Ho v Allianz Australia Insurance Limited
[2025] NSWPICMP 596
•12 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Ho v Allianz Australia Insurance Limited [2025] NSWPICMP 596 |
CLAIMANT: | Yi Swen Ho |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 12 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of degree of permanent impairment; insured vehicle collided with the claimant’s motorcycle; claimant was transported to hospital where he underwent surgical treatment for a deep laceration of his left leg and a fracture of his left lower leg; Medical Assessor (MA) found 5% whole person impairment (WPI) for injuries to the left leg, right knee, and scarring; MA found a number of other injuries not caused; claimant’s review application based upon causation; Held – Review Panel found all referred injuries caused but no change to assessment of WPI; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 5 February 2025 and issues a new certificate determining that: (a) The following injuries caused by the motor accident give rise to a permanent impairment of 5% AND IS NOT GREATER THAN 10%: · left ankle; · right knee; and · skin-scarring-left leg, right knee. (b) The following injuries caused by the motor accident have resolved with no assessable permanent impairment: · cervical spine; · thoracic spine; · lumbar spine; · left and right shoulders; and · left knee |
.
(a)
STATEMENT OF REASONS
INTRODUCTION
On 30 September 2021, at about 12.00pm, the claimant was riding his motorcycle in a westerly direction along Juno Parade at Greenacre. As the claimant’s motorcycle entered the intersection of Juno Parade and Hebe Street, the insured vehicle suddenly turned onto Juno Parade from Hebe Street, directly into the claimant’s path of travel, colliding with the claimant’s motorcycle.
The claimant was thrown from his motorcycle. The left side of his body struck the road surface. He was knocked unconscious. His first memory following the collision was waking up on the road surface surrounded by people. Ambulance and Police Officers attended the scene. The claimant was transported to Liverpool Hospital where he underwent surgical treatment for a deep laceration of his left leg and a fracture of his left lower leg. He was discharged from Liverpool Hospital, after about three days, wearing a CAM boot and utilising crutches. The claimant’s motorcycle was written off by his insurer.
Allianz (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (Act). The insurer wholly admitted liability for the claimant’s common law damages claim. The insurer would not concede that the claimant’s permanent impairment, arising from his accident-related injuries, exceeded the 10% statutory threshold. That decision was based upon the opinion of Dr Mitchell, occupational physician, who assessed 0% whole person impairment (WPI).
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Nigel Menogue for determination of the dispute.
Medical Assessor Menogue certified on 5 February 2025 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%:
- left leg – undisplaced fibula fracture/laceration – wound requiring suture
- right knee – laceration requiring suture
- skin – scarring – left leg, right knee
Medical Assessor Menogue made no adjustment for pre-existing/subsequent impairment.
He assessed 3% whole person impairment (WPI) for the left leg (ankle) and 2% WPI for scarring of the left shin.
Medical Assessor Menogue also found that the following injuries WERE NOT caused by the motor accident:
·cervical spine
·thoracic spine
·lumbar spine
·right shoulder
·left shoulder
·left knee
He stated that, as causation had not been established between the subject accident and those injuries, no diagnosis can be provided.
THE REVIEW
The claimant sought a review of Medical Assessor Menogue’s certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The claimant relied on the particulars set out in the application and supporting documentation.
The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submits there is a reasonable cause to suspect that Medical Assessor Menogue’s certificate is incorrect in a material respect for the following reasons:
(a)The Medical Assessor largely ignored the contents of the claimant’s treating medical records and ongoing post-accident complaints of pain, discomfort and restricted movement in the neck, mid-back, low back, both shoulders and left knee.
(b)The Medical Assessor erroneously determined that, in the absence of any referral for radiological investigations in relation to the above injuries, the same conclusively results in a negative finding on causation, which the claimant submits is wrong at law, citing Bugat[1].
(c)The claimant further submits that the Medical Assessor wrongly determined no injury or impairment to the claimant’s shoulders, arising from the subject accident, on the erroneous basis of the claimant’s not being referred for radiological scans, in the absence of any evidence of direct injury.
(d)The claimant submitted that is a direct and significant breach of the Nguyen[2] principle noting the claimant’s consistent complaints and evidence of pathology in both the cervical and lumbar spines, with consistent respective reports of radicular pain into the upper and lower limbs, as a result of same.
(e)The claimant submitted that the Medical Assessor’s findings failed to deal with the claimant’s clinical complaints, as recorded by his treating GP, Dr Sivasaleen, all of which were absent from the claimant’s clinical records, in the period pre-dating the subject accident.
(f)The claimant referred to differences between the assessment and measurements undertaken by the Medical Assessor in comparison to those undertaken by the claimant’s qualified orthopaedic surgeon, Dr Peter Giblin, as per his report dated 11 July 2023.
(g)The claimant submitted that the Medical Assessor made causation findings which are speculative and which contradict the medical evidence.
(h)The claimant also submitted that none of the allegedly erroneous and negative findings on impairment and/or causation were put to the claimant for comment, resulting in a denial of procedural fairness. The claimant referred to cl 6.41 of the Motor Accident Guidelines which require that any inconsistencies between the Medical Assessor’s clinical findings and information obtained through medical records and/or observations of none-clinical activities, must be brought to the claimant’s attention for response.
[1] Bugat v Fox [2014] NSWSC 888
[2] Nguyen v The Motor Accidents Authority of NSW and Zurich Australian Insurance Limited [2011] NSWSC 351
Briefly, the insurer submitted as follows:
Error 1 – Alleged failure to engage with evidence
·The insurer submits that the Medical Assessor provided a comprehensive certificate, having regard to both the treating and Medico-legal evidence, and the findings of a thorough physical examination. The insurer notes that the Medical Assessor listed all of the medical documents, to which he had regard, in coming to his causation findings.
Error 2 – Alleged failure to disclose pathway of reasons
·The insurer cites relevant authority to the effect that the obligations of Medical Assessors to provide reasons for their determination are to be construed very narrowly[3]. The insurer submits that the reasoning provided by the Medical Assessor satisfies the common law authorities governing the standard of reasoning required to be given.
Error 3 – Alleged failure to address the issue of causation
·The insurer notes the claimant’s original permanent impairment application was not accompanied by any submissions. The insurer cites relevant authority to the effect that the scope of a medical dispute is defined, not by the Act or bundles of evidence, but by the parties’ submissions[4]. The insurer says the claimant did not make an argument regarding causation in his submissions and seeks to agitate that issue only after the medical assessment was finalised.
·The insurer submitted that it was not incumbent on the Medical Assessor to simply agree with or adopt Dr Giblin’s findings, but rather, he was required to use the entire gamut of clinical skill and judgment to form his own opinion.[5] The insurer then gives particulars of how, in its submission, the Medical Assessor properly came to his view that injuries to the cervical spine, thoracic spine and both shoulders were not caused by the motor accident, contrary to Dr Giblin’s opinion.
Error 4 – Alleged failure to afford the claimant procedural fairness
·The insurer proceeded on the basis that the claimant’s submission was made in relation to the variance between the shoulder range of motion findings recorded by the Medical Assessor and Dr Giblin. The insurer refutes any suggestion that the Medical Assessor was required to bring to the claimant’s attention a slight variance between the range of motion observed during his examination and that recorded by Dr Giblin. The insurer notes the time that elapsed between the assessments made by Dr Giblin (11 July 2023), Dr Mitchell on 30 May 2024 and the Medical Assessor on 16 January last. The insurer also submitted that clauses 6.40 and 6.41 of the Motor Accident Guidelines pertain to circumstances where there are gross or significant inconsistencies.
[3] Wingfoot v Kocak [2013] HCA 43, Ali v AAI [2016] NSWCA 110 and Insurance Australia v Milton [2016] NSWCA 156
[4] Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 and Elammar v AAI t/as AAMI [2024] NSWPICMP 280
[5] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Limited v Marsh [2022] NSWCA 31
The insurer finally submitted that the claimant failed to explain how any of the alleged errors made by the Medical Assessor were material. Hence, the requirements for a review had not been satisfied.
President’s delegate Tajan Baba issued a Determination of an Application for Review of a Medical Assessment on 10 April 2025 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor’s determination of causation of the spinal and shoulder injuries and failure to address relevant material of post-accident complaints of those injuries.
Accordingly, the review application was accepted and was referred to the Panel, which is to reassess all of the injuries referred to Medical Assessor Menogue, unless the parties otherwise agree.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
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.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[7]
[7] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
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 contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
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.”
See Briggs v IAG Limited t/as NRMA Limited.[9] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[10] wherein his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[9] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[10] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
BUNDLES OF DOCUMENTS
The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Panel has considered:
No.
Document
Date
Page
1
Claimant’s submissions (see previously)
05.03.2025
2
2
Certificate of Medical Assessor Nigel Menogue
05.02.2025
11
Relevant correspondence
3
Letter from Allianz – unable to concede WPI
16.07.2024
29
Clinical notes
4
Clinical notes – Liverpool Hospital
18.02.2022
32
5
Clinical notes – Southside Medical Centre
10.05.2022
166
6
Clinical notes – Southwest Sydney Orthopaedics
20.03.2024
200
Medical report
7
Report by Dr Matthew M Giblin, orthopaedic specialist, to the claimant’s lawyers
11.07.2023
215
Dr Giblin describes his detailed physical examination and then, under the heading INVESTIGATIONS, says as follows:
“X-rays done at the hospital, on day of admission, where all his left tibia and fibula that showed an undisplaced transverse fracture of the shaft of the fibula at the junction of the middle and lower thirds. Small boney fragments noted adjacent to the anterior margin of the tibial plafond, but does not represent a recent fracture. He also had X-rays of the left foot, both knees, pelvis, both hands, right forearm and right humerus and all were considered normal.”
Under the heading OPINION AND PROGNOSIS, Dr Giblin states as follows:
“It is my opinion this gentleman’s injuries were consistent with the accident described. In the absence of any investigations for his cervical and lumbar spine, I consider he has had a soft tissue injury.
In relation to his shoulders, he has restriction of movement, as per the case of Nguyen.
He has had soft tissue injuries to both elbows and both wrists.
He has bilateral chondromalacia patellae to his knees. He sustained a fracture of his left fibula and he has significant contusions to his right knee and his left lower leg. Generally, he moves around the room slowly, he tends to use a walking stick and he tends not to put a lot of weight on the left leg.
Overall, I felt that the injury had affected his personality to the extent that he had a heightened sensitivity to pain, which is associated with anxiety and apprehension.”
In a separate Permanent Disabilities of the same date, utilising AMA 4, Dr Giblin records as follows:
Body part
Description
Cervical spine
Was assessed using Table 73, page 110. He falls into DRE Cervical Category (2) with 5% WPI.
Thoracic spine
Was assessed using Table 74, page 111. He falls into DRE Thoracic Category (1) with 0% WPI.
Lumbar spine
Was assessed using Table 72, page 110. He falls into DRE Lumbar Category (2) with 5% WPI.
Right shoulder
Flexion/extension – figure 38, page 43. Flexion of 110° gives 5% of the other limb. Extension of 40° gives 1% of the upper limb.
Abduction/Adduction – figure 41, page 44. Abduction of 120° gives 3% of the other limb. Adduction of 10° gives 1% of the other limb.
Internal rotation/External rotation – figure 44, page 45. Internal rotation of 70° gives 1% of the other limb. External rotation of 70° gives 0% of the other limb.
5% + 1% + 3% + 1% +1% = 11% of the other limb.
Using Table 3, page 20, 11% of the other limb equates to 7% whole person impairment.
Left shoulder
Flexion/Extension – page 38, page 43. Flexion of 110° gives 5% of the other limb. Extension of 40° gives 1% of the other limb.
Abduction/Adduction – figure 41, page 44. Abduction of 110° gives 3% of the other limb. Adduction of 10° gives 1% of the other limb.
Internal rotation/External rotation – figure 44, page 45. Internal rotation of 70° gives 1% of the other limb. External rotation of 70° gives 0% of the other limb.
5% + 1 + 3 + 1 + 1 = 11% of the other limb.
UsingTable 3, page 20, 11% of the other limb equates to 7% WPI.
Both knees
Were assessed using Table 62, page 83 (Addendum). He has a history of retro patella crepitus and pain which gives 2% per knee.
Left ankle
Range of movement – Table 42, page 78. He has plantar flexion of 20° which gives 3% WPI.
Extension of 0° gives 3% WPI.
These are to be added:
3% + 3% = 6% WPI
Scars
Assessed using Table 2, page 280. He falls into Class (1) with 2% WPI.
Dr Giblin finds 30% WPI using the Combined Values Chart.
Certificate of Capacity
8
Certificates of Capacity
30.09.2021 to 19.04.2024
223
The Panel notes that, contrary to the direction made on 12 June 2025, the claimant did not indicate which parts of the clinical notes and/or other treatment records are said to be relevant to the matters in issue.
The insurer relied upon the following material which the Panel has considered:
No.
Document description
Date
Page
R1
Insurer’s submissions
03.10.2024
3
The insurer firstly made procedural submissions in support of dismissal of the claim for the reason that it had not been properly formulated.
The insurer then submitted that cervical spine injury, suffered as a result of the subject accident, was minor and has completely resolved, leaving no assessable permanent impairment. The insurer submits that the contemporaneous medical evidence is not consistent with the reported symptoms. The insurer refers to the claimant’s denial of any cervical spine tenderness to NSW Ambulance personnel at the accident scene and the absence of any reference to a cervical spine injury in the Liverpool Hospital records and the post-accident clinical notes. The insurer submits that, at most, the claimant sustained a soft tissue injury to the cervical spine which has long resolved and does not give rise to any assessable impairment.
The insurer concedes that the claimant suffered a soft tissue thoracic spine injury in the accident. The insurer disputes that the thoracic spine injury gives rise to any assessable impairment, consistent with the opinions of Dr Giblin and Dr Mitchell.
The insurer disputes causation of a lumbar spine injury, and, in the alternative, submits that any lumbar spine injury is a soft tissue injury and has resolved. The insurer notes the absence of any reference to a lumbar spine injury in the contemporaneous medical records. It further notes that the only post-accident complaint of back pain was made some three months after the subject accident. The insurer refers to the opinion of Dr Mitchell who placed the claimant in DRE 1 (0% WPI) on the basis there was no muscle guarding or spasm, no documented neurological impairment, radiculopathy or asymmetrical loss of range of motion. The insurer disputes that the lumbar spine injury gives rise to any assessable impairment.
Causation for the alleged right and left shoulder injury is disputed by the insurer on the basis of absence of any reference to either shoulder in the NSW Ambulance report, the Liverpool Hospital records and no specific complaint made at the initial post-accident GP attendance. The insurer refers to the discrepancies between the range of motion recorded by Dr Giblin and Dr Mitchell in both shoulders. If causation is found, the insurer relies on Dr Mitchell’s assessment, to the effect the bilateral shoulder injuries do not give rise to any assessable impairment.
The insurer refers to the variance between the range of motion findings for ankle/foot movement made by the treating physiotherapist and Dr Giblin. The insurer relies on Dr Mitchell’s findings in submitting that the left ankle/foot ought to be assessed at 0% WPI.
As to the claimant’s Scarring, the insurer submits that cl 6.261 should be applied, based on the currently available evidence, with a finding of 0% WPI.
Generally, in relation to the alleged injuries to both shoulders, left knee and left ankle, the insurer submits that, in accordance with cl 6.84(a) of the Guidelines, a goniometer should be used when assessing those body parts and, in accordance with cl 6.84(c), the range of motion should be measured on three occasions. If there remains inconsistency, pursuant to cl 6.84(d), range of motion should not be used as a valid parameter to evaluate impairment.
R2
Application for personal injury benefits
08.10.2021
10
R5
Report of Dr Robin Mitchell, occupational physician, to the insurer’s lawyers
17.06.2024
56
Under the heading PHYSICAL EXAMINATION, Dr Mitchell says that for the head, neck and spine – spinal alignment was normal, and the range of movement was normal in the neck and thoracolumbar back. Dr Mitchell records some restriction of movement on bilateral lateral flexion in the cervical spine and in the lumbar spine. Straight leg raising was normal bilaterally and neurologically the lower limbs were normal for both tendon reflexes and skin sensation. In the Shoulders and arms, all recorded movements were normal. The elbows, wrists and hand examined normally. Both legs were clinically normal.
Under the heading DIAGNOSIS, Dr Mitchell says as follows:
“Mr Ho reports ongoing pain in the neck, thoracic, ad lumbar back with radiation throughout the other arm on each side to the level of the elbow and also from each knee down to involve each foot in a global manner, following the subject accident.
His symptoms appeared to be of a soft tissue nature with no objective clinical evidence of underlying injury and no radiological evidence of injury other than a straight forward fracture of the leg fibular which was seen to progress onto normal healing in the expected time.
There is no objective or radiological evidence of ongoing significant injury to fully explain the relatively severe level of pain symptoms reported and the consequential disability attributed to those symptoms.”
Dr Mitchell assesses a total 0% WPI and provided the following Reasons for application of impairment rating:
·Mr Ho’s cervical spine, thoracic spine and lumbar spine has the clinical characteristics of a DRE I impairment, due to an original report of injury with some ongoing symptoms, but no observed muscle guarding or spasm. No documented neurological impairment or clinical radiculopathy, and no evidence of asymmetric loss of range of motion.
·Thus, there would be a 0% WPI with respect to cervical spine, the thoracic spine, and also with the lumbar spine.
·Shoulder joint movement was full in all directions on each side and therefore there is a 0% WPI with respect to his reported shoulder pain symptoms.
·He has made a good recovery from the fractured fibular bone sustained and with normal movement in the knee and ankle there is a 0% WPI with respect to that injury.
There is a further report dated 17/06/2024 by Dr Mitchell which is to the same effect as her previous report.
R6
NSW Ambulance report
30.09.2021
88
R7
X-ray left tibia and fibula
08.04.2022
94
FINDINGS: There is a united transverse distal fibula shaft fracture with a faint lucency. The position and alignment are anatomic.
R8
OST Physio and Allied Health – Discharge report
07.07.2023
95
R9
Insurer’s reply to review application (see previously)
25.03.2025
97
R10
Allied Universal Surveillance Investigation report and footage
05.12.2024
104
R11
Allied Universal Surveillance Investigation report and footage
23.01.2025
121
R12
Allied Universal Surveillance Investigation report and footage
20.02.2025
140
The investigator reports that exposed video depicts the claimant undertaking the following actions:
·walking;
·carrying man bag slung over his left shoulder;
·unsecuring car door utilising his right hand;
·boarding motor vehicle;
·securing car door utilising his right hand, pulling inwards;
·driving motor vehicle;
·standing on both feet;
·working within a take-away food shop;
·utilising both hands; and
·leaning forward from the waste.
The Panel Members have not seen the referenced video footage as it has not been uploaded.
R13
Correspondence serving surveillance footage
03.04.2025
157
R14
Insurer’s further submissions (see previously)
03.07.2025
161
EXAMINATION REPORT
The examination report of Medical Assessor Shane Moloney is as follows:
Yi Swen Ho
MVA 30 September 2021
Mr Ho attended the medical suites at PIC on 9 July 2025. He was unaccompanied and an interpreter was present, Yixiao Ni, NAATI no. CPN3So1G.
Pre-accident history
Mr Ho was born in Malaysia and migrated to Australia in 2015. He states that he had no previous injuries to those body parts assessed today and has a past history of a kidney stone. At the time of the accident, he was working full-time in a barbecue restaurant.
He is single and rents part of a house.
History of motor accident
On 30 September 2021, Mr Ho was riding his motorbike when a car came from the left causing a front on collision. He was wearing a helmet at the time and states he had a brief loss of consciousness. He was taken by ambulance to Liverpool Hospital. An x-ray confirmed an undisplaced fracture of the distal left fibula with laceration to the right knee and left shin.
History of symptoms and treatment following the motor accident
Mr Ho states that initially he had pain all over his body and wore a cam boot for 4 months to treat the left fibula fracture. He initially saw a GP Dr Chin and then change of GPs to Dr Sivasceton. He was referred for physiotherapy for the lower limbs. Mr Ho states that he also pain in the thoracolumbar spine region and both shoulders.
There have been no further injuries or conditions sustained since the motor accident.
Current symptoms
Mr Ho has pain in the right knee, which got worse this year, in the left ankle and also the left knee. He states that he can’t kneel down and avoids sitting in narrow seats.
He can walk but fast walking increases knee pain. He gets an occasional ache in the left knee of brief duration with some stiffness. He states that the right knee is asymptomatic.
The cervical spine and shoulders are asymptomatic and he gets occasional low back pain with prolonged sitting standing or walking with no radiation into the legs.
He no longer rides a motorbike but drives a car. Mr Ho is working full-time cooking at a takeaway fish and chip shop.
Current treatment
No medications taken at present and he does home exercises for both legs and has an occasional massage.
Clinical examination
Mr Ho walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. His height was 171 cm and weight of 100 kg.
Cervical spine
On inspection of the cervical spine there was a normal contour. On testing range of movement there was a full range of movement in flexion/extension, side bending and rotation with no asymmetry. No guarding or spasm on palpation of the cervical musculature. ?any NVRC’s.
On neurological examination of the upper limbs, reflexes were equal bilaterally with no sensory changes and normal power. No muscle wasting was apparent with the circumference of the upper arms 34 cm on the right and 33 cm on the left (10 cm above the olecranon process) and in the upper forearm 29 cm on the right and 28 cm on the left (5 cm below the olecranon process).
There was a full pain free range of movement of both shoulders with no crepitus on passive movement.
Thoracic spine
On inspection there was a normal contour and on testing range of movement, there was a full range of flexion/extension, side bending and rotation. On palpation there was some tenderness over the right lower paravertebral muscles and thoracic spine but no guarding or spasm was noted. There were no signs of radiculopathy or non-verifiable radicular complaints (NVRC’s) in the thoracic spine region.
Lumbar spine
Mr Ho was able to walk on his heels and toes and squat normally. On testing range of movement, there was a full range of flexion/extension and side bending. Straight leg raise was 80° bilaterally with negative sciatic nerve root tension signs. On palpation there was no guarding or spasm noted in the lumbar musculature. There were no NVRC’s.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 51 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 41 cm bilaterally.
Knees
On inspection of the knees no effusions were apparent and on passive movement no crepitus was detected. No ligament laxity was noted and no tenderness on palpation. There was a full pain free range of movement measured with a goniometer.
Knee Movements Active ROM Measured
RIGHT Active ROM Measured
LEFT
Flexion 140° 140°
Extension 0° 0°
Ankles
On inspection of the ankles, no effusions were apparent and no ligament laxity noted. On palpation there was tenderness over the left lower medial shin. He gets slight swelling of the left foot and stated that the left foot feels tighter when wearing a shoe.
Ankle Movements Active ROM Measured
RIGHT Active ROM Measured
LEFT
Dorsiflexion 20° 5°
Plantarflexion 30° 30°
Hindfoot Movements Active ROM Measured
RIGHT Active ROM Measured
LEFT
Inversion 30° 30°
Eversion 20° 20°
Scarring
Over the distal left shin there is a 8x2 centimetre scar. Mr Ho is conscious of the scar and there is a notable colour contrast with surrounding skin due to pigmentary changes. He is easily able to locate it and there are minimal trophic changes with no suture marks evident. The scar is easily visible if shorts are worn. There is a visible contour defect. There is negligible effect on any ADLs and he regularly uses a scar ointment containing vitamin E. There is no adherence to underlying structures.
There is also a scar on the right knee, 5x3 centimetres. The scar is visible with some colour contrast. He is easily able to locate it; there are no suture marks and the scar is visible if you wear shorts. There are no contour defect or trophic changes.
No radiological studies were available for inspection.
Discussion
Left ankle
There is documentation of a soft tissue injury to the left ankle related to the fracture of the left fibula distally. This is assessed by using range of movement and 5° of dorsiflexion. Using table 42 and 43 of AMA 4th edition this gives an impairment of 3% WPI.
Knees
Both knees had a full range of movement which is 0% WPI using table 41 of AMA 4th edition. The right knee was injured on impact with a laceration which has now healed. There was no retro patella crepitus on today’s examination or ligament laxity. There was no tenderness or retro patella pain.
Shoulders
There is no documentation of any injury to the shoulder sustained in the subject accident. On examination there was a normal range of movement which would be 0% WPI for either shoulder.
Submission ‘f’ from the claimant refers to GP record of 15/12/2021 referring to “ongoing pain in left lower leg, back pain and shoulder pain”.
Cervical, thoracic and lumbar spine
There is documentation of any specific injury to the spine sustained in the subject accident. On examination, no assessable impairment is noted. Mr Ho stated that he had pain in the back in the thoracolumbar region after the accident and ongoing back pain was reported by the treating GP on 15 December 2021. The Panel has determined that it is more than probable that Mr Ho sustained soft tissue injury to the spine due to his being knocked off his motorcycle on landing on his back on the road. At the time of the examination by the Panel Mr stated that he had no further neck or thoracic spine pain and occasionally had some low back pain with prolonged sitting or standing but no radiation into the lower limbs. The Panel considers that the soft tissue injury to the spine is now resolved. Assessor Menogue and Dr Mitchell found no rateable impairment of the spine.
Scarring
The 2 scars are assessed using the Temski chart. Classification of best fit is 2% WPI. This is the same assessment made by medical assessor Menogue. Mr Ho was conscious of the scars; there was a notable colour contrast with surrounding skin due to pigmentary changes. He is easily able to locate them suture marks are not visible and they are usually visible when wearing shorts. There is a visible contour defect and trophic changes were evident to touch. There is minimal limitation in performance of the few ADLs. Intermittent treatment is in the form of application and moisturisers.
The combined impairment is 5% WPI.
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[11]
[11] Section 7.26(6) of the Act.
The Panel is not required to choose between medical opinions and is required to form its own opinions.[12] The Panel adopts the findings and opinions of Medical Assessor Moloney with which Medical Assessor Oates concurs.
[12] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.
The Medical Assessors have explained the basis and rationale of their assessments and findings. They are similar to the findings and opinions of Medical Assessor Menogue and Dr Robin Mitchell. The impairment assessments made by the Medical Assessors vary to those made by Dr Giblin because his physical examination findings vary to those made by the Medical Assessors and Dr Mitchell. The Panel adds the following reasons.
The medical assessment of permanent impairment is made at the time of the examination. In that respect, the assessment made by Dr Giblin is outdated, and does not reflect current symptomatology, in the Medical Assessors’ opinion. The Panel notes that, when seen by Dr Giblin, the claimant apparently walked slowly around the examination room, with the aid of a walking stick. That was not the case when Medical Assessor Moloney conducted his physical examination of the claimant.
The medical Assessors have determined that the following injuries were caused by the subject accident
·cervical spine;
·thoracic spine;
·lumbar spine;
·right and left shoulders; and
·left knee,
and that all of those injuries, except to the left ankle, have resolved with no assessable impairment.
CONCLUSION
For the above reasons, the Panel revokes the certificate dated 5 February 2025. The new certificate appears at the commencement of these reasons.
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