Insurance Australia Limited t/as NRMA Insurance v Lam

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Lam [2024] NSWPICMP 410
CLAIMANT:	Matthew Lam
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Ian Cameron
DATE OF DECISION:	25 June 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment assessed greater than 10%, that is, 14%; review sought by insurer under section 7.26; claimant allegedly suffered fractures to the right tibia and fibula, right knee, right lower limb, left wrist, lumbar spine and left elbow in a motor accident on 6 June 2019; consideration and application of clauses 6.5 to 6.7 of the Motor Accident Guidelines in respect of causation; clauses 6.19 to 6.22 in respect of permanent impairment; Held – Medical Assessment Certificate revoked; the claimant’s left elbow condition was not caused by the motor accident; the claimant sustained a fractured right tibia and a fractured right fibula, sensory loss in the distribution of the right sural nerve affecting the lateral aspect of the right calf and right outer foot, a disturbance to the right patellofemoral joint, a soft tissue injury to the left wrist, and a soft tissue injury to the lumbar spine caused by the motor accident on 6 June 2019 that give rise to a permanent impairment which is not greater than 10% (at 3%).
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor James Bodel dated 19 July 2023. 2. Certifies that the claimant sustained a fractured right tibia and a fractured right fibula, sensory loss in the distribution of the right sural nerve affecting the lateral aspect of the right calf and right outer foot, a disturbance to the right patellofemoral joint, a soft tissue injury to the left wrist and a soft tissue injury to the lumbar spine caused by the motor accident on 6 June 2019 that give rise to a whole person impairment which is not greater than 10%, that is, 3%.

STATEMENT OF REASONS

BACKGROUND

The claimant, Mr Matthew Lam, is a 31-year-old man who was involved in a motor accident on 6 June 2019 whilst riding a motor cycle when, a motor vehicle travelling in the opposite direction, made a right hand turn into the path of his motor cycle (the motor accident).
On 24 June 2019, Mr Lam made a claim for personal injury benefits. The relevant compulsory third party insurer was Insurance Australia Limited t/as NRMA Insurance (the insurer).
Mr Lam claims that he suffered injuries to his right leg, lower back, left wrist, left elbow and right foot as a result of the motor accident.
Mr Lam’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A medical dispute about the degree of Mr Lam’s whole person impairment (WPI) has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) and (b) of the MAI Act respectively.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Bodel for assessment.
On 19 July 2023, Medical Assessor Bodel determined that Mr Lam suffered injuries to his lower back, right tibia, right fibula, left wrist, right knee, left elbow and right sural nerve caused by the motor accident that gave rise to a WPI greater than 10%, that is, 14% (the Medical Assessment).

REVIEW PROCEDURE

The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 4 October 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the motor accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 6 October 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
On 22 January 2024, the Panel informed the parties that it considered a re-examination of Mr Lam was required. Arrangements were made for Mr Lam to be re-examined by Medical Assessor Couch on behalf of the Panel at the Commission’s medical suites.

LEGISLATIVE FRAMEWORK

General provisions

Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Mr Lam’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines version 9.2 effective from 10 November 2023 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:

“6.6 Causation is defined in the Glossary at page 316 of the 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:
1The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

This, therefore, involves a medical decision and a non-medical informed judgement.”

Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
Subsequent injury is addressed in cl 6.34 of the Guidelines which states:

“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of a subsequent impairment, its possible presence should be ignored.”

Clause 6.19 of the Guidelines states:

“Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment. The AMA 4 Guides (page 315) state that permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% whole person impairment (WPI) in the next year with or without medical treatment). If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to these Guidelines.”

The evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 of the Guidelines.
The evaluation of permanent impairment must not include any allowance for a predicted deterioration. However, it may be appropriate to comment on this possibility in the impairment valuation report: cl 6.22 of the Guidelines.

EVIDENCE BEFORE THE PANEL

The evidence before the Panel consisted of the following:
(a) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 30 November 2023 (insurer’s documents), and
(b) Mr Lam’s indexed and paginated bundle of documents lodged on the Commission’s portal on 11 December 2023 (claimant’s documents).

ASSESSMENT UNDER REVIEW

Medical Assessor Bodel examined Mr Lam on 27 April 2023 and issued a certificate under s 7.23(1) of the MAI Act on 19 July 2023.[1]
[1] Insurer's documents at pages 12-25.
Medical Assessor Bodel was asked to assess the dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act in respect of the following:
(a)    lumbar spine – musculo-ligamentous injury to the lower back;
(b)    right leg – fractured right tibia and fibula requiring open reduction and internal fixation and dysaesthesia in the right tibia and fibula;
(c)    left wrist – musculo-ligamentous injury;
(d)    right knee – post-traumatic retropatellar crepitus;
(e)    left elbow – muscular injury, and
(f)    foot – altered sensation in the territory of the right sural nerve on the lateral aspect of the calf and outer foot.
Medical Assessor Bodel took a history of the motor accident and a history of Mr Lam’s symptoms and treatment thereafter.
Medical Assessor Bodel reported that Mr Lam had not sustained any relevant injuries or conditions since the motor accident.
Medical Assessor Bodel recorded Mr Lam’s current symptoms as:
(a)    continuing complaints of pain involving the right knee, with anterior knee pain aggravated by attempts to go up and down stairs or kneel and squat;
(b)    right foot and right ankle pain and stiffness in that region, aggravated by trying to walk for too long or walk on uneven surfaces or sand at the beach;
(c)    numbness and tingling along the lateral border of the right foot in the distribution of the sural nerve and some significant hypersensitivity in that region;
(d)    continuing pain in the lower part of the back, and
(e)    continuing left wrist pain and stiffness.
Medical Assessor Bodel noted that Mr Lam’s current and proposed treatment consisted of non-prescription analgesic medication and regular exercise. He also noted that Mr Lam was still working as a self-employed delivery driver.
In respect of general presentation on clinical examination, Medical Assessor Bodel noted that Mr Lam was slimly built, being 55kg in weight and 180cm in height. He had a mild flat-footed gait pattern on the right side.
On examination of Mr Lam’s lumbar spine, Medical Assessor Bodel observed tenderness on palpation at the lumbosacral junction, mainly on the left. There was some guarding and dysmetria. Mr Lam was able to reach forward in flexion with his hands to the upper part of the tibia, where there was mild backache at that point and also on extension with a restricted range of lateral bending to the right. Dysmetria and asymmetry of movement was observed. Mr Lam was able to walk on his heels and toes without difficulty, except for some discomfort in the right ankle. There were no clinical signs of radiculopathy in either leg as reflexes were present and equal. There was no weakness on resisted knee or ankle movement associated with neurological abnormality and there were no clinical signs of nerve root tension or other signs of radiculopathy.
On examination of Mr Lam’s upper extremities, Medical Assessor Bodel observed no signs of restricted movement in either shoulder. There were rateable restrictions of the left elbow and left wrist movement. In respect of the left elbow, active range of motion (AROM) was measured as 130° on flexion (compared to 140° on the right); -10° on extension (compared to 0° on the right); 80° on pronation (also 80° on the right); and 80° on supination (also 80° on the right). In respect of the left elbow, AROM was measured as 50° on flexion (compared to 60° on the right); 50° on extension (compared to 60° on the right); 20° on the radial deviation (also 20° on the right); and 25° on ulnar deviation (compared to 30° on the right).
On examination of Mr Lam’s lower extremities, Medical Assessor Bodel observed that he walked with a right-sided limp because of the pain and stiffness in the region of the right knee and the right ankle. Mr Lam had a full range of hip movement. On examination of the knees, AROM was measured as 140° on flexion bilaterally and 0° on extension bilaterally. Mr Lam had painful retropatellar crepitus in the right knee and pain on resisted knee extension that was not present in the left knee. There was no ligamentous laxity or joint line tenderness in either knee. There was no other rateable impairment in either knee, apart from the painful retropatellar crepitus in the region of the right knee.
On examination of the left ankle, AROM was measured at 5° on dorsi flexion (compared to 15° on the left); and 30° on plantar flexion bilaterally. On examination of the hind feet, AROM was measured at 30° on inversion bilaterally and 20° on eversion bilaterally. Mr Lam had hypersensitivity along the lateral border of the right foot in the distribution of the sural nerve, which was a grade III sensory loss and, in accordance with Table 11 on page 48 of the AMA 4 Guides, the total sensory loss is taken from Table 68 on page 89 of the AMA 4 Guides.
Medical Assessor Bodel provided a summary of the relevant documentation provided to him.
Medical Assessor Bodel determined that Mr Lam had sustained the following injuries caused by the motor accident:
(a)    a musculo-ligamentous injury to the lumbar spine;
(b)    a fractured right tibia and right fibula requiring open reduction and internal fixation with dysaesthesia in the right tibia and right fibula;
(c)    a musculo-ligamentous injury to the left wrist;
(d)    right knee post-traumatic retropatellar crepitus;
(e)    a muscular injury to the left elbow, and
(f)    an altered sensation in the territory of the right sural nerve on the lateral aspect of the right calf and right outer foot.
Medical Assessor Bodel assessed Mr Lam as meeting the criteria for DRE lumbosacral category II impairment of the lumbar spine, which equates to a WPI of 5%.
In respect of Mr Lam’s right lower extremity (right knee, right foot and right ankle) Medical Assessor Bodel assessed a WPI of 5%.
In respect of Mr Lam’s left upper extremity (left wrist and left elbow) Medical Assessor Bodel assessed a WPI of 4%.
Medical Assessor Bodel assessed Mr Lam as having a final WPI of 14%.
In respect of apportionment, Medical Assessor Bodel noted that there was no pre-existing or subsequent impairment and accordingly, apportionment was irrelevant.

REVIEW OF EVIDENCE

Application for personal injury benefits

On 24 June 2019, Mr Lam completed an application for personal injury benefits in respect of the motor accident (the application form).
The application form set out the basic particulars of the motor accident and Mr Lam provided the following description of the motor accident:
“On the night of the accident, I have just finished my work at Mascot Woolworth [sic] online store (306 Coward St, Mascot). I get on my bike and start travelling down Coward St towards O’Riordan St. I make it through Kent St. As I approach the intersection of Bourke St, I change lane [sic] to left lane due to multiple cars turning right. As I was about to cross the light [sic], which I did because I had the right of way, there was a red Maserati pulled in front of me. I braked but it was too late. I hit the passenger side of the car and went airborne.”[2]
[2] Claimant's documents at page 23.

In the application form, Mr Lam described his injuries as a result of the motor accident as follows:
“From the accident, I have broken both tibia and fibula and a sprained left wrist.”[3]
[3] Claimant's documents at page 23.
Mr Lam did not refer to any injury or symptoms in his left elbow or lower back in the application form.
In the application form, Mr Lam denied that he was suffering an illness or injury affecting the same or similar parts of his body at the time of the motor accident.

Mr Matthew Lam’s evidence

In evidence, there is a statement by Mr Lam dated 1 June 2022.[4] The relevant parts of that statement are referred to below.
[4] Claimant's documents at pages 261-271.
Mr Lam provided some general personal background, his educational history and employment history.
Mr Lam stated that between about 7.30pm and 8.00pm on 6 June 2019, he was riding his motorbike home from work on Coward Street, Mascot. He was travelling in the lane closest to the kerb. As he approached the intersection of Bourke Street, Mascot, the traffic light facing him was green, when a Maserati travelling in the opposite direction on Coward Street, made a right hand turn into the path of his motorbike. As a result, his motorbike collided with the passenger side of the Maserati causing him to become airborne and land on the roadway. He could not recall exactly how he had landed but there were scratch marks on the front of his helmet.
Mr Lam stated that, at the time of the motor accident, he was wearing a full face helmet, riding glass, full-length pants and a yellow high-vis jumper.
Mr Lam stated that, immediately after the motor accident, he attempted to stand but was unable to weight bear on his right leg and felt a sharp pain in that leg. He lay back down on the roadway. He also experienced pain in his left wrist and back.
Mr Lam stated that police and ambulance paramedics attended the accident scene. He was placed in a cervical collar and transported by ambulance to the Royal Prince Alfred Hospital (RPAH).
Mr Lam stated that, on 6 June 2019, he was admitted to RPAH and underwent medical imaging of his chest, brain, cervical spine, right tibia, right fibula and pelvis. On 7 June 2019, he underwent another X-ray of the right tibia and right fibula and later underwent surgery by Dr Maurice Guzman, orthopaedic surgeon. Dr Guzman performed an intramedullary nail fixation of the right tibia. Mr Lam was discharged from RPAH on or about 9 June 2019.
Mr Lam stated that during the period of his admission at RPAH, he was in a lot of pain in his right leg, was “on quite a bit of pain killers”[5] and largely bed-bound.
[5] Claimant's documents at page 265 at [67].
Mr Lam stated that his right leg was in a plaster cast for about four weeks following the motor accident and he mobilised with crutches. Thereafter, he was placed in a controlled ankle motion boot (CAM boot) for a further four to six weeks and also mobilised with crutches whilst in the CAM boot. As soon as he was discharged from RPAH and was upright and mobilising again with crutches, he noticed a new pain in his lower back. The pain was located in the middle of his lumbar spine where he experienced a dull ache, particularly when he bent over forwards or backwards. He had never had back pain or difficulty bending before. He had never been diagnosed with a back injury.
Mr Lam stated that, whilst he was in RPAH and for a long time afterwards, he was distracted by the pain that his leg fracture was causing. The leg fracture and getting back to walking was his focus. He attended the RPAH orthopaedic clinic where he consulted Dr Guzman and other doctors. He also consulted his usual general practitioner, Dr Brian Foo.
Mr Lam stated that, on 17 June 2019, Dr Guzman referred him to Mr David Lindsay, physiotherapist, who advised him on scar management, wound care and the use of pressure garments. Dr Guzman also referred him for X-rays of his right tibia and fibula, which he underwent on the same day.
Mr Lam stated that, on 15 July 2019, Dr Guzman referred him for X-rays of his right tibia and fibula, which he underwent the same day. The X-rays revealed a small, displaced butterfly fragment in the anterior soft tissue of the right shin.
Mr Lam stated that, between September and December 2019, he travelled to the USA.
Mr Lam stated that he noticed that the metal in his right leg felt uncomfortable and painful in the region of his right knee, particularly, when climbing stairs or when the weather was cold. On 19 December 2019, he consulted Dr Guzman and reported pain when walking and numbness and pain in his left calf. Dr Guzman referred him for X-rays of his right tibia and fibula and discussed the possibility of further surgery to remove the hardware in his right leg.
Mr Lam stated that, between late January and March 2020, he travelled to Hong Kong and Japan to visit his parents and grandparents. Whilst overseas, he found that the pain at the surgery site had increased and worsened due to prolonged walking, sitting and standing whilst travelling.
Mr Lam stated that, on 29 June 2020, he consulted Dr Guzman and reported that he continued to feel pain at the site of the surgery. Dr Guzman referred him for further X-rays, which he underwent on the same day. The X-rays confirmed that no complications were detected apart from a persistent anterior displacement of a small bony fragment angulating into the soft tissues of the shin. As a result of the ongoing pain at the site of his surgery, Mr Lam underwent surgery to remove the rod and screws from his tibia by Dr Guzman on 9 July 2020. On 20 July 2020, he underwent physiotherapy with Mr Lindsay.
Mr Lam stated that, by the end of each day, he usually found that his right leg and ankle felt overworked and that he needed to rest and get off his feet during the evening. He continued to experience constant pain in his right leg fracture site. He also had pain in his left wrist, his back and at the side of his surgical scarring.
Mr Lam provided a list of continuing disabilities caused by the motor accident as at the date of his statement.[6]
[6] Claimant's documents at pages 269-270 at [120].
In his statement dated 1 June 2022, Mr Lam made no reference to any injury or symptoms in his left elbow.

Treating medical records and reports

In evidence, there is the NSW Ambulance electronic medical record entry dated 6 June 2019.[7] The paramedics recorded that, on arrival at the accident scene, they observed Mr Lam supine on the road, helmet in situ with moderate frontal damage. It was noted that Mr Lam stated he was riding his motorbike at 60kmph when he hit a car that turned a corner at 10kmph. Loss of consciousness was denied. Glasgow Coma Scale was assessed at 15. There was no cervical spine tenderness. Pelvis was intact with no pain. There was obvious deformity to the right lower leg and an abrasion to the distal shin at the site of the deformity, without bleeding. Mr Lam complained of mid left wrist tenderness with an aching pain. There was no deformity of the wrist. The right lower leg pain was described as sharp.
[7] Claimant's documents at pages 65-71.
There was no reference in the NSW Ambulance electronic medical record to pain or symptoms in Mr Lam’s left elbow or back.
An entry in Mr Lam’s RPAH clinical records on 6 June 2019 noted that Mr Lam was riding a motorbike at 60kmph when hit by a car coming around a corner. He slid off his bike onto the road, possibly onto his right side and rolled. There was no loss of consciousness. There was damage to his helmet. There was right lower limb pain. There was right lower limb deformity. There was significant right shin pain. There was mid left wrist pain. He was wearing a helmet. He denied headaches, neck pain, visual disturbance, chest pain and abdominal pain.[8]
[8] Claimant's documents at pages 198-199.
On 6 June 2019, Mr Lam underwent X-rays of his chest and pelvis at RPAH. There were no fractures or abnormalities identified.[9]
[9] Claimant's documents at pages 217-218.
On 6 June 2019, Mr Lam underwent an X-ray of his right tibia and fibula. Transverse fractures of the mid shaft right tibia and fibula were identified. The tibia fracture was comminuted with multiple adjacent bony fragments.[10]
[10] Claimant's documents at page 218.
On 6 June 2019, Mr Lam underwent a CT scan of his brain and cervical spine at RPAH. No acute intracranial pathology was identified and no cervical spine fracture was seen.[11]
[11] Claimant's documents at pages 219-220.
On 7 June 2019, Mr Lam underwent an X-ray of his right tibia and fibula. Comminuted and displaced mid diaphyseal fractures of the right tibia and fibula were again noted. There was lateral translation and recurvartum at the fracture site with an anterior tibial butterfly fragment.[12]
[12] Claimant's documents at pages 218-219.
There was no reference in Mr Lam’s RPAH clinical records to complaints of left elbow or back injuries or symptoms.
In a report, presumably addressed to Mr Lam’s general practitioner dated 7 June 2019, Dr Guzman reported that Mr Lam had been admitted to RPAH following a motor vehicle accident wherein he had sustained a right tibial shaft fracture. He further reported that Mr Lam had undergone an open reduction internal fixation of his right tibia using an intramedullary device on 7 June 2019. There were no intra-operative complications and a good recovery was expected.[13]
[13] Claimant's documents at page 72.
Mr Lam’s RPAH clinical records disclosed that he was discharged on 9 June 2019.
On 17 June 2019, Mr Lam underwent an X-ray of his right tibia and fibula by Dr Davidson at RPAH on the referral of Dr Guzman. Dr Davidson reported that the tibial intramedullary was noted with no evidence of periprosthetic complications. The comminuted mid shaft tibial fracture was noted with a butterfly fragment anteriorly. There was evidence of some interval callus formation. There was also a minimally displaced fibula fracture which had less posterior angulation compared to the pre-operative images.[14]
[14] Claimant's documents at pages 85-86.
On 19 June 2019, Mr Lam consulted Dr Foo reporting that he had been in a motor accident on 6 June 2019 wherein he fractured his right tibia and fibula. He was taken to RPAH and underwent surgery that involved inserting a rod into his tibia for an undisplaced mid shaft fracture. Dr Foo observed bruising on the dorsum of the left wrist. On examination, there was mild swelling on the ulnar side dorsum of the left wrist and there was a good range of motion. Dr Foo noted that Mr Lam was wearing a CAM boot on his right leg.[15]
[15] Claimant's documents at pages 75-76.
On 15 July 2019, Mr Lam underwent an X-ray of his right tibia and fibula by Dr Pow at RPAH on the referral of Dr Guzman. Dr Pow reported that the intramedullary tibial nail was noted in an unchanged position without evidence of hardware complication. Fractures through the tibial and fibular shafts were unchanged in alignment and were not yet united.[16]
[16] Claimant's documents at page 91.
On 29 July 2019, Mr Lam consulted Dr Foo who noted that he was wearing a walking boot and using crutches. It was also noted that Mr Lam was attending the RPAH fracture clinic. Mr Lam advised that his left wrist was “a lot better”.[17]
[17] Claimant's documents at page 75.
On 26 August 2019, Mr Lam underwent an X-ray of his right tibia and fibula by Dr Stewart at RPAH on the referral of Dr Guzman. Dr Stewart reported that a long intramedullary nail held the tibial fracture in good position, unchanged since 15 July 2019. However, in this time, callus had increased with progressive bone union. A small, displaced butterfly fragment was noted in the anterior soft tissue of the shin. The fibula fracture was also uniting without complications.[18]
[18] Claimant's documents at pages 92-93.
On 9 December 2019, Mr Lam underwent an X-ray of his right tibia and fibula by Dr Mulyadi at RPAH on the referral of Dr Guzman. Dr Mulyadi reported that the tibial nail and screws were again noted and that there was further healing and union of the mid tibia and fibula fractures with only remaining horizontal fracture lines seen. Again, a small displaced bony fragment at the anterior aspect of the shin was noted. There was no acute fracture.[19]
[19] Claimant's documents at pages 94-95.
On 21 January 2020, Mr Lam consulted Dr Foo reporting that he had undergone an X-ray of his right leg in December 2019 at RPAH. A K-nail and screws were inserted (presumably referring to the surgery on 7 June 2019). Mr Lam was told that he would be fit to work and wanted to double check with Dr Foo. Mr Lam could walk unaided without much discomfort. On examination, Dr Foo noted that the fracture site was not tender and that Mr Lam had a good range of motion in the right knee and the right ankle.[20]
[20] Claimant's documents at page 75.
On 29 June 2020, Mr Lam underwent an X-ray of his right tibia and fibula by Dr Stewart at RPAH on the referral of Dr Guzman. Dr Stewart reported that the tibial intramedullary nail remained in situ held by two screws at each end. No screw or nail fractures were detected. There was good bone union of the tibial and fibular fractures at a junction of the middle and distal thirds had occurred. No complications were detected apart from a persistent anterior displacement of a small bony fragment angulating into the soft tissues of the shin.[21]
[21] Claimant's documents at pages 98-99.
On 2 July 2020, Mr Lam underwent the removal of his right tibial nail at RPAH by Dr Guzman.[22]
[22] Claimant's documents at pages 132-133.
On 1 October 2020, Mr Lam consulted Dr Foo reporting that he had had the K-nail and screw removed from his right leg at RPAH on 2 July 2020. Dr Foo noted that Mr Lam said that everything was now good. Dr Foo observed that Mr Lam’s surgical wound had healed and that his right knee had a free range of motion. Mr Lam was unable to work for a few weeks as a result of the surgery. Dr Foo referred him for physiotherapy.[23]
[23] Claimant's documents at pages 74-75.
Dr Foo’s clinical records in respect of Mr Lam did not record complaints of injury to, or symptoms in, the left elbow or lumbar spine.
There were no medical imaging reports in respect of Mr Lam’s left elbow, left wrist, right knee or lumbar spine in evidence.

Medico-legal reports

Dr Drew Dixon: 3 May 2021

On 26 April 2021, Mr Lam consulted Dr Drew Dixon, consultant orthopaedic surgeon, at the request of his lawyers. Dr Dixon prepared a report dated 3 May 2021.[24]
[24] Claimant's documents at pages 49-53.
Dr Dixon took a history of the motor accident that was consistent with the evidence. He also took Mr Lam’s work and social histories.
In respect of Mr Lam’s general health, Dr Dixon noted that Mr Lam fractured his left arm after falling from monkey bars when he was younger. He had an injury to his right little finger on 28 November 2018 where he sustained a fracture of the fifth metacarpal after he punched a wall. Both injuries had resolved.
In respect of current treatment, Dr Dixon noted that Mr Lam had finished physiotherapy and no longer consulted a specialist but did consult his local doctor when required. He takes Ibuprofen as an anti-inflammatory.
In respect of Mr Lam’s present symptoms, Dr Dixon reported as follows:
“He reports residual pain and swelling and scarring at the fracture site where he is able to palpate a bony lump. He is conscious of the traumatic scarring in this area. He is conscious of the surgical scarring at his knee, upper tibial region and lower ankle region at the site of his internal fixation insertion. He has difficulty squatting and avoids kneeling due to a painful scar at his right knee and pain in the retropatellar and infrapatellar region. He reports no locking of the knee or gross instability but is aware of audible crepitus when squatting. He reports mild pain and stiffness in the knee and right ankle and difficulty running and sprinting and doing recreations such as hiking.
He reports his left wrist has settled and he had no back pain today.”[25]
[25] Claimant's documents at page 50.
On examination, Dr Dixon observed that Mr Lam was 180cm tall and weighed 58kg. Normal gait was satisfactory but there was a mild limp on toe and heel walking. The squat test was associated with audible retropatellar crepitus in the right knee.
On examination of Mr Lam’s left wrist, Dr Dixon observed that he had a full range of motion without tender areas. Grip strength, intrinsic power and thenar power were Grade 5 out of 5. There was no neurological deficit in his left hand.
On examination of Mr Lam’s right knee, Dr Dixon observed that the range of motion was 0° through to 130° and whilst the collateral ligaments were stable and the anterior and posterior drawer signs were negative, he had patellofemoral subluxation with lateral impingement with a positive apprehension test and retropatellar crepitus. There was tenderness of the lateral joint line. Pivot shift test for rotary instability was negative. The range of motion of the left knee was 140° and the knee was stable.
On examination of Mr Lam’s right ankle, Dr Dixon observed that he had a full range of motion in the right ankle and subtalar joint with some soft tissue crepitus in the region of the peroneus tertius tendon. There was a full range of motion in the left ankle and subtalar joint. He had bilateral pes planus and made a modest arch on toe standing.
Dr Dixon’s diagnosis was one of a healed fracture of the right tibia and right fibula;

post-traumatic and post-operative scarring; patellofemoral subluxation and post-traumatic retropatellar crepitus of the right knee; and a left wrist injury without fracture, which had settled. Dr Dixon opined that all the above conditions were causally related to the motor accident.
In respect of prognosis, Dr Dixon opined that Mr Lam’s ongoing work as a delivery truck driver was satisfactory but guarded, in that, he experienced difficulty with heavy lifting and carrying and loading and unloading. He also had difficulties with prolonged driving of the truck and may well need to change to light duties, such as that of a courier with light parcels and driving small automatic vans.
Dr Dixon opined that Mr Lam would probably develop patellofemoral arthritis in the right knee in the longer term and require lateral capsular release.
Dr Dixon opined that Mr Lam’s condition had stabilised and that no further improvement was expected.

Dr Farhan Shahzad: 2 July 2021

On 22 June 2021, Mr Lam consulted Dr Farhan Shahzad, consultant occupational physician, at the request of his lawyers. Dr Shahzad prepared two reports dated 2 July 2021.[26]
[26] Claimant’s documents at pages 36-48.
Dr Shahzad took a history of the motor accident that was consistent with the evidence. He also briefly noted Mr Lam’s occupational, personal and social histories.
Dr Shahzad noted that Mr Lam had experienced a significant improvement in his condition over time. He had a standing tolerance of one hour but was still unable to walk long distances due to crepitus in his right leg. Mr Lam reported that he was unable to physically tolerate running, jogging, bending and twisting due to the limitations in his right leg. He also noted a weird sensation in his right calf since undergoing surgery.
Dr Shahzad noted that Mr Lam was working as a truck driver for Woolworths on a casual basis, undertaking home deliveries. He was working reduced hours, namely, four to five hours per day, being all that he could physically tolerate. Mr Lam reported that he had been unable to return to motorbike riding. Prior to the motor accident, he was very physically active and used to enjoy long boarding, snowboarding, weekly soccer games and hiking on the weekends which, since the motor accident, he had been unable to resume.
In respect of present treatment, Dr Shahzad noted that Mr Lam takes Ibuprofen on a regular basis. Physiotherapy had been discontinued. Mr Lam consulted his general practitioner as needed.
On physical examination, Dr Shahzad noted that Mr Lam presented as a consistent and straightforward historian. He stood 180cm tall and weighed 60kg. Dr Shahzad observed multiple scars on his right lower limb and provided a description of the same. Mr Lam walked with an obvious limp and was unable to squat or walk on his tip toes or heels.

On examination of Mr Lam’s lumbosacral spine, Dr Shahzad observed that there was a 50% reduction in his range of movement. The range of movement of the lumbar spine noted guarding, rigidity and tenderness. There were restrictions on flexion, extension, lateral rotation and lateral flexion.
On examination of Mr Lam’s elbows, Dr Shahzad observed that the left elbow had a normal range of movement and that there had been a previous deformity. There was normal flexion to 140°, extension was to 20°, with supination and pronation to 80°. Contralateral examination of the right elbow was normal.
On examination of the right knee, Dr Shahzad observed that range of movement was restricted with flexion to 90° and extension to -10°. There was no collateral ligament laxity. Anterior and posterior drawer tests were negative. There was leg length discrepancy noted with the right leg being 1cm shorter than the left leg. There was no malalignment following surgical intervention for the tibial shaft fracture.
On examination of the left wrist, Dr Shahzad observed no tenderness or swelling over either wrist joint. There was tenderness noted over the triangular fibrocartilage complex (TFCC) area. Finkelstein’s, Phalen’s and Tinel’s tests were negative. De Quervain’s test was negative. Normal range of movement was noted.
Dr Shahzad also examined Mr Lam’s left knee and cervical spine and observed no abnormalities.
Dr Shahzad opined that Mr Lam had suffered a musculo-ligamentous injury to his lower back; a fractured right tibia requiring open reduction internal fixation; an injury to his left wrist resulting in a sprain that had subsequently resolved; extensive scarring following surgery; and a left elbow injury which has been symptomatic. Dr Shahzad further opined that there was no inconsistency found on Mr Lam’s presentation and that his medical conditions were related to the motor accident.
Dr Shahzad opined that Mr Lam’s prognosis was guarded as he presented with significant musculoskeletal issues following the motor accident with lower back pain and a reduced range of movement in the right knee.
In respect of the injuries sustained by Mr Lam in the motor accident, Dr Shahzad recommended the following restrictions:
(a)    avoid sitting/standing for more than one hour;
(b)    avoid walking more than half an hour;
(c)    avoid running, jogging, bending and twisting;
(d)    avoid repetitive squatting and kneeling;
(e)    avoid extensive use of stairs and inclines;
(f)    avoid working at heights;
(g)    avoid lifting, pushing and pulling more than 10kg, and
(h)    avoid situations where an emergency response is required.
Dr Shahzad opined that Mr Lam’s condition had symptomatically stabilised to a degree that he had reached maximum medical improvement.
Dr Shahzad assessed Mr Lam as meeting the criteria for DRE lumbosacral category II impairment of the lumbar spine, which equates to a WPI of 5%.
In respect of Mr Lam’s left wrist and left elbow, Dr Shahzad opined that there was no loss of range of movement and that no permanent impairment was applicable.
In respect of Mr Lam’s right knee (noting that it was mistakenly referred to as the left knee in the WPI report), Dr Shahzad assessed a WPI of 4%.
In respect of the scarring to Mr Lam’s right lower extremity, Dr Shahzad assessed a WPI of 4% utilising the AMA 4 Guides, Table 2 and the Table for Evaluation of Minor Skin Impairment (TEMSKI).
Dr Shahzad assessed Mr Lam as having a final WPI of 13%.
In respect of apportionment, Dr Shahzad noted that there was no pre-existing or subsequent impairment and accordingly, apportionment was irrelevant.

Associate Professor Michael Shatwell: 13 August 2021

On 5 August 2021, Mr Lam consulted Associate Professor Michael Shatwell, orthopaedic surgeon, at the request of the insurer’s lawyers. Associate Professor Shatwell prepared a report dated 13 August 2021.[27]
[27] Insurer’s documents at pages 47-57.
Associate Professor Shatwell took a history of the motor accident and the medical and related treatment thereafter that was consistent with the evidence.
In respect of Mr Lam’s current situation, Associate Professor Shatwell noted that he was managing with his duties for 30 hours per week and was driving satisfactorily. Mr Lam experienced some aching in the right knee after prolonged use which was particularly bothersome around the area of the scar in the front of the knee. He experienced difficulty kneeling and squatting for more than a few seconds. He had not returned to running sports but was able to walk comfortably. He managed seven hour to eight hour shifts. He takes intermittent Panadol tablets for the ache in his right knee and requires more medication in cold weather. The pain bothered him mostly at night. He had not experienced any locking or giving way of the knee joint.
Associate Professor Shatwell noted that Mr Lam experienced an intermittent tingling and burning sensation along the outer side of his right ankle and foot on occasions. It was more of a nuisance than a severe pain. The symptoms had persisted since the motor accident but were not prominent at the time of the consultation.
Associate Professor Shatwell noted that Mr Lam’s left wrist had settled down well and that he had no problem with lifting at work. At work, he loaded boxes into his van that weighed up to 25kg and he could shift 800kg of boxes in one shift.
Associate Professor Shatwell noted that Mr Lam had not returned to playing soccer,

ski-boarding or going to the gym. He had no difficulty driving.
In respect of past medical history, Associate Professor Shatwell noted that Mr Lam had suffered a significant fracture of his elbow as a nine-year-old when he fell off monkey bars. There was wiring of the fracture and he developed a deformity of the elbow level but his elbow function now is good. Mr Lam felt that he might have dislocated his left shoulder as a youth and from the description provided, it appeared that he may have had subluxation of the acromioclavicular joint rather than a dislocation of the glenohumeral joint, the latter being a much more severe injury. Mr Lam sustained a fracture of his right fifth metacarpal neck on 24 November 2018 after hitting a wall. He had a minor deformity of the right fifth metacarpal. There were no functional deficits.
Associate Professor Shatwell also took a brief occupational and personal history.
On examination, Associate Professor Shatwell observed that Mr Lam was of light build, 180cm tall and weighed 60kg. He sat in no obvious discomfort throughout history taking and did not exaggerate his complaints or exhibit illness behaviour. He walked with a normal gait and had normal and symmetrical leg lengths. There was no rotational or angular deformity of his right shin. There was slight prominence in the region of the tibial fracture just below each shin level where a small butterfly fragment was in the subcutaneous tissues. It was

non-tender and appeared fixed to the shaft of the tibia.
Associate Professor Shatwell observed and described the four scars on Mr Lam’s right lower extremity. He noted normal circulation and sensation in the feet. There was a positive Tinel’s sign at the level of the fracture on the lateral aspect of the right calf about 18cm above the tip of the lateral malleolus. There was minor disturbance of sensation in the territory of the sural nerve on the other side of the right ankle and foot. There was no wasting of the thigh or calf muscles. Thigh girth measured 6cm above the knee was 38cm on both sides. Maximum calf girth was 34cm on both sides.
On examination of Mr Lam’s knees, Associate Professor Shatwell observed that both knees were stable with no effusions. There was no significant crepitus in the knee joints. There was mild tenderness over the surgical scar on the front of the patella tendon on the right knee. The right knee moved from full extension to 130°. The left knee moved from full extension to 150°. Hip and ankle movements were within normal limits. Peripheral circulation was symmetrical and normal.
On examination of Mr Lam’s upper limbs, Associate Professor Shatwell observed cubitus varus deformity of the left elbow as a result of his fall from the monkey bars as a child. There was full extension of the elbow and full flexion. There was full supination and pronation at elbow level without crepitus. There was no loss of muscle bulk in the forearms. The girth measured at 7cm below the elbow crease was 23cm on both sides. Grip strength measured with a Jamar dynamometer demonstrated bilateral normal values for a man of Mr Lam’s age. There was no sensory disturbance in the upper limbs. There was normal circulation. Shoulder and wrist movements were normal. Right elbow movements were normal.
On examination of Mr Lam’s cervical spine, Associate Professor Shatwell observed that movements were normal with no sign of pain or limitation of movement. Mr Lam was able to flex forward to reach his toes. There was no discomfort reported in the spine. Straight leg raising in the supine position was negative to 80° on both sides.
Associate Professor Shatwell’s diagnosis was one of a closed fracture of the right tibia and fibula; an alteration of sensation in the territory of the right sural nerve on the lateral aspect of the calf and outer foot; and a sprain or strain of the left wrist, which had settled completely.
Associate Professor Shatwell opined that Mr Lam’s injuries would not cause any permanent disability in respect of his future work capacity.
Associate Professor Shatwell opined that Mr Lam’s injuries had almost resolved with some residual pain in the region of the fracture site and minor loss of full flexion of the right knee. Further, there was disturbance of sensation in the territory of the sural nerve on the lateral aspect of the right ankle and foot. In his opinion, there was likely to be some improvement in Mr Lam’s residual symptoms in the long-term and that they were unlikely to worsen.
Associate Professor Shatwell assessed the disturbance of sensation in the territory of the sural nerve on the lateral aspect of Mr Lam’s right ankle and foot as follows:
“Using the methodology of the Motor Accident Guidelines and the American Medical Association Guides to the Evaluation of Permanent Impairment (4^th Edition) I refer to Table 68 on Page 89 of the Guides which allows a 1% Whole Person Impairment for complete sensory loss in the territory of the sural nerve.
In my estimation the decreased sensitivity which does not prevent or interfere with activity is classified as Grade IV according to Table 11 on Page 48 of the AMA 4 Guides.
This gives a range between 61-80% of complete sensory deficit. I consider a value of 80% applies in this case which gives a 0.8% Whole Person Impairment which rounds up to a 1% Whole Person Impairment.
Table 68 allows 2% Whole Person Impairment for dysesthesia. Using a similar methodology 80% of 2% is 1.6% which rounds up to 2%.
Combining 1% with 2% gives a 3% Whole Person Impairment using the Combined Values Table on Page 322 of the AMA 4 Guides.”[28]
[28] Insurer's documents at page 56.
In respect of the scarring to Mr Lam’s right lower extremity, Associate Professor Shatwell assessed a WPI of 1% utilising the AMA 4 Guides, Table 2 and the TEMSKI.
Associate Professor Shatwell assessed Mr Lam as having a final WPI of 4%.
In respect of apportionment, Associate Professor Shatwell noted that there was no

pre-existing or subsequent impairment and accordingly, apportionment was irrelevant.

Associate Professor Michael Shatwell: 4 July 2022

On 4 July 2022, Associate Professor Shatwell provided a supplementary report at the request of the insurer’s lawyers.[29]
[29] Insurer's documents at pages 75-79.
Associate Professor Shatwell was requested to review Dr Shahzad’s two reports dated 2 July 2021.
In response to the question as to whether Dr Shahzad’s reports caused him to alter his position in respect of Mr Lam’s future capacity, in particular, for his expressed desire to work as a radiographer in the future, Associate Professor Shatwell opined that Mr Lam had had a good result from operative treatment of his fractures and his examination had revealed no wasting of the thigh or calf muscles of the right lower limb in comparison with the left. That indicated good rehabilitation and normal use of the right lower limb following the healing of the fractures.
In Associate Professor Shatwell’s experience, sound healing of the shaft of the long bone that does not involve any deformity or shortening of the segment is unlikely to be accompanied by any gross limitation of function. There was no sign of injury to the right knee joint or right ankle joint as a result of the fractures. Mr Lam had a normal gait and normal and symmetrical leg lengths. There was no rotational or angular deformity of the right shin. Apart from the slight disturbance of sensation in the territory of the sural nerve, there was no neurovascular complication of the injury. Right knee movement was very slightly restricted with 130° flexion compared with 150° on the left. Associate Professor Shatwell opined that it was highly likely that a full range of flexion would be obtained in the future, that is, within a year or so.
Associate Professor Shatwell opined that Mr Lam had had a good result from treatment of his injury and he was unlikely to have any reduced standing tolerance of pain and fatigue in the right leg in the light work required of a radiographer.
Associate Professor Shatwell did not consider that Mr Lam would face difficulties climbing stairs and walking to medical practitioners’ rooms to discuss diagnostic results with them as a radiographer. Radiographers do not do a great deal of long-distance walking, although, they are on their feet for most of the working day in a busy practice.
Associate Professor Shatwell opined that Mr Lam’s knee would return to normal with respect to squatting, which was seldom required in a radiology practice. In respect of bending, Mr Lam made no complaint of low back pain following the motor accident nor of any specific treatment to his back thereafter. He had normal findings on full examination of his lumbar spine.
Associate Professor Shatwell opined that it was unlikely that Mr Lam’s work capacity would be reduced by 25%. Further, it was highly unlikely that Mr Lam would suffer any deterioration of function in the right lower limb with the passage of time following the removal of the metalwork from his shin. The natural history of such fractures is that sporting activity is possible, including running sports as well as endurance running. The minor loss of full flexion of the right knee will not be permanent and will not cause any impairment of lower limb function in the future.

Dr Farhan Shahzad: 5 September 2022

On 5 September 2022, Dr Shahzad provided a supplementary report at the request of Mr Lam’s lawyers.[30]
[30] Claimant's documents at pages 272-275.
Dr Shahzad was requested to review Associate Professor Shatwell’s reports dated 13 August 2021 and 4 July 2022.
Dr Shahzad stated that his review of Associate Professor Shatwell’s reports did not alter his assessment of WPI.
In respect of Mr Lam’s future employment prospects, Dr Shahzad opined as follows:
“In my opinion, he would struggle to maintain or find employment in the open labour market with his current predicament. He has only been able to return to work on reduced hours recently. The role of an X-Ray technician radiographer requires prolonged standing and the capacity to offer patient assistance while undertaking

X-rays, desktop activities, using stairs, inclines, bending, twisting, squatting, kneeling, pushing, pulling, lifting, and assisting patients. In my opinion, it is crucial for healthcare workers who are responsible for patients to demonstrate good physical capacity to avoid any occupational health and safety risk in health care settings.”[31]
[31] Claimant's documents at page 274 at [2].
Dr Shahzad repeated the restrictions to be adopted by Mr Lam that he had set out in his earlier report and at [127] above. He opined that those restrictions were related to Mr Lam’s injuries and would have a significant impact on his employability. Dr Shahzad did not agree that Mr Lam had made a full recovery and was able to return to pre-injury work capacity.
Dr Shahzad did not agree that, as a radiographer, Mr Lam would not be required to squat and repetitively bend for X-ray patients with various injuries.
Dr Shahzad opined that Mr Lam’s overall prognosis is guarded.

Medical assessments

Medical Assessor Geoffrey Curtin: 28 July 2023

On 28 July 2023, Medical Assessor Geoffrey Curtin issued a combined certificate in respect of Medical Assessor Bodel’s WPI assessment of 14% and his own assessment of the scarring to Mr Lam’s right lower extremity of 2% WPI. As the lead Medical Assessor, Medical Assessor Curtin determined a combined permanent impairment of 16% WPI.
Medical Assessor Curtin’s WPI assessment of 2% was not challenged by either party.

SUBMISSIONS

Insurer’s submissions

The insurer provided written submissions in respect of the Medical Assessment dated 17 May 2022. It also provided written submissions in respect of the Review dated 23 August 2023.
The insurer relied on the evidence of Associate Professor Shatwell.
The insurer sought a review of the Medical Assessment on the following basis:
(a)    Medical Assessor Bodel failed to identify the alleged radical deterioration of Mr Lam’s lumbar spine, left arm and right lower leg;
(b)    Medical Assessor Bodel failed to specify how Mr Lam experienced an injury to the lumbar spine as a result of the motor accident in the absence of any medical records following the accident;
(c)    Medical Assessor Bodel failed to provide reasons to substantiate Mr Lam’s impairment ratings at the lumbar spine, left elbow, left wrist, right knee and right ankle from the medical evidence which was made available;
(d)    Medical Assessor Bodel ignored Mr Lam’s treating medical evidence, in that, Dr Foo’s clinical records confirmed resolution of Mr Lam’s injuries by 1 October 2020 and recorded no complaints of a lumbar spine injury or symptoms;
(e)    Medical Assessor Bodel failed to consider the expert opinion of Dr Shahzad who undertook a physical examination of Mr Lam’s lumbosacral spine, elbows, right knee, left knee, cervical spine and left wrist, in that, Dr Shahzad opined that there was no loss of range of movement and no permanent impairment in respect of the left wrist and left elbow, and
(f)    Medical Assessor Bodel failed to consider Mr Lam’s description that it appeared that he had suffered a subluxation of his left acromioclavicular joint, rather than dislocation of glenohumeral joint, the latter of which was considered by Associate Professor Shatwell as being a much more severe injury.
The material considered in Associate Professor Shatwell’s reports and his findings on the clinical examination of Mr Lam identify the injuries sustained, the nature of the subsequent treatment and the ultimate level of the motor accident related WPI.
Mr Lam’s WPI is not greater than 10%.

Mr Lam’s submissions

Mr Lam’s lawyers provided written submissions dated 12 April 2022 in respect of the Medical Assessment. They also provided written submissions dated 12 September 2023 in respect of the Review.
Mr Lam rejected the insurer’s stated grounds for the Review and provided reasons for so doing.
Medical Assessor Bodel correctly applied the relevant legal principles in determining causation of Mr Lam’s motor accident related physical injuries.
Medical Assessor Bodel carried out his own clinical assessment on the day of the examination, considered all of the evidence that was before him and provided clear and consistent reasons for forming the view that he had in respect of his assessment of impairment.
The findings of Medical Assessor Bodel were open to him based on his review of the available material and based on his examination of Mr Lam.
The injuries sustained by Mr Lam in the motor accident give rise to a WPI greater than 10%.

THE RE-EXAMINATION

Preamble

The Panel re-examination and assessment of Mr Lam was undertaken at the Commission’s medical suites on 4 March 2024 by Medical Assessor Couch. Mr Lam attended very promptly and came alone.

Social and occupational history

Mr Lam explained that his mother is from Japan and his father is from Hong Kong. He attended school initially, in Hong Kong and later, in California, where he lived with a

great-aunt. In addition to English, he speaks Japanese and Cantonese. He did part of a nursing degree in the USA but did not complete this. Mr Lam came to Sydney to complete his university studies in 2016. He does not have family here but said that his father had immigrated to Australia in the 1980s and that he (Mr Lam) has resident rights (his parents now live in Hong Kong).
Sometime prior to the motor accident, Mr Lam had been studying at the University of Technology Sydney (UTS) for a Bachelor of Medical Science (Radiography). He was not actually studying at the time of the motor accident, although he stated that he eventually hoped to complete his studies, which would take about two more years.
At the time of the motor accident, Mr Lam was working 40 to 45 hours per week as an online delivery worker for Woolworths. He drove a 4.5 tonne delivery van, working from a depot in Mascot and doing deliveries in the Sydney CBD and in the eastern suburbs of Sydney.

Past medical history

Mr Lam described a fracture around his left elbow when he was aged six or seven years. He said he had climbed on top of some monkey bars in a park in Hong Kong and fell off. He described a good functional recovery but with some deformity. He did not think his left wrist had been injured at the same time. He denied any previous low back injuries or symptoms or any previous lower limb injuries.

History of the motor accident

Mr Lam gave a similar history of the motor accident to that described by Medical Assessor Bodel. He was riding his Kawasaki 300cc Ninja motorcycle along a roadway at an estimated 50kmph, soon after leaving work. He was wearing a helmet, a high visibility jacket, pants and ordinary shoes. He was not wearing full leathers and was not wearing a back protector. He was proceeding in the left hand lane with stationary traffic in the right hand lane. A red Maserati travelling in the opposite direction suddenly turned through a break in the traffic in the right hand lane, in order to turn into a side street on Mr Lam’s left. He was not aware of the speed of the car. His motorcycle struck the front left side of the Maserati and he recalled, “I was airborne and then I slammed on the floor.” He remained conscious and ended up on the far side of the car. He tried to get up but his right leg gave way and he fell down again.

History of symptoms and treatment after the motor accident

Mr Lam was asked about any additional symptoms he recalled in addition to the most serious and obvious injury to his right lower leg. He thought he had been aware of an injury to the left wrist at the same time and recalled that his watch strap on his left wrist was broken. He was taken by ambulance to RPAH. He recalled telling hospital staff about his painful leg and wrist, which were troubling him most.
Mr Lam was asked if he could recall early symptoms in any other body areas. He recalled low back symptoms after everything was done, that is, “when I was recovering from the leg and had my cast on”. Mr Lam was asked about the fact that Dr Shahzad, who had examined him for his lawyers on 22 June 2021, had not mentioned any low back symptoms. He replied, “I think I told him my low back was very stiff and in some pain”.
Mr Lam’s principal diagnosis at RPAH was transverse fractures of the mid-shaft of the right tibia and fibula with the tibial fracture being comminuted with multiple adjacent bony fragments. The tibial fracture was treated by intramedullary nailing by Dr Guzman.
Mr Lam recalled being on crutches for two to three months. He had had physiotherapy for his leg but not for any other body parts. According to the RPAH clinical records, the right tibial nail was removed about one year after the motor accident on 2 July 2020. He thought that he had been off work completely for three or four months and initially, returned to work delivering smaller and lighter orders. He said that he had essentially returned to pre-injury duties but now delivers smaller orders, which weigh less and he is only working about 30 hours per week. When asked the reason for this, he replied, “because I can’t remain on my feet or standing for too long or climbing upstairs because of my leg.”

Current status

Mr Lam thought that his residual symptoms had been static for the past two or three years. In addition to his main problem of residual pain in the right lower limb, he also mentioned lower back pain and very minor symptoms of the left wrist. He described his residual symptoms as set out below.

Right lower leg

Mr Lam described pain, pointing to just below distal to the medial side of the knee and also in the medial right ankle in the region of the scar. He mostly notices this when he has been on his feet a lot. His right knee also aches when first waking in the morning. He says he notices this every day, although he tries to ignore it. He denied any locking or swelling but the knee has partially given way while ascending stairs. He described odd noises from the knee. He also described some numbness in the lower lateral right calf and lateral ankle.
Mr Lam said that he can walk about 1.5km before he needs to rest because of the knee/leg. He was asked if he would consider doing the City to Surf Fun Run (14km) at walking pace and he said that he definitely could not consider that. He can run, but only briefly. He finds climbing stairs worse than descending stairs.

Low back

Mr Lam described pain in the lumbosacral area. He stood up and pointed to this area. The pain is present when he first wakes in the morning but can persist all day, although it does not occur every day. On questioning, he said this can be slightly worse when lifting and generally, his back is better at rest. He denied any radiation to the lower limbs.

Left elbow

On questioning, Mr Lam denied any definite symptoms in the left elbow. He went on to mention an ache, at times, during cold or rainy weather but agreed that this had also occurred prior to the accident (noting his childhood fracture).

Left wrist

Mr Lam said the left wrist is usually alright but described slight pain “if I try to stretch it”. He said this had not occurred before the motor accident.

Present activities

As noted above, Mr Lam said that he had returned to work doing home deliveries for Woolworths but has reduced his hours and avoids heavier deliveries. He added that he hopes to later complete his radiography studies, which would take about another two years. He lives in a shared unit in Potts Point which is accessed by one flight of stairs. He shares the housework.
Mr Lam was asked about previous recreational activities including soccer, skateboarding, snowboarding and hiking. He stated, “I’ve tried all of those – I can’t do them like I used to do before.” On further questioning, Mr Lam said that he had not actually done any skateboarding or snowboarding. He has tried to kick a soccer ball but has not joined a team. His motorcycle was written off in the motor accident and he has not ridden since.

Present treatment

Mr Lam said that he takes either ibuprofen or paracetamol, one or two tablets per day, on some days for pain but not every day. He is not taking any other medications.

Lifestyle factors

Mr Lam does not smoke cigarettes and drinks little alcohol.

Physical examination

Mr Lam presented as a pleasant, slim young man (height 177cm and weight 56kg). He spoke perfect English with a slight accent. He showed a normal affect and gave a clear, specific history without any suggestion of exaggeration. During examination, he made good effort with no abnormal pain behaviours, self-limitation or inconsistency. He was wearing a long-sleeve top, pants, sneakers and boxer shorts. He undressed to his shorts for examination. He walked into the room with a normal gait and had no apparent difficulty sitting during our interview, undressing or dressing, climbing on and off the examination couch or getting in and out of a chair.

Lower extremities

Measured 10cm proximal to the patella, both thighs measured equally in girth at 39cm. The right calf measured 33.5cm and the left 33cm. (Mr Lam confirmed that he used to be

right-footed for soccer).
Although impairment due to lower limb scarring has been separately assessed, the following scars are briefly noted for completeness:
(a)    100mm x 10mm widened scar over the right patella;
(b)    30mm x 10mm scar over the mid-tibia (in the region of the previous fracture) with a visible and palpable underlying bony lump;
(c)    30mm x 10mm scar proximal to the medial malleolus of the ankle, and
(d)    two smaller approximately 10mm scars over the medial and lateral aspect of the proximal tibia.
There was no detectable malalignment or malrotation of the healed tibial fracture and no difference in measured leg length. A faint scar over the patella of the left knee was also noted and Mr Lam said that this had been from a minor childhood injury.
Both knees measured 32cm in circumference. The left knee was entirely normal to examination with no tenderness, intact ligaments, a full range of active movement from 0° to 150° without crepitus (there was slight clicking on movement but this is quite common in normal knees). No patellofemoral pain could be reproduced with patellofemoral grinding or on Clarke’s test. Straight-leg-raising was 60° with no extension lag.
The right knee showed full extension and slightly reduced active flexion to 130° (still within the normal range), accompanied by definite palpable and reproducible crepitus. Mr Lam described slight pain on active movement of the right knee. Ligaments were clinically intact. No pain was reproduced with patellofemoral grinding but he reported slight pain on Clarke’s test. Right straight-leg-raising was 50°, again without extension lag.
Knee jerks and ankle jerks were normal and symmetrical, and both plantar flexor responses were normal. Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) were normal and symmetrical. Thus there was no evidence of lumbosacral radiculopathy.
An area of impaired sensation with absent light touch sensation, a blunting to pinprick over the lateral right foot, ankle and lower leg in the distribution of the sural nerve was noted.
Mr Lam was able to take a few steps in bare feet on the carpeted floor of the examination room, first with weight on his forefeet and heels off the floor, and then with weight on his heels and forefeet off the floor. There was slight asymmetry when he did this, and he complained of some right leg pain. He was able to do an almost full squat to the floor and recover without using hand support. He could hop on the left foot but was not keen to hop on the right foot because of anticipated pain. Balance as tested by Romberg’s test (standing to attention with eyes closed) was normal. He could perform a tandem walk (walking in a straight line, heel to toe) but was slightly unsteady.

Lumbosacral spine

Posture of the lumbosacral spine was within normal limits. On palpation Mr Lam did not describe any tenderness over the lumbosacral spine although there was possibly slight tenderness over the left sacroiliac joint (SIJ). AROM of the lumbosacral spine was observed with Mr Lam standing with knees straight. Flexion was full, he was able to reach his fingertips to his lower shins. He described slight low back discomfort during this. Lumbar extension was full and pain-free. Lateral flexion was full bilaterally although he described slight pain on full lateral flexion to the right. There was no evidence of lumbar paraspinal muscle guarding or spasm. Patrick’s (Faber) provocation test for SIJ pain was negative bilaterally.

Upper extremities

Mr Lam’s hands were clean and soft with a few small callouses over the metacarpal heads bilaterally (consistent with the work that he described). The right (dominant) upper arm measured 26cm in circumference, the left 25.5cm and both forearms 24cm. Both upper limbs were neurologically normal with normal and symmetrical biceps, triceps and brachioradialis reflexes. Sensation was normal bilaterally.
The left elbow showed a small scar from a childhood injury and a 5°-10° varus deformity. AROM of the elbows was carefully measured with a goniometer, as tabulated below.

Right Left

Flexion 130° 120°

Extension 10° 10°

Forearm pronation 110° 110°

Forearm supination 100° 90°

Medical Assessor Bodel had found flexion of 140° in the right elbow and 130° in the left elbow and described loss of full extension in the left. On this examination, there was 10° of hyperextension bilaterally.
Turning to the wrists, they were both normal in appearance. There was no tenderness to palpation over either wrist. AROM was measured with a goniometer as tabulated below.

Right Left

Flexion 100° 90°

Extension 75° 70°

Radial deviation 20° 20°

Ulnar deviation 30° 30°

Medical Assessor Bodel had found slight restriction of flexion and extension in the left wrist compared with the right wrist. On this examination, the same was observed but all recorded movements were now within the normal range.
Grip strength was normal bilaterally. Mr Lam repeated that he could get slight pain in the left wrist on forceful pushing (in extension). With Mr Lam’s permission, gentle passive flexion and extension of the wrist was performed. There was no pain on flexion but he described slight pain during passive extension. He was asked to try pushing himself up from the seat of his chair using the heels of his hands (that is, in full wrist extension) and he said that he could not do this with the left.

DIAGNOSIS, CAUSATION AND REASONS

The Panel noted the mechanism of the motor accident in which Mr Lam’s motorbike hit a car that had unexpectedly turned in front of him, causing him to be thrown over the bonnet of the car and land on the roadway on the other side of the car.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause Mr Lam to suffer a fractured right tibia and a fractured right fibula requiring open reduction and internal fixation.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause Mr Lam to suffer a sensory loss in the distribution of the right sural nerve. The absence of such symptoms prior to the motor accident and the prompt development of and persistence of symptoms indicates, on the balance of probabilities, that the motor accident did cause the sensory loss in the distribution of the right sural nerve affecting the lateral aspect of the right calf and right outer foot.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause or contribute to an extent that is more than negligible a disturbance to Mr Lam’s right patellofemoral joint. The Panel finds that the right patellofemoral joint had been disturbed by the surgery for the insertion of the intramedullary nail and/or its subsequent removal and/or was directly impacted in the motor accident.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause a soft tissue injury to Mr Lam’s left wrist. The absence of symptoms prior to the motor accident and the prompt development of and persistence of symptoms indicates, on the balance of probabilities, that the motor accident did cause a soft tissue injury to Mr Lam’s left wrist.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused a soft tissue injury to Mr Lam’s lumbar spine. The absence of symptoms prior to the motor accident, the delayed development of and persistence of symptoms indicates, on the balance of probabilities, that the motor accident did cause a soft tissue injury to Mr Lam’s lumbar spine despite there being no reference to symptoms in the RPAH clinical records, Dr Foo’s clinical records or a finding of injury to or symptoms in the lumbar spine in Dr Dixon’s and Associate Professor Shatwell’s reports. The Panel accepts Mr Lam’s explanation for the delay in noticing and reporting symptoms in his lumbar spine referred to in [67], [68] and [69] above.
Whilst the Panel considered that the motor accident could have caused an injury to Mr Lam’s left elbow, it is not satisfied that the motor accident did cause or contribute to his current symptoms to an extent that is more than negligible. There is no convincing evidence of injury to the left elbow. Mr Lam gave a history of a fracture in childhood and he has a visible deformity from this. A very minor restriction of flexion compared with the right elbow is almost certainly entirely attributable to the fracture he sustained in his childhood when he fell from monkey bars.
Based on the findings on physical examination and the documents in evidence, the Panel finds that the following injuries were caused by the motor accident:
(a)    a fractured right tibia and a fractured right fibula;
(b)    sensory loss in the distribution of the right sural nerve affecting the lateral aspect of the right calf and right outer foot;
(c)    a disturbance to the right patellofemoral joint;
(d)    a soft tissue injury to the left wrist, and
(e)    a soft tissue injury to the lumbar spine.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined by the AMA 4 Guides as impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially, that is, by more than 3% WPI in the next year with or without medical treatment.[32]
[32] AMA 4 Guides at page 315 and cl 6.19 of the Guidelines.
The Panel considered the question of permanency of impairment and is satisfied that Mr Lam’s injuries caused by the motor accident have stabilised and are permanent within the meaning of the above definition.

DEGREE OF PERMANENT IMPAIRMENT

Right lower extremity

Mr Lam’s fracture of the right tibia and right fibula have healed well without malalignment or malrotation. There is some scarring related to surgery which has been separately assessed and a slight visible anterior bony prominence over the region of the fracture. There is no assessable impairment for the healed fractures from Table 64 of the AMA 4 Guides (impairment estimates of certain lower extremity impairments). Of the other permissible methods for lower extremity impairment assessment (Table 6.6 of the Guidelines) there was no assessable impairment for gait derangement, unilateral muscle atrophy or limb length discrepancy).
As found by Medical Assessor Bodel, there is sensory loss in the distribution of the right sural nerve. From Table 68, page 89 of the AMA 4 Guides, sensory loss in the distribution of sural nerves gives 1% WPI, being 2% lower extremity impairment (LEI). Mr Lam was not describing associated dysaesthesia on this occasion.
Mr Lam’s main residual symptoms are from the right knee. He has slightly restricted flexion compared with the left knee (although still within the normal range). There was definite reproducible crepitus. The footnote to Table 62, page 83 of the AMA 4 Guides applies, giving 2% WPI or 5% LEI.
The 2% LEI for the sural nerve injury and 5% for the patellofemoral injury are combined to give 7% LEI, which converts to a WPI of 3%.

Lumbosacral spine

On this occasion, examination of the lumbar spine was essentially normal and could only be classified as DRE lumbosacral category I impairment of the lumbar spine, which gives a WPI of 0%.

Left upper extremity

Mr Lam described slight discomfort in the left wrist on loading and extension. Examination of his left wrist showed minimal restriction of AROM compared with the uninjured right wrist, but still within their normal limits. There is a WPI of 0%.

Pre-existing or subsequent impairment

The Panel finds that there was no history of preceding symptoms prior to the motor accident to suggest any prior impairment.
There was no evidence of any subsequent impairment.
Accordingly, the Panel finds apportionment of impairment irrelevant.

Assessment of permanent impairment

The Panel assesses Mr Lam’s permanent impairment as follows:
(a)    current WPI: 3%;
(b)    pre-existing WPI: 0%, and
(c)    subsequent WPI: 0%.
Accordingly, the Panel assesses Mr Lam’s final WPI as 3%.

FINDINGS

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: Insurance Australia Group Ltd v Keen[33] and Insurance Australia Ltd v Marsh.[34]
[33] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[34] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Couch based on his examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.
The Panel determines that Mr Lam’s left elbow condition was not caused by the motor accident.
The Panel determines that Mr Lam sustained a fractured right tibia and a fractured right fibula, sensory loss in the distribution of the right sural nerve affecting the lateral aspect of the right calf and right outer foot, a disturbance to the right patellofemoral joint, a soft tissue injury to the left wrist and a soft tissue injury to the lumbar spine caused by the motor accident.
The Panel determines that the injuries caused by the motor accident give rise to a WPI which is not greater than 10%, that is, 3%.
The certificate of Medical Assessor Bodel dated 19 July 2023 is revoked.

CONCLUSION

The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.

Right	Left
Flexion	130°	120°
Extension	10°	10°
Forearm pronation	110°	110°
Forearm supination	100°	90°

[2024] NSWPICMP 410

25 June 2024