Estall v QBE Insurance (Australia) Limited
[2025] NSWPICMP 324
•9 May 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Estall v QBE Insurance (Australia) Limited [2025] NSWPICMP 324 |
| CLAIMANT: | Wendy Estall |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 9 May 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor vehicle accident on 28 May 2021; Medical Assessor (MA) determined the claimant’s whole person impairment (WPI) as a result of the accident was 5%; claimant sought a review of the assessment under section 7.26; Held – Review Panel conducted its own examination and found that WPI as a result of injuries sustained in the accident totalled 9%; MAC revoked; new certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Kuru, dated 17 June 2024, and substitutes the determination to certify that the injuries referred to the Panel and caused by the motor accident, gave rise to a whole person impairment of 9%. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Wendy Estall was injured in a motor vehicle accident outside of Mittagong, on 28 May 2021 (the accident). Following the accident, she made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on QBE Insurance (Australia) Limited (the Insurer).
A dispute has arisen between Ms Estall and the insurer about the injuries caused by the accident. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(a) of the MAI Act.
The medical dispute was referred to Medical Assessor Robert Kuru for assessment. The Medical Assessor gave a certificate dated 17 June 2024 in which he certified that the injuries caused by the accident gave rise to an impairment of 5% and not greater than 10%.
Ms Estall sought a review of the assessment under s 7.26 of the MAI Act. The President’s Delegate determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted and referred to this Review Panel.
The Review Panel (the Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment.
THE REVIEW
The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act.
Section 7.26(5A) provides that the panel is to be constituted by two medical assessors and a member assigned to the Motor accidents Division of the Commission.The Review 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: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.
Version 9.2 of the Motor Accident Guidelines (the Guidelines), effective from
10 November 2023, apply to the Review.
STATUTORY PROVISIONS
Permanent impairment
If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
12. Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’, found in clauses [6.201]-[6.228] of the Guidelines.”
Pre-existing impairment
Pre-existing impairment is addressed in clauses 6.31-6.33 as follows:
“Pre-existing impairment
6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
Causation
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgement.’
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.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the
Civil Liability Act 2002 apply, in particular s 5D and s 5E.
ASSESSMENT UNDER REVIEW
Medical Assessor Kuru assessed Ms Estall on 15 February 2024.
Medical Assessor Kuru certified on 17 June 2024 that Ms Estall’s injuries caused by the accident, gave rise to permanent impairment of 5% that is not greater than 10%. The Medical Assessor recorded Ms Estall had a fracture of the left sacrum and residual bursitis. He recorded sciatica radiating from Ms Estall’s back and projecting to the hip, back of leg to behind the knee area. The Medical Assessor recorded in relation to the pelvis, left sided vertical sacral insufficiency fracture with partial extrusion into the superior SI joint.
Medical Assessor Kuru considered that the following injuries caused by the accident had resolved, giving rise to no assessable permanent impairment. To the left hip, post traumatic stiffness with groin and hip rotation and injury to the bilateral trochanteric bursitis. The Medical Assessor recorded chest pain due to a sternal fracture.
Medical Assessor Kuru considered that the following injuries were not caused by the accident. The Medical Assessor recorded lateral recess stenosis and compression of S1 root and L5 nerve root in the foramen. The Medical Assessor recorded aggravation to the sacrum/coccyx.
The report, determination and reasons of Medical Assessor Kuru is set out below by reference to paragraph numbers:
[1] – [2] Medical Assessor Kuru acknowledged the dispute regarding “the degree of permanent impairment under Schedule 2, s 2(a) of the Act.” Medical Assessor Kuru assessed the following injuries referred by the Commission:
“1.Spine - Fracture of the left sacrum, residual bursitis. Sciatica radiating from back and projecting to hip, back of leg to behind the knee area.
2.Lateral recess stenosis and compression of S1 root and L5 nerve root in the foramen.
3.Left hip - Post traumatic stiffness with groin and hip rotation. Stiffness and injury to the bilateral trochanteric bursitis
4.Pelvis - Left sided vertical sacral insufficiency fracture with partial extrusion into the superior SI join
5.Sternal fracture – chest pain
6.Sacrum/Coccyx - Aggravation to the sacrum/coccyx”
[3] – [4] Medical Assessor Kuru noted the documents relied upon by Ms Estall and the Insurer.
[5]-[6] Medical Assessor Kuru considered all documents attached to the Application, but no further documents.
[7] Medical Assessor Kuru noted that Ms Estall attended the appointment alone.
[8] Medical Assessor Kuru noted the pre-accident medical history of Ms Estall:
“Ms Estall was right handed. She had hypertension and was on Atacand and Ezetrol as well as Crestor. She has had previous troubles with trochanteric bursitis and a coccyx fracture but she says that these were asymptomatic at the time of the accident.”
[9] Medical Assessor Kuru noted the history of the accident:
“She was outside of Mittagong in an 80km/hour zone. They had just passed through 2 sets of lights and were at the third waiting in a row of traffic. She was a front seat passenger wearing a seat belt.
The air bags deployed.
After the accident, she looked across at her husband. She told me she struck her left arm in the accident which activated the emergency function on her Apple watch. A nurse who witnessed the accident helped her from the car. She was taken by ambulance to Bowral Hospital where she underwent imaging. She said she was ‘hurting everywhere’ particularly her chest, back and groin. She was diagnosed as not having any acute fractures and subsequently discharged home.”
[10] Medical Assessor Kuru noted Ms Estall’s history of symptoms and treatment following the accident:
“When she had ongoing symptoms after some 4-6 weeks, she was sent for further imaging which demonstrated a fracture of her left sacral ala, 3 rib fractures and a sternal fracture.”
[11] Medical Assessor Kuru recorded no relevant injuries or conditions sustained since the motor accident.
[12] Medical Assessor Kuru noted Ms Estall’s current symptoms:
“Pelvis/hips: Ms Estall says she is mostly able to get around. If she sits and rises to stand she gets some pain in the back and over the right greater trochanter. She will intermittently have some pain in her groin and in her hamstring. If she lifts her left leg in a sitting position she will develop groin pain. Despite her pain, she says she gets around ‘quite well’. Her walking is unrestricted.
Sternum
If she picks up a weight, she has a feeling of pressure in her sternum.”
[13]Medical Assessor Kuru noted Ms Estall’s current and proposed treatment:
“Ms Estall intermittently takes paracetamol a couple of times a week. At the time of review, she was not engaged in an exercise-based rehabilitation program but she was enrolled at Planet Fitness.”
[14] Medical Assessor Kuru recorded Ms Estall’s general presentation:
“Clinical examination
General presentation
On examination, she was a well looking woman in no obvious distress.
Trendelenburg’s test is normal. Heel-toe stance is normal. Neurological examination of the lower limbs demonstrates symmetrical knee and ankle reflexes with down going Babinskis. Peripheral power is intact.
Hip range of motion was normal and symmetrical and recorded as follows:
MOVEMENT
LEFT
RIGHT
Extension
0°
0°
Flexion
120°
120°
Abduction
50°
50°
Adduction
30°
30°
External rotation
30°
30°
Internal rotation
20°
20°
There was tenderness over the right trochanteric bursa.
Examination of the lumbar spine range of motion demonstrated flexion to the proximal third of the tibia. There was asymmetrical movement on extending from the flexed position.”
[15] Medical Assessor Kuru recorded Ms Estall was co-operative throughout the assessment.
[16] Medical Assessor Kuru summarised relevant documentation:
“Review of documentation
Summary of relevant documentation
I was able to review the report by Dr Dixon dated 14/04/2022. Dr Dixon found restriction of movement in the hips more so on the left than on the right but noted Ms Estall was neurologically intact. He observed more chest expansion with some sternal pain.
He noted MRI of the pelvis dated 28/07/2021 which showed a ‘non-displaced vertical fracture through the left sacral ala’.
Subsequently he assessed 2% for the sternal fracture on the basis of being comparable to a fractured ilium, 10% for the fracture of the sacrum of the left sacroiliac joint, 3% for bursitis from either hip and 2% for stiffness on the basis of restricted movement of the hip.
I was able to review paperwork relating to the hospital admission at Bowral Hospital subsequent to the accident. Scan of the cervical spine and thorax was reported as demonstrating no acute injuries. I note Emergency Department presentation to Campbelltown Hospital approximately a month after the accident with ‘left hip pain’. The diagnosis was left sided sciatica.
I note the report by Dr Wallace dated 26/10/2022. At that time, Dr Wallace does not note any restriction in range of motion of the hip. He notes normal respiratory excursion. He assesses 0% impairment for the sacral fracture.”
[17] Medical Assessor Kuru reviewed relevant medical imaging:
“28/07/2021: MRI pelvis: Non-displaced fracture of the left sacral ala. Insertional tendinitis of the right abductor mechanism.
21/12/2022: MRI lumbar spine: Early L3/4, L4/5 stenosis. Right sided L5/S1 foraminal stenosis.”
[18] Medical Assessor Kuru made the following determinations:
Determinations
Diagnosis and reasons
Spine - Fracture of the left sacrum, residual bursitis. Sciatica radiating from back and projecting to hip, back of leg to behind the knee area.
Fracture of the left sacrum was caused by the motor vehicle accident. Residual bursitis was not caused by the motor vehicle accident (it was a pre-existing condition).
Lateral recess stenosis and compression of S1 root and L5 nerve root in the foramen.
Lateral recess stenosis and compression of the S1 root and L5 nerve root in the foramen were preexisting conditions and not caused by the motor vehicle accident. Ms Estall did not report being symptomatic from sciatica at the time of review.
Left hip - Post traumatic stiffness with groin and hip rotation. Stiffness and injury to the bilateral trochanteric bursitis.
Ms Estall demonstrated no asymmetric restriction of hip range of motion today. There was tenderness over the right greater trochanter consistent with trochanteric bursa.
Pelvis – Left sided vertical sacral insufficiency fracture with partial extrusion into the superior SI joint.
Fracture of the left sacrum was caused by the motor vehicle accident.
Left hip – Post traumatic stiffness with groin and hip rotation. Stiffness and injury to the bilateral trochanteric bursitis
Residual bursitis was not caused by the motor vehicle accident (it was a pre-existing condition).
Ms Estall did not report being symptomatic from sciatica at the time of review.
Sternal fracture – chest pain.
The sternal fracture was caused by the motor vehicle accident. It has healed.
Sacrum/coccyx – aggravation to the sacrum/coccyx.
The sacral fracture has healed. There is no evidence of aggravation to a previous coccygeal fracture.
[20] – [22] Medical Assessor Kuru summarised the injuries referred by the parties:
“The following injuries WERE caused by the motor accident:
Spine - Fracture of the left sacrum, residual bursitis. Sciatica radiating from back and projecting to hip, back of leg to behind the knee area.
Pelvis - Left sided vertical sacral insufficiency fracture with partial extrusion into the superior SI joint
The following injuries WERE NOT caused by the motor accident:
Lateral recess stenosis and compression of S1 root and L5 nerve root in the foramen.
Sacrum/coccyx – Aggravation to the sacrum/coccyx.
The following injuries caused by the motor accident have resolved
Left hip - Post traumatic stiffness with groin and hip rotation. Stiffness and injury to the bilateral trochanteric bursitis
Sternal fracture – chest pain.”
[23] Medical Assessor Kuru found “it unlikely that permanent impairment will change substantially and by more than 3% in the next year with or without treatment.” Medical Assessor Kuru referred to relevant guidelines.
[24] Medical Assessor Kuru recorded a permanent impairment table:
| Body Part or System | AMA4 Guides/Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR Subsequent causes | %WPI* due to motor accident | |
| 1 | Lumbar spine | Page 3/108 | Yes | 5 | 0 | 5 |
| 2 | Pelvis | Page 3/131 | yes | 0 | 0 | 0 |
* %WPI = percentage whole person impairment”
EVIDENCE
The documentary evidence before the Panel consisted of the Insurer’s Review Bundle lodged on 29 October 2024 and the claimant’s Index for Application in Personal Injury Commission (Review Matter) which was separately lodged on 24 October 2024.
The insurer’s Bundle comprises 28 pages, and Ms Estall’s bundle comprises 976 pages. The Panel has considered this material.
Medico-legal evidence
The panel had available to it the diagnostic investigations and reports, treatment, and medico-legal, which were available to the Medical Assessor.
SUBMISSIONS
The claimant’s submissions of 20 August 2024
I briefly summarise the Submissions of Ms Estall dated 20 August 2024 by reference to paragraph numbers:
[1] – [3] The claimant submitted an Application for Review within 28 days of the issuance of Medical Assessor Kuru’s Certificate on 23 July 2024. The claimant argued that errors in the assessment would create a "sense of unease” and warrant referral of the application to the Panel.
Ground one
[4] – [7] The claimant submitted Medical Assessor Kuru failed to provide reasons regarding lateral recess stenosis and compression of S1 root and L5 nerve root. On page 6 of his assessment, Medical Assessor Kuru reported the stenosis and compression were pre-existing conditions and not caused by the motor vehicle accident. The claimant submits this finding is not sufficiently explained and lacks adequate reasoning to a legal standard.
Ground two
[8] – [12] At page 6, Medical Assessor Kuru reported residual bursitis in the left hip was a pre-existing condition and not related to the motor vehicle accident. The Claimant submits that Medical Assessor Kuru failed to consider whether the accident made a material contribution to the Claimant’s level of impairment. The Claimant submits Medical Assessor Kuru failed to consider whether the accident may have aggravated the bursitis. The Claimant submits there was no evidence the Claimant was symptomatic in the left-hip prior to the accident.
Ground three
[13] – [16] Dr Dixon found 3% whole person impairment in both claimant’s hips. Table 64 of the AMA 4 Guides and the Guidelines refers to trochanteric bursitis with abnormal gait resulting in 3% whole person impairment. The claimant submits Medical Assessor Kuru did not consider Table 64 and assessed the Claimant under irrelevant criteria, failing in his obligations as Medical Assessor.
The insurer’s reply submissions of 30 August 2024
I briefly summarise the submissions of the insurer 30 August 2024 by way of reference to paragraph numbers:
[1] – [6] The insurer submits the findings of Medical Assessor Kuru were correct. Medical Assessor Kuru found injuries to the spine and pelvis gave rise to a permanent impairment of 5%. Medical Assessor Kuru found injuries to the left hip and sternal fracture were caused by the accident but did not contribute to assessable permanent impairment. Medical Assessor Kuru found the stenosis and compression and aggravation to the sacrum/coccyx were injuries not caused by the accident.
[7] – [11] The insurer submits Medical Assessor Kuru provided adequate reasons in determining the stenosis and compression were not causally related to the accident. “At paragraph 18, the Medical Assessor stated ‘Lateral recess stenosis and compression of the S1 root and L5 nerve root in the foramen were pre-existing conditions and not caused by the motor vehicle accident. Ms Estall did not report being symptomatic from sciatica at the time of review.’
Further, at paragraph 16, Medical Assessor Kuru evaluated the relevant documentation. The insurer notes, in particular, that neither the report of Dr Wallace dated 26 October 2022, nor the report of Dr Dixon dated 14 April 2022 diagnosed the claimant with an injury of lateral stenosis and nerve root compression of L5 and S1.”
[12] – [15] The insurer submits reports relied upon by the claimant and Insurer do not reference this injury. The insurer submits the path to the Medical Assessors finding is adequately established.
[16] – [25] The insurer submits the Medical Assessor was correct in finding the residual bursitis was unrelated to the accident. The insurer references evidence of the claimant’s historical diagnoses of sciatica, normal hip range of motion upon clinical examination and unrestricted walking. The insurer submits the temporary stiffness and pain to the left hip caused by the accident was resolved and unrelated to the bursitis. The Insurer submits the claimant’s is overzealous in its scrutiny of the Medical Assessor’s reasonings and that there was no error.
[26] – [34] The insurer submits Dr Dixon incorrectly assessed the claimant’s hip impairment. The insurer submits Dr Dixon erred in his estimate by combining Table 64 and Table 40 of the AMA 4. The insurer submits the Medical Assessor was correct in using the “most specific method of impairment assessment” as determined by his clinical expertise. The insurer submits Table 64 of the AMA 4 is irrelevant to the claimant’s symptoms.
THE PANEL’S RE-EXAMINATION
Medical Assessor Christopher Oates examined Ms Estall for the Panel on
14 February 2025.Ms Estall was directed to take with her all diagnostic investigations and other material which she had taken with her on the occasion of her examination by Medical Assessor Kuru on 15 December 2024.
A further direction was made that given the nature of the examination, a chaperone was to be available.
Medical Assessor Oates reported that Ms Estall attended the examination alone and that after he had taken the history, a female chaperone was called into the examination room and was present for the entire clinical examination.
Ms Estall changed into and out of an examination gown behind a screen, unobserved.
The report of the Panel follows:
Medical Assessor Oates recorded Ms Estall’s history:
History
Medical Assessor Oates was informed by Ms Estall (the claimant) that she had been somewhat upset after recently receiving the sad news that her husband had been diagnosed with a terminal illness and was undergoing chemotherapy. She also expressed disappointment with inaccuracies in a previous examination report, which stated she was right-handed, when, in fact, she is left-handed.
Pre-accident medical history and relevant personal details
Ms Estall stated that she retired in 2017 from her work as a relationship counsellor. In the past, she had fractured her right 5th metacarpal, which was splinted. She also had osteoarthritic changes of Heberden’s nodes on the interphalangeal joints of the fingers of both hands and bunions in both feet.
She had hypertension, for which she was prescribed Atacand, Natrilix, and Ezetrol, and also took Crestor for high cholesterol. These medications were taken prior to the accident. She also took a combination of Vitamins K and D, along with a fish oil supplement.
Ms Estall acknowledged being aware of a past history of osteopaenia and, in March 2021, she had seen Dr Soji Swaraj, an endocrinologist, following a probable spontaneous fracture of T8. She was diagnosed with osteoporosis and was being treated with Alendronate 150mg per month. At her last bone mineral densitometry (BMD) scan, a few months before, her condition had improved from osteoporosis to osteopaenia.
She reported that approximately eight years ago, she had fallen down steps and sustained a coccygeal fracture but had made a full recovery.
Ms Estall believed her left leg was slightly longer than her right, which she recently discovered while standing in a hydrotherapy pool. She did not recall any previous problems with trochanteric bursitis or sacral or other pelvic issues.
History of the accident
Ms Estall stated that she had been a passenger in the front seat of a Toyota Aurion sedan driven by her husband. She had been wearing a seatbelt. They were in lane one of a four-lane section of road, with an 80kph speed limit outside Mittagong. They had been in traffic, having passed through sets of traffic lights, and were at a third set in a line of cars.
A loaded B-double gravel truck hit a van, which was in the traffic behind them, at about 60kph. The van then hit the rear of their car, crumpling the boot, and shunted the car into a sedan in front, crumpling the bonnet of the Aurion such that the view out of the front windscreen was obscured. Side and front airbags deployed.
At the time of impact, Ms Estall had somehow hit her left arm within the cab, which activated an emergency function on her Apple smartwatch, and an emergency voice call came through on her watch. Police attended the scene. She was assisted by an off-duty Intensive Care Unit nurse, who helped support her weight. Ms Estall complained of central chest pain and aching in her lower back and pelvis.
An ambulance arrived, and paramedic records indicated central chest pain, along with right and left trapezial and neck pain. She was taken to Bowral Hospital, where CT scans of her cervical spine and chest showed no fractures.
Hospital personnel indicated that she was fit to go home. She and her family protested, as she did not feel well enough to leave, but eventually, they accepted the advice, and her son drove her and her husband home. Hospital records indicated tenderness in the sternum but no pelvic or spine tenderness.
History of symptoms and treatment following the accident
Ms Estall saw her GP, Dr. Yapa, at Campbelltown on 7 June 2021. Due to continuing symptoms, she was referred for further imaging.
Before this, she had attended Campbelltown Hospital on 14 June 2021 and was diagnosed with sciatica. The hospital records referred to left hip and left sciatic pain, which improved with analgesia. She was given Endone and instructed to take this as required, along with Naprosyn and amitriptyline.
Because the pain persisted, she saw her GP again and had a bone scan on
21 June 2021, which showed an acute fracture of the left sacral ala, a fracture of the sternal body, and fractures of the right 3rd, 4th, and 5th ribs. Prior to this investigation, she had been advised to resume normal activities as best as she could, but after the results, she was instructed to avoid all lifting and exertion.
She underwent treatment, and the left-sided symptoms affecting her leg settled down. However, she continued to experience tension in her left buttock and hamstring, as well as ongoing right-sided low back pain radiating to the hamstring and back of the knee.
In August 2021, she reported soreness in her right hamstring to Dr. Yapa. An ultrasound doppler scan of the right leg was conducted, but no evidence of deep vein thrombosis was found.
She was referred to Dr. Herald, an orthopaedic surgeon, and saw him on
23 June 2021 and 4 August 2021. He noted marked left sacral alar tenderness and right rib tenderness and recommended conservative treatment.
Due to continuing right posterior thigh pain, her GP ordered an MRI scan of the lumbar spine on 21 December 2022. The MRI revealed a broad-based right paracentral and lateral L5/S1 disc bulge, with the right lateral recess being markedly narrowed by the disc. The right L5 nerve root appeared to be compressed at this level within the lateral recess, and there was mild compression of the descending right S1 nerve root. The left-sided exiting and descending nerve roots were preserved.
She was then referred to Dr. Damodaran, an orthopaedic and spine surgeon, on
1 February 2023. He felt that she was likely to require spinal surgery in the future.
She had an update MRI scan on 9 December 2024 to check progress, which indicated that she still had right-sided L5 and probable right S1 nerve root compression. Her next review with Dr. Damodaran was scheduled for 25 February 2025.
Details of any relevant injuries or conditions sustained since the accident
Ms Estall had not sustained any further injuries or relevant conditions since the motor accident.
Current symptoms
She continues to experience right low back pain radiating to her hip area, right gluteal region, and hamstring, extending down the leg as far as the back of the knee. This pain occurs daily. She experiences occasional left-sided back, upper thigh, and gluteal pain, but this is negligible and occurs about once a week.
She is unable to get on her pushbike for exercise because she cannot lift her right leg over the bike. Before the accident, she shared housework with her husband, including mowing the lawn, which she enjoyed. However, since the accident, her husband has not been able to take over this task due to his illness, and now they need to hire someone for this job. Her husband always did the gardening, as he enjoyed it.
Ms Estall can still look after her orchids, but she can only do light housework. She can cook and use the clothes washer and dryer, and she can only lift light weights. Her husband does the vacuuming and sweeping, as this activity aggravates her back pain.
She noted that she weighed 71kg at the time of the accident, but her weight has increased to 77kg. She attributed this in part to a lack of exercise, as she is no longer able to do lifting tasks, mow the lawn, or ride her bicycle.
Her sternum is mostly not too bad, although it twinges on wet days. Her ribs are also okay.
She has to lift her right leg in and out of the car. Her left leg and hip movement are satisfactory. She is unable to climb up onto the running board of a 4WD because of her right leg.
Current treatment
She takes occasional paracetamol on an as-needed basis for “discomfort.”
Clinical examination
Medical Assessor Oates then proceeded to a clinical examination.
“General presentation
Her height was 161cm and weight 76.5kg. She was of solid build.
She stood erect but there was a thoracic scoliosis convex to the right and there appeared to be some pelvic tilt, with the left hip slightly higher than the right when standing. There was a rolling gait at the right hip with antalgic gait on the right leg.
She sat comfortably and was able to transfer without observed difficulty on and off the examination couch.
Lumbar spine (lumbosacral)
Flexion three-quarters of normal with complaint of pulling down the right hamstring. Extension three-quarters with no complaint. Lateral flexion to the right three-quarters and to the left two-thirds. Dysmetria was present.
Thoracic rotation was full bilaterally.
Reflexes were normal and plantar responses were both flexor. Power was equal in the lower limbs and sensation was normal in the lower limbs.
Leg length from ASIS to medial malleolus; right 88cm, left 89cm.
Straight leg raising indicated tight hamstring on the right at 70° with negative stretch test and was negative on the left.
Thigh girth; right 50.5cm, left 51.5cm at 10cm above the superior patellar pole.
Calf girth; right 40cm, left 41cm at maximal girth.
Lumbar radiculopathy was not present.
There was no bony tenderness of the pelvis or over the lumbar spine. There was no guarding or muscle spasm in the lumbar spine. There was no pain on springing the pelvis whilst supine. There was no tenderness over the trochanteric bursa in either hip.
She showed me a photograph showing increased wear of the sole of her left slipper.
Range of movement (ROM) measured with a goniometer.
| Hip Movements | Active ROM Measured LEFT | Active ROM Measured RIGHT |
| Flexion | 110° | 100° |
| Extension | +10° | +10° |
| Abduction | 50° | 40° |
| Adduction | 30° | 30° |
| External Rotation | 30° | 20° |
| Internal Rotation | 20° | 20° |
Consistency of presentation
Ms Estall presented in a consistent manner during the clinical examination.”
Additional imaging brought to re-examination
Medical Assessor Oates confirmed that the following additional material was brought to the re-examination:
“07/12/2024 MRI lumbar spine – N Ganeshan - Clinical indication: 70 year old patient. L5 plus S1 lumbar radiculopathy. Report - Right paracentral and para foraminal L4/5 disc protrusion with right L5 foraminal and potentially right S1 lateral recess root compression. Active facet joint inflammation at right L 4/5 with bone oedema/stress reaction extending to the pedicle of L5. Multi-level facet joint arthropathy at the lower 3 lumbar levels. Disco. vertebral changes throughout the lumbar spine with minimal degenerative spondylolisthesis at L4/5.”
Diagnosis, causation and reasons
The diagnosis was undisplaced sternal fracture, fracture of right 3rd, 4th and 5th ribs, and fracture of left sacral ala, lumbar spine soft tissue injury with referred symptoms to lower extremities.
These fractures were missed at the initial hospital assessment. She later attended her local hospital and was apparently misdiagnosed with left-sided sciatica, when in fact the problem was pain arising from the left sacral fracture.
Her GP eventually arranged a bone scan on 21 June 2021, some three weeks after the accident, which diagnosed the sternal, right ribs and left sacral fractures.
Based on the evidence of pain in these areas, which manifested at the time of the accident and shortly thereafter. Medical Assessor Oates considered that the accident was a cause of the injuries.
The Panel agreed with the opinion that severe deceleration against the seatbelt and an additional direct trauma to the chest wall from the airbag was, on the balance of probabilities, a substantial contributing factor to the cause of the chest injuries and trauma to the left sacral area and that this was associated with and probably caused by the double impact.
The claimant was definite that she had right-sided low back symptoms radiating to the adjacent gluteal area and upper posterior right thigh from early on after the accident, although the other fracture injuries occupied the attention of her medical attendants and physiotherapist.
Eventually, she had an MRI scan of the lumbar spine showing an L5/S1 disc prolapse with compression of right L5 and S1 nerve roots, which would fit with the right lower extremity symptoms complained of. It is more likely than not that the accident was a material contributing cause to this lumbar spine injury, which was not diagnosed initially, having been masked by more prominent pain from fracture injuries.
There was no indication of bilateral trochanteric bursitis and no indication of aggravation to a previous coccygeal fracture injury.
On clinical examination, there is no indication of two or more signs to enable a diagnosis of lumbar radiculopathy being present today. MAG cl 6.138”
THE REVIEW PANEL’S DELIBERATIONS
The Review Panel held a second meeting by Microsoft Teams on Monday
28 April 2025 and discussed Medical Assessor Oates’ diagnosis and his opinions on causation. The Panel carefully considered his reasons and in particular, without limiting the generality, the proposition that the mechanism of the accident was consistent with causing the injuries diagnosed by Medical Assessor Oates.The Panel concluded that the accident was the cause of the injuries. The panel considered that the mechanism of the accident was consistent with the injuries which Panellist Oates had diagnosed.
At the lumbar spine there was asymmetric loss of active range of motion but no guarding or spasm and no radiculopathy.
The differentiators present placed her in DRE Lumbosacral Category II giving 5% whole person impairment.
The healed sternal and rib fractures, which were uncomplicated and not displaced based on information available, did not result in any assessable permanent impairment. (Reference: MAG, cl 6.23).
The fracture of the pelvis was assessed as per Section 3.4, page 131, AMA4. A healed fracture of the sacrum without displacement or residual signs is assessed at 0% whole person impairment.
MRI scan of pelvis dated 28/7/2021 indicated the vertical fracture through the left sacral ala is non-displaced. Section 3.4 of AMA4 indicated a healed fracture of the sacrum extending into the sacroiliac joint which would have attracted a 10% WPI if it were displaced, with deformity and residual signs. This was not the case here.
There was restricted ROM at the right and left hips, with rotation in each hip resulting in 2% whole person impairment at external and internal rotation. Only one plane of movement is chosen according to MAG cl 6.85.
The hip ROM was measured with a goniometer bilaterally.
Therefore 2% whole person impairment was assessed from loss of movement at the right hip and the left hip respectively.
The combined whole person impairment was 9% with 5% for the lumbosacral spine, 2% for the restricted ROM of the right hip and 2% for restricted range of the left hip. Giving a total of 9% whole person impairment.
The Panel’s consideration of the Submissions
The Panel refers to the submissions by the Insurer at [7]-[11].
The insurer submits that Medical Assessor Kuru provided adequate reasons in determining that the stenosis and compression were not causally related to the accident, but rather the compression of the S1 Root and the L5 Root were pre-existing.
Medical Assessor Oates at [85] considered that the MRI scan showing an L5/S1 disc prolapse and compression was consistent with the persistent right lower extremity symptoms complained of and more likely than not a material contributing cause to the lumbar spine injury.
At [83], the Review Panel was of the view that the mechanism of the accident was consistent with causing the injuries, including the injury to the lumbosacral spine, with severe deceleration against the seatbelt and, on the balance of probabilities, additional direct trauma to the chest wall from the airbag and that this trauma to the lumbosacral area happened at the time of the double impact.
The accident was a significant accident – see paragraph [39] above.
DETERMINATION
The Review Panel revokes the certificate of Medical Assessor Kuru, dated
17 June 2024, and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident, gave rise to a whole person impairment of 9%.
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