Leal v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Anand [2024] NSWPICMP 863
CLAIMANT:	Julie Leal
INSURER:	IAG Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	17 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor (MA) Cameron dated 2 May 2024 of whole person impairment (WPI) assessment of 3% for injuries to the claimant's right ankle; claimant was involved in an accident at speed on 27 September 2020 on a country highway when she was confronted by an overtaking vehicle and took evasive action which was initially successful but ultimately there was a collision with other cars following her in her lane; claimant suffered a fractured right ankle and toes as well as injuries to her neck, shoulders, back and hip; claimant did not make complaints about injuries to her neck and back for approximately 12 months post-accident; insurer submitted that the claimant had pre-existing pathology in spine and this was the cause of subsequent complaints; Medical Review Panel was satisfied that the subsequent complaints of injury, whilst not contemporaneous, were still causally related to the accident; Held – certificate of Medical Assessor (MA) Cameron revoked with a finding of 11% WPI with an assessment of 5% WPI for the cervical spine and 4% WPI for the right ankle combined with one percent WPI for the right big toe IP joint and one percent WPI for the loss of motion in the right big toe MP joint giving 11% WPI in total.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Cameron dated 2 May 2024. 2. The Panel finds that the claimant has a total whole person impairment assessment of 11% for the injuries suffered by her and arising out of the accident which occurred on 27 September 2020.

STATEMENT OF REASONS

The Claimant seeks a review of the certificate of Medical Assessor Cameron (the Medical Assessor) dated 2 May 2024.
The Medical Assessor diagnosed the claimant with:
(a)    Right ankle-fracture of medial malleolus;
(b)    Right foot-fractures and minor scarring;
(c)    Cervical spine-soft tissue injury;
(d)    Lumbar spine-soft tissue injury;
(e)    Left clavicle-soft tissue injury;
(f)    Left hand-soft tissue injury;
(g)    Right hand-soft tissue injury;
(h)    Head and jaw-soft tissue injury;
(i)    Left hip-soft tissue injury; and
(j)    Left ribs-fractures.

The Medical Assessor did not accept that the following symptoms were caused by the motor vehicle accident:
(a) Left shoulder-referred pain from cervical spine
(b) Right shoulder-referred pain from the cervical spine.

The Medical Assessor assessed whole person impairment (WPI) of 3% for the right ankle only.
The following injuries were referred by the Personal Injury Commission (the Commission) for
assessment:
(a)    Right ankle - Transverse fracture of medial malleolus
(b)    Cervical spine - Injury to neck - Musculoligamentous injury/ soft tissue injury with radiculopathy
(c)    Clavicle - Injury to Left clavicle - Soft tissue injury
(d)    Right foot - Non-displaced fracture of third metatarsal, displaced fracture of medial malleolus and scarring
(e)    Left hand - Soft tissue injury
(f)    Right hand - Soft tissue injury
(g)    Head - head and jaw - soft tissue injury
(h)    Hip - Soft tissue injury with restricted range of motion
(i)    Lumbar spine - Musculoligamentous injury/ soft tissue injury with radiculopathy
(j)    Left rib - Left upper rib fractures
(k)    Left shoulder - referred pain from cervical spine
(l)    Right Shoulder - referred pain from cervical spine

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned (WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46]). The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.

The accident

The accident occurred on 27 September 2020 at about 2:30pm.
The claimant was driving a Land Rover Defender vehicle, wearing her seatbelt. She was travelling along the Castlereagh Highway near Capertee in New South Wales. She was proceeding straight along the highway when she became aware of an oncoming car which was overtaking vehicles and travelling in the opposite direction to her. She took evasive action and managed to avoid colliding with that car but lost control of her vehicle. The claimant’s car went off the gravel shoulder of the road, spun around and then collided with two other vehicles in her lane.

Claimant’s submissions

The claimant submits that the Medical Assessor has failed to provide an assessment of the claimant’s right hip injury and impairment, noting that this was raised as an issue in dispute in both the claimant’s submissions and evidentiary bundle and which the claimant says was discretely assessed by her medico-legal expert, Dr Bodel, who provided a 5% whole person impairment (WPI) in his report of 23 June 2022.
The claimant submits that the assessment of Dr Bodel going to the claimant’s right hip disability was responded to by the insurer in its submissions dated 1 May 2023 under the heading ‘Right Hip’, and with all of that material being before the Medical Assessor.
The claimant submits that the Medical Assessor has made speculative and unscientific findings that are largely inconsistent with the findings of both Dr Bodel and that of

Dr Bentivoglio in his report of 20 February 2023. These experts were each commissioned by the claimant and the insurer, respectively, particularly with regard to the assessment of the claimant’s cervical spine and right lower limb where the claimant submits they were largely, but not wholly in agreement with each other. The claimant has noted that both medico-legal assessors correctly and unanimously assessed the claimant’s cervical spine assessment in the diagnosis related estimate (DRE) II Category at 5%WPI.
The claimant submits that the Medical Assessor failed to take accurate and mandated loss of range of motion measurements with the required use of a goniometer. The claimant says that this has resulted in measurements and findings that are substantially inconsistent with the preponderance of the evidence that was before the Medical Assessor including the claimant’s objective radiological investigations and medical records, and the medico-legal evidence.
The claimant submits that the Medical Assessor has made causation findings which are speculative, and which contradict the medical evidence. The claimant submits that this speculation has been relied upon by the Medical Assessor in breach of the principles enunciated in NRMA Insurance v Brown [2019] NSWSC 1236, resulting in a material error.
The claimant submits that none of what she submits are erroneous and negative findings on impairment and/or causation which contradict the preponderance of the evidence, were put to the claimant for comment. The claimant submits that this has resulted in a fundamental denial of procedural fairness which has resulted in findings incongruous with the majority of the evidence that was before the Medical Assessor.
The claimant submits that the Medical Assessor has failed to perform any of his assessment measurements regarding the claimant’s loss of range of motion with the use of an inclinometer and/or goniometer with regard to the claimant’s spine and limb impairments which the claimant says is stipulated in Chapter 3 of the American Medical Association Guides to the Evaluation of Permanent Impairment fourth edition (AMA 4 Guides). The claimant says this has unacceptably resulted in all of the Medical Assessors measurements having been undertaken in an unreliable and unscientific fashion which are incapable of being subject to scrutiny by either party or the Personal Injury Commission (the Commission), in breach the Motor Accident Guidelines (the Guidelines) and the AMA 4 Guides. The claimant says that this has resulted in substantive and procedural unfairness to the claimant, noting that the circumstances in this particular case demanded the use of such a measurement tool and method for the sake of objective accuracy.
The claimant says that these failures have led to inconsistent assessments, including what the claimant says is the essentially agreed DRE II impairment of the claimant’s cervical spine at 5% WPI as found by both Dr Bodel and Dr Bentivoglio. This is in comparison to what the claimant says is the flawed and inconsistent finding of the Medical Assessor at 0% WPI.
The claimant says that in turn, the inconsistent and unscientific finding in relation to the claimant’s cervical spine injury and impairment, has infected Medical Assessor’s assessment in relation to the claimant’s upper limbs regarding the claimant’s consistent and ongoing complaints of radicular pain emanating from her cervical region. The claimant submits that the Medical Assessor has wrongly found that such impairments were not present following his erroneous conclusions in relation to the claimant’s cervical spine injury and impairments. In this regard, the claimant submits that the Medical Assessor has failed to apply the evidence to the relevant legal principles and applicable statutory and regulatory instruments and guidelines, with particular emphasis on the issue of causation, and has breached the principles enunciated in Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 35 (Nguyen).
It is further submitted that the claimant’s post-accident treating medical records demonstrate ongoing consistent complaints of pain and restricted movement in the cervical spine, thoracic spine, lumbar spine, both upper and lower limbs, and in the hips. The claimant submits that evidence of any pre-existing impairment or alternate cause post-accident cause has not been identified, quantified and/or assessed by the Medical Assessor, nor has any evidence of ‘resolution’ been identified in relation to any of the abovementioned body parts including the claimant’s shoulders. The claimant says that evidence to the contrary has been identified by the claimant which includes the history provided by him to the Medical Assessor in the subject assessment and as recorded by Medical Assessor Cameron which included complaints of ongoing bilateral hip pain, and which the claimant submits resulted in material error.
On the issue of denial of procedural fairness, the claimant submits that she was not afforded an opportunity to answer the alleged ‘inconsistencies’ between the claimant’s instructions, the medical assessment findings, and the material contained in the claimant’s treating and medico-legal evidence, as well as the evidence of the insurer, which has resulted in that denial of procedural fairness.
The claimant submits that on the issue of materiality, if the claimant was to be properly assessed, then her impairment would be assessed at greater than 10% if and when the errors made by the Medical Assessor had been corrected and the claimant’s assessment is undertaken according to law by the Review Panel, as per the assessment findings of

Dr Bodel in his report of 23 June 2022 who assessed the claimant’s total physical impairments at greater than 10% WPI, which included findings of 5% WPI in relation to the cervical spine, as agreed by Dr Bodel and Dr Bentivoglio, and a 5% WPI finding for the right hip which, when added to the current finding of 3% in relation to the claimant’s right lower limb as certified by the Medical Assessor and which would result in a finding of greater than 10% WPI.

Insurers submissions

The submissions of the insurer have been made by way of directly addressing the grounds of review raised by the claimant.

Ground 1 - The Medical Assessor failed to undertake an assessment of the right hip injury in accordance with the evidence.

The insurer referred to the referral for medical assessment to the medical assessor dated

12 December 2024. The insurer noted that a relevant injury to be assessed by the Medical Assessor and referred to in his certificate was "Hip - Soft tissue injury with restricted range of motion".
The insurer refers to page 5 of the Certificate where it was said;
"There was full range of motion at other lower extremity joints. There were no neurological abnormalities in the lower extremities".
The insurer submits that the reference to lower extremity joints includes the part of the body that includes the hip, thigh, knee, leg, ankle and foot, which means, the insurer submits, that the Medical Assessor assessed both hips, including the right hip.
The insurer says the Medical Assessor did not fail to assess the right hip injury in accordance with the evidence because the claimant demonstrated a full range of movement.
The insurer submits this ground fails.

Ground 2 - The Medical Assessor failed to take accurate measurements with a goniometer for the left shoulder injury.

The insurer referred to page 4 of the Certificate, under "Clinical Examination" where it was said:
"There was a full range of motion at both shoulders. There was a full range of motion at other upper extremity joints. There were no neurological abnormalities in the upper extremities".
The insurer submits the claimant demonstrated a full range of movement in both shoulders, which included the left shoulder, and there was no need for the Medical Assessor to "take accurate measurements with a goniometer" because the range of movement in the left shoulder never varied.
The insurer submits this ground fails.

Ground 3 - The Medical Assessor failed to consider the evidence of the cervical spine injury.

The insurer referred to page 4 of the Certificate, under "Clinical Examination" " where it was said:
"At the cervical spine there was mildly and symmetrical reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative".
The insurer referred to page 5 of the Certificate which outlined the evidence the Medical Assessor considered, and which also included the claimant's expert report of Dr Bodel.
The insurer refers to page 8 of the Certificate, under the heading of "cervical spine soft issue injury" and submits the Medical Assessor was correct in diagnosing a soft tissue injury to the cervical spine and assessing 0% whole person impairment because the injury satisfied the criteria of a DRE I Category.
The insurer submits this ground fails.

Ground 4 - The Assessor made speculative causation findings in respect to the referred pain, Nguyen-type impairment to the left and right shoulders in accordance with the Motor Accident Guidelines

The insurer again refers to page 4 of the Certificate, under "Current symptoms" where it was said:
"There is also neck pain"
The insurer submits the claimant did not report referred pain from the cervical spine to either shoulder to the Medical Assessor, on the date of assessment.
The insurer again refers to page 4 of the Certificate, under "Clinical Examination" where it was said:
" At the cervical spine there was mildly and symmetrical reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders.
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities".
The insurer submits that, on the date of assessment, the claimant demonstrated full range of movement in both shoulders and the claimant did not demonstrate any neurological abnormalities in the upper extremities, which would warrant an impairment findings based on referred pain from the cervical spine.
The insurer refers to page 8 of the Certificate, under the heading of "cervical spine soft issue injury" and submits the Medical Assessor provided reasoning for his conclusion that the accident did not cause any referred pain from the cervical spine to either shoulder.
The insurer submits this ground fails.

Insurers submissions for WPI dispute

The claimant relies on Dr Bodel's report dated 23 June 2022. Dr Bodel assessed the claimant at 16% WPI, which consists of the following:
(a)    Cervical Spine, DRE II 5% WPI
(b)    Lumbar Spine DRE II 5% WPI
(c)    Lower Extremity Impairment (LEI) 6% WPI, which consists of the following:
(i)Right Hip Restricted range of motion 5% LEI
(ii)Right Ankle - Restricted range of motion 7% LEI
(iii) Subtalar Joint - Restricted range of motion 2% LEI
The insurer disagrees and relies on Dr Bentivoglio's report dated 20 February 2023. Dr Bentivoglio assessed the claimant at 9% WPI, which consists of the following:
(a) Cervical Spine DRE II 5% WPI
(b) Lower Extremity 4% WPI, which consists of the following:
(i)Right Ankle - Restricted range of motion 7% LEI
(ii)Subtalar Joint - Restricted range of motion 2% LEI
The insurer says that Dr Bentivoglio found that the impairment affecting the claimant's lower back was pre-existing.
The insurer says that Dr Bentivoglio also did not allocate any LEI to the claimant's right hip, as the claimant has a normal range of movement in her right hip.
The insurer submits that Dr Bentivoglio's report should be given more weight because

Dr Bodel ignored that the claimant's long and ongoing history of lower back pain.
The insurer's primary submission is that the claimant has a long history of pre-pre-existing medical conditions, which involved five accidents in relation to horse riding, bicycle riding and a work-related accident. The insurer says that the injuries and symptoms sustained from the accidents have a prolonged effect on the claimant's physical capacity.
The insurer submits that the claimant has made a good recovery from the injuries sustained from the subject accident which can be supported by the claimant's return to work and pre-accident hobbies. The insurer submits that the fact that the claimant has only received conservative treatment following her right foot surgery further suggests that the claimant has recovered.
Accordingly, the insurer submits that a large component of the claimant's current impairment is pre-existing.

Cervical spine and thoracic spine

The insurer says the claimant had pre-existing pathologies in her cervical spine and thoracic spine. In this regard, the insurer noted the following:
(a) On 25 October 2001, the claimant underwent a CT of the cervical spine, which found that the claimant had restricted range of motion in her cervical spine. Degenerative change was found at the right 1st costovertebral joint with a subchondral cyst in the head of the right 1st costovertebral joint margin.
(b) On 20 June 2011, the claimant reported to Ms Wendy Dickfos that she had an accident on her bicycle in the previous two weeks. A metal plate, as a result, had to be inserted into her jawbone and thoracic spine.
The insurer submits that her scan prior to the subject accident demonstrated that her pre-existing impairment in her cervical spine was symptomatic and impacted her range of motion. The insurer submits that, in such circumstances, even if it is found that the claimant has developed cervical spine impairment from the accident, a deduction in accordance with paragraph 6.31 of the Guidelines is required.

The insurer submits that following the accident, the claimant did not report the alleged cervical spine and thoracic spine injuries to her general practitioner (GP). Her physiotherapist had provided some conservative treatment to her cervical spine and thoracic spine, but the treatment stopped within six months of the accident. Following on from this, the insurer notes the following:
(a)    On 27 September 2020, the claimant underwent CT cervical spine following the accident at Westmead Hospital, which found no abnormality. She also underwent CT of the thoracic spine, which found loss of height of the T8 vertebral body, as well as anterior bony bridge between T8 and the T7, but the change was possibly chronic.
(b)    On 24 February 2021, Dr Roseth did not include, in the certificate of capacity, any injuries except for the fracture of the right medial malleolus and two ribs.
(c)    Following 3 February 2021, the claimant has no longer reported her alleged cervical spine and thoracic spine pain to her physiotherapist.

Lumbar Spine

The insurer relies on the opinion of Dr Bentivoglio and submits that the impairment in the claimant's lumbar spine is pre-existing. In this regard, the insurer noted the following medical records:
(a)    In 2007, the claimant sustained a fracture in her back during horse riding.
(b)    On 19 July 2010, the claimant reported to Dr Karkin that she had developed back pain for a long time since she broke her vertebrae during horse riding many years ago and was having intermittent numbness in legs.
(c)    On 1 February 2011, the claimant reported to Dr Karkin that she got episodes of back pain and felt muscle locked.
(d)     On 18 August 2014, the claimant reported to Dr Roseth that she previously broke her back and could not push for a long time.
(e)    On 3 February 2015, the claimant reported to Dr Roseth that she had another bike accident on 19 January 2015.
(f)    On 27 April 2015, Dr Roseth issued a medical certificate certifying that that the claimant sustained injuries in her left leg, hip, back, face and arm because of a motor vehicle accident on 18 January 2015.
Following the accident, the claimant did not report the alleged lumbar spine injuries until about a year after the accident. Thereafter, she only received very limited conservative treatment and then has no longer complained about any injuries to her lower back.
The insurer submits that the current impairment in the claimant's lumbar spine is pre-existing and is not caused by the subject accident. In this regard, the Insurer highlights the following medical records:
(a)    On 27 September 2020, the claimant underwent CT Lumbar Spine following the subject accident at Westmead Hospital, which found chronic pars defect involving the L1 vertebra on the left.
(b)    On 29 September 2020, the claimant disclosed she had a pre-existing back injury developed in 2011 when completing the Application for Personal Injury Benefits Form.
(c)    On 2 October 2020, the claimant reported to Dr Roseth about the subject accident. She only reported her right foot and ankle injuries.
(d)    On 24 February 2021, Dr Roseth did not include any injuries except for the fracture of right medial malleolus and two ribs in the certificate of capacity.
(e)    On 6 September 2021, nearly a year after the subject accident, the claimant fist reported her lower back pain to Dr Roseth. She reported that sitting was hurting her back pain more.
(f)    On 23 June 2021, the claimant did not report the alleged lumbar spine injury to her orthopaedic surgeon, Dr Fox.
(g)    Following 16 September 2021, the claimant no longer reported her back and right hip pain to her physiotherapist.

Right Hip

Prior to the subject accident, the claimant had complained about her symptoms in her hip and pelvis region. The insurer suggests there could have been some underlying pathologies at the time of the subject accident. In this regard, the insurer notes the following medical records:
(a)    On 6 December 2002, the claimant attended Dr Hall for her pelvic inflammatory
disease.
(b)    On 19 July 2010, the Claimant reported to Dr Emilie Karkin that she had hip flexor weakness on the right side.
(c)    (c) On 27 April 2015, Dr Roseth issued a medical certificate certifying that the claimant sustained injuries in her left leg, hip, back, face and arm because of a motor vehicle accident on 18 January 2015.
The insurer submits that following the accident, the claimant has only received limited conservative treatment and has been able to return to her pre-accident hobbies that would require large hip movement, such as bicycle riding and bush walking.
The insurer submits that there is a possibility that the pain in the claimant's right hip is the referred pain from her pre-existing lumbar spine injuries, which would render the claimant's alleged right hip injuries not caused by the subject accident. In this regard, the insurer highlights the following medical records:
(a)    On 27 September 2020, the Claimant underwent X-ray and CT Pelvis following the subject accident. No abnormality was found.
(b)    On 24 February 2021, Dr Roseth did not include any injuries except for the fracture of right medial malleolus and two ribs in the certificate of capacity.
(c)    As of 23 June 2021, the claimant did not report the alleged right hip injury to her orthopaedic surgeon, Dr Fox.
(d)    Following 16 September 2021, the claimant has no longer reported her back and right hip pain to her physiotherapist.
(e)    On 5 October 2021, more than a year after the subject accident, the claimant fist mentioned to Dr Roseth about the pain in her hip and pelvis.
(f)    On 21 February 2022, the claimant reported to Dr Roseth that she was walking with a limp and asked for an X-ray of her hip. Dr Roseth reported that it appeared that it was more of a back issue.
The insurer submits that the claimant's physical injuries do not exceed the 10% WPI threshold.

Medical evidence

The Medical Assessor in his certificate dated 2 May 2024 noted the following pre-accident medical history;
(a)    “In 2011, in a bicycle crash, the claimant sustained a fracture of T8. There was surgical stabilisation, with rods removed in 2013. The claimant also had an injury to her mandible on the left side and required surgery.
(b)    There was also a bicycle incident while overseas in which the claimant was hit by a car and sustained fractures to the left wrist. This did not heal readily and on return to Australia, there was further surgery.
(c)    The claimant also gave a history of an injury to the left lower leg in 2015 with residual soft tissue changes.
(d)    The claimant said that she worked very hard to recover from these injuries. She was active with multiple types of exercise”.
The Medical assessor found the following injuries were not caused by the motor accident:
(a) Left shoulder - referred pain from cervical spine
(b) Right Shoulder - referred pain from cervical spine
The Medical Assessor said that regarding these injuries which were referred for assessment, they were descriptions of pain which were not injuries. He said that pain referred from the cervical spine was assessed with reference to the cervical spine.
On examination, at the cervical spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders.
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
At the thoracic spine there was a full range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was a full range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
The Medical Assessor said that the Nguyen judgment issues did not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part.
WPI was assessed as follows:

Body Part or System	AMA4 Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	*%WPI from pre-existing OR subsequent causes**	*%WPI due to motor accident**
1	Right ankle – fracture of medial malleolus	Chapter 3, Table 43, page 78 AMA4	Yes	3	0	3
2	Right foot – fractures and minor scarring	Chapter 3, Table 43, page 78 AMA4 and section 6.261 Motor Accident Guidelines	Yes	0	0	0
3	Cervical spine – soft tissue injury	Chapter 3, page 103 (AMA4)	Yes	0	0	0
4	Lumbar spine – soft tissue injury	Chapter 3, page 102 (AMA4)	Yes	0	0	0
5	Left clavicle – soft tissue injury	Chapter 3, Figures 38, 41 and 44 (pages 42 to 44 AMA4 Guides)	Yes	0	0	0
6	Left hand – soft tissue injury	Chapter 3, Figure 13, page 27 AMA4	Yes	0	0	0
7	Right hand – soft tissue injury	Chapter 3, Figure 13, page 27 AMA4	Yes	0	0	0
8	Head and jaw – soft tissue injury	Section 6.164 Motor Accident Guidelines	Yes	0	0	0
9	Left hip – soft tissue injury	Chapter 3, Table 40, page 78 AMA4	Yes	0	0	0
1 0	Left ribs – fractures	Section 6.229, Motor Accident Guidelines	Yes	0	0	0

Total WPI was assessed at 3% for claimant’s fractured right ankle
Dr Bodel provided a diagnosis of multi-trauma caused by the accident and this including a fracture of the ankle, musculoligamentous injuries to the neck and the back and an injury to the right hip. He reported that the claimant had appropriate treatment including surgery to the right ankle. The screws had been removed and the fracture had healed. There was potential for post-traumatic osteoarthritis in the ankle because the fracture was intra-articular, but there was said to be a minimal risk in this circumstance.
He reported some restriction of motion at the ankle and subtalar joint and scarring.
WPI was assessed for a combined total of 16%. This was made up as follows
(a)    cervical spine DRE II - 5%
(b)    lumbar spine DRE II - 5%
(c)    right lower extremity - 7%
The Personal Injury Claim Form dated 28 September 2020 confirmed the claimant suffered ankle and foot injuries.
The injury to the right medial malleolus by way of a fracture is set out in the Certificates of Capacity.
Reports of Dr Fox, orthopaedic surgeon, set out initial treatment of the medial malleolus fracture with perfect reduction. Post surgery, the claimant was mobilising with two crutches and a CAM walker boot. By 12 November 2020, she was out of the boot.
Allied Health Recovery Requests (AHRR) commencing 17 February 2021 note there was subsequent uncomplicated removal of hardware (two medial malleolus screws) on 14 April 2021.
The claimant provided a statement of 7 August 2023 concerning her disabilities. She said:
“The pain in my right ankle is often unbearable. By the end of each day my ankle swells up and I am in continuous pain. This makes it hard to get a good night sleep. I try my best to stay off my feet throughout the day, but this is almost nearly impossible to continuously do.
I am now left with a prominent scar of my right ankle/right foot. This scar is visible, and it impacts my self-confidence as it is noticeable. At work students have noticed my scar and have asked me about it. I get really embarrassed by this and I try to wear socks or boots to cover the scar, so it is not noticeable. Unfortunately, if there is material rubbing directly on the scar this can cause the scar to become irritated, and I then have to use ointments and cream to minimise the itching and sensitivity of the scar.
The scar is thick, lumpy, and coloured. It is quite visible, and I get embarrassed by it. It is sensitive to the touch, and I am always aware of it.”
Medical Assessor Home provided a certificate going to a claim for reasonable and necessary treatment. He referred to emails of the claimant which he had seen however these have not been made available to the Panel. Whilst Medical Assessor Home considered the claimants injuries, he was mainly concerned with was an issue relating to the claimant’s footwear and whilst he discussed causation, it was not pertinent to the matters before the Medical Assessor.
Dr Bentivoglio saw the claimant for the insurer.
Dr Bentivoglio discussed the claimants WPI assessment in total at 9% as follows:
“I consider all of her ongoing back complaints relate to her pre-existing spinal disability unless a sophisticated investigation done of the lumbar spine shows a new abnormality, then I would consider she has 0% Whole Person Impairment for her back complaint. As far as her neck is concerned, as long as investigation done of the cervical spine shows disc abnormalities, then she would have a DRE category 2 impairment of her cervical spine, which from page 104 of American Medical Association Guides for Evaluation of Permanent Impairment, 4th Edition, gives rise to a 5% Whole Person Impairment. For her right great toe, as she has an equal range of movement present in both great toes, there would be no impairment rating for her great toe. For her right ankle from table 42 on page 78, she did have a 7% lower extremity impairment as a result of decreased extension involving her left ankle. From table 43 on page 78, she would have a further 2% lower extremity impairment as a result of decreased eversion involving her subtalar joint. In all, she has 9% lower extremity impairment as a result of the injuries to her right lower limb. In the presence of normal range of movement present in the right hip, there would be no impairment rating for right hip. From the 9% lower extremity impairment, it would convert to a 4% Whole Person Impairment rating. In all, I would assess her as having 9% Whole Person Impairment rating secondary to the injury she sustained in the motor vehicle accident. She has reached maximum medical improvement and her condition has stabilized.”
The following summary of medical evidence is in ascending order of date.
7/1/1988 – Paramatta Hospital – Eight-year history of low back pain. No past history of pins and needles. Presently has low back pain and left thigh pins and needles of eight hours duration commenced after chiropractic treatment to the back and neck. No recent episode of trauma. On examination there was normal neurology. There was tenderness at C4 and the left sternomastoid muscle was spasmed. X-ray showed a fracture of left L1 transverse process and fractured pedicle left L1. Cervical spine x-ray was negative. Impression: Possible developmental defect in left L1 transverse process or old fracture.
GP summary – Past history:
2007 - Fractured back.
8/2013 – Removal of hardware thoracic spine.
12/2013 – Ulnar shortening osteotomy.
15/4/2021 – Removal of two malleolar screws.
GP notes:
25/10/2001 – X-ray and CT scan cervical spine – Left 1^st costovertebral joint degeneration at the apex.
19/9/2007 – Chronic low back pain. Fractured back at age 12.
19/7/2010 – Long-term back discomfort since broken vertebra from horse-riding many years ago. Intermittent numbness in legs. Right hip flexor weakness. Straight leg raise normal bilaterally. Lower right lumbar spinal tenderness.
1/2/2011 – Episodes of back pain. Numbness down arms. Lingers in back of shoulder blades.
20/6/2011 – Bicycle accident – Fractured mandible, fractured back thoracic. Jaw was plated. ORIF to thoracic spine. Left wrist fractured.
6/2/20213 – Non-union left wrist fracture. Needs rod removed from lower back.
7/5/2013 – Revision of fixation of left wrist.
9/8/2013 – Royal North Shore Hospital – Removal of hardware T6 to T10 post bicycle accident in June 2011.
18/1/2015 – Accident – Medical Certificate of 3/2/2015 – Bruises and abrasions left eyebrow, chin, left shoulder, left hip, left elbow, both knees, ribs and left sternum, and cellulitis over left shin.
13/3/2019 – Fit for work three days per week. Currently having stress with neighbour.
28/9/2020 – PICF – Left shoulder, neck, low back pain, right ankle fracture, lacerations of hands, bruises of chest, hands and arms. Past history of 2011 back injury.
27/9/2020 – Ambulance record – Pain in neck, chest, left arm, left hip and right ankle.
2/10/2020 – First GP record of index MVA – Pin to fractured ankle, fractured top bone of right foot. Bruising and sore neck. For x-ray of right foot and ankle. Mobile in Cam boot.
27/9/2020 – 1/10/2020 – Westmead Hospital – High speed MVA. Trapped by confinement. Helicopter retrieval. Pain in right ankle, left shoulder and left-sided chest. GCS 15/15. Tender C7 and lateral left clavicle and lateral anterior left 2^nd to 5^th ribs. Tender right lateral epicondyle to forearm and right wrist. Also lateral right foot laceration. No open fracture. Operation ORIF (open reduction and internal fixation) right medial malleolar fracture. Also explored right hallux wound.
Investigations:
CT PAN scan, chest x-ray - T8 and T9 vertebral body height loss.
Lumbar CT scan – Chronic left L1 pars defect. No acute fracture.
Thoracic CT – 50% loss of T8 vertebral body height.
X-ray right foot – Non-displaced horizontal fracture proximal 3^rd metatarsal, displaced fracture medial malleolus with lateral angulation and 3mm gap, no rib fracture on x-ray or CT scan of chest or old thoracic cage.
9/10/2020 – X-ray right ankle and foot – Two screws through a healing fracture of medical malleolus in anatomical alignment. Undisplaced, ununited fracture lateral aspect of base of distal phalanx and hallux.
15/10/2020 – Dr Fox, orthopaedic surgeon report – Clinical diagnosis of fracture left 2^nd and 3^rd ribs. No point in obtaining x-ray as it will not alter management.
24/12/2020 – Physiotherapist record – Right ankle -5° dorsiflexion, stiff 1^st metatarsophalangeal joint. Impression: Secondary stiff foot and ankle joint and soleus and tibialis anterior muscles.
14/4/2021 – Dr Fox report – Removal of internal fixation followed by two weeks of unfitness for work.
17/4/2021 – GP record – Removal of right ankle hardware on 14/4/2021.
Certificate of Capacity (undated) – Diagnosis: Fractured right medial malleolus and two rib fractures. Fit for suitable duties three days per week, limited standing to half an hour, driving to one hour and sitting half an hour. This restriction is in effect 28/1/2021 - 24/2/2021.
7/1/2021 – Physiotherapy record – Trapezius and shoulders tight, reduced left thoracic rotation, stiff right 1^st rib.
28/1/2021 – Physiotherapist report – Right lateral hip seizes up, tender L5. Good lumbar range of movement, tight piriformis.
17/2/2021 – AHRR – Right ankle and foot fracture, fracture left anterior ribs. Decreased right ankle range of movement and anterior chest tightness with poor thoracic mobility. Neck stiffness and reduced end of active range of movement.
11/3/2021 – Physiotherapy – Right ankle swollen, mild tenderness on pressure (TOP) medical ankle, with decreased left thoracic rotation.
19/4/2021 – Physiotherapy – Had removal of ORIF. She feels she is bouncing back well.
6/5/2021 – Physiotherapy – Right hip a bit tight. Right ankle dorsiflexion 15°. Mild TOP over medial ankle. Gradual increase in activity. Review if required.
9/8/2021 – GP – Right leg shorter than the other, wedge orthotics suggested by physiotherapist.
6/9/2021 – GP online teaching involving prolonged sitting is increasing low back pain. She is thinking of retirement or part-time work.
6/9/2021- Physiotherapy – Pain right lower back and hip from sitting too much. Right hip flexion 100°. Right ankle dorsiflexion 10°. Single leg balance produces right valgus collapse of foot.
5/10/2021 – Woken by ankle, hip and pelvis pain.
5/10/2021 – Certificate of Capacity – Fit pre-injury duties. Alternating one standing with one hour sitting. Has PTSD. Attending gym and physiotherapy.
21/2/2022 – Left buttock pain and limping.
28/2/2022 – GP – Slept in son’s bed and woke up with much less pain. PTSD.

Medical examination

The claimant was jointly examined by Medical Assessor Oates and Medical Assessor Lahz on 4 November 2024. Their medical report follows.
Ms Leal aged 57 and right-handed attended the assessment punctually, and pleasant/cooperative throughout the appointment.
She became briefly tearful on several occasions when the circumstances of the accident and impact on lifestyle were discussed.
She is a full-time primary school teacher at a Steiner School, and presently working her usual hours and duties aside from “modified playground duties”. She only obtained teaching qualifications about ten yeas ago incorporating international studies in Italian. Prior to this she had worked as a colour consultant.
She has been separated from her husband for around 11 years and lives alone. She has three sons aged respectively 18, 30 and 34. Her youngest son aged 18 divides his time between his parents.
Also, due to the injuries from the accident, Ms Leal said that she had sold her farm near Capertee which she had owned for four years. In addition, she sold a three storey home at the Northern Beaches in favour of a single level home. She is considering whether to drop down to four days weekly next year at work. She is also thinking of whether to cease her beekeeping activities at school. Due to the injuries, she reported that her social life has become restricted and that she relies on taking Panadol just to see a show with friends.
Ms Leal confirmed her past medical history as follows. At age 12, she fell from a horse giving rise to some long-term low backache although oddly enough when she had a bicycle accident in 2011 causing fractures of the jaw and T8 (requiring insertion of Harrington rods) the low backache improved. Following the 2011 accident, there was some thoracic backache about the fracture although the latter significantly improved after the rods were removed. Ms Leal said that before the subject 2020 motor accident, the lower back was minimally symptomatic, providing she maintained her physical activity levels.
Ms Leal has ongoing jaw problems and still wears a specific night splint although she told the assessors that the jaw was not reinjured in the 2020 accident.
In 2013, there was a further bicycle accident whilst she had been studying in Italy. A car knocked her from the bike with resultant wrist fracture. Recovery was complicated by breakage of the plate, requiring refixation. Later, the metal was removed although there was ongoing pain, requiring an ulnar shortening osteotomy which improved, although did not resolve the wrist pain.
In 2015, Ms Leal was involved in a further pushbike accident with resultant soft tissue injury of the left lower medial calf. Both calves are prone to swelling and she generally sits with legs elevated daily.
Ms Leal suffers from asthma for which she uses a steroid inhaler.
Ms Leal has also undergone bladder repair surgery which she relates to childbearing.
Ms Leal confirmed her involvement in the subject motor accident in September 2020. She was the restrained driver of a large vehicle, a 2015 model Landrover Defender and driving in the country near her farm when the accident occurred. She took evasive action to avoid an oncoming vehicle, striking a verge before fishtailing back across the road to collide with two oncoming cars. The accident was a very frightening experience and she tributes the size of her vehicle with saving her life although she also noted the vehicle was not fitted with either ABS brakes or else airbags.
Her right hip struck the door and there were also cuts sustained to her face. She thinks her face struck the steering wheel whereas the back of her head hit bars positioned behind the driver’s seat. She said too that she sustained a gash to the base (dorsum) of the right big toe.
Ms Leal had to be cut from the vehicle and was then taken to hospital. She believes that there was a brief period of amnesia in that she only recalls the “second” bystander who spoke with her, the first bystander having found her unconscious, and reportedly initially thought her dead.
She reported that there was bruising not only at the foot but also at the right hip and face.
At hospital, Ms Leal was found to have a fractures of the right ankle (medial malleolus) and right third metatarsal. She was in hospital for approximately a week during which period, she underwent surgery for open reduction and internal fixation of the right ankle with a screw and plate.
No surgery was undertaken for the metatarsal fracture.
There were also some clinical rib fractures located in the upper left chest managed non-operatively. Due to right hip pain, she underwent plain x-rays and CT scans of the pelvis although no fractures were detected. She recalls that the right hip was very sore during the hospital admission and she had been experiencing problems getting in and out of bed.
The assessors discussed with her the absence of early reference to right hip symptoms in the medical/allied health records. The first mention was not until January 2021 in the physiotherapy records. Ms Leal said the right lateral hip was sore from the time of the motor accident although the right ankle fracture and “regaining mobility” took precedence.
On discharge, Ms Leal was on crutches and non-weight bearing on the right leg for approximately six weeks. Subsequently, she commenced physiotherapy to regain motion at the ankle and general mobility. She said the hip was also treated by the therapists and showed the medical assessors a shoe insert for the right shoe to help “level” the hips.
Whilst on crutches she noticed pain about the neck and right shoulder blade. She reported that the right shoulder blade still episodically locks up “in a line” with the hip.
The first mention of the neck and shoulder occurs in physiotherapy records during January 2021.
As the ankle improved and she became more mobile, Ms Leal became more physically active and increasingly aware of issues at the neck, right shoulder blade and hip.
Ms Leal had 12 weeks off work after the accident. She commenced part time duties and gradually increased to full duties with transition occurring over two terms. She said the pandemic intervened and she then spent a period working from home.
Since the accident, Ms Leal has received physiotherapy until four months ago at which stage, she elected to take a break. She explained that she has worked very hard on her physical rehabilitation since the motor accident via stretching and yoga. Ms Leal also does freestyle and backstroke to reduce symptoms.
She resumed driving in early 2021 and has a new very safe Volvo vehicle.
Ms Leal receives help with heavy chores/yard work from her children and friends. She finds it difficult to clean floors and wipe surfaces. She has engaged a cleaner to help with the heavier tasks and has purchased a stick vacuum. She shares the mowing with her children and able to manage the shopping and cooking.
She sees her GP and takes regular simple analgesia such as Panadol and Ibuprofen. She does not take any prescription analgesia.
She also sees a psychologist regarding post-traumatic stress and anxiety.
She is no longer in follow up with any surgeons and indeed very anxious to avoid further surgery such as foot fusion.
She does numerous exercises for the injuries.
She is not receiving any specific treatment for the injuries now aside from physiotherapy with Tatiana who offers her much advice.
The assessors asked Ms Leal which body parts remain symptomatic due to the subject motor accident. She listed the right ankle/toes (*big toe), right hip, right shoulder blade, neck and to (much lesser extent) the lumbar spine.
Current Symptoms
Ms Leal knows it is important to stay active although it can be a fine line between “keeping moving” versus overdoing activities causing excessive pain.
Ms Leal is also mindful of healthy eating to reduce bodily inflammation.
Head/Neck
Ms Leal complains of frequent “big” headaches since the accident.
She described mild forgetfulness although she ascribed this to anxiety/stress.
She complains of right-sided neck pain radiating over the trapezial region and sometimes to the occipital regions. Neck pain does not radiate to the upper limbs although she sometimes experiences numbness around the thumb base as well as pins and needles in all fingers. She also finds it difficult to undo jars.
Right Shoulder
As noted, Ms Leal noticed the right neck/trapezial pain whilst using crutches. There is also frequent pain over the right shoulder blade inclusive of the suprascapular ridge. She finds it easier to turn her head toward the left than right. Sometimes when the right hip is symptomatic, the right shoulder blade is more symptomatic. She finds use of walking poles e.g. during bush walks, helpful.
She reported to have sufficient movement in the shoulders to complete laundry, hang clothes out whilst noting “There’s no one else besides me..”
Ms Leal does not report any left shoulder problems.
Right ankle/foot/toes
Ms Leal complains of pain over the foot dorsum and medial ankle worse with standing/walking. She can walk reasonably well on level ground although she struggles to negotiate inclines/flights of stairs, especially uphill.
The right foot and toes are swollen and she has needed to upgrade her shoe size from 41 to 42.
She reported that the right ankle can “seize up” with prolonged sitting.
She complains of cracking sounds at the right big toe (the site of a dorsal gash) associated with intermittent soreness with “locking up”.
Ribs/Left Upper Chest
She reported a “bump” in the left upper chest which she ascribed to the previous rib fractures.
Lower Back
There is occasional non-radiating low back pain.
Cognitive Symptoms
She has noticed memory troubles although she attributes these to anxiety.
Physical Examination
Ms Leal was pleasant and cooperative, presenting in a straightforward manner.
She is a tall woman with height 171 cm and weight 72.4 kg.
There was no tenderness/instability of AC/SC joints.
There was normal cervical lordosis. Neck flexion and extension were full. Lateral flexion was symmetrical being 2/3 normal range in either direction. Rotation was full toward the left, and 2/3 normal range toward the right. Dysmetria was present with L>R movement. Neck movements were assessed on multiple occasions with dysmetria consistently present.
There was guarding of the bilateral trapezial muscles.
There were no non-verifiable upper limb radicular symptoms.
There was no measurable wasting of the arms (26.5 cm) or forearms 24 cm at corresponding levels.
Biceps, triceps, brachioradialis and pronator jerks were present and symmetrical. Of note, she became very tearful during reflex testing because the “knocks/blows” stirred up traumatic memories for her.
There was normal sensation over the upper limbs.
There was also normal upper limb power bilaterally.
There was full range of bilateral shoulder motion not attracting WPI according to the specific tables in AMA4.
There was also full active movement noted of elbows, wrists and hands.
There was full range of thoracic flexion, extension and rotation to either side without dysmetria, muscle guarding or else signs of radiculopathy.
There was tenderness at the lumbosacral junction without muscle guarding/spasm.
There was full active lumbar spine motion with respect to flexion, extension and lateral flexion to either side. There was no dysmetria present.
There was no muscle spasm or guarding at the lumbar spine and there were no non-verifiable lower limb radicular symptoms.
There was no wasting of the thighs 48.5 cm nor calves 40.5 cm at corresponding levels.
Lower limb reflexes were symmetrical.
There was normal lower limb sensation aside from reduced sensation over the lower medial calf not within specific dermatomal distribution.
Lower limb strength was normal in all groups.
Gait was unremarkable. Ms Leal could walk on heels and walk on toes.
SLR was bilaterally negative i.e. lower limb neural tension signs were bilaterally negative.
The right leg measured 91.5 cm from ASIS to medial malleolus and the left 93 between the same points.
There was localised tenderness over the right greater trochanter.
The right hip moved actively through 110 degrees of flexion (130 degrees left), full extension was present bilaterally, 40 degrees were present of abduction bilaterally, 30 degrees of adduction (35 degrees on the left), 30 degrees of ER on the right (40 degrees left) and 30 degrees of IR (internal rotation) bilaterally.
The right knee moved through 0-130 degrees actively and the left through 0-120 degrees. There was no knee crepitus present.
At the right ankle, there were 5 degrees of dorsiflexion (15 degrees left), 35 degrees of plantarflexion (40 degrees left), 20 degrees of inversion (25 degrees left) and 15 degrees eversion bilaterally.
There were 30 degrees of right big toe MP dorsiflexion/extension compared with 15 degrees extension of the left big toe MP joint.
There was 15 degrees of right big toe MP flexion and there were 0 degrees of MP flexion at the left big toe.
At the right big toe IPJ there were 0 degrees of flexion whereas there were 15 degrees flexion at the left big toe IPJ.
Movement at the right big toe was generally better (aside from IP flexion) with reduced left-sided big toe movement due to the previous (unrelated) left calf/lower leg/foot soft tissue injury.
The medical assessors found no visible scarring at the right foot.
Conclusions
The medical assessors concluded there had been injuries (fractures) of the right ankle (medial malleolus) and foot (third metatarsal) as well as fractures involving the right big toe (x-rays September-October 2020).
The claimant also has residual symptomatic pain and stiffness at the right big toe from the subject motor accident. The hospital records note that she underwent exploration of a right big toe (hallux) wound. These findings were confirmed by the content of the contemporaneous hospital records.
Further, x-rays of the right foot 2/10/20 and 9/10/20 show an undisplaced ununited fracture of the lateral base of the distal phalanx (big toe/hallux) from the motor accident.
The medical assessors accepted a cervical spine soft tissue injury from the motor accident despite the delay in reporting to the treating physiotherapist, given the mechanism of the motor accident whilst also accepting the claimant’s stated reasons for delayed reporting due to the initial prioritization of the right ankle/foot.
The medical assessors also found that the cervical spine soft tissue injury has resulted in right sided neck pain with symptom referral over the right shoulder blade/trapezial region.
The medical assessors note that the ambulance record 27/9/20 referred to pain in the left hip although the records do not indicate ongoing symptoms in this area.
The medical assessors found no direct injury to the right shoulder although it was noted that the hospital records 27/9/10-1/10/20 do briefly mention left shoulder symptoms. Although there are currently neck symptoms referred to the right scapula and trapezius, the Assessors observed full active range of bilateral shoulder motion.
The medical assessors accepted that there were soft tissue injuries to the hands given the reference on the PICF 28/9/20 to lacerations and bruising of the hands although the latter injuries have resolved.
The medical assessors accepted there had been a soft tissue injury to the head/face although these injuries have also resolved.
The claimant has not sustained any traumatic brain injury from the motor accident. The criteria set out in the MAG for traumatic brain injury are not satisfied given there are no medically verified abnormalities in GCS, PTA nor are there any abnormalities on post MVA brain imaging.
The medical assessors found no jaw injury from the subject accident. The claimant herself acknowledged that the jaw symptoms resulted from a previous accident and not been aggravated by the 2020 (subject) motor accident.
The medical assessors accepted there had been a right hip injury from the motor accident despite the delay in reporting for similar reasons as above (that the right ankle had taken priority initially). The claimant gave a history of direct impact of the right hip with the car door in the motor accident with bruising although x-rays of the pelvis in hospital were unremarkable.
The medical assessors accepted too that there had been a lower back injury despite the delay for the same reasons as above, although the ongoing symptoms in this location are minor and not causing Ms Leal many problems. Of note, clinical examination was generally unremarkable and specifically, indicates no evidence of lower limb radiculopathy. There are not the two signs necessary as required by MAG to conclude that radiculopathy is present.
The Panel accepted that there were “clinical” left upper rib fractures (tenderness of the left lateral anterior ribs 2-5 was noted in contemporaneous hospital records) due to the motor accident although the fractures have healed/resolved without ongoing symptoms.
She did sustain a soft tissue injury at the left clavicle (noted in hospital records, tenderness of the left lateral clavicle) although this injury has resolved. A full range of motion was noted at the shoulders with left clavicle clinically unremarkable.
WPI
Cervical Spine
Clinical examination indicated neck dysmetria with L>R rotation which was consistently present during the assessment. The findings are compatible with cervicothoracic DREII or else 5% WPI of the cervical spine (Table 6.7 page 103 of MAG).
As noted, although neck symptoms refer to the right trapezius/scapula, there was full range of active motion in both shoulders not attracting any WPI per the specific figures in AMA4 (Figures 38, 41 and 44 pages 43-45).
Lumbar Spine
Clinical examination indicates no findings that would confer WPI beyond 0% WPI (DRE I) (Table 6.7 page 103 MAG). There were no dysmetria, non-verifiable radicular findings, guarding, spasm or else signs of radiculopathy.
Right Hip (not referred injury, though identified by the claimant as having been injured)
Ms Leal complains of right trochanteric pain although there is normal gait. She demonstrated a full active range of right hip motion, not attracting WPI according to Table 40 page 78 AMA4. There is thus 0% WPI at the right hip.
Left Hip (Referred injury)
There are no symptoms at the left hip and no evidence of any left hip injury from the motor accident aside from the mention of left hip on the ambulance report. At clinical examination, there was a full range of left hip motion not attracting any WPI according to Table 40, page 78 AMA4.)
Right Ankle/Foot
At the right ankle, there is 3% WPI for loss of dorsiflexion (5 degrees) and no impairment for loss of plantarflexion (35 degrees) (Table 42 page 78). There is no deduction for contralateral “constitutional” left ankle movements which were full (15 degrees of dorsiflexion and 40 degrees of plantarflexion), attracting no WPI according to the specific figures and tables in AMA4.
For loss of right hindfoot inversion (20 degrees) there is 1% WPI and no impairment for loss of eversion (15 degrees). There is no left hindfoot impairment for 25 degrees of inversion nor 15 degrees of eversion. (Table 43 page 78 AMA4)
Following combination of 3% WPI for loss of right-sided ankle dorsiflexion with 1% WPI for loss of right-sided hindfoot inversion there is 4% WPI at the right ankle/hindfoot.
There is some stiffness of the right great toe IP and MP joints due to the motor accident. Of note, there had been a dorsal laceration as well fractured base of the distal phalanx of the right big toe from the motor accident accounting for the clinical findings of restriction at the right big toe MP and IP joints.
There is 1% WPI for loss of right great toe IP flexion (0 degrees) due to the subject motor accident according to Table 45 page 78 AMA4.
There is also 1% WPI for loss of right MP extension (30 degrees) (Table 45, page 78 AMA4).
Paragraph 6.85, page 96 MAG 2024 states that Tables 40 to 45 (page 78, AMA4 Guides) are used to assess range of motion in the lower extremities. Where there is loss of motion in more than one direction/axis of the same joint- ( Panel emphasis), only the most severe deficit is rated - the ratings for each motion deficit are not added or combined. However, motion deficits arising from separate tables can be combined.
In this case, there was restriction of the right great toe IP and MP joints i.e. 2 separate joints. The impairment ratings for these joints are each contained in Table 45 page 78 AMA4. The Panel determined that the claimant should be awarded 1% WPI for restriction of the right big toe MP joint and 1% WPI for restriction of the right big toe IP joint. In this context, the Panel notes that in the upper limbs, finger joint impairments for the DIP, PIP and MP joints are individually determined and then combined to determine WPI for that digit. The situation is analogous in the big toe where there are two joints for impairment evaluation i.e. the IP and MP joints.
The Panel noted the reduced range of motion at the left great toe, although this was not a constitutional limitation of range of motion given the history of prior injury to the left lower leg/foot.
According, to paragraph 6.72, page of MAG, if the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint, only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury (Panel emphasis). The rationale for this decision must be explained in the impairment evaluation report.
However, in Ms Leal’s case, the history of previous left lower leg injury has altered the observed range of motion so that it cannot be a considered a baseline/constitutional finding. Therefore, no deduction is made for the observed restriction at the left big toe.
In summary, there is 5% WPI at the cervical spine combined with 4% WPI at the right ankle/hindfoot with resultant 9% WPI. 9% WPI is then combined with 1% WPI for the right big toe IP joint, giving 10% WPI. 10% WPI is combined with 1% WPI for the loss of motion in the right big toe MP joint giving 11% WPI.
The Panel noted that the correct methodology for WPI determination of the lower extremity is for combination of WPI values as opposed combination of lower extremity impairments, in accordance with clause 6.71 page 94 2023 MAG which states ff there is more than one injury in the limb, each injury must be assessed separately and then the WPIs combined. For example, a fractured tibial plateau and laxity of the medial collateral ligament are separately assessed and their WPI combined.

The Panel adopts the report and findings of Medical Assessor Oates and Medical Assessor Lahz.

Causation

The insurer submits that following the accident, the claimant did not report the alleged cervical spine and thoracic spine injuries to her GP.
On 27 September 2020, the Claimant underwent a CT Cervical Spine scan following the accident at Westmead Hospital, which found no abnormality. She also underwent a CT of the thoracic spine, which found loss of height of the T8 vertebral body, as well as anterior bony bridge between T8 and the T7, but the change was possibly chronic.
On 24 February 2021, Dr Roseth did not include, in the certificate of capacity, any injuries except for the fracture of the right medial malleolus and two ribs.
Following the accident, the claimant did not report the alleged lumbar spine injuries until about a year after the accident. Thereafter, she only received very limited conservative treatment and then has no longer complained about any injuries to her lower back.
On 2 October 2020, the claimant reported to Dr Roseth about the subject accident. She only reported her right foot and ankle injuries.
On 24 February 2021, Dr Roseth did not include any injuries except for the fracture of right medial malleolus and two ribs in the certificate of capacity.
On 6 September 2021, nearly a year after the subject accident, the claimant fist reported her lower back pain to Dr Roseth. She reported that sitting was hurting her back pain more.
On 23 June 2021, the claimant did not report the alleged lumbar spine injury to her orthopaedic surgeon, Dr John Fox.
Following 16 September 2021, the claimant no longer reported her back and right hip pain to her physiotherapist
The insurer submits that there is a possibility that the pain in the claimant's right hip is referred pain from her pre-existing lumbar spine injuries, which would render the claimant's alleged right hip injuries not caused by the subject accident.
On 5 October 2021, more than a year after the subject accident, the claimant fist mentioned to Dr Roseth about the pain in her hip and pelvis.

The Motor Accident Guidelines

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation";[2] and
"scope of liability".[3]
[2] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[3] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[4]
[4] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”..
In the accident involving the claimant, in which she was the driver of a car involving speed, she had to take evasive action to avoid an oncoming car on the incorrect side of the road. Immediate evasive action was required by her. By taking action to avoid the oncoming car on the incorrect side of the road, she lost control of her car. This came about by proceeding onto the gravel shoulder of the road, causing her car to spin and then colliding with two other vehicles in her lane It was sudden, and might have been with some degree of force.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues determined in Kinchela involved applying the definition of “minor injury” (now referred to as ‘threshold injury’) and involved a question of causation in respect of an amputated toe.
The discussion in Kinchela concerning the correct principles to apply relating to causation follows:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 (“Bugat”); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (“McGiffen”). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
“[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d)(of the Motor Accidents Compensation Act). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.”
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said:
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a “left posterolateral annular tear” with “mild disc desiccation” shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) “[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period”, and Mr Briggs only had post-accident MRI results;

(2) “a delamination may not fall within the definition of a tear”; and

(3) “the defect may not be the source of his pain and disability”.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
“138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’”
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
“... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
“the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.”
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgment” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question”.

Reasons

The Panel must consider whether, with some of the claimant’s complaints, the disabilities are causally related when there was little or no complaint about some areas of disability for 12 months post-accident.
The Panel must also ask itself in considering whether the accident contributed to the claimant’s physical injuries as referred to it by the Personal Injury Commission, whether the claimant’s disabilities arise because of contribution by the accident, and whether the accident materially contributed to that condition and need for treatment.
The Panel accepted a cervical spine soft tissue injury from the motor accident despite the delay in reporting to the treating physiotherapist, given the mechanism of the motor accident whilst also accepting the claimant’s stated reasons for delayed reporting due to the initial prioritisation of the right ankle/foot. The Panel is satisfied that the accident materially contributed to this area of injury, arising from a high speed incident and its aftermath,
The Panel was also satisfied that the cervical spine soft tissue injury has resulted in right sided neck pain with symptom referral over the right shoulder blade/trapezial region.
Regarding the claimant’s hip, the Panel notes that the ambulance record of

27 September 2020 referred to pain in the left hip although the records do not indicate ongoing symptoms in this area. On examination, the left hip showed a full range of movement. The right hip was not an injury specifically referred to the Panel although it might be regarded as falling under the generic reference to the hip. However, there was a full range of motion, not attracting any assessment of WPI.
Regarding the lumbar spine, the Panel acknowledges that no complaint was made about this for more than 12 months after the accident.
The Panel is mindful that a lack of reported complaint of her lumbar spine should not preclude a conclusion that this condition arose from the accident.
The claimant had suffered a fracture to her back in 2007 following a horse riding incident. Between 2010 and 2015 the claimant had at times made complaints about back pain but these were not regular and many complaints.
Scientifically, there is a possibility that the accident could have caused lumbar spine injuries. The Panel must consider, did the accident contribute to the claimant suffering lumbar spine injuries even though there was no substantive complaint about this until approximately 12 months after the accident?
While the lack of contemporaneous complaint or record is not determinative, the Panel has dealt with this in its examination report. The claimant’s ankle injury would have taken priority initially The Medical Assessors accepted that there had been a lower back injury despite the delay although the ongoing symptoms in this location are minor and not causing the claimant many problems
The Medical Assessors found no direct injury to the right shoulder although it was noted that the hospital records 27 September 2020 and 1 October 2020 do briefly mention left shoulder symptoms. Although there are currently neck symptoms referred to the right scapula and trapezius, the Medical Assessors observed full active range of bilateral shoulder motion.
The claimant suffered frank injuries to her right ankle and foot which are directly related to the accident.

CONCLUSION

This is a dispute between the claimant and the insurer about: whether the injuries caused by the accident sound in an assessment of whole person impairment with respect to the following injuries:
(a)    Right ankle - Transverse fracture of medial malleolus
(b)    Cervical spine - Injury to neck - Musculoligamentous injury/ soft tissue injury with radiculopathy
(c)    Clavicle - Injury to Left clavicle - Soft tissue injury
(d)    Right foot - Non-displaced fracture of third metatarsal, displaced fracture of medial malleolus and scarring
(e)    Left hand - Soft tissue injury
(f)    Right hand - Soft tissue injury
(g)    Head - head and jaw - soft tissue injury
(h)    Hip - Soft tissue injury with restricted range of motion
(i)    Lumbar spine - Musculoligamentous injury/ soft tissue injury with radiculopathy
(j)    Left rib - Left upper rib fractures
(k)    Left shoulder - referred pain from cervical spine
(l)    Right Shoulder - referred pain from cervical spine
The Panel is satisfied that the accident and impact has had a more than negligible effect on several of the disabilities suffered by the claimant and which have been discussed.

DETERMINATION

The Panel revokes the certificate of Medical Assessor Cameron dated 2 May 2024.
The Panel finds that the claimant has a total whole person impairment assessment of 11% for the injuries suffered by her and arising out of the accident which occurred on
27 September 2020.

[2024] NSWPICMP 865

17 December 2024