disputes that the L3 superior end plate fracture was caused by the motor accident but was rather related to severe degenerative disc disease or previous injury. The insurer relies on the opinion of Dr Gothelf.
For the left foot and ankle, the insurer notes that Dr Gothelf diagnosed fractures of the 5th metatarsal, 5th proximal phalanx and 2nd proximal phalanx. The insurer further notes that Dr Gothelf did not accept that the hindfoot fusion and ankle replacement as recommended by Dr Symes was required as a result of the accident-related injuries. For the same reason, the subsequent left hindfoot/ankle surgical scarring is not accident-related. On the basis of Dr Gothelf’s opinion, the insurer says the accident-related injuries to the left ankle and foot result in a WPI for 4%.
Claimant’s submissions
The claimant refers to a surgery consultation of Dr Adam Brown on 12 February 2020 where it was recorded that the claimant had “burning in left foot but likely due to 4th & 5th MT #” (emphasis added). The claimant therefore submits that it was open for the Medical Assessor to find that the left 4th toe was fractured in the motor accident.
With respect to the assessment of the left lower toes, the claimant says it can be inferred from the Medical Assessor’s reasons that extension of the lesser toes was found to be less than 10 degrees.
In any event, the claimant says there are obvious errors in the assessments of the left lower toes and left ankle and these should be referred back to Medical Assessor Woo.
REVIEW OF THE EVIDENCE
General observations
The Panel notes that it has been provided with the following documents:
(a) insurer’s original WPI application indexed and paginated with page
numbers 3-549;(b) insurer’s updated submissions in support of original WPI application dated 2 July 2024;
(c) claimant’s original WPI reply indexed and paginated with page numbers 1-36;
(d) certificate of Medical Assessor Alexander Woo dated 23 September 2024;
(e) insurer’s review application indexed and paginated with page numbers 2-77;
(f) claimant’s review application reply submissions (three pages total);
(g) decision of the President’s Delegate accepting the review application dated 19 November 2024, and
(h) certificate of Medical Assessor Gerald Chew (psych) dated 13 November 2024.
In a response to Directions issued on 26 November 2024, both parties indicated that no further documents were relied upon.
The Panel issued further Directions on 12 March 2025 requesting all pre-and-post-accident imaging relating to the lumbar spine and left ankle.
The insurer responded with provision of the following:
R1. Diagnostic films of X-ray of left foot dated 31 January 2020;
R2. Diagnostic films of X-ray of left foot with report dated 9 March 2020;
R3. Diagnostic films of whole-body scan with report dated 12 March 2020;
R4. Diagnostic films of X-ray of left foot with report dated 23 November 2021;
R5. Diagnostic films of X-ray of left foot and ankle with report dated 20 June 2022, and
R6. Diagnostic films of X-ray of both feet with report dated 9 March 2023.
The insurer advised it could not obtain pre-accident diagnostic films for the CT of the lumbar spine dated 11 April 2006, X-ray of the lumbar spine dated 28 February 2008 and left ankle operation report performed in 2007 as the providers did not hold records that go beyond 2012. The X-ray of the left foot dated 2 November 2017 could not be located by the provider.
The Panel has read the documentation relied upon by the parties. Below is a summary of the material that is relevant to the resolution of the permanent impairment dispute and the issues in dispute.
Claim documents, clinical records and treating reports
Ambulance report dated 31 January 2020 – case description: Shopping centre car park where patient was walking across road and was clipped by slow moving vehicle – pt states fell to the ground landing on her L side – pt states felt that her L foot/shoe was caught under the R driver’s side wheel – pt denies LOC – pt with P to L metatarsals – pt with pedal pulse present – pt with obvious lateral deformity to L ankle but pt states from previous # - pt with L knee replacement 2/12 ago… Pt co shooting P down L leg enroute – pt denies back P but states P felt in coccyx.
Sutherland Hospital Discharge Referral dated 31 January 2020 – initially lumbar spinal tenderness but on EDSS r/v nil. Tender over 4th and 5th MTPJ region, abrasions to toes.
X-ray foot and ankle – intraarticular fracture to proximal aspect of 5th proximal phalanx – minimally displaced. Multi abrasions/phalanx fracture. Buddy strap toes.Engadine Medical Centre clinical records – entry 5 February 2020: Walking through parking lot in shopping mall when a car ran into her from behind. Apparently fell to ground and car ran over her left foot. Seen in ED. X-ray left foot – displaced fracture of proximal phalanx of 5th toe. Entry 12 February 2020: LBP wasn’t imaged whilst in hospital. Reports shooting pains in to left buttock and thigh. Burning in left foot but likely due to 4th & 5th MT#. Tender L3. Fractured spine – L3 endplate. Entry 1 July 2019: Low back pain and left SIJ pain. No radiation. Change of posture following left TKR in April. Had spinal inj in past and told ?disc problems. Examination: generalised tenderness across lumbar spine.
Certificate of Capacity/Fitness dated 25 February 2020 – completed by Dr Brown. Diagnosis: spinal fracture, multiple toe fractures due to knocked over by car.
Application for Personal Injury Benefits dated 27 February 2020 – claimant describes injury as “2 broken toes (4th & 5th) – left foot. Broken foot where the 5th (pinkie) toe extends into L foot. 2 fractures in my low back…” Claimant taken to Sutherland hospital by ambulance.
Dr Raj Reddy, neurosurgeon, report dated 2 March 2020 – from time of injury, developed worsening low back pain. Progress MRI showed possible fracture of the superior endplate of L3. CT scan show possible injury to superior endplate of L3 – also possible this is a Schmorl’s node. Some spondylotic changes at L5-S1 – possible longstanding component that has been exacerbated by the recent injury.
Dr Ramy Nour, whole body bone scan report dated 12 March 2020 – low grade uptake adjacent to a deformed superior end plate of L3 likely to represent a complicated Schmorl’s node. Recent overt fracture of left basal 5th metatarsal and additional less marked injuries adjacent to 2nd and 5th MTP joints.
Dr Jacob Kaplan, knee foot & ankle surgeon, report dated 14 May 2020 – surgical scars from left ankle open reduction and internal fixation nearly 15 years ago. Foot x-rays showed fractures in the 2nd and 5th toes with degenerative changes in the 2nd metatarsophalangeal joints. Avulsion fractures in the mid foot. Proximal 5th metatarsal fracture. It was not completely united.
Dr Jacob Kaplan, knee foot & ankle surgeon, report dated 9 July 2021 – noted a 2017 ankle fracture with two screws.
Medico-legal reports
Dr Todd Gothelf, orthopaedic surgeon, report dated 7 September 2022 – old left ankle injury in 2007 resulting in surgery with Dr Molinar. No problem with left ankle until subject accident on 31 January 2020. Lower back pain before subject accident. Found left foot fractures, 5th metatarsal, 5th proximal phalanx, and 2nd proximal phalanx fractures, aggravation of ankle arthritis. Lumbar spine strain, exacerbation of underlying degenerative changes. Assessed impairment using range of motion – ankle 15%LEI, hindfoot 5% LEI, lesser toe loss of MTP extension mild impairment 2% LEI = combined and converted to 8% WPI. Ankle cartilage intervals measured using standing x-ray of 23 November 2021. 15% LEI for left ankle and 5% LEI for subtalar joint. Combined and converted to 8% WPI. Deductions applied due to pre-existing arthritis. Impairment due to accident = 4% WPI. Lumbar spine DRE 1 applies 0% WPI. Final impairment due to accident = 4% WPI.
Dr Uthum Dias, occupational physician, report dated 6 May 2024 – Diagnosed: 1. Pre-existing degenerative lumbar spondylosis, secondary to an acute impaction injury with an associated L3 vertebral body superior end plate fracture causally related to the motor accident; 2. Aggravation of pre-existing left ankle/hindfoot osteoarthritis, secondary to an acute soft tissue impaction injury; 3. Chronic left forefoot pain, stiffness and discomfort, primarily affecting left second and fifth MTP joints, secondary to acute fractures to left second metatarsal head, left fifth metatarsal base and left fifth proximal phalanx base with intraarticular extension into the fifth MTP joint. Total impairment due to accident = 16% WPI.
Pre-accident radiology
CT Chest dated 28 April 2014 – chronic compression fracture of L3 vertebra. Anterior spondylotic slip is seen at L5/S1 level with associated severe disc degeneration.
CT scan lumbar spine dated 11 April 2006 – at L5/S1 disc bulge abutting the left S1 nerve root. Spondylosis particularly at the L5/S1 and S1/S2 facet joints.
Post-accident radiology
Relevant post-accident radiology is referred to in the Panel re-examination report below.
Other documents
Colour photographs – show skin abrasion injuries to all five toes and left elbow.
PANEL RE-EXAMINATION REPORT
At the preliminary conference on 9 December 2024, the Panel determined that the claimant be re-examined by Medical Assessors Dixon and Rosenthal. This occurred on 16 May 2025 and the re-examination report is as follows:
“HISTORY
Pre-accident medical history and relevant personal details
Ms Theobald is a 67-year-old woman who suffers from anxiety and was on a disability pension at the time of the motor accident. She has a pre-existing history of lower back complaints dating back to 2006 with radiology revealing spondylosis with associated severe disc degeneration at L5/S1 and a chronic compression fracture of the L3 vertebra. In December 2007, she was admitted to Sutherland Hospital with a Weber C fracture dislocation of her left foot requiring open reduction and internal fixation. She then underwent a left total knee replacement in April 2019.
History of the motor accident, symptoms and treatment
This 67-year-old claimant reports that she was walking to her car in a car park when she was hit from behind by a four-wheel drive Hyundai and the wheel ran over her left foot. She also injured her left elbow with an abrasion and had contusion to the toes, particularly the second toe and injured her ankle. The car hit her in the back and she sustained injury to the lumbar area. There was no head injury or loss of consciousness and she has no amnesia for the accident details.
An ambulance attended the scene and took her to Sutherland Hospital, where she complained of pain in the lower back, the abrasion at her elbow and bleeding and severe pain in her left foot, particularly the 4th and 5th toes. She had x-rays of the left foot and ankle which showed fracture to the proximal phalanx of the 5th toe and the wounds were cleared and buddy strapping applied to the 4th and 5th toes. She was given analgesia and a DARCO shoe for weight bearing and discharged home on 31 January 2020 and had review by her GP on 5 February 2020.
Her GP, Dr Mary Dover, arranged for a CT scan of the abdomen and pelvis which showed a superior endplate compression fracture of the L3 vertebral body on a background of some degenerative change in the lumbar region.
She subsequently saw her usual GP, Dr Adam Brown, and was referred to a neurosurgeon for her lower back and saw Dr Jacob Kaplan, an orthopaedic surgeon for her left foot.
Progress x-rays of the left foot on 9 March 2020 showed displaced fracture of the styloid base of the 5th metatarsal and a comminuted intra-articular facture at the base of the proximal phalanx of the 5th toe.
The neurosurgeon, Dr. Rajesh Reddy, recommended conservative treatment for her lumbar spine. She was not given a lumbosacral binder or brace. Dr Kaplan reviewed her injuries to the toes and noted degenerative change in the second tarso metatarsal joints as well as avulsion fractures at the mid foot and proximal 5th metatarsal fracture that had united. She was referred for a cortisone injection to the left tarso metatarsal joint which was performed in late May 2020 but she continued to have pain in her lower back, left ankle and hind foot and left foot and had great difficulty walking and used a wheelchair and then used a stick.
She came under the care of Dr Michael Symes, an orthopaedic surgeon, and had left hind foot fusion on 29 September 2023 at Sutherland Hospital and she was there for three weeks following surgery and was discharged home with a plaster cast that she was in for 10 weeks in a wheelchair. She was then was in a boot for two months. She had difficulty mobilising and used a stick and had difficulty living in the family home which was two storeys. She has difficulty using stairs within the house and needs to use the rail and when out and about, she uses a stick or her grandson assists her with walking. Her daughter does all the household chores such as cleaning, cooking and laundry.
Current symptoms
On review on 16 May 2025, she walked with a limp on the left and reported her walking tolerance was only 10 minutes. She reported pain in her back when she tried to arise from the examination couch and when she stood up from the chair, she was uncomfortable sitting due to low back pain and uncomfortable walking due to pain and stiffness at her left foot and ankle.
Clinical examination
On examination of her left foot and ankle there was marked stiffness of the ankle and subtalar joints. There was no active extension of the lesser toes. Although her pedal pulses were difficult to palpate, there was reasonable capillary refill. There were three scars on her foot, one was a lateral horizontal scar which showed some hypertrophic change and mild loss of contour. There was a scar under her heel where her bone graft was harvested from for her fusion and there was an L-shaped scar over her medial malleolar region which showed irregular contour and showed hypertrophic change. Both medial and lateral scars showed colour contrast and were tender to percussion and she reports they are painful if bumped.
Her straight leg raise on the left was 60 degrees and associated low back pain but no sciatica and her straight leg raise on the right was 70 degrees and not associated with back pain or sciatica. Both thighs measured 69cm and the left calf measured 49.5 cm and the right calf 50cm. There was a good range of motion of both knees, right ankle and hind foot and toes but on the left there was no active motion of the ankle, hind foot or toes.
On examination of the lumbar segments flexion was decreased by one third with slow and painful recovery with pain on back extension which was decreased by one half and lateral flexion to the right was decreased by one third and associated with back pain and that to the left by one quarter. She had tenderness at the mid lumbar region and mild erector spinae muscle spasm. There was no gross neurological deficit of either lower limb. Her knee jerks and right ankle jerk were present and it was not possible to obtain an ankle jerk on the left because of her surgery. There were no sensory changes in either lower extremity and her proximal power was grade 5 out of 5 and power distally was 5 out of 5 on the right. Her sciatic nerve stretch tests were negative.
Relevant radiology and operative reports
Pre-existing radiology included a CT scan lumbar spine dated 11 April 2006 which showed at L5/S1 a disc bulge abutting the left S1 nerve root. Spondylosis particularly at the L5/S1 and S1/S2 facet joints.
CT of the chest dated 28 April 2014 revealed a chronic compression fracture of L3 vertebra. There was also an anterior spondylotic slip is seen at L5/S1 level with associated severe disc degeneration.
Her investigations following the accident include an x-ray of the left ankle on 31 January 2020 which showed an old ankle fracture where she had a Weber C fibula fracture fixed with two syndesmosis screws and medial malleolar screws. One of the syndesmotic screws had broken and the other was intact and there was spur formation around the ankle. There was arthritic change in the ankle.
The old ankle fracture in March 2008 was noted.
X-ray of the foot on 14 May 2020 showed fractures of the 2nd and 5th toes with degenerative change in the second MTP joints and avulsion fractures in the mid foot.
Operative report on 5 September 2023 noted that through medial and lateral incisions with a trans fibular approach through the left ankle, that hind foot arthrodesis was performed and through an incision underneath her heel, cancellous bone graft was harvested and this, together with allograft, was packed into the debrided subtalar joint and internal fixation applied with a hind foot compression nail.
Summary
In summary this claimant was hit by a car in a car park, sustaining direct injury to her lumbar spine and her left foot which was run over by the sedan and she sustained fractures in her toes and forefoot as well as trauma to the hind foot. She ultimately ended up having a subtalar fusion on the 29 September 2023.”
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.[2]
[2] Section 7.26(6) of the Motor Accident Injuries Act 2017 (MAI Act).
The Panel should only consider the impairment as it is at the time of the Panel’s assessment.[3]
[3] Clause 6.21 of the Guidelines.
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 Assessors Dixon and Rosenthal and adopts the findings in their entirety. The Panel reconvened on 21 May 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis, causation and reasons
Causation is dealt with at cls 6.5-6.7 of the Motor Accident Guidelines. An abridged form of the requirements is contained in cl 6.7 which states:
“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.
The claimant was a pedestrian when she was hit by a car in a car park and her left foot was run over by the sedan. The impact caused her to fall and graze her left elbow with an immediate complaint of pain in the coccyx region and subsequently to her lower back. The Panel accepts that she sustained direct injury to her lumbar spine and fractures in her toes and forefoot as well as trauma to the hind foot. She ultimately ended up having a subtalar fusion on the 29 September 2023.
The Panel noted the pre-accident CT of the chest in 2014 showing a superior end plate fracture at L3. In the March 2020 bone scan, it was suggested this was a Schmorl’s node and was noted by neurosurgeon Dr Reddy. Dr Nour, in his report dated 12 March 2020, concluded that the fracture was likely to represent a complicated Schmorl’s node, given the mild increase in update and without the avidity expected of an acute vertebral fracture. The Panel agrees, on balance, that the fracture at L3 was likely to be a pre-existing Schmorl’s node.
The Panel was satisfied that the following injuries were caused by the motor accident:
· lumbar spine – soft tissue injury/persistent aggravation of pre-existing degenerative lumbar spondylosis;
· left hindfoot – fusion of left hindfoot;
· toes – abrasions to all toes with fractures to 2nd and 5th toes, and
· post surgical scarring to left hindfoot.
The following injuries were not caused by the motor accident:
· left ankle – soft tissue/aggravation of pre-existing left ankle conditions and previous surgical scarring.
DETERMINATIONS – PERMANENT IMPAIRMENT
The assessment of the degree of permanent impairment is to be made in accordance with the Guidelines.[5]
[5] See s 7.21 of the MAI Act.
Version 9.3 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.
The claimant’s injuries have reached maximum medical improvement and stabilised for the purposes of permanent impairment evaluation.
The Panel noted the claimant had a prior ankle fracture back in 2008 which required internal fixation.
The impairment assessment is as follows.
In the lumbar spine, the pre-existing Schmorl’s node and the claimant’s past history of lower back pain were noted. The medical evidence however, did not provide the necessary information in which any pre-existing impairment could be calculated. Unlike Dr Gothelf, who essentially found no significant clinical findings, the Panel, at the time of examination, found post traumatic stiffness with dysmetria which was as a result of the soft tissue injury sustained in the motor accident. This was assessed under Table 72, AMA 4 Guides, DRE II and results in a 5% WPI.
The left hindfoot arthrodesis is 4% WPI.
The left ankle was not moving and had no range of motion. The Panel however, determined this to relate to the old 2007 fracture which required surgery (“two syndesmosis screws and two screws fixing the malleolar fracture”) and was not aggravated by the motor accident.
The stiffness of her lesser toes was assessed under Table 45, AMA 4 Guides and results in a 2% WPI.
Her surgical scarring was assessed under Table 6.18, page 136 of the Guidelines. As stated in the Panel examination report, the scars showed hypertrophic change and colour contrast with visible suture marks. They were tender to the touch with pain when accidentally bumped which impacted on her activities of daily living. The heel scar was painful on heel standing. The scars are visible when wearing thong footwear and she can easily locate them. The pre-existing ankle scars were not considered. Using the principle of best fit, this results in a 1% WPI.
This gives a total from the Combined Values Chart of 12% WPI.
CONCLUSION
The claimant’s WPI as a result of the motor accident is 12% and is greater than 10%. Although the Panel agreed with Medical Assessor Woo that the claimant’s permanent impairment is greater than 10%, the injuries found to be caused by the motor accident were different.
The Panel therefore revokes the certificate of Medical Assessor Alexander Woo dated 23 September 2024.
A new certificate is issued at the front of these reasons.
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