Insurance Australia Limited t/as NRMA Insurance v Linkert
[2025] NSWPICMP 96
•18 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Linkert [2025] NSWPICMP 96 |
CLAIMANT: | Joshua Linkert |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 18 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA); claimant injured in motor vehicle accident of 28 March 2020; on 17 February 2024 MA determined the claimant’s permanent impairment at 10%; the Review Panel confirmed the nerve damage caused by the accident, the 4% lower extremity impairment (LEI) for the sural nerve, 4% LEI for the superficial peroneal nerve, and 2% LEI for the hindfoot gives 10% LEI; totals to 4% whole person impairment (WPI); review of Medical Assessment; Held – Review Panel revoked the Medical Assessment Certificate; substituted determination of 4% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Alexander Woo, dated 17 February 2024, and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident, gave rise to a whole person impairment of 4%. |
STATEMENT OF REASONS
BACKGROUND
History of motor accident
On 28 March 2020, the claimant, Joshua Linkert (Mr Linkert), was riding his motorcycle, wearing a helmet, and full protective gear when a vehicle failed to give way at a stop sign causing a glancing blow from Mr Linkert’s motorcycle on the side of the car, resulting in a crush fracture of Mr Linkert’s left foot.
Mr Linkert told the Medical Assessor doing the examination that the motorbike skidded for another 10 metres, and then it fell on top of him.
The motorbike was a large 650cc bike and passers-by helped lift the bike off of him.
Mr Linkert was then transported by ambulance to the Prince of Wales Hospital, Randwick.
At the Prince of Wales Hospital, Mr Linkert was diagnosed with a Lisfranc mid-foot fracture of the left foot. He was initially discharged with a CAM Boot, and the surgery arranged for a week later by Dr Ling.
On 7 April 2020, Dr Ling performed an open reduction with internal fixation (ORIF) using plates and screws.
Initially, Mr Linkert was mobilising using crutches, in a wheelchair, and with a cast on his left lower leg.
On 19 October 2020, Dr Ling removed the hardware except for two partial screws, which were left in situ buried in the metatarsals. After this procedure, he again wore a CAM boot for the ensuing six months.
Mr Linkert underwent physiotherapy for about a year, but due to increased pain, he was referred to a pain specialist, Dr Standen, who ordered further physiotherapy and the application of a desensitising cream.
A medical dispute about the degree of Mr Linkert’s whole person impairment (WPI) has arisen in connection with that claim and that dispute was referred to the Personal Injury Commission (the Commission) for assessment.
On 17 February 2024, Medical Assessor Woo determined Mr Linkert had a 10% WPI.
Medical dispute
A medical dispute about the degree of Mr Linkert’s WPI has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the Motor Accidents Injuries Act 2017 (MAI Act).
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 dispute was referred to the Commission and the Commission assigned it to Medical Assessor Alexander Woo for assessment.
On 16 February 2024, Medical Assessor Woo assessed Mr Linkert and on 17 February 2024, certified that his left foot Lisfranc injury/fractures of the 1st, 2nd, 3rd, and 4th metatarsals did not give rise to a WPI greater than 10%.
Review procedure
Mr Linkert sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review). The application for referral of a medical assessment to a Review Panel (the Panel) was made by Mr Linkert within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought: s 7.26(10) of the MAI Act.
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 which is the subject of the Review was made on or after 1 March 2021, the new review provisions apply.
A delegate of the President of the Commission determined there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Panel.
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 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.
LEGISLATIVE FRAMEWORK
Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Mr Linkert’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 (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:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
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.”
ASSESSMENT UNDER REVIEW
Medical Assessor Woo examined Mr Linkert on 16 February 2024. He had the documents attached to the Application, but no further documents.
The Medical Assessor took a brief history [8] and then proceeded to take a history of the accident [9].
Medical Assessor Woo set out the history of symptoms and treatment, noting the surgery on 7 April 2020 by Dr Jeff Ling, who performed an open reduction and internal fixation with plates and screws, with discharge on 8 April 2020 non-weight bearing.
Medical Assessor Woo noted that on 19 October 2020, Dr Ling removed the Hardware, but two screws were left in situ, buried inside the base of the metatarsals.
Mr Linkert was non-weight bearing for six months.
Medical Assessor Woo noted Mr Linkert’s then-current symptoms at [12] and the current and proposed treatment at [13].
Medical Assessor Woo then [14] following the clinical examination noted a range of movements measured by goniometer shown reproduced below.
Ankle Movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Dorsiflexion
50°
40°
Plantarflexion
40°
30°
Hindfoot Movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Inversion
30°
20°
Medical Assessor Woo did not consider it appropriate to assess any impairment related to Arthritis because Mr Linkert had decided to have a mid-foot arthrodesis in the near future.
Medical Assessor Woo determined permanent impairment as a result of the Lisfranc fracture at 10% WPI.
Dr Woo referred to two surgical scars on the dorsum of the left foot, but did not assess the scarring for WPI, arriving at a total WPI of 10%.
Assessing the scarring, the insurer objects to the Panel assessing the scarring, even though it was specifically mentioned by Medical Assessor Woo and obviously overlooked by him.
The insurer’s position is that the Application was lodged by the insurer, not by Mr Linkert, and therefore cannot be amended by Mr Linkert.
Finally, the insurer submits that the proposed cause of action of assessing the scarring would be prejudicial to the Insurer.
On 9 August 2024, the legal representative of Mr Linkert wrote to the Panel stating at [7] that Mr Linkert sought to amend his application pursuant to regulation 19 of the Rules and refer “scarring” to the Panel.
The panel’s assessment
Mr Linkert was assessed at the Medical Suite of the Commission on 2 December 2024. He had flown from Perth to attend the examination.
Medical Assessor’s reasons
Mr Linkert’s current symptoms reported by Medical Assessor Woo at [12] included:
“Mr Linkert complains of constant left foot pain. The pain is throbbing in nature and rated at 6/10 (0 no pain and 10 most severe pain) at rest and increased to 8-9/10 on walking.
The pain has increased over the last 8 months and he has on and off sharp pain. He has hotness, numbness and tingling in the left foot.
He also started to feel right-sided back pain, presumably from putting more weight on his right foot due to the increasing left foot pain.
He also has tinnitus in his right ear. He was assessed by ENT specialist but no definite cause has been found.”
The current and proposed treatment of Mr Linkert was discussed at [13]:
“He does not take medication for his pain. He is still attending physiotherapy.
He was referred to Dr Standen, Pain Specialist who prescribed him a tropical cream for treatment of arthritis. There is some improvement of the sensitivity of his left foot.
Dr Standen has recommended him for a cortisone injection to the left foot.
He was reviewed by Dr Ling in December 2023 and there was discussion of fusion of the mid foot.
He has apparently decided to proceed with the surgery hoping to improve his pain.”
Medical Assessor Woo undertook a clinical examination and reported the results at [14]-[16] of his certificate:
“[14] General presentation
Mr Linkert is right hand dominant.
He is 177cm in height and weighs 73kg.
He has a limping gait due to left foot pain.
[15] Lower extremity
There was normal overall alignment of the left foot. There was no significant temperature change.
There were two surgical scars on the dorsum of the left foot, a 7cm scar between the first and second metatarsal and a lateral one between the fourth and fifth metatarsals. Both scars were reddish in colour, tender and hypersensitive. Sutures marks were prominent.
There was dysaesthesia over the dorsum of the left foot more prominent around the scar.
The calf circumference was equal on both sides.
Range of movement was measured with a goniometer.
Ankle Movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Dorsiflexion
50°
40°
Plantarflexion
40°
30°
Hindfoot Movements
Active ROM Measured RIGHT
Active ROM Measured LEFT
Inversion
30°
20°
Eversion
15°
20°
[16] Comments on consistency
I did not notice any inconsistency during assessment.”
Medical Assessor Woo noted under “review of documentation” at [17]-[18]:
“[17] Summary of relevant documentation
Dr Brian Martin report to Chadwick Lawyers dated 23 September 2022
Dr Martin assessed a whole person impairment of 27% consisting of the following:
AMA 4 Table 62 on page 83 related to arthritis - 15% WPI
Second tarsometatarsal joint (0 mm joint space) 6% WPI
Third tarsometatarsal joint (0 mm joint space) 6% WPI
Fourth tarsometatarsal joint (1 mm joint space) 3% WPI
Extrapolation from Table 64 on page 86 - 10% WPI
First tarsometatarsal joint 4% WPI
Second tarsometatarsal joint 2% WPI
Third tarsometatarsal joint 2% WPI
Fourth tarsometatarsal joint 2% WPI
Dysaesthesia in the sural nerve in the superficial peroneal nerve distribution - 4% WPI
My comment
I am unable to assess the impairment related to arthritis because Mr Linkert has decided to undertake a midfoot arthrodesis.
The assessment of impairment related to metatarsal fractures should be assessed in the following order:
First metatarsal fracture 10% lower extremity impairment
Second metatarsal fracture 2% lower extremity impairment
Third metatarsal fracture 2% lower extremity impairment
Fourth metatarsal fracture 2% lower extremity impairment
Left lower extremity impairment added to 16% lower extremity impairment
I agree with the assessment of dysaesthesia of the sural nerve and superficial peroneal nerve related to Table 68 on page 89.
Sural nerve 5% lower extremity impairment.
Superficial peroneal nerve 5% lower extremity.
Added to 10% lower extremity impairment.
16% related to fractures is added to 10% related to dysaesthesia to 26% lower extremity impairment.
Concerted to 10% whole person impairment.
[18] Summary of relevant radiological and medical imaging and other investigations
The following radiological and medical imaging was brought to the assessment:
I have reviewed the x-ray imaging and noted healing of the metatarsal base fractures and anatomical alignment of the tarsometatarsal joint.
I do not consider appropriate to assess any impairment related to arthritis because Mr Linkert has decided to have a mid-foot arthrodesis in the near future.”
Medical Assessor Woo determined at [19]-[22]:
“[19] Diagnosis and reasons
The hospital record on the day of accident confirmed the diagnosis of Lisfranc injury with fractures of the 1st, 2nd, 3rd & 4th metatarsals at the tarsometatarsal joints.
[20] Causation and reasons
The hospital record on the day of accident confirmed the diagnosis of Lisfranc injury with fractures of the 1st, 2nd, 3rd & 4th metatarsals at the tarsometatarsal joints.
Mr Linkert's injuries are caused by the motor accident.
Summary of injuries referred by the parties
[21] The following injuries WERE caused by the motor accident:
•Left foot Lisfranc injury with fractures of the 1st, 2nd, 3rd & 4th metatarsals at the tarsometatarsal joints.
Summary of injuries NOT referred by the parties but caused by the motor accident
[22] The following injuries WERE NOT listed by the parties but WERE caused by the motor accident:
•Not applicable.”
Medical Assessor Woo commented on the permanency of impairment:
“Statement about permanent impairment
Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p.315) as follows:
‘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 and by more than 3% in the next year with or without medical treatment.’
[23] Mr Linkert's condition is considered permanent if he is not going to have further medical treatment.
He has decided to proceed with a mid-foot arthrodesis in the near future. His impairment is likely to change by more than 3%. My assessment is based on his current condition.”
Medical Assessor Woo further determined at [24]-[27]:
“The determination as to permanent impairment is made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
“[24] Permanent impairment table
Body Part or System
AMA4 Guides/ Guidelines References
(chapter/
page/table)
Permanent (YES/NO)
Current
%WPI*
%WPl* from
pre-existing OR
subsequent
causes
%WPl* due to motor accident
1
Left lower extremity
Lisfranc injury
Chapter 3
Page 86, Table 64
Page 83, Table 62
Yes
10%
0%
10%
* %WPI = percentage whole person impairment
Methodology of Assessment
Left lower extremity - 10% WPI
Metatarsal fractures - 16% lower extremity impairment
AMA4 Table 64, page 86
First metatarsal fracture - 10% lower extremity impairment
Second metatarsal fracture - 2% lower extremity impairment
Third metatarsal fracture - 2% lower extremity impairment
Fourth metatarsal fracture - 2% lower extremity impairment
Added to 16% lower extremity impairment
Dysaesthesia of the sural nerve and superficial peroneal nerve - 10% lower extremity impairment
AMA4 Table 68 on page 89
Sural nerve - 5% lower extremity impairment
Superficial peroneal nerve - 5% lower extremity
Added to 10% lower extremity impairment
16% related to fractures is added to 10% related to dysaesthesia to 26% lower extremity impairment
Converted to 10% whole person impairment (MA Guidelines Table 6.4)
Total WPI -10%
[25] Pre-existing/subsequent impairment
Not applicable.
[26] Apportionment
Not applicable.
[27] Effects of treatment
Not applicable.”
SUBMISSIONS
Insurer’s submissions dated 11 March 2024
The insurer seeks a review of the certificate of Medical Assessor Alexander Woo relating to WPI dated 17 February 2024 in accordance with the MAI Act.
Medical Assessor Woo assessed WPI at 10% and determined that the left foot Lisfranc injury with fractures of the 1st, 2nd, 3rd and 4th metatarsals at the tarsometatarsal joints were caused by the accident.
The insurer submits that the Certificate is incorrect in a material aspect in that Medical Assessor Woo:
(a) incorrectly assessed WPI in relation to the assessment of metatarsal fractures and Dysaesthesia of the sural nerve and superficial peroneal nerve;
(b) Applied a WPI rating when stabilisation has not been confirmed, and
(c) failed to take into account the medico-legal report from Dr Hyde-Page/denial of procedural fairness.
(a)Incorrectly assessed WPI in relation to the assessment of metatarsal fractures and Dysaesthesia of the sural nerve and superficial peroneal nerve
The Insurer refers to the forefoot deformity, Table 64 at page 86 of the AMA 4 Guides which provides two methods to assess WPI of a metatarsal fracture as follows:
(a) metatarsal fracture with loss of weight transfer. underneath the table, loss of weight transfer is defined as dorsal displacement of a metatarsal head greater than 5mm according to a lateral roentgenogram taken while weight-bearing, and
(b) metatarsal fracture with plantar angulation and metatarsalgia.
The insurer submits that Medical Assessor Woo did not indicate which of the above approaches he used and that there is no indication that he performed a WPI assessment in accordance with either of the two aforementioned methods and the criteria for each method is not met.
In regard to the dysaesthesia of the sural nerve and superficial peroneal nerve, Medical Assessor Woo assessed 10% lower extremity impairment (Table 68, page 89 of the AMA 4 Guides):
(a) superficial peroneal nerve dysaesthesia (5% lower extremity impairment), and
(b) sural nerve dysaesthesia (5% lower extremity impairment).
The insurer refers to clause 6.106 of the Motor Accident Guidelines which notes that when using Table 68, one must refer to Tables 11a and 12a (pages 48-49, AMA 4 Guides). The insurer submits that Medical Assessor Woo failed to comply with this. Medical Assessor Woo only used the lower extremity impairment % from Table 68 and did not refer to Table 11 to grade the level of sensory deficit.
The Insurer therefore submits that Medical Assessor Woo has erred in a material respect by not complying with the requirements under the AMA 4 Guides and Guidelines in his medical assessment.
(b)Applied a WPI rating when stabilisation has not been confirmed.
On page 4 of the certificate, md Assessor Woo stated:
“He has apparently decided to proceed with the surgery hoping to improve his pain.”
On page 6 of the certificate, Medical Assessor Woo stated:
“I am unable to assess the impairment related to arthritis because Mr Linkert has decided to undertake a mid-foot arthrodesis.”
On pages 7 and 8 of the certificate, Medical Assessor Woo states:
“Mr Linkert’s condition is considered permanent if he is not going to have further medical treatment. He has decided to proceed with a mid-foot arthrodesis in the near future. His impairment is likely to change by more than 3%. My assessment is based on his current condition.”
The insurer submits that this statement is contradicted by the assessment of a permanent impairment to the lower extremity of 10%.
(c)Failed to take into account the medico-legal report from Dr Hyde page/denial of procedural fairness
A Medical Assessor has an obligation to consider the arguments advanced by each of the parties. The Medical Assessor’s obligations are of the nature discussed in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64; [2013] HCA 43 at [47]-[48] as discussed by Schmidt SCJ in AAI v Fitzpatrick [2015] NSWSC 1108:
“…namely, to form and give his or her own opinion on the medical dispute referred. In undertaking that function, the assessor must consider what both parties advance, in light of the information provided to the assessor.”
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 is authority for the principle that:
“…where a decision-maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice, that is, procedural fairness”.
That principle was discussed in Ali v AAI Ltd [2016] NSWCA 110 where, without deciding what amounts to a “relevant consideration” in this context, Basten JA (with Leeming and Simpson JJA agreeing) stated (at [66]):
“A statutory obligation to address the substance of an applicant’s case will be readily implied, as will an obligation to consider material relied on by an application which is, on its face, relevant and significant, and is credible or uncontested”.
Medical Assessor Woo failed to consider the expert evidence relied by the Insurer, that is, the report from Dr Murray Hyde-Page dated 20 October 2022.
The certificate does not set out a single reference to the report or opinion of Dr Hyde-Page (the orthopaedic surgeon which the Insurer qualified to provide a report in this case). Whilst not making a single mention of Dr Hyde Page’s report or opinions anywhere in the certificate, Medical Assessor Woo referred to the report of the expert orthopaedic surgeon qualified by the claimant, being a report from Dr Brian Martin, dated 23 September 2022, and the WPI assessment therein.
The effect of Medical Assessor Woo failing to address the insurer’s expert evidence ought to be determinative of this issue. Medical Assessor Woo had an obligation to address the content of the report relied upon by the Insurer and his failure to do amounts to a clear denial of procedural fairness.
Conclusively, the Insurer submits that the President’s delegate would be satisfied that there is reasonable cause to suspect that the medical assessment of Medical Assessor Woo was incorrect in a material respect having regard to the submissions set out above.
Mr Linkert’s submissions dated 4 April 2024
Mr Linkert opposed the Application for Review of the assessment of WPI of Dr Alexander Woo dated 17 February 2024 on the basis there was no reasonable cause to suspect that the medical assessment of Dr Woo was incorrect in a material respect.
The insurer raised three grounds upon which it asserted that the assessment of WPI of Dr Woo was incorrect.
Ground one
The insurer alleged Dr Woo incorrectly assessed WPI in relation to the assessment of the metatarsal fractures and dysaesthesia of the sural nerve and the superficial peroneal nerve.
At paragraph 3. 7 of its submissions the insurer asserted Dr Woo incorrectly assessed 10% lower extremity due to dysaesthesia of the sural nerve and superficial peroneal nerve, based on 68 (page 89) of AMA 4 Guides.
At the top of page 6 of his certificate, Dr Woo confirmed that his assessment of WPI of the 1st, 2nd, 3rd and 4th tarsometatarsal joints was based on an extrapolation from Table 64 (page 86 of the AMA 4 Guides) - not Table 68 on page 89 of the Guides, as asserted by the insurer.
The insurer was wrong when it asserted that Dr Woo made an error in failing to refer to Tables 11a and 12a of the Guide. Tables 11 and 12 of pages 48 and 49 of AMA 4 Guides refer to the upper extremity only.
Mr Linkert submits that Dr Woo appropriately and correctly applied Table 64 (page 86 of the AMA 4 Guides) when assessing WPI.
Ground two
The insurer asserted that the assessment of WPI of 10% could not be made by Dr Woo on the basis it asserts the claimant's condition is not stable.
Chapter 6.21 of the Motor Accident Guidelines states the evaluation should only consider impairment as it is at the time of the assessment.
At the top of page 8 of his certificate Dr Woo stated "my assessment is based on his current condition". Accordingly, the assessment of WPI of Dr Woo of 10% is based on the claimant's impairment at the date of the assessment, 16 February 2024.
Ground three
The insurer noted that the certificate of Dr Woo does not make a single reference to the report or opinion of Dr Hyde Page. On page 2 of his certificate, under the heading "Summary of Documents Considered", Dr Woo confirmed that he had considered the documents provided in the application and reply. In light of this, there was no basis for the insurer to assert an injustice or procedural unfairness.
Arthritis
The insurer failed to raise in its submissions the decision of Dr Woo not to include in his assessment any impairment related to arthritis, on the basis Mr Linkert had advised him that he had decided to have a mid foot arthrodesis in the near future. Mr Linkert had indicated to Dr Woo that he proposed to have a surgical procedure in the near future. This should not have precluded Dr Woo from including in his assessment, that impairment relating to the arthritis condition.
At page 5 of his report, Dr Woo confirmed that Dr Brian Martin, Foot & Ankle Specialist qualified by Mr Linkert’s solicitors, assessed WPI relating to the arthritis at 15%.
Mr Linkert submits that it is more than apparent that had Dr Woo appropriately included in his assessment, the impairment that related to the arthritis, then the total assessment of WPI of Dr Woo would have been significantly in excess of 10%.
Mr Linkert further submits that the Commission would not be satisfied that Dr Woo has made an error in his assessment of WPI on the grounds raised by the insurer.
Separately, Dr Woo chose not to assess impairment relating to Mr Linkert’s arthritis and had he done so, his assessment of WPI of Mr Linkert would have been considerably in excess of 10%.
EXPERT REPORTS
Report of Dr Murray Hyde Page, orthopaedic surgeon, dated 20 October 2022
Mr Linkert states he was involved in a motorbike accident on 28 March 2020. This occurred when a sedan vehicle came through a “Stop” sign on his left and he collided with the front of the car on his bike. He was thrown forward, over the bonnet of the car approximately 20 metres, landing on the roadway. At the time he was wearing a helmet and all protective gear. He did not have any loss of consciousness.
Early treatment
He was in a lot of general pain and taken by ambulance to Prince of Wales Hospital. There, he had X-rays of his left foot that showed an unstable Lisfranc fracture and injury. He had some abrasions on his left shoulder and left leg. He had a head injury, despite no loss of consciousness and went on to develop tinnitus.
His left lower leg and foot was put in a boot. He was told to go home and rest for the week with the leg elevated, before coming back and having surgery. At the time he was living with his brother who looked after him.
He came back for surgery a week later at Prince of Wales Hospital. He was under the care of a Foot and Ankle Surgeon, Dr Jeffrey Ling, who went ahead and fixed the unstable Lisfranc fracture through two incisions on the top of his foot. Plates were applied across the first, second, third and fourth tarsometatarsal joints with good reduction. The lower leg and foot were then placed in a half plaster, and he was discharged on the day of the operation. He then came back and had the stitches removed a week or two later and went into a boot. He was partial weight bearing using crutches for the next three months.
By this time the grazes on his left shoulder and leg had healed and he had no further symptoms. He was having treatment for tinnitus. He also had treatment from a psychologist.
He was followed up with Dr Ling, who was happy with his progress, and after six months the plates and screws were removed from his left foot.
Subsequent progress
He ended up being off work for nearly a year. He initially went back to work doing plant operations, which he was doing prior to the accident. However, he found that this aggravated the pain and swelling in his left foot, both with operating the excavator and plant, as well as walking and moving on rough and uneven construction sites. After a few weeks he was given a job with the same company, office-based. He has continued to work office-based doing accounts reconciliation and safety work. He works fulltime and at no time did he go on to construction sites. Over the last year the swelling and pain in his left foot has improved and he has now finished physiotherapy and exercise physiology. He is having ongoing treatment for his tinnitus and psychological issues.
Current Status and present treatment
He has persistent pain in the midtarsal joints and forefoot of his left foot. This is aggravated walking on rough and uneven ground. He can only walk for about one kilometre before it becomes painful and swollen. He cannot do any running. He has some numbness on the dorsum of his foot which is not getting any better. However, he is able to wear a lace up boot or shoe and wear it quite comfortably. He really has no other symptoms, and he has been able to obtain normal movement and function of his left ankle and hindfoot. He had no symptoms in his hip or knee. The rest of his injuries have all settled down, including his left shoulder, and his only other ongoing complaint at the moment is the tinnitus.
He is no longer having any treatment. He takes no pain medication.
Work History
He left school after Year 12 and has had no formal training since then. For the last eight years he has worked in the construction industry. Up until the time of the motorbike accident he was a plant operator, mainly driving excavators on civil construction sites. He was off work for nearly a year after the motor vehicle accident and found that he could no longer drive excavators and work on rough and uneven construction sites. Within a few weeks he was working in the office full-time, where he has remained ever since. He has now been working for SH Excavations for a few years full-time.
Past Health
His general health is very good. He gives no history of any previous injury or complaint affecting his left foot and ankle. He had no other injuries of note.
Social and personal history
Mr Linkert is 30 years of age and presently lives with his partner. He has no children. He does not smoke and has a low alcohol intake. He presently does no sports. He was doing some spear fishing before the motor vehicle accident but finds that his foot becomes too painful if he does this now.
Examination
Mr Linkert is 175cm tall and weighs 74kg. He is a fit healthy-looking man.
Today, he was able to walk comfortably without a limp. However, once he tried to walk on his heels or toes or with his feet inverted or everted, he complained of pain and discomfort in his left foot, and he started walking with a painful limp.
Closer examination reveals there is 1cm wasting of his left calf compared to the right. He has a full and normal range of movement in his left ankle and left hindfoot, equal to the right side.
In his left forefoot, he has an 8cm longitudinal surgical scar on the dorsum of the foot between the first and second metatarsals. This is uncomfortable to touch. He has altered sensation in the sensory nerve distribution on the dorsum of his foot to the big toe involving the superficial peroneal nerves.
The rest of the sensation on the dorsum sides of his foot was normal, although he had some discomfort over the more lateral longitudinal scar, 4cm, over the 3rd and 4th metatarsal.
Movement of the tarsometatarsal joints in the left foot was quite uncomfortable and movement was stiff, however, he had normal alignment of his forefoot and there was no collapse of the medial arch.
He had normal movement and function of his toes. He had normal examination of his left knee and hip and his left shoulder and arm, neck and spine.
The overall examination indicates pain and stiffness in the midtarsal or tarsometatarsal joints of his left foot. He has obvious scars on the dorsum of his foot from surgery which are uncomfortable. There is altered sensation in the superficial peroneal nerve distribution going to the big and second toes. There is 1 centimetre wasting of his left calf.
Movements were conducted in an active manner by Mr Linkert. Where passive movement has been induced, it has been recorded in the examination findings. Passive movements were not performed beyond the limits of comfort. Where any restriction of movement has been caused by pain or a mechanical reason or because of any other factor, it has been recorded in the examination findings.
Diagnosis, opinion and prognosis
Mr Linkert, who is 30 years of age, was involved in a motorbike accident on the morning of 28 March 2020 when a car coming through a “Stop” sign on the left collided with his bike, and he was thrown 20 metres forward over the bonnet of the car. He was wearing a helmet and protective gear. He suffered a displaced Lisfranc fracture of his left midfoot and initially, he was placed in a boot and sent home to allow the swelling to go down. He came back and had surgery at Prince of Wales Hospital a week later under Dr Ling. He had three plates and screws applied, from the from the first to the fourth metatarsals, and a good reduction was obtained. He went on and remained on crutches for three months, minimally weight bearing, before having a course of physiotherapy to mobilise his foot.
He ended up being off work for nearly a year and when he attempted to go back and work as a plant operator, he could not continue with this type of work due to having to walk on rough and uneven construction sites and found it too painful working as a plant operator. Instead, his employer has now given him full-time office-based work, which he has continued doing ever since satisfactorily. He still gets pain and stiffness in the left forefoot and has restriction, including walking on rough and uneven ground, let alone being unable to run and walk for more than about a kilometre.
He suffered no other significant musculoskeletal injuries and only had a minor abrasion to his shoulder and left leg. He does suffer from tinnitus and still has psychological issues that he is working through.
His prognosis is guarded. It is now two and a half years since his injury and he still has persistent pain and stiffness in the midtarsal joints of his left foot, and the recovery has plateaued off. This pain is likely to continue for the foreseeable future and he will have restriction on his general mobility and weight bearing activity.
Past earning capacity
There has been an impact on his capacity to work as he can no longer work as a plant operator or work on construction sites with rough and uneven ground. He cannot do manual weight bearing work. His limitations will be indefinite.
He was off work for nearly a year. When he went back to work on construction sites as a plant operator, he only did this for a matter of weeks before he could no longer continue, and his employer gave him an office-based job. This appears to have been quite appropriate.
Future earning capacity
He is now restricted to office-based or sedentary work. He has been fortunate that his employer has given him full-time office-based work and he is learning on the job. He does accounts reconciliation and sets up safety protocols. He does not have to work on site.
With his office-based work, he can work full-time but his pay is reduced.
WPI
Mr Linkert has WPI related to the injuries to his left foot and ankle. I note however that he has no stiffness in his ankle and hindfoot and there is no WPI as a consequence.
He has a Lisfranc fracture that has been treated with internal fixation. This causes ongoing symptoms. With reference to AMA 4 Guides page 86 Table 64, he has forefoot injury with metatarsal fracture and loss of weight transfer, and this best fits his forefoot injury, giving 10% lower extremity impairment.
There is sensory loss in the superficial peroneal nerve distribution of the foot and with reference to Table 68 page 89, this gives 5% lower extremity impairment.
The overall lower extremity impairment is found by combining 5% with 10%, to give 15% LEI (lower extremity impairment). With reference to Table 6.4 page 103 of Motor Accident Authority Guides, this gives 6% WPI.
There is 1% WPI due to surgical scarring, using the Table for the Evaluation of Minor Skin Impairment (TEMSKI) scale.
The overall WPI is found by combining 6% with 1%, to give 7% WPI. There is no deduction for any pre-existent injury or condition.
Report of Dr Jeff Ling – foot and ankle surgeon, dated 6 November 2023
Mr Linkert is now experiencing ongoing trouble with midfoot pain which is activity related, it also neuropathic symptoms which I note you are helping with. I note that he continues to work in a modified capacity. Clinically, he is tender throughout the Lisfranc interval and there is evidence of hypersensitivity and allodynia. A recent CT scan with nuclear imaging demonstrates post-traumatic change throughout the Lisfranc interval.
Mr Linkert presents with post-traumatic arthritis at the Lisfranc interval. I agree with and support all modalities currently being employed to help with his neuropathic symptoms. Other options to trial include image guided cortisone injections, orthotics, and supportive footwear. The likelihood is that Mr Linkert is heading towards a midfoot arthrodesis in the near future as without dealing with the physical driver to the neuropathic symptoms, his overall picture is unlikely to improve. I have given him my patient information sheet on midfoot arthrodesis which outlines the operative steps, rehab, and risks in detail.
Report of Dr Jane Standen, pain physician, dated 24 May 2023
Mr Linkert was assessed in my Bella Vista rooms this afternoon. Mr Linkert presents with persistent left foot and ankle pain following a work-related injury requiring previous foot and ankle surgeries.
Mr Linkert states that he was involved in a motorbike accident whereby his left foot was crushed between a motor vehicle and his motorbike. Mr Linkert's understanding is that he sustained Lisfranc fracture to the left mid foot region prompting admission to Prince of Wales Hospital.
Mr Linkert states that motorbike accident occurred on 28th March 2020. He states that the pain and swelling of the left foot was significant. He underwent open reduction internal fixation of the fracture under the care of Dr Jeff Ling approximately one week following the injury. He states that six months later hardware was removed.
Mr Linkert describes significant pain, swelling and colour changes of the left foot in comparison to the right from the time of injury.
Mr Linkert states that over the three-year interval period the pain is increasing on a numerical rating scale. He states that he has not returned to see Dr Ling since initial postoperative review. Mr Linkert states he was initially engaged with physiotherapy in the Randwick area. He states he has not been provided with physiotherapy for over a 12- month period.
Mr Linkert states he has no pain free days. Pain is exacerbated by weightbearing through the left lower limb. He describes stiffness and pain in the foot on first waking. He describes increasing swelling and discoloration of the foot with prolonged standing and weightbearing through the left lower limb.
Additional issues include right knee pain, right hip and lumbar pain in association with ongoing antalgic gait.
Mr Linkert states that at present he is managing pain with combination of elevation of the left foot, icing of the left foot and occasionally simple analgaesia.
Mr Linkert describes hypersensitivity to the left foot. He states that he is reluctant to walk barefoot. He describes hot and tingling sensation over the dorsal incision site and over the lateral aspect of the left foot.
Mr Linkert describes absence of trophic changes, in particular absence of hair growth, nail growth or skin trophic changes. Mr Linkert describes episodic dystonia of the left foot.
Worst pain is 9/10, average pain is 7/10, least pain is 3/10.
psychometric scoring:
brief pain interference is 8/10;
pain catastrophising is severe;
Pain Self-Efficacy Questionnaire (PSEQ) is significantly low for a pain patient, and
on Depression, Anxiety and Stress Scale (DASS)21, stress is severe, anxiety is moderate, depression is severe.
On examination, Mr Linkert mobilises with mildly antalgic gait. He has no difficulty removing his socks and shoes. On examination of the two feet and ankle regions, there are well healed incision sites over the lateral aspect and dorsal aspect of the left foot. The left foot is mildly erythematous in comparison with the right foot. There is absence of temperature differential between the two feet. The left foot is not oedematous in comparison with the right foot. Mr Linkert demonstrates mild restriction in dorsiflexion of the left foot. There is pinprick hyperalgaesia in broad distribution over the dorsum and sole of the left foot in comparison with the right foot. There is mechanical dynamic tactile allodynia to light brush examination of the left foot.
There is deep somatic allodynia to palpation over the mid foot incision site and over the lateral aspect of the left foot.
Mr Linkert describes a history suggestive of complex regional pain syndrome in the left foot and ankle region. Mr Linkert does not meet the Budapest criteria for Complex Regional Pain Syndrome (CRPS). There is suggestion of significant cortical neglect. Mr Linkert states he is nauseated when sighting his left foot once shoe and sock is removed.
Report of Dr Jane Standen, pain physician, dated 8 November 2023
Mr Linkert states he continues to make good clinical progress with our physiotherapist. He describes significant reduction in hyperalgaesia of the left foot and ankle region. Mr Linkert attributes this to engaging in desensitisation exercises as well as provision of compounded magnesium and analgaesic cream.
Mr Linkert states he has returned to see Dr Jeff Ling. Dr Ling has suggested to Mr Linkert that at a later date he is prepared to undertake a mid-foot fusion. This information was relayed by the patient. Mr Linkert states he will continue to consider further foot surgery.
OTHER RELEVANT MATERIAL
Ambulance report dated 28 March 2020
The ambulance report provided the following summary:
“C/T 28yo Male, MVC Motorcycle vs Car. O/A Pt alert, orientated, conscious lying
L Lateral on the road, helmet removed. Pt states he was travelling approximately
50-60km/hr before impact. Pt collided with driver side door after driver pulled out in front of him. Pt travelled 15-20m along road way after collision. Significant damage to vehicle and bike. Obvious impact sight on Pt helmet. O/E Pt denies LOC, denies cervical or spinal pain on palpation. Pt denies chest pain, abdomen soft with nil tenderness on palpation. Pt denies Pelvic Pain. Nil obvious deformity to extremities. On exposure, Pt has abrasion to L upper arm, abrasion to L leg below the knee and 10/10 to same. Pt states 10/10 pain in Left foot. Pt has limited movement in toes. Pt denies loss of sensation in L foot. Pt has strong L pedal pulse. Pt administered pain relief by Paramedics to good effect. Pt L leg splinted on scene. Pt has full range of motion in all other limbs. Pt haemodynamically stable.”
Police report dated 28 May 2020
The following crash summary details were recorded in the police report:
“At 10.15am on Saturday the 28th of March 2020, VEH1 (NRMA Driver) heading Northbound and VEH2 (Mr Linkert) heading Eastbound were involved in a collision at the Stop sign intersection of Middle Street x Harbourne Rd Kingsford. VEH1 has failed to give way a t the stop sign which has resulted in a collision with the vehicles. VEH2 has received treatment for his injuries.”
THE PANEL’S EXAMINATION
Medical Assessor Shane Moloney examined Mr Linkert for the Panel.
Mr Linkert attended the medical suites at the Commission on 2 December 2024. He was unaccompanied. He had flown in from Perth to attend this examination.
Preaccident history
Mr Linkert stated that he was working full-time at the time of the accident as a machine operator on building sites.
He was born in Germany and migrated to Australia in 2004. He lives with his partner and
18-month-old daughter. Since the accident, Mr Linkert and his partner have moved to Perth to be nearer her relatives.He stated that prior to the accident he was in good general health and had no previous injuries to his feet.
History of the accident related to the Panel
Mr Linkert was riding his motorcycle on 28 March 2020 wearing a helmet and full protective gear. A car failed to give way at a Stop Sign.
He stated that his foot got caught between the car and the bike. It skidded for another 10m and then the bike fell on top of him. He was riding a large 650cc bike and passers-by helped lift the bike off him. He was transported by ambulance to Prince of Wales Hospital.
History of symptoms and treatment following the accident
At Prince of Wales Hospital an X-ray diagnosed the Lisfranc midfoot fracture of the left foot. He was initially discharged with a CAM boot with surgery arranged for a week later by Dr Ling. There was an ORIF using plates and screws. Initially he was using crutches in a wheelchair and a cast on his left lower leg.
On 19 October 2020, Dr Ling removed the hardware except for two partial screws which were left in situ buried in the metatarsals. After this procedure he again was wearing a CAM boot for about six months.
Physiotherapy was continued for a about one year but, due to increased pain, he was referred to a pain specialist, Dr Standen who ordered further physiotherapy and the application of a desensitising cream.
Mr Linkert moved to Western Australia one year ago and changed his pain specialist in Perth, where Dr Miu continued to prescribe the creams and suggested injections into the painful joints might be worth a trial. Dr Ling had suggested a midfoot fusion, but Mr Linkert wants to delay this as long as possible.
There have been no further accidents or injuries sustained since this motor accident.
Current symptoms
Mr Linkert has persistent pain in the left midfoot region which is a constant throb and wakes him at night. He also gets a sharp pain in this region when he walks and lateral left ankle pain. At present, there was no spinal pain.
He is able to walk short distances, but pain increases after about 10 minutes and can only drive an automatic car since the accident.
He lives in a house and does limited lawn mowing as it aggravates the foot pain. He stated that he also has difficulty playing with his daughter due to this pain.
Since the accident, he was unable to work on machinery and has been able to get office work in his original company but based in Perth.
Present medication and treatment
Present medication is Celebrex 100mg as needed, Panadol x 2 twice a day, melatonin at night and a compound cream which helps desensitise nerve pain on the top of his foot.
He attends the gym for upper body work and does self exercises at home. He consults his general practitioner when needed and the pain specialist. He also consulted a psychologist on a regular basis.
Clinical examination
Mr Linkert walked into the medical suites with a normal gait and sat comfortably during the interview. His height was 175cm and weight 75kg. He states that he is right-handed.
He had normal lower limb alignment and the foot showed no loss of arch height.
There was a full pain free range of movement of his lumbar spine, hips and knees. Reflexes were equal bilaterally in the lower limbs and no muscle wasting was apparent. The circumference of the lower thighs 35cm in the right and 34.5cm left and at the maximum circumference of the calves 25cm bilaterally.
Ankles
Ankle Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion
40°
20°
Plantarflexion
40°
40°
Hindfoot Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Inversion
30°
15°
Eversion
15°
10°
Scarring
There were two surgical scars on the left foot. An 8cm scar above the first and 2nd metatarsals and lateral scar on the 4th and 5th metatarsals 5cm. Both scars showed noticeable pigmentary changes competed surrounding skin. Mr Linkert was conscious of the scars and was easily able to locate them. Suture marks are clearly visible and they are usually visible when wearing thongs or barefoot. There were some trophic changes in the distal portion of the largest scar no contour defect were noted. There was no adherence to underlying structures. There was a minor limitation in that he was unable to wear dress shoes due to pressure on the scar and was comfortable in the appropriate softer shoe. The largest scar was very sensitive to touch and requires frequent application of the desensitising cream four times a day which was prescribed by the pain specialist. There is no range of movement (ROM) listing for these Lisfranc joints as they have minimal ROM in any case.
SUMMARY AND OPINION
The review is a new assessment of all matters with which the medical assessment is concerned. The Panel’s role is not to correct error in the decision of the Medical Assessor. The Panel, comprised of two medical specialists, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021] NSWCA 287 and Insurance Australia Ltd v Marsh [2022] NSWCA 31.
Mr Linkert was a 28-year-old man at the time of the accident, where he was riding his motorbike when a vehicle failed to give way to him on 28 March 2020. He sustained a Lisfranc fracture to his left foot and was initially discharged with a CAM boot, with surgery for the fracture scheduled for the next week.
The Insurer referred to the forefoot deformity, Table 64 at page 86 of the AMA 4 Guides which provides two methods to assess WPI of a metatarsal fracture as follows:
(a) Metatarsal fracture with loss of weight transfer. Underneath the table, loss of weight transfer is defined as dorsal displacement of a metatarsal head greater than 5mm according to a lateral roentgenogram taken while weight-bearing, and
(b) Metatarsal fracture with plantar angulation and metatarsalgia.
The insurer submitted that Medical Assessor Woo did not indicate which of the above approaches he used and that there is no indication that he performed a WPI assessment in accordance with either of the two aforementioned methods and the criteria for each method is not met.
IMPAIRMENT BASED ON PANEL RE-EXAMINATION
Left lower limb
No gait derangement [Chapter 3 AMA 4 Guides, Table 36, page 76].
Muscle atrophy = 0.5cm, which in accordance with Chapter 3 AMA 4 Guides, Table 37, page 77, rates 0% LEI.
No unilateral muscle weakness [Chapter 3 AMA 4 Guides, Tables 38 & 39, page 77].
Foot and ankle movements assessed with reference to Tables 42, 43, 44 [Chapter 3, AMA 4 Guides, page 78] gave rise to 3% LEI for ankle and 2% LEI for hindfoot.
Peripheral nerve assessment – dysaesthesia of sural (5% LEI) and superficial peroneal nerve (5% LEI) in accordance with Chapter 3, AMA 4 Guides, Table 68, page 89. As the insurer pointed out, clause 6.106 of the Guidelines notes that when using Table 68, one must refer to Tables 11a and 12a (pages 48-49, AMA 4 Guides).
The Panel determined there was Grade 4 loss as there was decreased sensation with pain that may prevent activity as prolonged walking or wearing a conventional leather dress shoe. This is 80 % of 5% which is 4 % LEI for each of sural and superficial peroneal nerves.
Arthritis – arthritis is not applicable as the tarsometatarsal joint is not listed in Table 62.
The Guides require that the method that most specifically addresses the impairment present should be used. There has been a Lisfranc (mid-foot) fracture. There is no ROM listing for these Lisfranc joints as they have minimal ROM in any case. However, there were diagnosis-based estimates which were potentially applicable in reference to Chapter 3, AMA 4 Guides, Table 64.
There was no midfoot deformity, therefore 0% LEI.
Mr Linkert does not fulfill the criteria for forefoot injury, as the required radiological changes were not present. Table 64 (page 86) of AMA 4 Guides states that metatarsal fracture with loss of weight transfer, is defined as dorsal displacement of a metatarsal head greater than 5mm according to a lateral roentgenogram taken while weight-bearing. Or metatarsal fracture with plantar angulation and metatarsalgia, which was also not the case.
The Panel answered the calculation of WPI for nerve damage by using AMA 4 Guides Tables 11a and 12a which Medical Assessor Woo missed, giving 80% of 5% LEI being 4% LEI for each nerve.
The 4% LEI for the sural nerve, 4% LEI for the superficial peroneal nerve, and 2% LEI for the hindfoot gives 10% LEI. Using the table, this totals to 4% WPI.
Further, in regard to the insurer’s submission at [59](b), the Panel noted that Mr Linkert was stabilised as he was not planning on any near future fusion surgery, but possibly may in years to come
DETERMINATION
The Panel revokes the certificate of Medical Assessor Alexander Woo, dated 17 February 2024, and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident, gave rise to a WPI of 4%.
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