QBE Insurance (Australia) Limited v Knight

[2025] NSWPICMP 709

DETERMINATION OF REVIEW PANEL

CITATION:

QBE Insurance (Australia) Limited v Knight [2025] NSWPICMP 709

CLAIMANT:

Robert Knight

INSURER:

QBE Insurance (Australia) Limited

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

David Gorman

MEDICAL ASSESSOR:

Thomas Rosenthal

DATE OF DECISION:

15 September 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; degree of permanent impairment disputes; claimant was riding his motorbike; claimant was wearing full protective kit with helmet, gloves, and riding boots; claimant was travelling at about 60 km/h when a marked police vehicle entered the road to do a u-turn; claimant braked sharply but could not avoid hitting the police vehicle; claimant was transported by ambulance to hospital where he remained for about a week; claimant says that he suffered left rib fractures, left hip fracture, exacerbation to pain in his right shoulder, exacerbation to pain in his left shoulder, post-traumatic osteoarthritis in both ankles, development of pain in his left groin region, spinal injury, impact injury to head, collar bone fracture, exacerbation to pre-existing vertigo and tinnitus, and psychological sequelae; claimant says that he suffers from a number of consequential disabilities; Medical Assessor found 13% whole person impairment (WPI) for left shoulder, left ankle, and hip; Held – certificate confirmed.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel confirms the certificate dated 28 October 2024.

(a)     

STATEMENT OF REASONS

INTRODUCTION

1. Robert Knight (the claimant) was riding his motorbike on 20 May 2020 on East-west Road at Albion Park Rail. The claimant was wearing full protective kit with helmet, globes and riding boots. He was travelling at about 60 km/h when a marked Police vehicle entered the road from the nature strip, presumably to do a U-Turn. The claimant braked sharply but could not avoid hitting the Police vehicle. The claimant was transported by ambulance to Wollongong Hospital where he remained for about a week.

2. The claimant says that he suffered the following injuries in the accident:

   (a)    left rib fractures;

   (b)    left hip fracture;

   (c)    exacerbation to pain in his right shoulder;

   (d)    exacerbation to pain in his left shoulder;

   (e)    post-traumatic osteoarthritis in both ankles, in particularly the right;

   (f)    development of pain in his left groin region;

   (g)    spinal injury;

   (h)    impact injury to hear;

   (i)    collar bone fracture;

   (j)    exacerbation to pre-existing vertigo and tinnitus; and

   (k)    psychological sequelae.

   The claimant says that he suffers from a number of consequential disabilities.

3. QBE (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer admitted liability for payment of statutory benefits beyond twenty-six (26) weeks but declined to accept that the claimant exceeds the 10% whole person impairment threshold. It has deferred a decision on liability for the damages claim pending receipt of a satisfactory explanation for the claim’s being lodged late.

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Peter Giblin for assessment of the following injuries:

   ·        cervical spine;

   ·        chest – rib fractures;

   ·        left hip fracture;

   ·        pelvis;

   ·        injuries to right and left shoulders; and

   ·        post-traumatic arthritis – left and right ankle.

2. Medical Assessor Giblin certified on 28 October 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 13% and IS GREATER THAN 10%:

• Left shoulder – left ankle and left hip

The following injuries caused by the motor accident have resolved and give rise to no assessable permanent impairment:

• Pelvis, chest and cervical spine 

An assessment of the degree of permanent impairment of these injuries is therefore not required.

The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:

• Right shoulder and right ankle

An assessment of the degree of permanent impairment of these injuries is therefore not required.

Medical Assessor Giblin found 7% whole person impairment (WPI) for the left shoulder, 2% WPI for the left hip and 4% WPI for the left ankle. He found 0% WPI for the cervical spine and chest. Medical Assessor Giblin made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects.

THE REVIEW

1. The insurer sought a review of Medical Assessor Giblin’s certificate, on the ground that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relied upon the particulars set out in the application and supporting documentation.

2. The insurer brought the application within the time prescribed by s 7.26(10) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).

3. The insurer submitted there are reasonable grounds to suspect that Medical Assessor Giblin erred on the basis of his:

   (a)    failure to fully consider all contemporaneous evidence for him when making his clinical judgment regarding the accident-related injuries;

   (b)    failure to provide adequate reasons for having limited regard to the concerns raised in the insurer’s submissions as to the inconsistent reporting of injuries and examination findings following the subject accident, and placed excessive reliance on the claimant’s subjective reporting and his own clinical examination;

   (c)    failure to fully consider the impact of non-accident-related factors before him regarding causation, mainly the pre-existing medical history;

   (d)    failure to give proper reasons for his findings on causation.

4. Particulars are provided in relation to each objection as briefly summarised.

   Failure to fully consider contemporaneous evidence

   3.3The insurer raised concerns that the claimant’s submissions made no mention of his prior motorbike accident that occurred on 19 December 2019, only 5 months (insurer’s emphasis) before the subject accident. That accident resulted in the claimant’s suffering significant injuries including a fractured left clavicle and multiple rib fractures, non-displaced fractures of T1 and T2 transverse processes and left pneumothorax. His injuries were of such a nature that the claimant had not yet returned to work at the time of the subject accident.

   3.4Medical Assessor Giblin failed to take a full account of the claimant’s pre-existing medical history and has not apportioned the prior overlapping injuries or medical conditions nor addressed the distinct evidence of the degenerative pathologies in the shoulders and left ankle as identified in the radiological investigations when conducting his assessment.

   3.5The insurer submits that the Medical Assessor largely attributed the claimant’s current condition to the subject accident itself without proper regard to his full medical history, noting overlapping injuries and symptomatology, and providing full reasoning in reaching his conclusions.

   3.6The contemporaneous evidence put before the Medical Assessor made clear that the claimant suffered an array of pre-existing medical conditions leading up to the accident that affected the left shoulder, left hip and left ankle, all relevant to the assessment.

   3.11The Medical Assessor failed to note the evidence that contains limited support for any significant accident-related injury to left shoulder, left ankle and left hip.

   3.12There is no suggestion in the contemporaneous records that the claimant suffered more than a minor soft tissue injury post-accident. The inconsistent and lack of ongoing complaints made by the claimant following the accident is apparent on analysis of the material.

   Failure to provide adequate reasons and consideration of concerns raised by insurer

   3.14The insurer submits the Medical Assessor failed to consider and address the concerns raised in the insurer’s submissions of inconsistent reporting of injuries and exam findings and placed excessive reliance on the claimant’s subjective reporting and his own clinical examination.

   3.15The insurer highlights the examination findings of the Medical Assessor significantly vary to those recorded by the insurer’s IME Dr Rimmer, and there is no indication that those inconsistencies were challenged or put to the claimant. The insurer observes that the Medical Assessor merely notes that he prefers his own clinical examination, findings and conclusions, with nil explanation.

   Failure to fully consider impact of non-accident-related factors

   3.22The claimant has evidence of the following, which were not considered by the Assessor:

   a.left distal clavicle fracture suffered as a result of the prior motorbike accident 5 months before the subject accident (amongst other significant injuries);

   b.left shoulder pain with restricted movement in the year prior to the subject accident;

   c.left hip pain with radicular symptoms in 2018; and

   d.degenerative pathology in the left ankle.

   3.24The insurer highlights that the Medical Assessor made no deductions for the claimant’s relevant pre-existing medical conditions when conducting his impairment assessment. The insurer submits that the Medical Assessor erred by failing to fully consider the impact of non-accident-related factors regarding causation of the injury to the left shoulder, left hip and left ankle.

5. The insurer’s review application was opposed by the claimant on various grounds. As those submissions were not accepted by the President’s delegate, it is not necessary to summarise them in detail. Briefly, the claimant says there is no error in the Certificate, with each of the insurer’s grounds of objection being completely without merit, without any proper factual foundation and some purported errors so devoid of detail has to be meaningless. Particulars are given in relation to each of the claimant’s objections to the insurer’s grounds for review.

6. President’s delegate Linda Drew issued a Determination of an Application for Review of a Medical Assessment on 31 January 2025 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be that the Medical Assessor has not adequately considered the medical evidence related to pre-existing symptomatic injury and further, has not considered nor engaged with the issue of apportionment, as he was required to do by cl 6.31 of the Guidelines.

7. Accordingly, the review application was accepted and was referred to the Panel which is to reassess all the injuries referred to Medical Assessor Giblin, unless the parties otherwise agree.

8. Pursuant to cl 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Review Panel (Panel) is to conduct and determine the proceedings, in accordance with procedures determined by the Panel.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor 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).

2. 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.[1]

   [1] Section 41(2) of the PIC Act.

3. 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.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Causation of injury is addressed in the Guidelines as follows:

   “6.5   An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

   6.6    Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

   Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.

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

   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.”

2. See Briggs v IAG Limited t/as NRMA Limited.[4]  See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):

   “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”

   [4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

   [5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

3. Wright J then described the Panel’s role in a medical review which is to:

   “Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 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;

   (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.”

BUNDLES OF DOCUMENTS

1. The parties have 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. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.

2. 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.  The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”.  The Panel has come to its own conclusions and has taken its own history.

MATERIAL BEFORE THE REVIEW PANEL

Claimant’s Documents

1. The claimant relied upon the following material which the Panel has considered:

Description	Date	Page
Summary of damages	05,06.2023	4
Application for personal injury benefits	13.06.2020	6
Application for damages under common law	20.02.2023	20
NSW Police Report	29.07.2020	23
Report of Dr Anil Nair, consultant orthopaedic surgeon, to claimant’s lawyer	21.03.2023	29

Dr Nair records the following history:

“Mr Knight sustained two motor vehicle accidents within about six months of each other.

On 19 December 2019, Mr Knight was struck by a car whilst on a motorbike. He was transferred to Liverpool Hospital and sustained left clavicle and chest wall fractures. He required treatment with an intercostal drain. He was in Liverpool Hospital for approximately two weeks. Following his admission at Liverpool Hospital, he was in the process of recovery

On 20 May 2020, Mr Knight was again travelling on a motorbike. He was travelling in the Illawarra region when a police car attempted to U-turn in front of him. This resulted in a collision with Mr Knight’s motorbike. He was transported by ambulance to Wollongong Hospital where he remained for about a week. He was treated non-operatively. Injuries were identified including left, fourth to sixth rib fractures and a left acetabular fracture.

Mr Knight stated that following the second accident, he has developed symptoms in multiple regions including a worsening of pain in his right shoulder, worsening of pain in his left shoulder, worsening of pain in both his anciles, in particular the right ankle and new symptoms of pain in the left groin region.

Findings on Examination

Mr Knight had significant restriction in range of motion in both shoulders, left hip and both ankles. He had significant impairment in his date pattern and ability to mobilise.

Injury suffered in the accident

·left acetabular fracture;

·left chest wall injuries;

·right shoulder cuff arthropathy;

·left shoulder cuff arthropathy; and

·post-traumatic osteo arthritis of both ankles.

State of health prior to the accident

Mr Knight detailed comorbidities prior to the subject accident.

He did a history of right shoulder septic arthritis as well as left chest wall injury sustained consequent to a motor vehicle accident that occurred about six months earlier. He had symptoms in both his ankles prior to the subject accident.

It is almost certain that the pathoanatomic in his ankles and his right shoulder region had been significantly aggravated by the subsequent subject accident. The prognosis is guarded as Mr Knight symptoms are worsening.

WPI Assessment\

Utilising AMA V, Dr Nair assesses 16% WPI for the upper extremities after allowing for pre-existing impairments. He assesses 14% WPI for the ankles and hind feet. To calculate 31% WPI the Panel notes the correct combination is 28% WPI.

X-ray left hip, pelvis and both feet	17.03.2023	38
MRI left and right shoulder	17.03.2023	39
Medical Records of Wollongong Hospital	Various	41
Medical Records of Campbelltown Hospital	Various	239
Medical Records of Thelmia Medical Practice	Various	495

Insurer’s Documents

1. The insurer relied upon the following material which the Panel has considered:

No.	Document	Date	Page
R1	Insurer’s submissions – review (See previously)	13.12.2024	3
R2	Review outcome decision (See previously)	31.01.2025	11
R3	Insurer’s submissions – claims assessment	23.06.2023	16
R4	Insurer’s submissions – medical assessment	23.06.2023	20

1. The insurer makes the following submissions in support of the proposition that the claimant’s degree of permanent impairment arising from injuries sustained in the subject accident does not exceed 10% WPI.

   Treating Evidence

   ·At the scene, the claimant complained of mere aches and pains on the left side of his body. Immediate medical examinations were normal.

   ·The claimant’s injuries were managed non-operatively, treatment required as a result of the accident has been relatively minimal, has remained conservative and has ceased entirely.

   ·There is a clear history of pre-existing injury for each body part now alleged to have been injured in the accident and any assessment must deduct that value as appropriate.

   Right Ankle

   ·It is the insurer’s position that no injury was sustained in the right ankle in the subject accident. It follows that the right ankle attracts no assessable impairment.

   Left Ankle

   ·The insurer submits that the totality of evidence clearly demonstrates that the claimant sustained, at most, a left ankle soft tissue injury, that this has resolved and does not give rise to assessable impairment.

   Chest

   ·The chest injuries do not result in assessable impairment. Notwithstanding the issues surrounding causation, the insurer concurs with Dr Nair’s assessment of 0% WPI.

   Cervical Spine

   ·The insurer is satisfied that cervical pain, in the absence of objective clinical evidence of range of motion restriction, guarding or of radiculopathy, will be assessed as DRE Category 1 which aligns with Dr Nair’s assessment of 0% WPI.

   ·The insurer submits that the cervical spine was either not injured in the subject accident or alternatively, that any complaints were tissue in nature and do not give rise to assessable impairment.

   Left Hip/Pelvis

   ·The insurer acknowledges that fractures of the left acetabulum and pubic bone were observed on imaging taken at hospital, that Dr Nair found restricted range of motion and assessed 4% WPI. The insurer submits that this is the most that will be assessed, particularly as the treating evidence demonstrates that these injuries have resolved and do not give rise to ongoing restrictions.

   Shoulders

   ·Dr Nair’s assessment of 16% WPI for both shoulders on account of reduced range of motion cannot be accepted for the reasons particularised.

   ·He submitted that the shoulders were not injured in the subject accident, and that any assessable impairment, if any, proceeded the subject accident.

   Neuropsychological Injury

   ·It is submitted that the claimant’s head injury does not give rise to assessable impairment, or alternatively, that if there is impairment assessed, it is wholly unrelated to the subject accident.

R12	Claim Finalisation Notice	20.09.2021	50
R13	GIO claim file	Various	52
R15	Report of Dr Stephen Rimmer, orthopaedic surgeon, to the insurer’s lawyers	28.09.2023	335

Diagnosis

Without the benefit of radiological investigations:

1.     Resolved left acetabular fracture;

2.     Resolved left ribs/hemithorax fracture; and

3.     Resolved aggravation degenerative osteoarthritis left knee.

Dr Rimmer says that the claimant’s injuries and current complaints are entirely related to the subject accident. He assesses 0% WPI and says that he has no opinion regarding Dr Nair’s opinion.

R16 Clinical notes of Thelmia Medical Practice 25.10.2023 346

EXAMINATION REPORT

1. The examination report of Medical Assessor David Gorman is as follows:

   “Claimant – Mr Robert Knight

   MRP Examination

   Assessor David Gorman

   PIC Rooms

   7 May 2025

   The following injuries were referred by the Personal Injury Commission (the Commission) for assessment by Assessor Giblin – review of the resulting Certificate is the subject of this MRP examination.

   ·cervical spine;

   ·chest - rib fractures;

   ·left hip fracture;

   ·pelvis;

   ·injuries to right and left shoulders; and

   ·Posttraumatic arthritis left and right ankle.

   Who attended the assessment with Assessor Gorman?

   He attended by himself.

   HISTORY

   Pre-accident medical history and relevant personal details

   He is 68 years of age and right handed. He lives at Lake Bathurst, 30 minutes from Goulbourn.

   He lives alone, rarely drinks alcohol, and doesn't smoke.

   His general health includes:

   ·type 2 diabetes;

   ·hypertension; and

   ·right-sided Bell's palsy in 2020, which was treated with prednisone and recovered. 

   He has bilateral non-obstructive renal calculi.

   He has had a cholecystectomy.

   Most of his working life was self-employed as a heavy diesel mechanic associated with repairing heavy machinery – he did this for 40 years until 2019 but he had to stop because he developed a spontaneous onset of septic arthritis in his right shoulder. This was treated with nearly six weeks in Bowral hospital including drainage surgery.

   He then had a motorbike on 19 December 2019 when he hit a car which stopped suddenly in front of him. He had two weeks in Liverpool Hospital with a fractured left clavicle and fractured ribs. He had pain in his left side, particularly his left scapula, left shoulder, left back, left elbow, and left knee but did not have any pain in the neck, pelvis, or lower limb symptoms.

   He had not gone back to work but this was due to the effects of the septic arthritis of the right shoulder, not the effects of the 19 December 2019 motorbike accident he reported.

   In 2017, he attended his GP because of pain and instability in his right ankle. He was given the diagnosis of arthritis by his GP on 13 December 2017. This was confirmed on subsequent imaging causing him to attend physiotherapy and have advice from a specialist. There was further right ankle pain reported to his GP on 22 January 2019.

   He also burnt his right calf late in 2017 from a ski boat accident.

   History of the motor accident

   On 20 May 2020 he was riding his 1300 Suzuki motorbike in full kit with normal protective helmet, gloves and riding boots. He was travelling at about 60km/hr when a marked police vehicle suddenly drove into his left hand side. He was probably travelling somewhat less than the 60km/hr when he was hit.

   History of symptoms and treatment following the motor accident

   Afterwards he had no recollection until he woke up in the ambulance on the way to Wollongong Hospital. It is recorded that he slid about 10m impacting the left hand side of his head and body. His helmet was written off but his bike was repaired.

   His left boot was broken at the sole and his left foot was badly bruised. The Ambulance staff recorded that the patient complaints of aches and pains down his left side, and that he was wearing full protection, travelling at a slow speed with no visible injuries on movement and palpation. He recalls all events and declined pain medication. Observations were all within normal limits. The helmet was removed and had some damage on it on the right side.

   He was in Wollongong Hospital for about a week.

   The hospital records indicated soft tissue injuries to both his shoulders, a fracture to his left acetabulum together with other undisplaced pelvic fractures, multiple rib fractures, a closed head injury, soft tissue injury to his neck, left groin, and post-traumatic arthritis in both ankles, the right worse than the left. A fractured clavicle was recorded.

   He had no aids from the hospital.

   Shortly after that he went to see his GP and he gave him some Panadeine Forte tablets for his symptoms at that time.

   He has not had any physiotherapy and has not returned to work.

   Details of any relevant injuries or conditions sustained since the motor accident

   On 9 July 2020 his left ankle “gave way” and he twisted it. The foot was painful at the time as recorded by the GP causing it to give way. His ankle was more painful after this twisting injury.

   Current symptoms

   He has the following symptoms:

   ·Neck pain

   ·Left hip pain – intermittent

   ·Right hip pain occasionally

   ·Bilateral knee pain

   ·Left ankle still “gives him grief”

   ·Shoulders limited in movement bilaterally

   Current and proposed treatment

   He takes up to six Panadol tablets a day and sees his GP once every three months. The Panadeine Forte have been ceased.

   He is also on tablets for his diabetes and anti-hypertensives.

   CLINICAL EXAMINATION

   General presentation

   Today, he is 172cm and weighs 112.5 kilos with a BMI of 38.

   He pulled a sweater over his head mainly using the left arm.

   He walked with a limp favouring his right side – he said that his right hip was “sore”.

   Cervical spine (cervicothoracic)

   He could move his cervical spine to 2/3 normal in all planes. There was grinding sensation on occasions. There was no evidence of dysmetria or cervical muscle spasm.

   Thoracic spine

   There was no tenderness around the chest.

   Thoraco-lumbar rotation was 2/3 normal in all planes.

   There were no radiating symptoms around the chest.

   Upper extremity

   All measurements were made using a Goniometer and tape measure where appropriate.

   There was a 7cm scar over his right shoulder from the operation for septic arthritis.

   Both shoulders had consistent restriction in movement.

Range Of Shoulder Movement	Right (degrees)	Left (degrees)
Flexion	70	80
Extension	40	40
Abduction	70	90
Adduction	30	40
Internal rotation	60	80
External rotation	60	80

Lower extremities

Compression and distraction of his sacral iliac joints did not reproduce pain.

He had knee supports on both legs.

The right ankle is clearly swollen compared to the left side.

There was no wasting of either lower limb.

Knee

The knees both had swelling.

There was no ligamentous instability on either side.

Hip

Hip movements	Right (degrees)	Left (degrees)
Flexion	90	70
Extension	0	-10
Internal rotation	30	30
External rotation	40	40
Abduction	30	30
Adduction	20	20

Ankle

Ankle and hindfoot movements	Right (degrees)	Left (degrees)
Dorsiflexion	0	10
Plantar flexion	40	60
Eversion	10	10
Inversion	10	20

Summary of relevant radiological and medical imaging and other investigations

Pre subject accident

·X-ray left clavicle 21/12/2019 – Notes an acute fracture through the left distal clavicle with 12mm superior displacement of the lateral fragment.

·Chest X-ray 22/12/2019 – rib fractures with a pneumothorax and a left intercostal catheter has been inserted.

·Plain X-ray left shoulder 19/12/2019 – acute displaced distal left clavicle fracture.

·Plain X-ray left shoulder joint 19/12/2019 - no abnormality.

·Plain X-ray left elbow joint 19/12/2019 – no abnormality.

Post subject accident:

·X-ray of his left foot 20/5/2020 – Undisplaced basal fracture of the distal phalanx of his big toe.

·CT scan cervical spine 20/5/2020 - facet joint arthritis on the left side, but no bony or soft tissue abnormality from the accident is recorded.

·CT scan pelvis 20/5/2020 – minimally displaced fracture of the anterior left acetabulum and anterior column of the iliopubic eminence and an undisplaced left inferior pubic ramus fracture.

·CT scan left hip 20/5/2020 - no bony injury and the hip is located.

·MRI scan cervical spine 3/12/2020 - multilevel spondylotic changes with some potential for exiting nerve root impingement.

·X-ray right shoulder 21/9/2022 – advanced arthritis of the glenohumeral joint with loss of joint space.

·X-ray ultrasound right shoulder 10/10/2022 – rotator cuff and long head of biceps tears.

·Plain X-ray left hip and pelvis 17/3/2023 - acetabular sclerosis with early superolateral acetabular osteophytes.

·Plain X-ray both feet 17/3/2023 - severe right ankle arthritic change with loss of joint space and a large calcaneal spur.

·Plain X-ray left foot 17/3/2023 - a small calcaneal spur but no other abnormality.

·MRI scan left shoulder 17/3/2023 - a complete full-thickness tear of the subscapularis with rotator cuff tendinopathy and fatty atrophy.

MRI scan right shoulder 17/3/2023 - severe glenohumeral arthritic change with full-thickness chondral loss, and rotator cuff tendinopathy.

·X-ray right knee and right hip 21/7/2023 – reports tricompartmental osteoarthritis in the right knee.

FURTHER TELECONFERENCE

A further teleconference was held on 13 August 2025 with Mr Knight, his solicitor, Assessors Gorman and Rosenthal and Member Patterson.

The history as outlined above regarding his left shoulder and left ankle in particular were explored.

The further teleconference confirmed the history given above to Assessor Gorman. He was also asked about the differences between Dr Rimmer’s range of motion and that found by Assessors Giblin and Assessor Gorman. He stated that the range does vary depending on the level of pain. The Panel accepted this explanation and noted that the assessment of WPI was to be at the time of Assessor Gorman’s review and accepted those findings.

DETERMINATIONS

Diagnosis and reasons

In turn, the referred injuries are as follows:

·Cervical spine – aggravation of degenerative disease.

The radiological changes in his cervical spine are long standing and would predate the accident. There were no acute changes on subsequent CT scans and MRIs. There has not been any documented radiculopathy.

·Chest – rib fractures

There were rib fractures which have healed and now are asymptomatic.

·Left hip fracture and pelvic fracture

There is an undisplaced fracture of the left acetabulum involving the left hip. On today’s consultation, Mr Knight said that there was less pain in his left hip than his right hip however.

·Injuries to left and right shoulders – rotator cuff tear of the left shoulder

His right shoulder was not significantly more symptomatic after the accident. He still reported that, at the time of the accident, her was recovering from the septic arthritis.

The left shoulder was directly impacted by the accident and was symptomatic. The MRI on 17/3/2023 showed a complete full-thickness tear of the subscapularis with rotator cuff tendinopathy and fatty atrophy.

·Post-traumatic arthritis of the left and right ankle –

The left ankle had a soft tissue injury in the accident. The left boot was damaged and the left great toe was fractured. While the bruising reported was mainly around the left great toe and dorsum of the foot, the Panel believes that there would have been sufficient force on the left ankle to cause a soft tissue injury. The aggravation at the fall on 9 July 2020 aggravated the injury – however, the Panel considers that this aggravation was also related to the subject accident as the foot gave way when it still had pain and bruising from the accident.

The right ankle was symptomatic before the accident and was not directly injured in the accident.

Causation and reasons

·Cervical spine - he had a closed head injury and his helmet was damaged. He would have been likely to have sustained a soft tissue cervical spine injury.

·Chest – rib fractures were documented after the accident on the left side which was the side of impact

·Left hip fracture and pelvic fracture – fractures were documented after the 2020 accident which were consistent with the severity of the accident – they were caused by the accident.

·Injuries to right and left shoulders – the right shoulder had septic arthritis in 2019 and had not recovered by the time of the subject 2020 accident. There was no report of new right shoulder pain after the accident. However, the left shoulder was impacted directly by the accident and has remained symptomatic. The Panel accepted his history that the left shoulder had recovered range of motion after the left clavicular fracture in the 2019 accident.

·Post traumatic arthritis of left and right ankle – in his right ankle, he had complaints since 2017. He had a previous right ankle steroid injection. Scan after the subject accident showed severe longstanding osteoarthritis. There is no evidence of direct injury to the right ankle. The Panel believes ongoing symptoms in the right ankle are pre-existing.

·There is minimal reference in the general practitioners notes to the left ankle prior to the subject road traffic accident. The history is of damage to his left boot and bruising. The undisplaced fracture of the left great toe indicates the severity of the impact on the left foot. The Panel believes that he has sustained soft tissue injury to his left ankle as a result of the subject motor vehicle accident.

Summary of injuries referred by the parties

The following injuries WERE caused by the motor accident:

·chest - rib fractures;

·left hip fracture;

·pelvic fracture;

·soft tissue injury to the left shoulder;

·soft tissue injury to the left ankle; and

·cervical spine soft tissue injury.

The following injuries WERE NOT caused by the motor accident:

·right ankle and right shoulder

The following injuries caused by the motor accident have resolved:

·pelvis fractures; and

·rib fractures.

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.” 

There has been no change in Mr Knight’s symptoms for more than 12 months. There is no plan for any change in his management nor any likelihood of intervention over the next twelve months. His WPI will not change over the next 12 months.

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.

·Cervical spine – the cervical spine has no dysmetria. There is no radiculopathy. He has a DRE I impairment giving him 0% WPI based on Table 73 on page 110 of the AMA 4^th Edition.

·Chest – rib fractures - The fractured ribs have healed with minimal symptoms. These rib fractures do not result in any assessable impairment as per the Guidelines (Section 6.229).

·Left hip fracture – the restriction in left hip range of motion gives a 4% LEI based on Table 40 on page 78.  The right uninjured hip had no injury but still had limited flexion likely due to constitutional factors, presumed osteoarthritis. These factors would have been present in the left hip so the 2% should be deducted giving 2% for the left hip.

·Pelvis - the pelvis is assessed with the criteria of a healed fracture without displacement or residual signs. On today’s examination, compression and distraction of the fractures produced no reported symptomatology. The WPI on this injury at 0% based on Table 64 on page 85 of AMA 4^th Edition.

·Left shoulder – using Figure 38, 41, 44 and Table 3 on page 20, the limitation in shoulder flexion gives 7% upper extremity impairment (UEI), limitation in extension 1% UEI, limitation in abduction 4% UEI, limitation in adduction 1 0% UEI, limitation in external rotation 0% UEI and internal rotation 0% UIE. The total UEI is 12% giving 7% WPI.

He had fractured his left clavicle in the 2019 accident. He reported that this had recovered by the time of his 2020 accident, 6 months later. There is no documented evidence of restriction in movement of the left shoulder just prior to the subject accident. The Panel believes that no deduction can be made for pre-existing injury.

The right shoulder was affected by the effects of the previous septic arthritis – no deduction is therefore made for any restriction in movement of this uninjured shoulder.

·Left ankle – using Table 42 on page 78 and Table 43 on page 78 of AMA 4^th Edition the limitation in extension gives a 7% lower extremity impairment (LEI) and the limitation in inversion a 2% LEI. The total 9% LEI equals 4% WPI.

The uninjured right ankle is not subtracted because it had documented symptoms and arthritis before the accident – the right side was not significantly symptomatic before the accident. Therefore, no deduction is made for the uninjured but restricted right ankle.

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
Cervical spine	Table 73 on page 110	Yes	0%	0%	0%
Chest – rib fractures	Paragraph 6.229 in NSW Guidelines	Yes	0%	0%	0%
Left hip	Table 40 on page 78 of AMA 4th Edition	Yes	2%	0%	2%
Pelvis	Table 64 on page 85	Yes	0%	0%	0%
Left shoulder	Chapter 3 – Figure 38, 41, 44 and Table 3 on page 20	Yes	7%	0%	7%
Left ankle	Table 42 on page 78 and Table 43 on page 78 of AMA 4th Edition	Yes	4%	0%	4%

*  %WPI = percentage whole person impairment

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6]

   [6] Section 7.26(6) of the Act.

2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[7]  The Panel adopts the findings and opinions of Medical Assessor Gorman, with which Medical Assessor Thomas Rosenthal concurs, and adds the following reasons.

   [7] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

3. The Panel reconvened on 21 July 2025 to consider its findings and opinions. The Panel conducted a teleconference with the claimant and his solicitor on 13 August last to put further questions to the claimant for the sake of procedural fairness. The Panel has had further discussions to complete its findings and make its decision.

4. The medical assessment of permanent impairment is made at the time of examination. In that respect, the assessments made by Dr Nair and Dr Rimmer are outdated and do not reflect current symptomatology, in the Medical Assessors’ opinion.

5. The Panel acknowledges there is an ultrasound of left shoulder report dated 21/05/2019 which shows a chronic supraspinatus tear (page 82 of Centrelink documents). The Medical Assessors acknowledge there may have been some left shoulder impairment at the time of the subject accident, but they have no clinical information to quantify it, and thus there is no deduction for the pre-existing condition. Similarly, in relation to the left ankle, the Medical Assessors cannot determine if there was any pre-existing WPI.

CONCLUSION

1. For the above reasons, the Panel confirms the certificate issued by Medical Assessor Giblin on 28 October 2024.