Dong v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Dong v Allianz Australia Insurance Limited [2025] NSWPICMP 842
CLAIMANT:	Kelvin Dong
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Maurice Castagnet
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Rhys Gray
DATE OF DECISION:	30 October 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor’s determinations of permanent impairment and reasonable and necessary treatment (physiotherapy); whether the accident caused an injury to the lower back; whether an episode about two years after the accident in which the claimant sustained a back injury was a flare up of the back injury caused by the accident or whether it was a later injury not caused by the accident; original assessment of permanent impairment of 0%; re-examination of the claimant; Held – original assessment of a degree of permanent impairment of 0% revoked and replacement certificate issued with a finding of a degree of permanent impairment of 4%; proposed physiotherapy treatment not reasonable and necessary in the circumstances.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The issues determined by the Review Panel are: 1. whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%, and 2. whether the proposed physiotherapy treatment by Infinity Physiotherapy Paramatta relates to an injury caused by the accident and whether the treatment is reasonable and necessary in the circumstances. Determination 1. The Review Panel revokes the certificate of Medical Assessor Wallace dated 15 September 2023. 2. The Review Panel issues a new certificate determining that: (a) the following injuries caused by the motor accident give rise to a permanent impairment that is not greater than 10% (4%): · left ankle · left subtalar joint · lumbar spine (b) the proposed physiotherapy treatment to be provided by Infinity Physiotherapy Parramatta as recommended in a referral from Dr S Calvache-Rubio dated 6 December 2021, relates to the injuries caused by the accident but such treatment is not reasonable and necessary in the circumstances.

STATEMENT OF REASONS

BACKGROUND

On 1 October 2019, the claimant, Kelvin Dong, was involved in a motor accident when the motorcycle he was riding, was struck from the left side in a roundabout by a vehicle insured by Allianz.
The claimant claims that in the accident, he sustained physical injuries. He also claimed that he developed psychological injury, although this aspect of his injuries is not the subject of this review.
The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Two disputes have since arisen between the parties.
The first relates to the claimant’s entitlement to make a claim for damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%. The insurer did not concede that the claimant’s injuries caused by the accident, had crossed that threshold (the permanent impairment dispute).
The second is about whether physiotherapy treatment to be provided by Infinity Physiotherapy Parramatta as recommended in a referral from Dr S Calvache-Rubio dated
6 December 2021, relates to an injury caused by the accident and whether the treatment is reasonable and necessary (the treatment dispute).
To resolve the disputes, the claimant made an application pursuant Division 7.5 of the
MAI Act, for medical assessments by the Personal Injury Commission (Commission).
According to Schedule 2, cl 2 of the MAI Act, both the permanent impairment dispute and the treatment dispute are declared to be medical assessment matters.
According to s 7.20 of the MAI Act, the matters are determined at first instance by a Medical Assessor and according to s 7.26 of the MAI Act, on review, by a review panel.
Both disputes were referred at first instance to Medical Assessor Raymond Wallace for assessment.
On 15 September 2023, the Medical Assessor issued a certificate, finding firstly, that the claimant’s injuries to the left ankle and left subtalar joint were caused by the motor accident and gave rise to a permanent impairment of 0%. The Medical Assessor found that the injury to the lumbar spine was not caused by the motor accident. Secondly, the Medical Assessor found that the treatment to be provided by Infinity Physiotherapy Parramatta relates to the injuries to the left ankle and left subtalar joint caused by the motor accident, but such treatment is not reasonable and necessary in the circumstances.

THE REVIEW APPLICATION

On 16 October 2023, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessments of the Medical Assessor to a review panel for review. On 17 October 2023, the review application was accepted by the Commission as being made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]

CONDUCT OF THE REVIEW

According to s 7.26(5A) of the MAI Act, the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Gray, Medical Assessor Couch and Member Castagnet (the Panel).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act), enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[2]
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), a review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[3]
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]

RELEVANT LEGISLATION, LEGAL PRINCIPLES AND GUIDELINES

Permanent impairment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]

The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]

Treatment and care

Section 3.24 of the MAI Act provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
…”
Accordingly, in order to receive statutory benefits, the claimant must establish that the treatment concerned:
(a)    is reasonable and necessary in the circumstances;
(b)    relates to an injury resulting from the subject accident;
(c)    that the cost of the treatment is reasonable, and
(d)    if applicable, that any travel and accommodation expenses incurred in obtaining the treatment are reasonable and necessary.
As a medical assessment matter under Sch 2, cl 2 (b) of the MAI Act, the Panel has jurisdiction to determine disputes relating to matters (a) and (b). Disputes relating to matters relating to matters (c) and (d) are determined by others.[9]
The expression “reasonable and necessary” is not defined in the legislation. It follows that the expression falls to be considered in its statutory context and in accordance with the objects of the MAI Act. These include:
“to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities.”[10]
“Treatment and care” is defined in s 1.4 the MAI Act to include medical treatment and rehabilitation. Physiotherapy is a form of medical treatment and/or rehabilitation.
The expression “reasonable and necessary” in relation to treatment occurs elsewhere in the MAI Act, notably at ss 3.17 and 6.5.
Section 3.17 provides:
“(1) An insurer must require an injured person who is in receipt of weekly payments of statutory benefits under this Division to undertake such reasonable and necessary treatment, rehabilitation or vocational training as the Motor Accident Guidelines may require.
(2) If an injured person fails without reasonable excuse to comply with a requirement of an insurer under this section, the person’s entitlement to weekly payments of statutory benefits under this Division is suspended while the failure continues.”
Section 6.5 provides:
“(1) A claimant has a duty to take all reasonable steps to minimise loss caused by injury resulting from a motor accident.
(2) This duty of a claimant includes the following duties—
(a) the duty to undergo reasonable and necessary treatment and care and do all such things as may be reasonable and necessary for the claimant’s rehabilitation,
(b) the duty to commence or return to work as soon as reasonably practicable.
(3) If a claimant fails to comply with a duty arising under this section, the insurer may, if authorised to do so by the Motor Accident Guidelines, suspend payment of weekly payments of statutory benefits to the claimant during any period that the failure to comply continues. The person forfeits their entitlement to weekly payments of statutory benefits during the period of any such suspension.”
Informed by those provisions, and the objects of the Act, the Panel finds that for the proposed medical treatment in dispute, to be considered “reasonable and necessary in the circumstances”, as required by s 3.24(2), it should be:
(a)medically indicated, and not, for example, scientifically unproven, or given in circumstances where the risks of undertaking the treatment are likely to outweigh any benefit to the claimant, and
(b)likely to optimise the claimant’s prospects of recovery and maximise their return to work or to their other activities.
While the Panel considers “reasonable and necessary” to be a composite expression, the same result may be obtained by giving each of the words “reasonable” and “necessary” a discrete area of operation. A treatment is reasonable if it conforms to paragraph 33(a) and necessary if it conforms to paragraph 33(b).

MEDICAL ASSESSMENT UNDER REVIEW

The injuries referred to the Medical Assessor for assessment in the permanent impairment dispute were:
·        Radiculopathy to the lumbar spine
·        Injury to the lumbar spine
·        Injury to the left ankle
·        Injury to the left subtalar joint
As previously indicated, the Medical Assessor found that the injuries to the left ankle and left subtalar joint were caused by the accident and gave rise to a permanent impairment of 0%.
The Medical Assessor also found that the lumbar spine injury was not caused by the motor accident and that the lumbar spinal symptoms were due to pre-existing disc disease. In making that finding, the Medical Assessor noted that the claimant was under observation at Blacktown hospital for eight hours on the day of the accident during which time he did not complain of any lumbar spine symptoms. He noted that the first documentation of lumbar spine symptoms was some eight weeks later on 28 November 2019 when the claimant attended an exercise physiology session. Lastly, he noted that there was a history of a previous injury of lumbar spine pain requiring medical review and investigations in September 2016, some three years prior to the subject motor accident.
The treatment dispute referred to the Medical Assessor for assessment arose from a referral by the claimant’s general practitioner (GP), Dr S Calvache-Rubio dated 6 December 2021 to Infinity Physiotherapy Parramatta for physiotherapy treatment. The referral was in the following terms:
“Herewith Mr Kelvin Dong who has recurrent lower back pain flare up post MBA [sic]. Ankle and foot pain and prolong [sic] altered gait.”
The Medical Assessor accepted that the physiotherapy treatment to be provided relates to the left ankle and left subtalar joint injuries caused by the motor accident. However, he was of the opinion that the provision of further physical therapy some four years after the injury is not reasonable and necessary in the circumstances because such therapy at this time will not lead to a durable reduction in the level of symptoms or increase in function at the left ankle or left subtalar joint.
The Medical Assessor did not make any comments on the proposed treatment of recurrent lower back pain flare up or prolonged altered gait, presumably on the basis that he found that the lumbar spine injury was not caused by the accident.

MATERIAL BEFORE THE PANEL

The claimant filed a paginated and indexed bundle of documents comprising 1012 pages.
The insurer filed a paginated and indexed bundle of documents comprising 57 pages.
The claimant also filed a copy of his application for personal injury benefits and the records of the Ambulance Service, at the direction of the Panel.
The Panel considered all the above materials.

SUBMISSIONS

The claimant’s submissions

The claimant submitted that the Medical Assessor did not properly apply the test of causation when he concluded that the lumbar spine injury was not causally related to the accident.
The Medical Assessor's conclusion that the lumbar spinal symptoms were due to pre-existing degenerative disc disease, which was constitutional in origin, is contrary to the medical evidence available to the Medical Assessor at the time of his assessment.
The claimant submitted that the fact that the pre-accident X-ray report of the lumbar spine dated 27 September 2016 found that the lumbar spinal alignment was unremarkable and showed no abnormality would suggest an absence of pre-existing degenerative disc disease. By contrast, the findings in the post-accident MRI report dated 23 November 2021, revealed moderate disc desiccation with reduced disc height and minor central annular fissure and central disc protrusion at L4/5, findings that were absent in the pre-accident X-ray of
27 September 2016.
It was submitted that in circumstances where the claimant is a young man of 26 years of age, where he was injured as a result of a high-impact collision as a motorcycle rider versus car, which resulted in him being thrown from his motorcycle, where there is an absence of any precipitating event that could have reasonably caused those spinal structural changes other than the subject accident, and where there is absence of complaint of lumbar spinal pain in the
three- year period prior to the accident, it was unreasonable for the Medical Assessor to conclude that the claimant's lumbar spinal injury was not causally related to the accident.
On the issue of delay in reporting lumbar spinal symptoms for some eight weeks following the accident, the claimant submitted, in reliance on Bugat v Fox [2014] NSW SC 888, when considering the question of causation, the presence or absence of contemporaneous evidence of injury is relevant, but not determinative, in circumstances where there is other evidence available. In this case, on the other available evidence as noted above, it would be reasonable to conclude that the accident was a contributing cause to the lumbar spine injury, which was more than negligible.
The Panel notes that there were no submissions from the claimant to the Panel that addressed the treatment dispute.

The insurer’s submissions

The insurer submitted that the claimant’s submissions do not fully take into account the clinical notes of the treating GP, Dr David Dao which were before the Medical Assessor. Apart from the X-ray report of the lumbar spine dated 27 September 2016, the clinical records included the following entries:
·        27 September 2016 – lower back pain, no radiation.
·        28 September 2016 – arthritis, prescribed Celebrex. Plans to see rheumatologist.
·        4 October 2016 – lower back pain for the past 5 weeks. Referral to Dr Loretta Rozario (rheumatologist) to exclude ankylosing spondylitis.
The insurer submitted that in light of the above history, it was open to the Medical Assessor to conclude that the claimant’s lumbar spine condition was not causally related to the accident. This was a matter for his clinical judgment, and it was open to him on the evidence to so conclude.
The insurer submitted that the claimant’s submissions do not refer to the post-accident event to explain injury to the lumbar spine. In reaching his conclusion on causation, the Medical Assessor noted that the claimant reported an incident towards the end of 2021, when he reached out to lean on a table and collapsed with lumbar spinal pain. Shortly after the incident, the claimant underwent an MRI of the lumbar spine and was referred to orthopaedic surgeon, Dr Bhisham Singh for his spinal condition.

EVIDENCE BEFORE THE PANEL

The evidence before the Panel may conveniently be summarised as follows.

Pre-accident medical evidence

Clinical records of Dr Dao

The clinical records of GP, Dr David Dao were before the Panel. They record treatment received by the claimant since the mid-1990’s, shortly after his birth to the date of the accident.
It was recorded that the claimant sustained a compound fracture of his right big toe in 2010 when doing martial arts which was treated by way of an open reduction and internal fixation. A report by orthopaedic surgeon, Dr Jayker Dave, dated 14 December 2010, indicated that there were no complications. K-wires were due to be removed about four weeks later.
There was a consultation with Dr Dao on 27 January 2015 about pain in the left forearm. An X-ray performed on 27 January 2015 suggested a healing stress fracture of the mid left ulnar shaft. In October 2016, it was recorded (as past medical history) that there was a healed stress fracture of the mid left ulnar shaft sustained in 2015.
On 27 September 2016, the claimant consulted Dr Dao complaining of “lower back pain”. It was noted that there was no radiation. He was referred for an X- ray. There was a consultation recorded the next day. The reason for contact was noted as “arthritis”. The claimant was prescribed Celebrex.
The findings of a lumbar spine X-ray performed on 27 September 2016 were as follows:
“The lumbar alignment is unremarkable. There is no spondylolisthesis. The vertebral bodies are maintained in height. There is no compression fracture. The discs are maintained in height. The facet joints are unremarkable in outline. There is no pars defect.”
The next consultation for the presenting back problem was on 4 October 2016 when Dr Dao recorded the following:
“lower back pain last 5/52, was normal before that, for ct scan, see Dr L Rozario to exclude Ankylosing spondylitis.”
According to the clinical records, Dr Dao issued a letter referring the claimant to rheumatologist, Dr Loretta Rozario for further management. However, there is no evidence before the Panel of any treatment of the claimant by Dr Rozario. There is no evidence of any further consultations with Dr Dao for any back condition prior to the accident.
In a consultation with Dr Dao on 23 October 2018, the following entry was recorded:
“Was abuse[sic] yesterday on street, left jaw hurt, right wrist hurt x rays review, no fracture seen, panadol”.
There was a discharge summary from Liverpool Hospital which recorded that on 11 March 2019, the claimant was admitted for a rotator cuff “strain” of the shoulder. The claimant reported that he woke up with an “on/off” sharp pain in the right shoulder with episodes lasting approximately 30 minutes. The claimant denied trauma, twisting, sudden unusual activities but reported to having a very physically straining job installing elevators with frequent heavy pushing, pulling, lifting and overhead activities. The impression was “rotator cuff tendinopathy.” He was discharged with recommendations to rest and refraining from working for three days. He was prescribed with 400mg Nurofen and he was advised to see his GP in the next few days to get a referral for physiotherapy.

The claimant’s statement about the motor accident

In his application for personal injury benefits dated 4 October 2019, the claimant described his injuries from the motor accident in the following terms:
“Currently on crutches. Unable to put pressure on left leg. X-rays showed nothing broken. I’ll be able to find out the extent of the damage after I visit my GP and have my follow up check at the injury centre.”

Post-accident medical evidence

The Ambulance Service

According to the Ambulance Service records, on arrival at the scene of the accident, the claimant was lying in a supine position on the road. The claimant complained of pain in the right elbow and the left ankle. On the way to hospital, he complained of mild pain in the right upper leg and the right thumb.

Blacktown Hospital

The Discharge Summary of Blacktown Hospital recorded the claimant travelling through a roundabout at about 30kph when a car collided with his motorcycle. He was thrown off his motorcycle and landed on the concrete road. He was wearing a helmet. The claimant reported ongoing pain in the left ankle, left hand, right elbow, right hand and left knee. On examination, there was pain over the right elbow with an abrasion noted. There was tenderness in the right thumb, the dorsum of the right index finger and the left ankle joint.
The clinical records referred to X-rays of the right elbow and hand, left hand, left knee, foot and ankle being apparently performed. However, there were no X-ray results in evidence before the Panel.
The claimant was discharged the same day on crutches and referred to his general practitioner for follow up in two days.

Dr Dao

The claimant consulted Dr Dao on 4 October 2019. The following entry was recorded:
“Motor bike accident Tuesday 1/10/2019 now not able to weight bear on Left foot, now tender over left ½ leg… for the xrays as xrays at hospital show no fracture.”
The claimant was referred to an orthopaedic surgeon for further management.
An X-ray of the left leg, left foot and left ankle performed on 4 October 2019 did not reveal any evidence of fractures.
An MRI of the left ankle performed on 10 October 2019 showed a strain to the anterior talofibular ligament (ATFL) and the calcaneofibular ligament (CFL) and partial thickness insertional tears of the deltoid ligament, bony contusions in the medial and lateral malleolar region with incomplete fractures of the lateral malleolus.
An ultrasound of the left knee performed on 10 October 2019 revealed features of mild subcutaneous prepatellar bursitis without a focal drainable collection.
In a consultation on 24 October 2019, Dr Dao recorded that the claimant was advised to see the “injury centre” for a medical certificate. As will become apparent later in these reasons, the reference to the “the injury centre” is a reference to another medical practice called “Workers Doctors”.

Dr Ramawat

The claimant saw orthopaedic surgeon, Dr Sumil Ramawat on 16 October 2019 in regard to the left ankle injury. In a report to Dr Dao of the same date, Dr Ramawat noted that the MRI performed on 10 October 2019 showed an incomplete fracture of the left lateral malleolus as well as an ATFL and CFL injury. He recommended conservative treatment including weight bearing as tolerated in a moon boot for another four weeks followed by physiotherapy.
The claimant was followed up by Dr Ramawat on 11 November 2019. On examination, it was noted that there was tenderness in the ATFL and CTF ligaments and that the Anterior drawers test was negative. Dr Ramawat recommended that the claimant continue with physiotherapy.

Workers Doctors

It appears that from 29 October 2019, the claimant received treatment from the medical practice, Workers Doctors. Such treatment comprised of consultations with GP’s, physiotherapists and a psychiatrist, Dr Kumagaya.
The first consultation was with GP, Dr Calvache-Rubio on 29 October 2019. Dr Calvache-Rubio recorded injuries to the left ankle and right thumb. On examination, it was noted that the claimant was in a moon boot and he had gait issues and right thumb grip issues. It was recorded that the claimant had symptoms of right thumb and left ankle pain. Other symptoms recorded were: “anxious, worry, overthinking, trouble sleeping, poor concentration, more cautious while driving”. The diagnosis made was a left ankle fracture, a right thumb strain and an adjustment disorder. The claimant was referred for physiotherapy and prescribed simple analgesia.
On the same day, the claimant also saw physiotherapist, Ryan Heuston at Workers Doctors. Mr Heuston recorded that the claimant reported pain in the right thumb, pain in the left ankle and pain in the lower back. This was about four weeks after the accident. The claimant reported no pain in the neck, right leg or paraesthesia. Mr Heuston recorded that there was a pre-accident history of “lower back stiffness” for which no treatment was required. The Panel considers that Mr Hueston would be referring to the lower back condition complained of in 2016.
The claimant saw Mr Heuston again on 25 November 2019. It was recorded that the back pain improved since the cam boot was removed the week before and that he was able to manage walking for up to 20 minutes.

Dr Soo

The claimant was referred by Workers Doctors for further management by orthopaedic surgeon, Dr Gavin Soo. He saw the claimant on 12 December 2019. In a report of the same date, Dr Soo noted that the claimant remained in a moon boot for seven weeks and following this, he commenced physiotherapy. He recorded that the claimant reported that his left ankle symptoms had improved, with occasional discomfort when he walks for too long. On examination of the left ankle, Dr Soo noted that there was no tenderness. The ankle was stable and had an excellent range of motion.
Dr Soo noted that an MRI of right hand showed a low-grade ulna collateral ligament tear of the thumb. He noted that the claimant still had weakness in his right hand and that he should continue with physiotherapy.

Workers Doctors (continued)

On 24 January 2020, the claimant saw physiotherapist, Cheuk Yin (Davy) Lam at Workers Doctors. The claimant reported that his left ankle and right thumb were improving but his lower back was “feeling the same”. The claimant reported that his main concern was his lower back pain which was a sharp and dull pain. There was no feeling of pins and needles or numbness. On examination, there was restricted movement in the lower back and a treatment plan was formulated to restore lumbar spine extension.
The claimant saw Mr Lam again on 30 January 2020. It was recorded that the back pain was getting worse and that the main concern was the lower back pain on the left side. The pain was sometimes sharp and can also be dull and constant. The pain is aggravated by walking. It was recorded that there were no pins and needles or numbness.
The claimant saw GP, Dr Aaron Tso on 7 February 2020. The claimant reported ongoing pain and weakness in the right hand and that the left ankle has significantly improved. There was mild constant pain in the lower back, “5/10 at worst” and a dull ache. There was no radiation of pain. The lower back pain can wake him up from sleep.
On the same day, the claimant was seen by physiotherapist, Mr Lam. The claimant reported pain in the right thumb and the lower back with no pins and needles or numbness. Mr Lam recorded that there was a reduced range of movement of the lumbar spine.
On 21 February 2020, the claimant saw GP, Dr Morgan Mo. It was recorded that the claimant reported that the left ankle pain was improving but he has had ongoing right thumb and lower back pain since the accident. It was recommended that the claimant continue with physiotherapy to the right hand but it appears that there was no treatment recommended for the lower back.
On 13 March 2020, the claimant saw physiotherapist, Kar Luen (Karen) Au Yeung. It was recorded that the claimant’s major concern was a constant dull pain in the right thumb. The claimant reported that the week before, he had increased lower back pain with bending.
On 31 March 2020, the claimant saw physiotherapist, Mr Lam. He reported pain in the right thumb, the left ankle and the lower back with no pins and needles or numbness. Mr Lam recorded that there was a reduced range of movement of the lumbar spine.
On 3 April 2020, the claimant saw Dr Tso. He recorded that the claimant reported ongoing pain in the right thumb, lower back and left ankle. The diagnosis of the claimant’s injuries arising from the accident was revised by Dr Tso to the following: left ankle fracture; right thumb pain; lumbar back strain and adjustment disorder.

Dr Bradshaw

On 24 April 2020, the claimant was referred by Workers Doctors to orthopaedic surgeon,
Dr David Bradshaw for management of ongoing right thumb pain.
In a report to Dr Lim dated 19 May 2020, Dr Bradshaw recorded that in the accident, the claimant sustained injuries to the right thumb, left ankle and pain in his lower back.
On examination of the left ankle, Dr Bradshaw noted that the claimant walked with a mildly antalgic gait. His left ankle was mildly tender over the anterior joint line and there was slightly reduced dorsiflexion compared to the contralateral side. He noted that there was a degree of scar tissue on recent imaging which would explain some of the stiffness in the ankle.
On examination of the right thumb, Dr Bradshaw noted that there was a good range of motion. There was focal and reproduceable tenderness over the UCL and stress of the UCL provoked pain. The RCL had no tenderness or palpation or pain or stress of the RCL.
Dr Bradshaw was of the opinion that surgery is not required for either of right thumb or left ankle injuries. He expected there would be gradual improvement in the ensuing months and that the claimant is likely to always have some degree of discomfort and stiffness in these joints in view of the significant soft tissue injury he sustained around them.
It does not appear that the pain in the lower back reported by the claimant was addressed at the examination.

Workers Doctors (continued)

On 7 May 2020, the claimant was seen by physiotherapist, Mr Lam. The claimant reported pain in the right thumb, lower back and the left ankle. It was recorded that there was a reduced range of movement of the lumbar spine.
On 8 May 2020, the claimant was seen by Dr Calvache-Rubio. His diagnosis was revised to include a lumbar back strain based on “clinical findings to date.”
On 11 May 2020, the claimant was seen by physiotherapist, Mr Lam. Mr Lam recorded that there was ongoing improvement with reduced lower back pain in L4/5 level. The claimant reported that the lower back pain is aggravated by sitting and walking. It was recorded that there was a reduced range of movement of the lumbar spine.
In a further therapy session with Mr Lam on 18 May 2020, it was recorded that the claimant had ongoing restricted range of movement in the lumbar spine. In another session on 21 May 2020, Mr Lam recorded that there was ongoing improvement with reduced lower back pain at the L4/5 level and that the pain was aggravated with sitting and walking.
The clinical records of Workers Doctors showed that in the period between June 2020 to November 2021, there were regular attendances by the claimant for treatment by the GP’s and physiotherapists, where he complained of fluctuating improvement of pain in the right thumb and the left ankle. During some of these visits, the claimant also complained of intermittent low back pain. Some of the notes recorded in that regard were:
(a)    11 June 2020 – physiotherapy session; it was recorded that there was a reduced range of movement of the lumbar spine.
(b)    19 June 2020 - consultation with Dr Calvache- Rubio – lower back pain, discomfort and stiffness.
(c)    17 July 2020 – physiotherapy session – still having back pain on and off; doing stretches.
(d)    22 July 2020 – physiotherapy session – low back and left ankle are the main concerns; constant low back pain – 3-4/10; it was recorded that there was reduced range of movement in the lumbar spine.
(e)    29 July 2020 – physiotherapy session – low back sore today.
(f)    12 August 2020 – physiotherapy session – low back pain on and off – mainly stiffness more than pain.
(g)    19 August 2020 – physiotherapy session – low back pain on and off; location of pain – central and bilateral lumbar spine L3/4.
(h)    26 August 2020 – physiotherapy session – back pain on and off; it was recorded that there was reduced range of movement in the lumbar spine.
(i)    2 September 2020 – physiotherapy session; back pain on and off which is aggravated by prolonged sitting and driving; constant low back pain on left; is getting better but still tight.
(j)    16 September 2020 – physiotherapy session – it was recorded that there was reduced range of movement in the lumbar spine.
(k)    29 June 2021- psychologist recorded that claimant reported that he cannot walk for too long because of ankle and low back pain.

Seven Hills Physiotherapy & Sports Injury Clinic

According to the records of this physiotherapy clinic, the claimant was referred for treatment in December 2020 for his left ankle fracture, right thumb injury and lumbar spine facet closing dysfunction. The claimant was treated by physiotherapist Ms Niyuth Chea during the period
9 December 2020 to 21 June 2021. She indicated that the target areas for treatment were the “glutes, legs and low back.”

Workers Doctors (continued)

According to a consultation with GP, Dr Dickson on 8 September 2021, the claimant reported worsening pain in the left ankle since he ceased being treated by an exercise physiologist. Dr Dickson referred the claimant to an orthopaedic surgeon and recommended that an updated MRI be performed.
An MRI of the left ankle performed on 10 September 2021 showed the following:
“Mild thickening of the ATFL suggestive of scarring related to old injury, not altered when compared to imaging performed in May 2020. There is no disruption. Elsewhere no abnormality demonstrated.”
At a consultation with Dr Dickson on 15 November 2021, it was recorded that the claimant was largely pre-occupied by worsening pain in the back. Walking is limited due to pain and he is experiencing “severely disturbed sleep.” The pain was emerging in the context of an antalgic gait due to the left ankle injury. Dr Dickson recommended that the claimant seek an assessment “from local GP who can examine.”
At a consultation with Dr Calvache-Rubio on 22 November 2021, the following entry was recorded:
“has been limping and using walking stick since injury
Ongoing attendance to physio
Walks one to two hrs
Back pain flares up
Recurrently
Last flare up last week
Tried to reach a plate on the dining table
Stiffness in lower back
Difficulties with sitting and walking
No radicular symptoms
Taking endones prn
Discuss [sic] this
Advised againt [sic] it.”
An MRI of the lumbar spine performed on 23 November 2021 showed “mild disc desiccation at the L4/5 level. At the L4/5, there is moderate disc desiccation with reduced disc height and minor central annular tissue and central disc protrusion.”
At a consultation with Dr Calvache-Rubio on 6 December 2021, the claimant reported that his back pain was slowly improving but he is experiencing ongoing stiffness and discomfort. He was advised to continue with conservative therapy and referred to a spinal surgeon for review.

Dr Singh

The claimant was seen by orthopaedic and spine surgeon, Dr Bhisham Singh on
9 December 2021. In a report dated 14 December 2021, Dr Singh recorded that the claimant has had increasing lower back pain since the motor accident. According to his sitting and standing tolerance and the imaging, Dr Singh believed that the bulging is a suggestion of loss of disc height at L5/S1 as well as L4/5. He believed that the symptoms were progressive since the accident.
Dr Singh was of the opinion that the claimant had sustained a significant injury to his lumbar spine arising from the accident and that ultimately he will require surgery by way of decompression and a fusion. He indicated that heavy physical work was likely to aggravate and exacerbate the requirement for the surgery.

Liverpool Hospital

A Discharge Summary from Liverpool Hospital dated 20 July 2022, showed that the claimant had attended the emergency department on that day complaining of back pain. It was reported that taking into account the clinical features, the biochemical parameters and radiological findings, he was managed with analgesic and discharged home to see his GP for a follow up in one to two days for consideration of a referral to a chronic pain clinic and physiotherapy.

Workers Doctors (continued)

The clinical records showed that the claimant attended for treatment on regular occasions in 2022, reporting ongoing complaints of lower back pain. In a consultation with Dr Emerte Kporku on 1 December 2022, it was recorded that the claimant reported that after 12 months of physiotherapy and six months of exercise physiology, he felt that these treatments had exacerbated his back pain but were helpful with his right thumb injury. The claimant reported that he would prefer to have hydrotherapy as he found that hot showers have been helping his back pain.

Medicolegal evidence

The claimant was examined by orthopaedic surgeon, Dr Todd Gothelf at the request of both parties on 13 May 2021. He provided a report on 24 May 2021.
The claimant reported to Dr Gothelf that in the accident, he was thrown off his motorcycle to the ground. He had a lot of pain in the knees and elbows. He could not feel his left ankle and had right hand pain. He commenced physiotherapy about a month after the accident a month after the accident and was attending twice a week.
The claimant reported that he was currently doing exercise therapy addressing the lower back, thumb and ankle.
Dr Gothelf was of the opinion that as a result of the accident, the claimant sustained soft tissue injuries to the right elbow, right thumb, right index finger, soft tissue injury to the left knee with pre-patellar bursitis, a left ankle bone contusion and incomplete fracture of the lateral malleolus, a lateral ankle sprain of the anterior talofibular ligament and calcaneal fibular ligament.
Dr Gothelf was of the opinion that the low back pain complained of was not caused by the accident because there was no mention of a lower back injury in the hospital clinical notes or the ambulance records and there was no mention of lower back symptoms in the early period after the accident.
Dr Gothelf assessed the right thumb injury as giving rise to a whole person impairment (WPI) of 1%, the left ankle injury a WPI of 0%, resulting in an overall permanent impairment of 1%. He believed that the soft tissue injuries to the right elbow and right index finger did not result in any impairment.
The claimant was examined by orthopaedic surgeon, Dr James Bodel on 14 March 2022 at the request of his lawyers. Dr Bodel provided a report on 24 March 2022.
The claimant reported to Dr Bodel after his motorcycle was struck by a vehicle in the roundabout in the accident, there was a blank period in his memory, and he next recalled lying on his back in the intersection with his motorcycle some distance away. The claimant reported that at the hospital, his concern was the ankle.
Dr Bodel was of the opinion that as a result of the accident, the claimant sustained multiple ligamentous injuries to the region of the left foot and ankle and associated minor fractures and disc prolapse at the L5/S1 in the lumbosacral spine.
Dr Bodel was of the opinion that the claimant required surgery at the lumbosacral junction but he considered that given the claimant’s age, a simple decompression would be sufficient rather than a fusion.
Dr Bodel was of the opinion that the physiotherapy recommended by Dr Calvache-Rubio on 11 December 2021 was needed both pre-operatively and post operatively.
Dr Bodel was of the opinion that the claimant’s clinical condition had stabilised at the time of his examination. He assessed WPI for the left ankle at 3%, WPI of 1% for the sub-talar joint and WPI of 10% for the lumbar spine, resulting in a permanent impairment of 14%.

RE-EXAMINATION

On 25 March 2025, the claimant was re-examined by Medical Assessor Couch and Medical Assessor Gray at the medical suites of the Commission on behalf of the Panel.
The claimant attended alone and on time. He was driven to the appointment from his home in Parramatta by a friend.
The examination report now follows.

Educational, occupational and social history

The claimant was born and brought up in Sydney. His parents both came to Australia from Vietnam as refugees. He completed his Year 12 at high school and did three years of a civil engineering degree at Western Sydney University. He said that he needed to stop because of financial issues. He had a single mother and needed to work to support himself. He said he would need to study for a further two years to complete this qualification, but he did not feel he was currently capable of coping with this.
At the time of the accident, the claimant was working full-time as a trades assistant installing elevators (lifts) for a smaller company. He said that he had worked on residential buildings up to 11 floors in height. He described working long hours and physically demanding duties, including regularly carrying a 30- 40kg tool bag up and down stairs. In addition, he had worked as an on-call shift supervisor at a Kentucky Fried Chicken store. On questioning, he said that he had never been involved much in sports, but he and his partner had enjoyed activities such as going to the beach and hiking.
The claimant said that he had not managed to return to work installing lifts since the accident. He had tried working one shift at the Kentucky Fried Chicken store, but he had to cease work during the shift “because my ankle gave out”.
The claimant is living with his partner in a rented apartment in Parramatta. She is currently the sole household earner and works in retail. He said that the insurer had paid weekly payments (of statutory benefits) until 2022. He said that he is not currently eligible for any Centrelink benefits such as Jobseeker.

Past medical history

The claimant described good general health and no previous major illnesses. He stated that he fractured his right great toe when accidentally kicking the floor during martial arts training at the age of 14. He described treatment with internal fixation and made a full recovery.
Initially, in response to direct questioning, the claimant said he had no pre-accident material problems with his low back. He was the made aware of a history of low back pain recorded by his general practitioner in 2016. He said that he himself “didn’t know about that, forgotten” but said he had returned to the radiology clinic to get the related imaging report.
The claimant said that did not have any treatment from Dr Rozario and that after satisfactory imaging he had made a normal recovery.
The claimant denied any previous ankle injuries. He denied taking any medication for his low back or otherwise at the time of the accident.

History of the motor accident and subsequent treatment

The claimant stated that on 1 October 2019, he was riding home from work on his 300cc Kawasaki motorcycle in a 50kph zone. As he went into a roundabout, he was struck by a car from the left side. He did not know exactly how the accident had happened. He said that he saw the car approaching and next thing he was on the road, “looking at the sky”. He recalled that initially he could not feel his left ankle or leg at all while he was lying on the ground and wondered if he had in fact lost it. He thought that he had remained lying on the road until an ambulance attended promptly. He recalled wondering if he had injured his neck or back as well.
When he arrived at Blacktown Hospital, he recalled that he could see that his leg was intact but that it felt numb with pain from the left knee down to his left ankle. He also recalled abrasions to his elbows and knees. He said that he had been riding in appropriate garments, including a helmet, leather jackets, motorcycle gloves, tradesman’s long trousers and boots.
The claimant was asked more about his recollection of symptoms while at the hospital. He said that he was in the emergency department for about six hours. He recalled that he was very angry at the circumstances of the accident. He said: “I was on adrenaline – angry, mixed emotions – a long day at work – I was annoyed that I had been hit”. He recalled that he noticed pain in his left ankle after about two hours, “when the adrenaline had worn off”. He said that he was moved out of the emergency department in a wheelchair and his sister came and took him home when he was still in pain in his left ankle. That was his main concern. Regarding the other injuries, he “didn’t care” and other pain, “forgotten”.
The claimant was asked when he first noticed low back pain and he replied: “I think it was about the first month – then I started to notice things”. He also remembered some problems gripping with the right hand and having early difficulty standing in a left moon boot.
The medical examiners of the Panel noted that junior medical officer, Dr Kabir Nahyan at Blacktown Hospital, described a similar mechanism of accident. It was recorded that the claimant had flown off the bike and landed over the bike onto the concrete. He was complaining of ongoing pain over the left ankle, left hand, right elbow, right hand and left knee. He denied any cervical spine tenderness. Examination showed an abrasion and tenderness over the right elbow, tenderness of the right thumb and tenderness over the lateral anterior aspect of the left ankle.
The medical examiners of the Panel noted that X-rays were apparently performed of the right elbow and hand, left hand, left knee, foot and ankle. He was discharged with crutches to be non-weight bearing on the left lower limb and for follow-up by his general practitioner in two days. There was no mention of back pain.
The medical examiners of the Panel asked the claimant more about his recollection of first seeking treatment for his low back. He said he thought this had been one to one and a half years after the accident at about the beginning of 2021. This appears to be a reference to seeing Dr Singh, and orthopaedic and spine surgeon, on 9 December 2021. It is apparent from earlier records, in particular those of physiotherapists Mr Heuston, Mr Lam and Ms Yeung that the claimant had been consistently seeking treatment for his back since late October 2019.
The claimant recalled an incident in 2021 at a friend’s house when, while standing, he reached forward to pick up some food from a table. He suddenly lost all feeling from the waist down and in both lower limbs and ‘dropped’, initially without pain. He said that this resulted in a fall, and the only initial pain was pain in the left arm from stopping the fall. He said that the friend whom he was visiting, practiced massage and massaged his back. He began to get some feeling back in his legs. He said that friends had to carry him to a car, and he was driven home.
The claimant recalled: “I thought it was just one of those days”. The next day he recalled numbness and sharp pain generally in both legs and he couldn’t walk. The following day, he was able to walk but said that it was a struggle. From then on, he experienced sharp pain and tingling.
The claimant was asked about further treatment received for his back. He was told by the first surgeon he had seen that the only appropriate treatment would be a spinal fusion. He sought a second opinion from a different surgeon who mentioned two surgical options, one of a more minor procedure and one of a fusion. He said that the only specific treatment he had for his back had been one CT-guided injection. This improved his low back pain but not his perceived lack of strength.
The claimant recalled an episode about four and a half months after the injection when, having been pain-free, he was walking out of the kitchen at home and, “it just hit me hard out of nowhere … I said I can’t …”.
The claimant was asked if he ever attended a neurologist, and he did not think he had.
The claimant said that he had not attended any medical specialists recently for his back condition. He said that he had sometimes sought chiropractic treatment, “to be able to get more movement”. He described some benefit from these sessions but felt that they also increased pain after the treatments. He had also seen an exercise physiologist.

History of injuries or incidents since the subject motor accident

The claimant did not describe any such accidents or incidents apart from the above.

Current status

The claimant was asked what his main current physical symptoms were. He said: “I’ve started getting numb in my legs frequently with pins and needles with the numbness”. During the interview he described numbness down the anterior aspect of both thighs and part of the anterior aspect of both lower legs. He pointed to these areas while describing this. He also described numbness over one particular area over the left dorsum of the left ankle.
The claimant described this numbness as coming and going, occurring particularly if he sits for too long. He said that he can only sleep on his left side and needs to put one pillow behind his back and another between his legs.
When asked if he had any days in which he felt normal, the claimant said: “Never really, I just lie to myself”. When asked specifically about back symptoms, he described a sensation like that of a “thin cut” in the midline on his lower back, with a stabbing pain. He also sometimes notices burning or pins and needles. Pain is aggravated by sitting still.
When asked if pain was relieved by moving around, the claimant replied: “100% - it’s better if I move around, but if I move too much it comes back”.
The claimant was asked what physical postures and activities he mostly adopted while spending much of his days at home. He said that he might be in bed, sometimes rolling around in bed or sitting up in bed, then moving to the lounge room and sitting or lying on a couch and watching television or a movie. He said that he does walk around and play with their two cats.
The claimant was asked about exercise. He said the furthest he walks is perhaps 600 metres to a nearby park on most days. He was asked if he developed any different leg symptoms when walking and he said he could get pain in his legs if he walked too far. He denied any bladder or bowel symptoms.
On further questioning at this stage of the interview, he again denied having had similar symptoms before, stating: “I built elevators, etc – and I still had energy for KFC work”.

Lifestyle factors

The claimant said he does not drink alcohol or smoke cigarettes but does vape. He said that this has a calming effect on him. He denied using cannabis or other illicit drugs.
The claimant said that he now doesn’t go out and he no longer hikes. He stretches at home and walks 600m intermittently.

Physical examination

The claimant presented as a quiet young man who appeared to be quite intelligent and
well-educated. He gave a clear specific history, with no apparent exaggeration or dramatisation. He was co-operative during the physical examination, with no obvious abnormal pain behaviours, self-limitation or inconsistencies.
At height 175cm and weight 75kg, he was within the healthy weight range. (He said that he has weighed 86kg and had been much more muscular when doing physical work installing elevators. He added that he had put on weight to about 94kg 18 months earlier but had lost weight since then).
The claimant was able to undress to underpants for examination and re-dress afterwards. He did walk into the examination room slightly slowly, and although he could climb on and off the examination couch, he was noted to be slow turning over on the couch between supine and prone.

Upper extremities

The hands were clean and soft with only a few small calluses over the metacarpal heads. The claimant confirmed that his hands had been very rough and callused previously when working installing elevators.

Lumbosacral spine

Posture when standing was within normal limits. On gentle palpation the claimant reported local tenderness with wincing at the L4 level in the midline, but not over the paraspinal muscles on either side without guarding.
Active range of movement (AROM) of the lumbar spine was carefully observed by both medical examiners, with repetition of movements. Forward flexion was about three-quarters of normal but extension was restricted to about half of normal, stopping suddenly with complaint of sudden pain – this was reproducible. Lateral flexion was full bilaterally. When he stood and moved his bodyweight slowly from one foot to the other, the paraspinal muscles on the weightbearing side relaxed in the normal manner, indicating no actual spasm.

Lower limbs

Measuring 10cm proximal to the patella, both thighs measured 46cm, the right (dominant side) calf 37cm and the left 37.5cm. Knee jerks and ankle jerks were normal and symmetrical. Both plantar responses flexor (normal). Straight leg raising was full bilaterally, with complaint of central low back pain but negative sciatic stretch test bilaterally.
Sensation was normal in both lower limbs. Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was full on the right. On the left, power was probably full, but apparent effort was somewhat reduced and variable (thus there were no objective signs of lumbosacral radiculopathy).
Turning to the ankles, the right was entirely normal. The left ankle was normal in appearance with no deformity or tenderness. There was slight restriction of AROM in the ankle joint and subtalar joint (hindfoot) as tabulated below:

Active ROM Measured RIGHT	Active ROM Measured LEFT
Ankle plantar flexion	30°	20°
Ankle dorsiflexion	30°	20°
Hindfoot inversion	30°	20°
Hindfoot eversion	15°	10°

Both knees were clinically entirely normal.
Functionally, the claimant could do a fairly full squat to the floor and recover without describing pain. One of the medical examiners demonstrated a squat-walk (duck walk) to him but the claimant preferred to avoid this because of anticipated low back pain.

DOAGNOSIS CAUSATION AND REASONS - PERMANENT IMPAIRMENT DISPUTE

The left ankle and subtalar joint

The Panel accepts on the basis of the overwhelming evidence, that the claimant sustained injuries to his left ankle, including an displaced fracture of the lateral malleolus (treated conservatively) caused by the motor accident.

The lumbar spine

There was a past history of low back pain in 2016, for which the claimant consulted his usual GP, Dr Dao. Plain X-ray was reported as normal. The claimant told the Medical Assessors of the Panel that he could not recall the details of this episode, and he had not required treatment. He was referred rheumatologist, Dr Loretta Rozario by Dr Dao for further management. There is no evidence before the Panel of any treatment of the claimant by
Dr Rozario.
There is no record of complaint of back pain in the clinical records of Blacktown Hospital or by Dr Dao three days after the accident, or by Dr Calvache-Rubio four weeks later. The first mention of injury to the lumbar spine was Ryan Heuston, Physiotherapist, on the same date as Dr Calvache-Rubio, did record central low back pain rated as 5/10 on the VAS. In December 2019, another physiotherapist at the same practice, Ka Wai (Gary) Ng, noted that low back pain was resolving, although the claimant had not yet returned to work.
Complaints of back pain was recorded by GP Dr Aeron Tao on 7 February 2020 and 3 April 2020, GP Dr Morgan Mo on 21 February 2020 and Dr Calvache- Rubio on 8 May 2020. However, there is no evidence of any treatment or investigation of the back complaints by any of those medical practitioners.
In April 2020, the claimant was referred to orthopaedic surgeon, Dr Bradshaw for further management of his injuries. At the consultation with Dr Bradshaw in May 2020, the claimant mentioned that he had lower back pain. In a report to Dr Lim dated 19 May 2020, Dr Bradshaw recorded that in the accident, the claimant sustained injuries to the right thumb, left ankle and pain in his lower back. However, there is no evidence of any suggested treatment or investigation by Dr Bradshaw of the back pain.
Some 18 months after the accident, (although the clinical records of Dr Calvache-Rubio suggests that it was over two years after the accident in November 2021), the claimant described an unusual episode when he experienced sudden loss of sensation, pain and possible loss of power function in both lower limbs while reaching for some food at a friend’s table, resulting in a fall. Following this episode, he sought treatment for his back. The claimant said that this was the first time he sought medical treatment for his back. A subsequent MRI scan on 23 November 2021 showed disc desiccation with some bulging at L5/S1 without obvious neural compromise. He had subsequently consulted two different spinal surgeons and surgery, including the possibility of a fusion, had been raised. The ‘normal’ x-ray of 2016 would not be expected to delineate any disc injury; he did not have a pre-accident MRI to compare with later lumbar MRIs.

Having considered all the available evidence, the nature of the accident (the claimant being knocked off a motorcycle by a car and landing on the road), combined with references by a treating physiotherapist four weeks later, the Panel accepts, on the balance of probabilities, that the claimant sustained a soft tissue injury to the lumbar spine in the accident for which the claimant continued to regularly attend upon physiotherapists for treatment.
The Panel also considers that it was more probable than not that in the incident in November 2021, as described by the claimant, the claimant sustained some further back injury at this time.

Other injuries

The Panel accepts that claimant sustained a low-grade ligament strain injury to his right hand caused by the motor accident. He sustained other minor abrasions/contusions that have resolved.

PERMANENT IMPAIRMENT

On examination, the only abnormal findings were reduced range of movement, localised tenderness over the lumbar spine and slight dysmetria, with a painful “catch” in lumbar extension. There were no other abnormal neurological signs and no evidence of lumbosacral radiculopathy. The Medical Assessors of the Panel assessed this condition as a DRE Lumbosacral Category II assessable level of impairment which gives rise to a whole person impairment (WPI) of 5%.The Medical Assessors are of the opinion that this impairment is not attributable to the soft tissue injury to the lower back sustained in the accident but rather, to the later episode that occurred in November 2021.
Referring to the Guidelines and AMA 4, and following the examination of the lower limb by Medical Assessor Couch, the Medical Assessors of the Panel are of the opinion that the only applicable assessment method for the claimant’s ankle injury is by range of movement. Referring to the tabulated range of movement at paragraph 167 above, there is no assessable impairment for the right ankle or hindfoot. Plantar flexion restricted to 20 degrees on the left gives 3% WPI or 7% LEI. Referring to hindfoot movements, inversion restricted to 20 degrees or eversion restricted to 10% gives 1% WPI or 2% LEI. These impairments are combined using the Combined Values Charts to give 9% LEI, or 4% WPI.
There are no other assessable impairments arising from the physical injuries caused by the accident.
The Panel adopts the examination findings and assessment of permanent impairment of the Medical Assessors of the Panel in relation to the injuries to the left ankle, the subtalar joint, and the lumbar spine.

CAUSATION AND REASONS- TREATMENT AND CARE DISPUTE

The second dispute relates to physiotherapy treatment to be provided by Infinity Physiotherapy based on a referral from Dr Calvache Rubio on 6 December 2021.
The referral specified pain in the lower back, the left ankle, left foot and altered gait.
The Panel has found that the accident caused an injury to the claimant’s left ankle, including a displaced fracture of the lateral malleolus. The proposed treatment is therefore related to that injury. Some six years after the accident, with established chronic symptoms, the Panel is not persuaded that further physiotherapy treatment is reasonable and necessary because it is unlikely to be effective in relieving the claimant’s pain and thereby optimise his prospects of recovery and returning to work and or other activities.
The Panel has found that the accident caused a soft tissue injury to the claimant’s lumbar spine. The proposed treatment is therefore related to that injury. The Panel considers the need for the physiotherapy treatment received in the months following the accident would have been reasonable and necessary. However, the Panel does not accept that the proposed physiotherapy treatment for back pain in December 2021 was reasonable and necessary as it would not relate to the soft tissue injury sustained in the accident but to some later injury as earlier described in these reasons.

CONCLUSION

The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel has reached a different conclusion in their assessment of WPI which has resulted in an assessment of a higher degree of permanent impairment.
Accordingly, the Panel revokes the certificate of Medical Assessor Wallace and issues a new certificate. The new certificate of the Panel is attached to these reasons.

[1] Section 7.26(5) of the MAI Act.

[2] Section 41(2) of the PIC Act.

[3] Rule 128 of the PIC Rules.

[4] Section 7.26(6) of the MAI Act.

[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.3 which commenced on 6 December 2024.

[6] Clause 6.2 of the Guidelines.

[7] See s 3B (2) of the CL Act.

[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].

[9] See Sch 2,cl 1(i) of the MAI Act.

[10] Subsection 1.3(2)(a) of the MAI Act.

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Citations

Dong v Allianz Australia Insurance Limited [2025] NSWPICMP 842

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13

Insurance Australia Group Ltd v Keen [2021] NSWCA 287

Insurance Australia Ltd v Marsh [2022] NSWCA 31

[2025] NSWPICMP 842

30 October 2025