Mitchell v QBE Insurance (Australia) Limited
[2025] NSWPICMP 350
•21 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Mitchell v QBE Insurance (Australia) Limited [2025] NSWPICMP 350 |
CLAIMANT: | Donald Mitchell |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 21 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment disputes; claimant was riding his Honda motorcycle on a public road; claimant was wearing a helmet and full protective gear; claimant was hit by the insured vehicle from the left side; claimant’s helmet and left shoulder hit the car before he fell off his motorcycle and landed on his left side; Held – permanent impairment assessed at 5%; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 1. The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated (a) the following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%: · chest – fractured sternum; · left shoulder – fracture scapula; · left leg – compound fracture left distal tibia and fibula, and · scarring – TEMSKI scale. |
·
STATEMENT OF REASONS
INTRODUCTION
On 25 April 2021, Donald Mitchell (the claimant) was riding his Honda motorcycle on a public road at Buchanan in the Hunter region. He was wearing a helmet and full protective gear. As he proceeded into a two-lane roundabout, going straight at about 40kmph, he was hit by the insured vehicle from the left side. The claimant’s helmet and left shoulder hit the car before he fell off his motorcycle and landed on his left side. He did not lose consciousness. The at-fault vehicle kept going for a distance before it stopped. The female driver called her father to the scene while she remained in the car. Her father attended the claimant, as did three or four of the claimant’s friends, who were riding their motorcycles behind him. They supported his angulated left lower leg over his helmet.
Ambulance and police officers arrived at the scene. The claimant was taken to John Hunter Hospital by ambulance where he was diagnosed with the following injuries:
· left distal tibia and fibula compound fractures;
· left scapula fracture, and
· non-displaced sternum fracture.
The following day, the claimant underwent open reduction and internal fixation of the left distal tibia with an intramedullary locking nail and a plate with screws of the distal fibula. The left scapula fracture was treated non-operatively.
QBE (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages under the Motor Accident Injuries Act2017 (the MAI Act). The insurer admitted liability for the claim but does not concede that the 10% whole person impairment (WPI) threshold is exceeded. That refusal was based upon a joint report by Dr Keller who assessed 2% WPI.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration, in much the same manner as parties not referring to, or not specifically relying upon, a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned.[1] The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”.[2] The Panel has come to its own conclusions and has taken its own history.
[1] WAEE v Minister for Immigration and Citizenship [2003] 75 ALO 630 at (46).
[2] Farr v Insurance Australia Limited t/as NRMA Insurance Limited [2014] NSWSC 1435 at (46).
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act, the claimant was referred to Medical Assessor Alexander Woo for examination. Medical Assessor Woo certified on
4 August 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 4% and IS NOT GREATER THAN 10%:
· Chest – fractured sternum
· Left shoulder – fractured scapula
· Left leg – compound fracture left distal tibia and fibula
Medical Assessor Woo assessed 4% WPI for the left tibia and fibula fractures. He assessed nil impairment for the fractured sternum and left scapula fracture. No adjustment was made for pre-existing/subsequent impairment, apportionment or treatment effects.
THE REVIEW
The claimant sought a review of Medical Assessor Woo’s certificate, on the grounds that the medical assessment was incorrect in a material respect, under s 7.26 of the MAI Act. The claimant relied on the particulars set out in the application and supporting documentation. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submits that Medical Assessor Woo’s assessment is incorrect in a material respect for his failure to review and evaluate the available evidence in order to comply with the Motor Accident Guidelines (Guidelines) and his failure to provide adequate reasons.
The claimant notes that Medical Assessor Woo apparently did not consider a report dated 26 September 2023 by Dr James Bodel which was served as a late document. The claimant submits that inconsistencies between Medical Assessor Woo’s findings and those of Dr Bodel should have been put to the claimant, particularly, in relation to measured range of motion in the left shoulder.
As to the alleged failure to provide adequate reasons, in relation to assessment of the left ankle, the claimant notes that no indication was given by Medical Assessor Woo as to why a deduction of 3% was made for the contralateral uninjured right ankle. The claimant submits that Medical Assessor Woo probably was attempting to comply with cl 6.72 of the Guidelines, but that is not stated specifically, leaving the claimant to guess as to the Medical Assessor’s path of reasoning.
The claimant’s application for review was opposed by the insurer on various grounds. As those submissions were not accepted by the President’s delegate, it is not necessary to state them in detail. Briefly, they can be summarised as follows:
(a)in relation to the alleged failure to consider Dr Bodel’s late report, the insurer submits that the claimant has not established that the report was admitted by the President’s delegate and/or was made available to Medical Assessor Woo;
(b)in relation to the alleged failure to provide adequate reasons, the insurer submits that Medical Assessor Woo was entitled to form an opinion based on his clinical examination findings and his review of the documentation. The insurer submits that the Medical Assessor’s path of reasoning can be readily established, as follows:
(i)the claimant’s subjective reporting of symptoms was acknowledged and repeated in relation to his lower extremity, which is the subject of the claimant’s alleged ground for error;
(ii)on formal examination, the Medical Assessor identified the range of motion related to the lower extremity/ankle range of motion. The Medical Assessor identified the respective ranges of motion for both ankles, and
(iii)under the Guidelines, the appropriate methodology to subtract from the calculated impairment for the injured joint (right Leg 3%) [SIC].
The insurer submitted that Medical Assessor Woo utilised his clinical judgment in assessing the claimant’s ankle at 4% WPI and provided a clear path of reasoning.
President’s delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 17 October 2024 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that Medical Assessor Woo’s assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Woo’s “failure to provide adequate reasons” with respect to the assessment of permanent impairment of the left leg. Accordingly, the claimant’s review application was accepted.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with s 63 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[3]
[3] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[4]
[4] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[5]
[5] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) Review submissions dated 5 September 2024. Previously summarised.
(b) Claimant’s submissions dated 13 July 2023 relating to permanent impairment arising from the following injuries:
·chest – fractured sternum;
·left shoulder – fracture to scapula, and
·left leg – compound fracture to left distal tibia and fibula.
(c) Certificate and Reason of Medical Assessor Woo.
See previously.
(d) Application for Personal Injury Benefits dated 30 April 2021.
(e) Certificate of Capacity/Fitness dated 7 June 2021 (x2).
(f) John Hunter Hospital clinical notes.
(g) Medical imaging and reports relating to left lower leg.
(h) Joint report dated 22 May 2023 by Dr Andrew Keller, occupational physician, to the parties.
Dr Keller summarises the history of the presenting complaint, past medical history, social history and presenting complaints. Under the heading OBSERVATION AND EXAMINATION, Dr Keller says as follows:
“In the cervical spine, there was a full symmetrical range of motion without dysmetria or radiculopathy. There was no spasm. He reported normal sensation to light touch in the upper limbs. In the shoulder, the range of motion was equal on both sides except for a slight reduction in abduction on the left, and there was a full symmetrical range of motion in both elbows, wrists and all fingers. There was a full range of motion without radiculopathy in the thoracic and lumbar spine.
Inspection of the left knee revealed healed surgical scarring up to 50mm in length without thickening, redness or tethering. There was a full range of motion in the left knee from 0° to 145°. Flexion, without crepitus or instability. There was a full range of motion in both ankles to plantar and dorsiflexion. He was able to stand on his heels and toes without footdrop. He could squat 80% of normal and arise without assistance.”
His diagnosis include:
·compound fracture of the left tibia and fibula – healed after surgical fixation;
·left scapula fracture, and
·reported sternal fracture.
Dr Keller relates each of those injuries to the subject accident without prior or subsequent contributing factors.
In a separate impairment assessment of the same date, Dr Keller finds no assessable impairment for the left tibia shaft fracture and left knee. He finds 1% WPI for the left scapula fracture and 1% WPI for scarring to the left lower limb.
(i) Report dated 26 September 2023 by Dr James Bodel, orthopaedic surgeon, to the claimant’s lawyers.
Dr Bodel notes that the claimant was admitted to John Hunter Hospital under the care of Dr David Gill, orthopaedic surgeon. The fracture of the tibia and fibula on the left were compound fractures and required intramedullary nailing for the tibial fracture and a plate for the fibula. The initial trauma assessment also indicated a fracture of the scapula on the left an undisplaced sternal fracture with no retrosternal haematoma or mediastinal emphysema. The surgery was performed the day after admission. No surgery was required for the fracture in the shoulder. The intramedullary nail was removed sixteen months later. It was reasonably solid but not completely consolidated. Dr Bodel records that the claimant made steady progress and had stabilised as at the date of his assessment.
Under the heading EXAMINATION, Dr Bodel says that the claimant has tenderness in the trapezius muscles at the base of the neck on the left and there is a tightness in that area and guarding. He has a restricted range of neck flexion, extension and rotation in all directions, and this is most restricted on rotation to the right. He has tenderness over the scapula posteriorly and a stiffness in the left shoulder with tenderness also over the rotator cuff anteriorly. There is impingement in the left shoulder but no instability. There is no restriction of elbow, wrist or hand movement. Grip strength is normal. The reflexes are present and equal. There is no sensory loss in a dermatomal distribution.
There is some mild discomfort on palpation at the lumbosacral junction but no guarding or spasm. He reaches forward in flexion with his hands to the upper tibia and there is no backache at this point, nor is there pain on extension. There is some discomfort generally in the back but no restricted movement and no asymmetry of movement. Straight leg raising is 70° on each side and limited by hamstring tightness.
There is no restriction of hip or knee movement. There is a restriction of left ankle movement which Dr Bodel tabulates. There is slight weakness of resisted ankle movement on that side but no instability.
Dr Bodel tabulates the range of movement in each shoulder. He found restriction on the left in all planes compared to the right. Those findings are markedly different to those of Dr Keller.
Dr Bodel finds 2% WPI for scarring in accordance with the TEMSKI scale.
In a separate Impairment Assessment of the same date, Dr Bodel finds as follows:
Body parts
%
Cervicothoracic spine
5% WPI
Lumbosacral spine
0% WPI
Left shoulder
6% WPI
Left ankle
4% WPI
Scarring
2% WPI
Dr Bodel finds a total 17% WPI combined.
The insurer relied upon the following material which the Review Panel has considered:
RX-1 Insurer’s reply submissions dated 24 September 2024.
(Previously summarised).
RX-2 Insurer’s reply submissions dated 3 August 2023 – WPI dispute.
RX-3 Certificate of Medical Assessor Alexander Woo dated 4 August 2024.
(Previously summarised).
RX-4 Commission’s delegate determination dated 17 October 2024.
(Previously summarised).
RX-5 Expert report of Dr Andrew Keller dated 22 May 2023.
(Previously summarised).
RX-6 NSW Ambulance report dated 25 April 2021.
RX-7 X-ray left leg dated 14 January 2022.
RX-8 Consultation report of dated David Gill dated 19 January 2022.
RX-9 X-ray left leg dated 8 July 2022.
RX-10 Consultation report of Dr David Gill dated 18 July 2022.
RX-11 Clinical notes of Pinnacle Rehab as at 14 February 2023.
RX-12 Clinical notes of Sport and Spine Physiotherapy as at 2 March 2023.
RX-13 Clinical notes of Waratah Medical Service – various dates.
RX-14Clinical notes of Sport and Spine Physiotherapy as at 19 December 2023.
EXAMINATION REPORT
The report of Medical Assessor David Gorman is as follows:
“Donald Mitchell – MRP Examination
Assessor David Gorman
Seen on 18 March 2025 at the PIC rooms, 1 Oxford St, Darlinghurst.
Who attended the assessment?
Mr Mitchell attended the assessment unaccompanied.
HISTORY
Pre-accident medical history and relevant personal details
Mr Mitchell is 65 years of age and is currently managing a landscaping company for a developer. He lives in Mt Vincent (near Cessnock).
He is married with children aged 33 and 36 years.
He is a non-smoker and does not drink alcohol.
He has Type II diabetes mellitus diagnosed when he was 45 years. He also had hypertension diagnosed at this time.
At the time of the motor accident, he was working as an Engineering Manager carrying out production line planning, servicing and purchase. Following the subject motor accident, he performed light duties initially for 4 weeks and then full-time normal duties in a new (his current job).
He had no previous relevant injuries.
History of the motor accident
On Sunday 25/04/2021, Mr Mitchell was riding his Honda motorcycle wearing a helmet and full protective gear. He approached a two-lane roundabout and going straight at about 40 kph when he was hit by a car form the left side. His helmet and left shoulder hit car before he fell off his bike and landed on his left side. His helmet was scratched but not broken. He did not lose consciousness. The father of the driver attended Mr Mitchell. There were 3-4 friends of Mr Mitchell, who were riding their motorcycles behind him. They stopped to offer him assistance.
His angulated left lower leg was angulated. Police and ambulance arrived at the scene. He was taken by ambulance to John Hunter Hospital.
History of symptoms and treatment following the motor accident
Following the accident, he was not able to stand or walk and was aware of injuries to his left shoulder and a compound fracture to his left lower limb when the paramedics took his boot off. At John Hunter Hospital, he was diagnosed with the following injuries:
·Left distal tibia and fibula compound fractures
·Left scapula fracture
·Sternum fracture, non-displaced
On 26/04/2021, he underwent open reduction and internal fixation of the left distal tibia with an intramedullary locking nail and a plate and screws of the distal fibula. The left scapula fracture was treated non-operatively. He was discharged home on 04/05/2021.
He was followed-up by Dr David Gill, Orthopaedic Surgeon. He developed non-union of the left distal tibia fracture.
On 19/08/2022, Dr Gill performed revision of the intramedullary nail and bone graft, taken from the right proximal tibia.
He was reviewed by Dr Gill in June 2024. X-ray showed complete union of the left tibia and fibula fractures.
He had physiotherapy for his left shoulder for 9 months following the motor accident.
Details of any relevant injuries or conditions sustained since the motor accident
Nil reported.
Current symptoms
He still has pain which is a dull ache just above his left ankle. He can have good and bad days. He can walk usual distances.
He does not feel as steady because of this.
His left shoulder is “pretty good”. It is only painful if he reaches up high. He says that this is there “but the left shoulder is not a big problem”.
He used to play golf but he does not now.
Current and proposed treatment
He takes medication for his diabetes and hypertension. He has a very occasional Nurofen for pain.
He is not having physiotherapy now.
CLINICAL EXAMINATION
General presentation
Mr Mitchell is right hand dominant and is a tall fit looking man. He is 187 cm in height and weighs 88.3kg.
He has a normal gait. His cervical spine moved normally and easily.
Chest
There was no tenderness over the sternum. Air entry was normal with no added sounds on chest examination.
Upper extremity
There was no tenderness in both shoulders.
There was no tenderness over the left scapula.
There was no peri-scapular wasting.
Range of motion was measured with a goniometer as outlined below. There was limitation in left shoulder abduction but no other abnormalities.
SHOULDER MOVEMENT
Right (degrees)
Left (degrees)
Flexion
180
180
Extension
50
50
Adduction
50
50
Abduction
180
150
External rotation
90
90
Internal rotation
80
80
Lower extremity
There was normal alignment of the left lower limb, including the left knee and ankle, being the same as the uninjured right leg.
There was no effusion in either knee.
Both knees had full extension and 130 degrees flexion.
ANKLE AND HINDFOOT MOVEMENT
Right (degrees)
Left (degrees)
Dorsiflexion
15
0
Plantar flexion
60
50
Inversion
40
30
Eversion
20
15
There is a longitudinal scar over the distal tibia measuring 14cm in length and a small area widened to 2cm in width and pigmented at the lower end. There are visible suture marks and minor contour defect, easily visible. It does not affect ADL and no treatment is not required.
There is a well-healed lateral scar in keeping with internal fixation of the distal fibula fracture. It is barely visible – fine and well healed.
Over the front of the left upper tibia there is a 3cm well healed scar. There is a 4cm scar over the medial patella which is well healed.
The small 2cm scars for the harvest of bone graft from the right proximal tibia are well healed and barely visible.
Comments on consistency
He was cooperative and consistent.
Summary of relevant radiological and medical imaging and other investigations
The following radiological and medical imaging reports were reviewed at the assessment:
X ray left leg – 14/01/2022 – oblique fracture through the distal diaphysis of the tibia fixated by an intramedullary nail and screws. There is a healed fracture of the distal diaphysis of the fibula fixated by a fenestrated plate and screws.
Xray left leg - on 08/07/2022
The left tibial fracture line is still visible. The fibula fracture has healed.
X ray left leg – 19/12/2022 – further healing of tibial fracture.
DETERMINATIONS
Diagnosis and reasons
Mr Mitchell has the following injuries:
·Chest – Fractured sternum
·Left shoulder – fractured scapula
·Left leg – Compound fracture left distal tibia and fibula
He had non-union of the left distal tibia fracture and required revision nail and bone graft - a full recovery has been achieved.
Causation and reasons
His injuries above were all documented from the time of the admission to hospital all caused by the motor accident.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
·Chest – Fractured sternum
·Left shoulder – fracture scapula
·Left leg – Compound fracture left distal tibia and fibula
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.”
Mr Mitchell’s injuries have stabilised. His left shoulder range of motion has gradually improved when compared with previous assessments but has plateaued. He is not having any specific treatment for his injuries. His impairment is unlikely to change substantially now and by more than 3% in the next year with or without medical treatment. His impairment is considered permanent.
DETERMINATIONS – PERMANENT IMPAIRMENT
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.
Details of Assessment
Chest – Fractured sternum – 0% WPI
There is no assessable impairment with no tenderness now and now respiratory abnormalities - Para 6.229 on page 127 NSW Motor Accident Guidelines.
Left shoulder – fractured scapula – 1% WPI - using Figure 38, 41, 44 in AMA 4th Edition and Table 3 on page 20 – the only abnormality is the limitation in abduction giving a 1% upper extremity impairment which equates to a 1% whole person impairment.
Left leg – Compound fracture left distal tibia and fibula – 3% - based on limitation in ankle extension in Table 42 on page 78; hindfoot range of motion based on Table 43 on page 78 gives 0% WPI. As the fracture was compound, I have also assessed scarring – using the TEMSKI scale with scars generally well healed except for the 14cm scar over the lower end of the tibia which was widened and pigmented in part – 1% WPI based on the TEMSKI scale.
Permanent Impairment Table
Body Part or System
AMA Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
Chest – Fractured sternum
Para 6.229 on page 127 NSW Motor Accident Guidelines
Yes
0%
0%
0%
Left shoulder – fracture scapula
Chapter 3 – Figure 38, 41, 44 and Table 3 on page 20
Yes
1%
0%
1%
Left leg – Compound fracture left distal tibia and fibula
Tables 42 and 43 on page 78 AMA 4th Edition
Yes
3%
0%
3%
Scarring – TEMSKI scale – was a compound fracture referred
TEMSKI scale Table 6.18 on page 131 NSW Motor Accident Guidelines
Yes
1%
0%
1%
* %WPI = percentage whole person impairment
Pre-existing/subsequent impairment
Nil reported.
Apportionment
Not applicable.
Effects of treatment
Not applicable.
CONCLUSION – PERMANENT IMPAIRMENT
Degree of permanent impairment caused by the motor accident – 5%”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Panel adopts the measurements and findings of Medical Assessor Gorman with which Medical Assessor Gibson concurs.
[6] Section 7.26(6) of the MAI Act.
The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[7]
[7] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.
The Medical Assessors have explained the bases of their assessments. The Medical Assessors respectfully disagree with the permanent impairment assessments made by Dr Bodel and Dr Keller for the reasons stated. The Panel notes that Medical Assessor Woo found 3% lower extremity impairment in the contralateral right ankle which Medical Assessor Gorman found to be normal. The Panel notes that Medical Assessor Woo did not assess scarring. Medical Assessor Gorman chose to do so, for the sake of completeness, as the scarring of the left leg was obvious.
The medical assessment of permanent impairment is made at the time of the examination. In that respect, the previous assessments are outdated, and do not reflect current symptomatology.
CONCLUSION
For the above reasons, the Panel concludes the certificate issued by Medical Assessor Woo on 4 August 2024 should be revoked. The new certificate appears at the commencement of these reasons.
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