O'Doherty v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	O'Doherty v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 698
CLAIMANT:	Gerard O'Doherty
INSURER:	IAG Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Thomas Rosenthal
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	22 December 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Harrington dated 21 April 2023 with a finding of 9% whole person impairment (WPI) for injuries to the cervical spine, lumbar spine and right foot; claimant injured when struck by a car when riding his moped scooter on 25 August 2019; due to injuries to his foot, claimant unable to continue working; issue of whether pars defect caused by accident but Panel found this was congenital and in any event, the claimant’s lumbar spine was a DRE I assessment; claimant’s activities due to injury to foot significantly curtailed; Held – certificate of MA Harrington revoked with claimant having an 11% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of the Medical Assessor dated 21 April 2023. 2. As a result of the accident on 25 August 2019, the claimant suffered injuries to his; (a) right foot including, forefoot, midfoot and toes; (b) cervical spine; (c) lumbar spine, and (d) thoracic spine. 3. The Panel finds that the claimant has suffered a total whole person impairment of 11%.

STATEMENT OF REASONS

INTRODUCTION

This is a request by the claimant for a review of a certificate and reasons of Medical Assessor Harrington (the Medical Assessor) dated 21 April 2023.
The Medical Assessor found the following injuries caused by the motor accident gave rise to a permanent impairment of 9%:
(a)    cervical spine;
(b)    lumbar spine, and
(c)    right foot.
The Medical Assessor found that the claimant’s injury to his thoracic spine had resolved and gave rise to no assessable permanent impairment.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a)   right foot including, forefoot, midfoot and toes;
(b)   cervical spine;
(c)   lumbar spine, and
(d)   thoracic spine.
In the original application for assessment of whole person impairment (WPI) the claimant alleged injuries to the right foot, lumbar spine, thoracic spine and cervical spine as a result of the subject motor accident. The claimant submitted that these injuries exceeded the 10% WPI threshold.
The insurer submitted that the claimant’s physical injuries did not exceed 10% WPI.

Documentation

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 accident

The accident occurred on 25 August 2019. The claimant was riding home on his moped scooter from Merewether Beach when he was struck by a car on the right side of his body. Consequent upon this, he was then pushed into another car. He fell onto the road. The claimant was wearing a helmet but no other protective clothing as he was wearing a t-shirt, shorts and thongs.
Following the accident, the claimant was taken to the John Hunter Hospital by ambulance. He reported significant abrasions on his legs and arms which required dressings in hospital and further dressings when he went home. There was a degloving injury to the dorsum of both feet, right worse than left. These injuries took some time to heal. His right foot and ankle were significantly swollen.

Claimant’s submissions

The claimant says that there is more than a reasonable cause for suspicion that the Medical Assessor’s assessment was vitiated by the following material errors:
(a)    failure to apply the correct test of causation;
(b)    failure to provide sufficient reasons;
(c)    failure to engage with a clearly articulated argument, and
(d)    denial of procedural fairness.
As to Ground 1 and a failure to apply the correct test of causation, the claimant submits that although the Motor Accident Guidelines (Guidelines) in cls 6.6 and 6.7 provide an incomplete statement of some of the legal principles to be applied in respect of causation, the legal principles in respect of causation must be applied, including s 5D of the Civil Liability Act 2002 (NSW) (CLA). That requires a detailed analysis about whether the claimant’s requirement for surgery arose as a consequence of the subject motor vehicle accident. The claimant submitted that the non-medical approach in that regard required an approach in accordance with Varga v Galea [2011] NSWCA 76 at [9] that the accident was a necessary condition of the harm: Warth v Lafsky [2014] NSWCA 94.
The claimant says that a two-step process is enshrined in s 5D encompassing the previous common law position. The claimant says that a determination in respect of causation involves two questions “a question of historical fact as to how a particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person”. The claimant has referred to Wallace v Kam [2013] HCA 19, where the court held that the determination under s 5D(1)(a) involved “nothing more or less than the application of a “but for” test of causation. The court noted:
“That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of the harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absence the negligence.”
The claimant says that moreover, the non-medical analysis required a detailed reasoning process with respect to the claimant’s toe injuries and impairment in circumstances where the Medical Assessor made a negative causation finding, particularly in circumstances where the parties were not on notice of that causation issue. The claimant submits that a detailed analysis of the history obtained, the contemporaneous clinical material and the medico-legal assessments was necessary when determining such an issue. The claimant says that did not occur, and instead the Medical Assessor:
(a)    failed to document any pre-accident history of stiffness or deformity in the claimant’s toes;
(b)    failed to document any pre-accident contemporaneous clinical support for the presence of a pre-existing stiffness or deformity in the claimant’s toes;
(c)    failed to document any clinical discussion with the claimant with respect to the pre- accident presence of signs or symptoms associated with a pre-existing stiffness or deformity in his toes, and
(d)
failed to provide any comment in relation to the opinions expressed by

Dr Stephenson and/or Dr Hyde Page with respect to acceptance that a condition of the toes had been sustained as a result of the subject accident.
The claimant submits that the Medical Assessor failed to provide any analysis in relation to the toes in his clinical examination or in his diagnosis reasoning other than to note in the latter section:
(a) “The arthritis in his toes would be constitutional”, and
(b) “Although he has some stiffness of his toes on that right side, I believe the arthropathy is degenerative in nature and not causally related to the subject accident”.
The claimant says that is the extent of the Medical Assessor’s comments, analysis and determination with respect to the toes, no further commentary or reasons are provided over and above those two sentences.
The claimant submits that the Medical Assessor has failed to properly approach his statutory task with respect to causation by simply providing an ipse dixit (“he himself said it” – without supporting evidence or proof) finding that the condition was constitutional without any actual reasoning process and, moreover, in circumstances where the overwhelming weight of the evidence points to the condition being accident related. The claimant submits that the Medical Assessor has failed to undertake his medical/non-medical causation assessment and, as such, has fallen into error.
As to Ground 2 and sufficiency of reasons provided, the claimant submits that the Medical Assessor has fallen into error in determining that:
(a)    the motor vehicle accident was not the cause of the toe condition without explaining;
(b)    the basis of that opinion by reference to a path of reasoning process;
(c)    Failed to record any details relating to an examination of the claimant’s toe condition and the measurements of movement that were obtained, and
(d)    the claimant suffered a diagnosis related estimate (DRE) II injury to the lumbar spine in circumstances where the Medical Assessor failed to,
(i)set out the measurements of movement that were obtained, and
(ii)failed to provide reasons as to whether muscle guarding or dysmetria was present in accordance with the guidelines.
The claimant submits that the Medical Assessor has failed to explain why, in circumstances where the treating doctors and both the claimant and Insurer’s medicolegal doctors accepted the motor accident as being causative of the toe condition. The claimant says that the Medical Assessor has failed to provide such a reasoning process and, as such, has fallen into error.
The claimant says that the Medical Assessor compounded that error by failing to provide sufficient reasons within his examination section to enable the claimant to understand his reasoning process in its totality by reference to the medical assessment Guidelines.
Regarding Ground 3, the claimant says that it is apparent that the treating doctors, and both medico-legal doctors, considered that the claimants toe condition could and did arise as a result of the traumatic motor accident injury. That is, the claimant says, it was accepted that the pathology could arise other than in a developmental setting, as was postulated by the Medical Assessor.
The claimant submits that notwithstanding the view expressed by all surgeons in the material put before the Medical Assessor, he nevertheless said:
“Although he has some stiffness of his toes on that right side, I believe the arthropathy is degenerative in nature and not causally related to the subject accident.”
The claimant says that to that end the Medical Assessor’s reasons fail to properly engage with the matters that were put before him. That is, the Medical Assessor failed to deal with a clearly articulated argument put before him, namely that the accident was responsible for the development of the pars defects as was indicated by the treating neurosurgeon. The claimant says that the Medical Assessor did not, or adequately, deal with that proposition.
The claimant says that the Medical Assessor failed to adequately express any real reasoning process as to why the demonstrated pathology was incapable of being caused by the subject accident particularly where he simply observed that such conditions were developmental abnormalities. The claimant says that is at odds with the medical evidence put before the Medical Assessor and, where that is the case, proper reasons are required about why both in terms of factual and medical causation the condition was constitutional.
Concerning Ground 4, a denial of procedural fairness, the claimant submits that the Medical Assessor, in reaching a view of causation that was at odds with the position of the parties, the weight of the evidence and that was not explored with the claimant or referenced in the certificate and reasons, has denied procedural fairness to the claimant. The claimant submits that the Medical Assessor’s reasons represented the first opportunity for the claimant, and the parties, to be put on notice that a finding inconsistent with the position and arguments made was likely to be determined.
The claimant submits that the existence of a pre-existing condition and, moreover, pre-existing impairment, ought to have been explored with the claimant in examination and history. Moreover, if that finding were to be made the Medical Assessor ought to have put the parties on notice to enable submissions to be made on the point.
The claimant says that the vital importance of providing a claimant with an opportunity to respond to any adverse inferences or findings in an assessment setting, thereby avoiding a situation in which such matters are not put to a claimant, is reflected in the assessment guidelines, which specifically highlights the importance of “procedural fairness”.

Insurer’s submissions

The insurer disputes that the Medical Assessor fell into error.
The insurer refers to a submission of the claimant where he says, on page 4 of his submissions, that the Medical Assessor made a finding of a 'pre-existing stiffness or deformity' in the claimant's toes due to a failure to undertake an analysis of the history obtained/clinical material and provide adequate reasons.
The insurer submits the above reference to pre-existing stiffness and deformity is incorrect. The insurer referred to page 7 of the Certificate of the Medical Assessor where he specifically referred to 'the arthropathy' in the claimant's right toes as being degenerative in nature, rather than the actual stiffness or deformity.
The insurer submits that the Medical Assessor has engaged in a detailed analysis of the history obtained and the clinical findings which constitutes sufficient reasoning. The insurer highlighted the following:
(a)     on page 3 of the certificate, the Medical Assessor took a history of the claimant being diagnosed with midfoot arthritis and marked arthropathy in the third MTP joint;
(b)     similarly the insurer says, on page 5, the Medical Assessor wrote, in the context of radiological imaging, that there was evidence of midfoot arthropathy and degenerative changes which the insurer says is what you would expect for his age;
(c)     the insurer submits that the Medical Assessor has clearly documented the pre-accident history of degenerative arthropathy in support of his conclusion, contrary to the claimant's submissions, and
(d)     the insurer says that on pages 5 and 6 of the Certificate, the Medical Assessor proceeded to analyse the history of degenerative changes in the claimant's toes with his own clinical observations. The insurer says that this analysis can be seen in the following sections:
“[18] He walks with a normal gait.
[22] He has a stiff subtalar joint and stiffness of the midfoot and forefoot.
[27] Although he has some stiffness of his toes on the right side, I believe the arthropathy is degenerative in nature and not causally related to the subject accident.”
The insurer says that the claimant has overlooked references made by the Medical Assessor to the right 'forefoot' and has focussed solely on the references made specifically to 'toes'. The insurer submits that the use of the word 'forefoot' also includes the phalanges (toe bones).
The insurer refers to the claimant’s submission that the Medical Assessor has failed to deal with the clearly articulated argument put before him, namely that the accident was responsible for the development of the pars defect. In response to this, the insurer says that the claimant did not provide any submissions, in his original WPI application filed on

24 May 2022. The insurer says that whilst it provided submissions in reply for the Medical Assessor to consider, it did not raise any argument relating to the development of a pars defect. The insurer submits, on this basis, there was no clearly articulated argument relating to the development of the pars defect for the Medical Assessor to consider and address.
Regarding the claimant’s submission that there has been a denial of natural justice to the claimant, the insurer says the following treating records provided by the claimant, as part of his original WPI application, referred to the following degenerative conditions in the claimant's toes:
(a)    report by Dr David Nicholson, the claimant's treating orthopaedic surgeon, dated 18 August 2020 (page 50 of the claimant's application) refers to degenerative change in the third metatarsal head which is obviously of longstanding;
(b)    MRI of the right foot dated 12 August 2020 (page 86 of the claimant's application) refers to the presence of mild arthropathy in the 2nd, 4^th and 5^th metatarsophalangeal joints, arthropathy throughout the IP joints and forefoot osteoarthritis most severe in the 1^st and 3^rd metatarsophalangeal joints, and
(c)    X-ray of both feet report dated 7 January 2021 (page 87 of the claimant's original WPI application) refers to mild degenerative change in the right 1^st metatarsophalangeal joint.
The insurer submits the claimant had an opportunity, at the time of filing his original application, to address these degenerative conditions by way of submissions, but elected not to do so.

Insurer’s submissions in reply to the WPI application

The insurer submitted that the claimant's physical injuries did not exceed the 10% WPI threshold for the following reasons:
Cervical spine
(a)   the Ethos Health Physiotherapy Progress Report dated 17 March 2020 stated that the claimant's neck issues had resolved and that he was self-managing without any issues;
(b)   a CT scan of the cervical spine on 17 September 2019 was normal with no evidence of any trauma;
(c)   an MRI scan of the cervical spine dated 26 July 2021 reported normal alignment in the cervical spine. No fracture or subluxation. Vertebral body height was maintained, there was no intra or extradural mass lesion or collection, no aggressive skeletal lesion, no signal abnormality in the cord and no significant degenerative change at the remaining cervical disc levels, and
(d)   Dr Hyde Page reported no radiculopathy to the cervical spine.
Lumbar spine
(e)   Dr Hyde Page reported that the claimant has full spinal movement and without evidence of any muscle guarding, dysmetria or radicular symptoms, and
(f)    Dr Hyde Page assessed 0% WPI.
Thoracic spine
(g)   A CT scan of the thoracic spine on the 25 August 2019 was normal without evidence of any trauma, and
(h)   The claimant's expert, Dr Stephenson reported that there were no clinical findings, only reported symptoms consistent with a DRE I rating of 0%.
Right foot
(i)    Dr Hyde Page reported normal inversion and eversion of both ankles and no difference between the two sides;
(j)    Dr Hyde Page reported that the metatarsophalangeal joints are all intact and that there was no metatarsalgia;
(k)   Dr Hyde Page reported that the claimant has normal examination of the midtarsal joints and was able to walk normally without a limp, and
(l)    Dr Hyde Page assessed a combined total whole person impairment of 8%.

Medical evidence

The Medical Assessor provided a certificate and reasons dated 21 April 2023.
The Medical Assessor noted a considerable injury when the claimant was knocked off his moped scooter. The Medical Assessor said that the claimant had a nasty degloving injury to the dorsum of his right foot however, he said that the wound eventually healed. The claimant also had a soft tissue injury to the neck and lower back and aggravation of degenerative changes.
The claimant reported that his right foot and ankle were swollen as a result of the injury but this eventually subsided. The claimant had a stiff subtalar joint and stiffness of the midfoot and forefoot. Even though he also had a stiff subtalar joint on the left side, he still had flexibility of the midfoot and forefoot which allows his foot to be balanced on the ground. The Medical Assessor said that the arthritis in his toes would be constitutional.
Regarding causation and reasons, the Medical Assessor said that the claimant was fit and healthy at the time of the subject motor accident. The injury to his right foot was causally related to the accident. He had also aggravated pre-existing degenerative changes in his neck and lower back which was causing ongoing discomfort.

The Medical Assessor did not observe any ongoing injury of the thoracic spine.
Regarding permanent impairment, the Medical Assessor assessed as follows;
“Cervical Spine:
Using Table 73 of the AMA (American Medical Association) Guides 4^th Edition and Table 6.7 of the Motor Accident Guidelines Version 8.2, the claimant has DRE Cervical Category II at 5% WPI for asymmetric loss of movement.
Lumbar Spine:
Even though his lower back is the main complaint, there was no asymmetric loss of movement, hesitation or neurology. In accordance with Table 72 AMA Guides (4^th Edition) and Table 6.7 of the Motor Accident Guidelines Version 8.2, the claimant has DRE Lumbar Category I at 0% WPI.
Right Foot:
He presents with a stiff subtalar joint (hindfoot) as a result of the right foot injury. In accordance with the footnote under the heading Foot (hindfoot, Midfoot, Forefoot) on page 81 of the MAA Guides, this equates to 4% WPI. This is also consistent with paragraph 6.86 in the Lower Extremity Chapter of the Motor Accident Guidelines Version 8.2.
There is no impairment for scarring using the TEMSKI scale (Table 6.18).
Although he has some stiffness of his toes on that right side, I believe the arthropathy is degenerative in nature and not causally related to the subject accident.”
The assessment was tabulated 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**
Cervical Spine	Chapter 3 Table 73 p110	Yes	5%	0	5%
1	DRE II
Table 6.7 (MAA Guides)
Lumbar Spine	Chapter 3 Table 72 p110	Yes	0%	0	0%
2	DRE I
Table 6.7 (MAA Guides)
3	Right Foot	Chapter 3 Page 81 MAA Guides - Table 6.2 paragraph 6.86	Yes	4%	0	4%

The Medical Assessor said that although the claimant obviously had age-related degenerative changes which pre-dated the accident in August 2019, the pathology was not symptomatic and there was no evidence of an impairment at the time of the accident. Therefore, there was no deduction for pre-existing impairment.
There was no deduction for the right foot.
The claimant relies on report of Dr Stephenson, orthopaedic surgeon, dated

6 December 2021.
As a result from the motor vehicle accident, the claimant said that he had right forefoot pain, neck pain and low back pain. There was a fracture of one rib on the left side. There was no hand fracture. He had lacerations, particularly over the right foot and ankle.
Dr Stephenson provided a WPI assessment which was disputed by the insurer. Subsequently he provided a supplementary report and assessment with a WPI assessment in total of 16%.
In particular, with regard to the lower extremity, Dr Stephenson said;
“I have looked again at my report. At the great toe, for extension of metatarsophalangeal joint, I found 0 extension. That is less than 15 degrees; therefore, it gains 5% lower extremity. That is the value which is chosen from Table 45. The 0 extension, which means it is moderate and severe, is less than 15 degrees and gains 5% lower extremity, but then one must consider the lesser toes which are regarded as a different joint obviously. At the lesser toes, metatarsophalangeal extension is less than 10 degrees and I found 0 degrees of extension, therefore there is a 2% lower extremity. Combining these two values of 5% with 2% would gain the value of 7% lower extremity.
The total 7% lower extremity when combined with two other joints of the ankle and the hindfoot, they gain 9% lower extremity. Each toe is added. Again, the reference is to Motor Accident Guidelines, page 15, paragraph 3.18, that is when the joint is removed one range of motion, the impairment assessment is different, which is small, moderate or severe categories for different directions, and only the highest level of impairment is selected.
That is what I have achieved for the different lower extremity joints I am referring to. Therefore, I have corrected the figures by converting 17% lower extremity to 7% WPI which then combines with 5% and 5% of the cervical and lumbar spine gaining the 16% WPI which is a revised assessment.”
Dr Hyde Page provided a report for the insurer dated 24 January 2022.
Whole person impairment as a consequence of the motor vehicle accident was determined by assessing injuries to his cervical spine, lumbar spine, right forefoot, toes and ankle.
In the cervical spine, with reference to AMA Guides 4th Edition page 104, Dr Hyde Page said the claimant had DRE Category II injury as he had some dysmetria with movement. This gives 5% WPI.
In his lumbar spine, he had some stiffness but no muscle guarding or dysmetria and no radicular symptoms. With reference to AMA Guides 4th Edition page 102, he has DRE Category I lumbar spine that gives 0% WPI.
In his right ankle, he had loss of ankle extension. With reference to Table 42 page 78, this gives 3% WPI.
In his toes, he had some stiffness with reduced flexion. This involves the second, third and fourth toes. With reference to Table 45 page 78, this gives 0% WPI.
The scarring from his abrasions is well healed and barely visible. With reference to TEMSKI scale this gives 0% WPI.
Therefore, the overall WPI was found by combining 5% for the cervical spine with 3% for the right ankle, to give 8% WPI overall. There was no deduction for any pre-existent injury or condition.
Dr Hyde Page said the claimant had reached maximal medical improvement.

Imaging and investigations

MRI right foot dated 12 August 2020 “CONCLUSION: Forefoot and midfoot arthropathy most marked at the 3rd metatarsophalangeal joint where there is also a degree of 3rd metatarsal head avascular necrosis”. Dr Brad Macdonald.
Ultrasound right forefoot dated 2 October 2019 with X-ray right foot:
“The extensor tendons 1-5 appear normal. There is some synovitis noted in the 3^rd metatarsophalangeal joint. There is a joint effusion noted at the 2nd metatarsophalangeal joint with no hyperaemia. There is synovitis noted at the 5th to 3rd tarsometatarsal joints”.
X-ray right foot, “Bones and joints lie in good alignment. There is no fracture or dislocation
seen”. Dr Sarah Fell, radiologist.
X-ray both feet, report dated 7 January 2021. “Suggestion of mild degenerative change in the
right 1st metatarsophalangeal joint and possibly the 1st left metatarsophalangeal joint as
well”. Dr Paschkewitz.
Ultrasound right foot dated 26 May 2020;
“Comparison:
Previous ultrasound examination performed on 2/10/2019… Findings: Intermetatarsal bursa: 1-2 bursitis present. 2-3 bursitis/neuroma complex. 3-4 normal. 4-5 normal”. Dr Sarah Fell.

Panel medical examination

The claimant was examined by Medical Assessor Rosenthal. His report and findings follow;
“Mr O’Doherty presented to the PIC rooms on 22 November 2023 for re-examination in regards to an appeal against Assessor Christopher Harrington’s permanent impairment certificate dated 21 April 2023.
·        The injuries referred for assessment are:
·        Right foot including forefoot, midfoot and toes
·        Cervical spine
·        Lumbar spine
·        Thoracic spine
HISTORY
Mr O’Doherty is a 60 year old male who was involved in a motor vehicle accident on
25 August 2019. He was riding a motor scooter wearing shorts, thongs and a helmet. He was struck by a car which came from the right side. He was traveling at 40 kph. He was taken to John Hunter Hospital following the accident.
He had injuries to both of his feet, reported as a degloving injury, as well as fractured ribs, neck pain and back pain. He received no invasive treatment at John Hunter Hospital. He was subsequently treated by his General Practitioner. He had ongoing issues with neck pain, back pain and pain in his feet, right worse than left. He was put off work initially as a street cleaner for Newcastle Council.
He was referred to a local foot and ankle surgeon, Dr Dave Nicholson. MRI scans were performed and he developed fixed flexion deformities in his toes. An MRI found degenerative changes which were longstanding in his 3^rd MTP joint and osteoarthritis in his other MTP joints. The left foot, apparently, also showed degenerative changes present.
He is unsure whether he had any injections but the pain in his feet continued. The toes of his right foot began to splay and toe movements stiffened up. He reported no problems with his feet prior to the accident occurring.
He had physiotherapy mainly on his feet and was also given some orthotics. His neck and back pain continued.
CURRENT SYMPTOMS
He says his left foot is OK. His right foot is stiff and sore. He has trouble moving his toes and walking is now restricted. He gets pain around his toes and right ankle mainly when walking. He can walk up to 1km with increasing pain in his right foot occurring.
He can sit for three-quarters of an hour. This is restricted due to ongoing neck and back pain. His neck pain is constant and his low back pain is constant rating it as 7 on a scale of 0-10, with 10 being maximal pain. He denied any pain radiating from his neck into his arms or from his back radiating into his legs.
CURRENT TREATMENT
He has physiotherapy and/or chiropractic weekly. He takes Panamax daily.
No other treatment is occurring.
PAST HISTORY
There is a history of osteomyelitis in his right ankle at age 15 but this resolved after surgery. He has had a right scaphoid fracture in the past.
He takes Somac and Progout. He did not recall any gouty attacks affecting his feet.
OCCUPATIONAL HISTORY
He was working for four years full-time as a street cleaner for Newcastle Council. He was unable to continue work. He was not offered alternate duties. He is currently getting insurance company payments.
In the past, he has done lifeguard work and some labouring and bar work.
SOCIAL HISTORY
He lives with his wife. His daughter recently moved out. He said he lives in a unit in Merewether. He can do some household chores. There is no lawn activity required.
He does go into the surf every day but he used to swim a lot more which he has now stopped. He still rides his scooter on occasions and can drive and shop without difficulty.
INVESTIGATIONS
No x-rays were available.
PHYSICAL EXAMINATION
On examination, he walked with no spring off his right foot. He could not get up and walk on his toes on the right side. He could heel walk and squat.
He weighed 84.9kg. He was 176cm tall.
The right 2^nd and 3^rd toes were medially deviated by 10°. The big toe MTP joint was almost fused. There was only 5° of extension and 5° of flexion present. There was minimal movement of the other toes in his right foot.
The left toes moved normally. He was tender over his right MTP joints.
At the right ankle, he had +5° of dorsiflexion, 30° of plantarflexion, 10° of inversion and 10° of eversion.
The left ankle had 15° of dorsiflexion, 40° of plantarflexion, 25° of inversion and 20° of eversion.
Thigh measurements were 45.5cm on the right and 46cm on the left, 10cm above the superior patellar pole. Calf measurements were 34.5cm on the right and 35cm on the left, 10cm below the inferior patellar pole.
There was a full range of hip and knee movements.
At the neck, he had asymmetry with loss of left rotation by one-third and right rotation by a quarter. Flexion, extension and lateral flexion were all reduced by one-quarter. He complained of pain and discomfort on movement. There was no spasm or guarding and there was marginal reduction in cervical lordosis.
Lumbar spinal movements were marginally reduced at the extremes in all directions with no asymmetry of motion detected.
The thoracic spine also was marginally restricted in all directions with no spasm or guarding and no evidence of radicular complaints or radiculopathy.
There were no neurological deficits in his upper or lower limbs. Muscle power, tone and reflexes were normal and there were no sensory changes.
Upper arm measurements were 31cm on the right and 31.5cm on the left, 10cm above the olecranon. Forearm measurements were 27cm on the right and 28.5cm on the left, 10cm below the olecranon.
OPINION
Mr O’Doherty is assessed in reference to Table 6.7 of the Guides for his spinal injuries.
Cervicothoracic spine: Table 73, page 110, he is DRE II having asymmetry of motion. He gets 5% whole person impairment.
Lumbosacral spine: Table 72, page 110, DRE I, 0% whole person impairment.
Thoracic spine injury has resolved.
Lower extremities:
Under Table 42 for ankle motion impairment, 5° of extension results in 3% whole person impairment.
Under Table 43, 10° of inversion and 10° of eversion results in 1% whole person impairment.
Under Table 45 for toe impairment, for his great toe with <15° of metatarsophalangeal extension he gets 2% whole person impairment.
In regards to Assessor Harrington’s assessment, he determined that the stiffness in his toes was not related to the subject accident. The claimant reports no problems with his toes prior to the subject accident. There is contemporaneous evidence of a right foot injury. It is the Panel’s view that there was an aggravation of the pre-existing degenerative changes in the right foot. Therefore, the toe impairment is related to the injuries caused by the motor vehicle accident. There is no evidence of pre-existing impairment and thus no deduction is made.

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	Cervical spine	Table 73 p110 AMA 4	yes	5	0	5
2	Lumbar spine	Table 72 page 110 AMA4	yes	0	0	0
3	Right foot (lower extremity)	Tables 42, 43 and 45	yes	6	0	6

The claimant’s total whole person impairment is 11%.”

Causation

The claimant was involved in car v pushbike accident. He was only wearing a helmet by way of protective clothing and for footwear, was riding in thongs. He was struck on the right side and was forced onto the road.
In the opinion of the Panel, it is reasonable to accept that the claimant would have suffered injury to most parts of his body following an unexpected, right side, collision.
The Panel accepts that it would be reasonable to accept that as a result of a collision of this nature, the claimant would suffer injuries to his cervical, thoracic and lumbar spine as well as to his lower extremities. His feet were totally exposed. The Panel is satisfied that the accident was a necessary condition of the harm caused to the claimant.

CONCLUSION

The Panel is satisfied that the injuries to the claimant’s toes are related to the accident.
The claimant submitted that the Medical Assessor failed to deal with the argument that the accident was responsible for the development of the pars defects as indicated by his treating neurosurgeon. The claimant says that the Medical Assessor did not, or adequately, deal with that proposition. In response to this, the Panel says the pars defect was pre-existing and not caused by the accident. The accident may have caused an aggravation but in any event, he has been assessed as having a DRE I impairment.
The Panel finds that the claimant has suffered a total WPI as a result of the accident of 11%.

DETERMINATION

The Panel revokes the certificate of the Medical Assessor dated 21 April 2023.
As a result of the accident on 25 August 2019, the claimant suffered injuries to his:
(a)    right foot including, forefoot, midfoot and toes;
(b)    cervical spine;
(c)    lumbar spine, and
(d)    thoracic spine.
The Panel finds that the claimant has suffered a total WPI of 11%.

[2023] NSWPICMP 698

22 December 2023