Sellaro v QBE Insurance (Australia) Ltd
[2025] NSWPICMP 455
•26 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Sellaro v QBE Insurance (Australia) Ltd [2025] NSWPICMP 455 |
CLAIMANT: | Sellaro |
INSURER: | QBE Insurance (Australia) Ltd |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Dr David Gorman |
MEDICAL ASSESSOR: | Dr Shane Moloney |
DATE OF DECISION: | 26 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment dispute; claimant was in his usual workspace standing next to a bench; fellow employee drove a forklift and over the claimant’s left foot causing a severe crush injury; Medical Assessor found 11% whole person impairment (WPI) for left lower extremity and surgical scarring; Review Panel adopted different methodology for assessment of left lower extremity; proper application of clause 6.85 of the Motor Accident Guidelines; Held – Review Panel found dysmetria arising from chronic antalgic gait caused by subject accident; Review Panel assessed 12% WPI; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | 1. The Review Panel revokes the certificate of Medical Assessor Kuru dated 5 November 2024 and issues a new certificate determining that: (a) the following injuries caused by the motor accident give rise to a permanent whole person impairment of 12% and IS GREATER THAN 10%: · left foot – left ankle, left hindfoot and toes of the left foot; · left knee – consequential injury – chondromalacia patellae as a result of ambulating with an altered gait; · lumbar spine – consequential injury to lumbar spine – musculoligamentous strain, soft tissue injury as a result of ambulating with an altered gait, and · skin – surgical scarring over the left ankle and left foot. |
STATEMENT OF REASONS
INTRODUCTION
On 11 April 2022, while at the Flemington Markets, the claimant was in his usual workspace, standing next to a bench. A fellow employee drove a forklift and reversed over the claimant’s left foot, causing a severe crash injury. The claimant fell to the ground and was unable to weight bear. He recalls screaming in pain and calling for an ambulance multiple times. When the ambulance arrived, he remembers the paramedics wanting to cut off his shoes. The claimant feared that he might lose his foot. He was taken by ambulance to Concord Hospital where he was an inpatient for 11 days. After a period of elevation of the left foot, he underwent open reduction and internal fixation of the proximal phalanx of his left first toe, of the first metatarsal and K-wire stabilisation of the second, third and fourth metatarsals. He wore a plaster boot for a prolonged period of time and used a knee scooter to mobilise. He was unable to use crutches due to pain in his lower back.
QBE (the insurer) indemnifies the owner and/or the driver of the forklift 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 26 weeks as well as liability for the claimant’s common law damages claim. The insurer did not concede that the claimant’s whole person impairment (WPI) exceeds the 10% threshold.
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 Act, the claimant was referred to Medical Assessor Robert Kuru for assessment.
Medical Assessor Kuru certified on 26 September 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 11% and IS GREATER THAN 10%:
- Left foot, left ankle, left hind foot and toes of the left foot – severe crush injury to the left foot, left ankle, left hind foot and toes including the third, fourth and fifth toes and the big toe
- Consequential injury to lumbar spine – musculo-ligamentous strain, soft tissue injury as a result of ambulating with an altered gait
- Consequential injury to left knee – chondromalacia patellae as a result of ambulating with an altered gait
- Injury to the skin system – surgical scarring over the left ankle and left foot
Medical Assessor Kuru found 10% WPI for the left lower extremity and 1% WPI for scarring/TEMSKI. He made no apportionment for pre-existing/subsequent impairment nor treatment effects.
OTHER ASSESSMENT
Medical Assessor Steven Yeates certified on 21 January 2025 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 9% and is NOT GREATER THAN 10%:
- Major depressive disorder
Medical Assessor Yeates calculated 7% WPI utilising the psychiatric impairment rating scale (PIRS) to which he added 2% WPI for treatment effects. It is not known if his certificate is the subject of a separate review.
THE REVIEW
The insurer sought a review of Medical Assessor Kuru’s certificate, on the grounds 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 on the particulars set out in the application and supporting documentation.
The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The insurer asserts there is a reasonable cause for suspicion that Medical Assessor Kuru’s assessment was vitiated by the following material errors:
(a) failure to correctly calculate permanent impairment in accordance with the Motor Accident Guidelines (Guidelines) and the AMA 4 Guides;
(b) failure to provide sufficient reasons, and
(c) failure to consider or address a substantially made argument in relevant submissions made on behalf of the insurer regarding the provided material.
Error 1 – Failure to correctly calculate permanent impairment in accordance with the Guidelines and AMA 4 Guides:
(a) no reasons were provided by Medical Assessor Kuru in his calculation of permanent impairment of the lower extremity;
(b) it appears that Medical Assessor Kuru incorrectly added impairment ratings for loss of motion of different directions for the same joint, rather than rating only the most severe deficit, in direct contravention of cl 6.85 of the Guidelines, and
(c) the insurer submits that the correct calculation of impairment for the lower extremity ought to be 7% WPI, based on Medical Assessor Kuru’s findings (3% plus 2% plus 1% plus 1% = 7% WPI) when combined using page 322 of AMA 4. When taking into account the assessment of scarring, this would place the claimant’s injuries below the 10% threshold.
Error 2 – Failure to consider or address a substantially made argument in relevant submissions made on behalf of the insurer
(a) in submissions dated 1 August 2024, the insurer noted the lack of knee-related complaints to Concord Repatriation General Hospital or the claimant’s general practitioner (GP), as well as the “normal MRI of the knee” on 23 May 2024 and submitted that these records are consistent with a finding that the claimant did not sustain any injury to the knee as a result of the accident. However, Medical Assessor Kuru diagnosed “chondromalacia patellae as a result of ambulating with an altered gait” and did not engage with the aforementioned submission. The insurer further submits that it is reasonable to assume that, given Medical Assessor Kuru’s silence with respect to the lack of reporting of symptoms of the left knee, he did not genuinely consider the same, and
(b) the parties are unable to determine what impact this issue had on the Medical Assessor’s determination where he has not provided any reasons for his permanent impairment assessment and it remains unclear whether any impairment was assessed in relation to the left knee.
Error 3 – Failure to provide sufficient reasons
(a) The insurer submits that Medical Assessor Kuru provided insufficient reasons in order to explain how he calculated WPI in relation to the left lower extremity. The insurer notes that Medical Assessor Kuru listed the figures and tables which he allegedly utilised in order to calculate permanent impairment. He diagnosed injuries to the claimant’s left knee, foot, ankle, hind foot and toes in the left foot. However, he has not indicated in his certificate how the impairment for the left lower extremity was comprised. The insurer submits that it is unknown what areas of the left lower extremity attracted impairment, and how this impairment was calculated, and
(b) the insurer submits that, in the absence of reasons in support of is impairment assessment, any finding in favour of the certificate by the President’s delegate would represent an attempt to fill in the gaps in the path of reasoning and assume that the decision was made according to the law, which is incorrect.
Complex Regional Pain Syndrome (CRPS)
(a) the insurer notes that, in addition to the injuries that were referred to Medical Assessor Kuru, the claimant seeks to have his alleged CRPS assessed by the Panel. The insurer objects to this request and submits that the Panel does not have jurisdiction to assess a new injury that was not the subject of the original medical assessment. The insurer refers to s 7.26(6) of the Act which, it submits, has the effect of confining the Panel’s determination to the matters with which the assessment of Medical Assessor Kuru was concerned, and
(b) in addition to its procedural objection, the insurer further submits that the claimant has not provided any evidence in support a diagnosis of CRPS for the purposes of the Guidelines.
The claimant did not make any substantive submissions in reply to the insurer’s submissions.
President’s delegate Rachael Brittliff issued a Determination of an Application for Review of a Medical Assessment on 29 January 2024 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 as follows:
“Medical Assessor Kuru set out his permanent impairment findings in a table at item 22 of the certificate under the heading “Permanent Impairment Table”. Medical Assessor Kuru gave a total degree of impairment for the claimant’s lower left limb but did not provide a breakdown of how he arrived at the calculation. I have been unable to discern from the face of the certificate how the lower limb impairment calculation was derived. I am satisfied there is reasonable cause to suspect that Medical Assessor Kuru did not provide sufficient reasons for his findings.”
Accordingly, the review application was accepted and was referred to the Panel, which is to reassess all of the injuries referred to Medical Assessor Kuru, unless the parties otherwise agree.
The Panel invited submissions from the parties as to whether the Panel should determine if the claimant suffers from an accident-related complex regional pain syndrome (CRPS) and, if so, assess any WPI arising therefrom. The claimant submitted that the Panel should do so as a CRPS was diagnosed in a report dated 7 May 2024 by Dr Alan Skapinker to the worker’s compensation insurer and is supported by the clinical treating notes of Dr Joel Champion. The insurer submitted that the Panel does not have jurisdiction to determine the alleged CRPS injury as it was not raised as an issue in the original WPI application and does not form part of the dispute referred to Medical Assessor Robert Kuru for determination. In the result, the Panel did not find it necessary to consider that issue.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with s 63 of the 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.[1]
[1] 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.[2]
[2] 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.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
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.”
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.
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
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.
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
The claimant relied upon the following material which the Panel has considered:
Name of Document
Date
Page No
Claimant’s submissions
13.03.2025
3
There is a description of the subject accident in which the rear wheel of a forklift drove over the claimant’s left foot, during the course of his employment at Flemington Markets. In the course of his employment, causing severe crush injuries to his left foot. He subsequently underwent surgery at Concord Hospital. It is submitted that, as a result of the subject accident, the claimant subsequently developed pain in his left knee and lumbar spine, due to prolonged altered gait pattern.
It is submitted that the claimant also developed a consequential psychiatric injury.
He has attended numerous Medico-legal assessments arranged by his solicitors, the insurer and the worker’s compensation insurer.
The claimant submitted that CRPS should be assessed by the Panel.
Application for Personal Injury Benefits
31.05.2024
8
Medical Reports
Certificate of Capacity
13.04.2022
18
Discharge Summary from Concord Repatriation General Hospital
22.04.2022
21
Discharge Summary from Prince of Wales Hospital
14.05.2022
31
Report of Dr Alan Nazha
30.07.2022
34
Report of Dr Prasad Athreya
16.08.2022
36
Report of Mr Hamid Waqar
29.08.2022
38
Report of Dr David Lunz
13.03.2023
41
Report of Dr Gordon Hyde
15.05.2023
43
Medico-legal Reports
Report of Dr Matthew Giblin, orthopaedic specialist to the claimant’s lawyers
03.04.2024
47
Dr Giblin summarises the relevant history, present disabilities, examination and investigations. Dr Giblin then says as follows:
“It is my opinion this gentleman’s injuries are consistent with the accident described. He sustained a significant crush injury to his left foot with multiple fractures, requiring open reduction/internal fixation….. He also has hypersensitivity to touch…. As a consequence of his left foot injury, he sustained an injury to his left knee and low back, the nature of which is unclear, as I have not had an opportunity to review any appropriate investigations.”
Dr Giblin then opines as to the claimant’s future working capacity and ongoing treatment which is not relevant for the Panel’s consideration. Dr Giblin did not assess WPI for the left foot as further surgery was anticipated. Similarly, he did not assess WPI for the left knee and lumbar spine, pending appropriate investigations and specialist’s referrals.
Report of Dr Uthum Dias, occupational physician, to the claimant’s lawyers
23.04.2024
52
Dr Dias recites the relevant Occupational/Work History and details of the subject accident.
Dr Dias records that the claimant underwent imaging studies at Concord Hospital which revealed the following injuries:·a left first toe intra-articular proximal phalanx fracture with extension into the interphalangeal joint;
·a comminuted fracture at the base of the first metatarsal;
·comminuted fractures of the second, third and fourth metatarsal necks with dorsal displacement and planta angulation of the second metatarsal head;
·dorsal and lateral dislocation of the fifth metatarsophalangeal joint; and
·fractures affecting the distal cuboid, lateral cuneiform and middle cuneiform bones.
Dr Dias notes that the claimant underwent an open reduction internal fixation procedure for management of his left first toe intra-articular proximal phalanx fracture and management of his left first metatarsal base fracture, with placement of compression screws for management of the left first proximal phalanx fracture and placement of a metatarsal breach plate and screws for management of his first metatarsal base fracture. He also underwent operative fixation of his comminuted left second, third and fourth metatarsal neck fractures with placement of K-wires.
Under the heading SUBSEQUENT PROGRESS, Dr Dias records that the claimant says he was essentially bed-bound for approximately three to four months following the subject accident and remained dependant on a mobility scooter for around twelve months following the accident. For the twelve months prior to Dr Dias’ examination, the claimant was able to mobilise slowly for up to five minutes at a time and frequently used a walking stick to aid his mobility.
Dr Dias notes that the claimant underwent K-wire removal surgery on 27 May 2022. The treating orthopaedic surgeon has recommended corrective osteotomies of the second, third and fourth metatarsal heads, and removal of the first metatarsal breaching plate. However, the claimant declined any further surgery for his left foot, to the date of the examination by
Dr Dias.Under the heading CURRENT SYMPTOMS, Dr Dias records that the claimant continues to struggle with ongoing symptoms of severe pain, stiffness and discomfort affecting his left foot and ankle region, his left knee, and his lumbar spine region on a daily basis. He suffers with neuropathic pain and patchy numbness over his left forefoot, mid-foot and hind-foot regions. He struggles to walk for more than five minutes at a time on flat ground. He uses a walking stick to mobilise outside of his home.
Dr Dias summarises the claimant’s current treatment and his physical examination.
Under the heading DIAGNOSIS, Dr Dias says as follows:
·The claimant suffers from chronic severe left foot/ankle pain, stiffness and discomfort, secondary to a severe left foot/ankle crush injury, with associated comminuted fractures affecting the left big toe proximal phalanx, left first metatarsal base, second metatarsal neck, third metatarsal neck, fourth metatarsal neck, as well as the cuboid and cuneiform bones, and a significant posterior left hind-foot crush injury with an associated deep left hind-foot wound. The claimant has suffered with ongoing debilitating pain, stiffness, discomfort and deformity, as well as altered gait patterns, left sided calf/quadriceps muscle wasting, over the course of the past two years as a result of his severe left foot/ankle crush injury.
·The claimant suffers from consequential chronic left knee patellofemoral dysfunction, secondary to prolonged altered gait patterns, as a result of his severe left foot injury. The claimant’s left knee symptoms began to manifest within three to four months of the subject accident.
·The claimant suffers from consequential chronic non-specific lumbar spine pain, stiffness and discomfort, secondary to prolonged altered gait patterns as a result of his chronic severe left foot injury. The claimant’s lumbar spine symptomatology began to manifest between three to four months of the subject accident and have persisted ever since.
Dr Dias opines as to the claimant’s work capacity and future treatment needs which are not relevant for the Panel’s consideration.
Dr Dias assessed the claimant’s accident-related WPI as follows:
·Lumbosacral spine – DRE Lumber Category II as per Table 72 in Chapter 3 of the AMA 4 Guides – 5% WPI
·Post-surgical scarring over the left forefoot – TEMPSKI Table on page 55 of the Guidelines – 2% WPI
·Total left-sided lower extremity impairment rating of 46% - Table 6.4 in the Guidelines – Left Lower Limb WPI of 18%
Combining the abovementioned whole person impairment ratings using the Combined Values Chart, the claimant has a total whole person impairment rating of 24%.
Report of Dr Alan Skapinker to worker’s compensation insurer (ENL)
07.05.2024
72
As Dr Skapinker was qualified by the worker’s compensation insurer, he expresses opinions in relation to the claimant’s capacity for employment, which are not relevant for the Panel’s consideration. Dr Skapinker says that the claimant has sustained significant crush injuries at his left foot and has had a poor outcome from the initial surgery. He says that the claimant has developed the complication of CRPS (neuropathic pain) at his left foot which would be worse following additional surgery. Dr Skapinker believes that the claimant should be referred to a Pain Clinic for further management. He does not provide an assessment of WPI and may not have been asked to do so.
Report of Dr Abhishek Nagesh, consultant psychiatrist, to the claimant’s lawyers
29.06.2024
76
This report is not relevant for the Panel’s consideration.
Supplementary report of Dr Matthew Giblin
02.07.2024
84
Dr Giblin refers to MRI of the thoracic and lumbosacral spine performed on 17 April 2023, and a MRI performed on the left knee on 23 May 2024, both of which he says were considered to be normal studies. Dr Giblin assesses 17% WPI as follows:
Body parts
% WPI
Lumbar spine
5%
Left knee
2%
Ankle
3%
Toe impairment
3%
Big toe
4%
Scars
2%
Left foot
0%
Using the Combined Value Chart = 17% WPI
Radiological Investigations
MRI report of the thoracic and lumbar spine
17.04.2023
88
See above.
MRI report of the left knee
23.05.2024
90
See above.
Clinical Notes
Clinical notes of Dr Prasad Athreya
Various
92
Clinical notes of Dr Hamid Waqar
Various
127
Clinical notes of Dr David Lunz
Various
148
Clinical notes of Dr Gordon Hyde
Various
151
Clinical notes of Dr Kuzmanovski
Various
174
Clinical notes of Dr Champion
Various
185
Contrary to the direction made by the Panel on 10 February 2025, the claimant did not indicate what entries in the clinical notes are said to be relevant to the matters in issue.
The insurer relied upon the following material which the Panel has considered:
Doc No.
Name of Document
Date
Page No.
A2
Insurer’s further submissions re CPRS
28.03.2025
2
See previously.
A3
Insurer’s review submissions
03.12.2024
5
See previously.
A6
Insurer’s WPI submissions
01.08.2024
20
Medico-legal Reports
A7
Report of Dr Raymond Wallace, orthopaedic surgeon, to the insurer’s lawyers
28.03.2024
27
Dr Wallace notes that the claimant suffered a crush injury at his left foot in the course of his work on 11 April 2022 when he was run over by a forklift truck. Dr Wallace expresses opinions in relation to prognosis, treatment required and fitness for work, which are not relevant for the Panel’s consideration. He assesses WPI as follows:
Body parts
% WPI
Left ankle
5%
Left foot
1%
Scarring
1%
Total % WPI (Combined Table Values): 7%
A8
Report of Dr Robin Mitchell and Ms Alicia Tyler
03.06.2024
39
This report is not relevant for the Panel’s consideration.
Medical records – radiology, treatment report, clinical records
A9
NSW Ambulance report
11.04.2022
92
A10
Report of Dr Prasad Athreya, orthopaedic surgeon, to Dr Tass James
21.06.2022
98
Dr Athreya describes the treatment provided and the claimant’s prognosis, which is guarded, due to the severity of his injury. Dr Athreya says there is a likelihood that the claimant’s foot and ankle may not feel the same again. He expected rehabilitation to take at least 12 to 18 months.
A11
Report of Dr Alan Nazha, pain physician specialist, to Dr Athreya
13.07.2022
101
This report deals with mental health issues and is not of relevance for the Panel’s consideration.
A12
Clinical records of Dr Tass James
Various
104
A13
Records of Prince of Wales Hospital (x2)
Various
419
A14
Records of Concord Repatriation General Hospital
Various
493
A15
Record of Maria Leonitious, psychologist
Various
798
This material is not relevant for the Panel’s consideration.
EXAMINATION REPORT
The report of Medical Assessor Shane Maloney is as follows:
Vincenzo Sellaro
MVA 11 April 2022
Mr Sellaro attended the medical suites at PIC on 7 May 2025. He was unaccompanied.
Pre-accident history
Mr Sellaro stated that he was in good health prior to the accident and was working full-time at Flemington markets moving freight around and using a forklift. He had been employed there for 4 years and prior to that had worked in fruit shops.
He is single and lives with his father and stepmother. Prior to the accident he was socially active and played tennis, soccer and jogged. He states were no previous injuries to those assessed today.
History of motor accident
Mr Sellaro was at work when a forklift reversed into him as a pedestrian. The wheel ran over his left foot and injured his left leg and knee. He was taken by ambulance to Concord Hospital.
History of symptoms and treatment following the motor accident
At Concord Hospital, he was x-rayed and diagnosed with left first toe intra-articular proximal phalanx fracture, left intra-articular base first metacarpal bone fracture, fracture to left 2nd, 3rd, 4th metatarsal neck fractures. There was an operative fixation with all these fractures and he was admitted for 11 days.
After the surgery he wore a plaster boot for 2 months and then progressed to a knee scooter for one year. The treating orthopaedic surgeon was Dr Arthreya. Mr Sellaro stated that he noticed low back pain as he became more active after using the knee scooter.
Due to ongoing pain, his doctor suggested the possibility of metatarsal osteotomies.
Mr Sellaro obtained a subsequent opinion with a foot and ankle surgeon Dr Lunz who recommended delaying surgery. Following the surgery he continued with physiotherapy and hydrotherapy. He was also referred to a pain specialist Dr Champion who prescribed a desensitising cream and enrolled in a pain management program at Waratah Hospital which started one month ago.There have been no further injuries or accidents since the motor accident.
Current symptoms
At present Mr Sellaro has persistent left foot pain which sometimes radiates up his left leg this can be associated with pins and needles and occasional swelling and sweats. He feels there is this stabbing pain constantly. He continues to get pain in the left knee which increases with walking but the right leg is asymptomatic and he has non-specific back pain at present with no radiation. Prolonged sitting aggravates the pain in the foot and knee and he gets relief with lying down. He drives occasionally locally but rarely go for walks.
Present treatment
Present medication is gabapentin 300 mg day which is planning to be increased to 500 mg a day slowly. He takes Endone 5 mg 4 times a day and occasionally a Panadol and Nurofen. At night he has a temaze 10 mg and is on medication from the psychiatrist.
He uses a desensitising cream prescribed by the pain specialist with little improvement. He also consulted a psychologist and psychiatrist. No manual therapy is being undertaken at present and he consults his GP when necessary.
Clinical examination
Mr Sellaro walked with an antalgic gait and relied on a walking stick in his right hand. He states that he is right-handed. His height was measured at 174 cm and weight of 100 kg. He states that he has gained 30 kg since the accident.
Lumbar spine
Mr Sellaro had an unsteady gait without a walking stick and was unable to walk on his heels and toes or squat.
On testing range of movement of the lumbar spine, flexion was 30% of expected range and extension 10%. Side bending was 50% of expected range bilaterally. Thus, there was dysmetria on testing range of movement. On palpation, no guarding or spasm was noted in the lumbar musculature. Straight leg raise when lying was 70° on the right and 50° on the left which was restricted due to knee pain. Sciatic nerve root tension signs were negative. On neurological examination of the lower limbs, reflexes were equal bilaterally and no sensory changes were noted except around the surgical scars on his left foot. There was slight muscle wasting in the left thigh. The circumference of the lower thighs with 49 cm in the right and 47 cm on the left (10 cm above the superior patella pole) and at the maximum circumference of the calves 36.5 cm in the right and 36 cm in the left.
Knees
On inspection no effusions were noted with no ligament laxity and no crepitus on passive movement. There was tenderness on patella pressure and over the lateral joint line of the left knee.
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
130°
120°
Extension
0°
0°
Ankles
Ankle Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion
30°
10°= 7% Lei
Plantarflexion
50°
15° = 7% Lei
Hindfoot Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Inversion
25°
10°= 2% Lei
Eversion
20°
5°= 2% Lei
The great toe metatarsophalangeal extension was 10° (which is 5% Lei). Interphalangeal flexion was 10°. Lessor toes metatarsophalangeal extension was 0°.
At the time of my examination, there was no temperature change between the feet, no sweating and no generalised trophic changes. There was slight sensory loss in the distribution of the scars. The toenails were normal and the skin of the left foot was of normal texture. Thus there is no diagnosis of CRPS.
Scarring
There is a 12 cm vertical scar over the dorsum of the left foot which is pale in colour compared to the normal skin with the slight contour defect with no trophic changes. There is a smaller scar over the ankle which is less obvious and a vertical scar over the 4th metatarsal bone. Mr Sellaro is very conscious of the scars and is easily able to locate them. Suture marks are barely visible and the scars are visible when wearing sandals or thongs. There is a minor limitation in the performance of the few ADLs such as wearing closed shoes. He has been applying desensitising cream to the scars. There is no adherence the underlying structures.
Consideration
Scars
classification of best fit using the Temski chart is 1% WPI. Mr Sellaro is conscious of the scar, there is mild colour contrast and he is easily able to locate it. There are no trophic changes and suture marks are barely visible. It is usually visible when wearing sandals. There is a minor contour defect with negligible effect on any ADLs and intermittent treatment only required with no adherence.
Ankle
The ankle is assessed using range of movement with tables 42 and 43 of AMA 4th edition. There is 7% LEI for ankle movements and 2% LEI for hindfoot movements. Toe impairment is assessed using table 45. Great toe loss extension of 10° is a moderate impairment of 5% LEI. The decreased range of movement of the other joints is 2% LEI but the highest Lei is taken. This gives a total of 7+2% LEI for the ankle which is 9% LEI. 9% +5% using the combination table is 14% LEI. Using table 6.4 MAA guidelines, 14% LEI equals 6% WPI.
Left knee
The left knee is assessed using range of movement and table 41 of AMA 4th edition which is 0% WPI. There is no crepitus on examination.
There is 2 cm wasting of the left thigh which is an isolated finding is 4% WPI. In consideration of table 6.5 of MAA guidelines muscle atrophy cannot be combined with range of movement or diagnosis based estimates.
Lumbar spine
On examination there was a loss of extension which is dysmetria and would be 5% WPI is a classification of DRE ll. There was no actual injury to the lumbar spine and the MRI was normal when taken one year after the accident. Medical assessor Kuru had determined that the lumbar spine injury was related to the subject accident and consequential to his altered gait. The two treating orthopaedic surgeons concentrated on his left ankle and foot and did not assess the lumbar spine. In a medicolegal report,
Dr Dias and Giblin did consider in the lumbar spine injury was causally related to the subject accident.The first mention of low back pain by the treating GP was on 26 May 2022 which is 6 weeks after the accident when he recorded that Mr Sellaro had developed thoracic back pain due to lying in uncomfortable positions in referral to the physiotherapist. Mr Sellaro stated that he noticed low back pain commencing after he stopped using the knee scooter. The Panel noted that he had a plaster cast on his left leg for 2 months and then was using the knee scooter for one year. In this time, it is not surprising that an antalgic gait developed. The Panel has determined that there has been a persistence of the antalgic gait since this time and is more than likely to continue in the near future. Therefore, the Panel considers that the dysmetria that is noted when testing range of movement is now due to the chronic antalgic gait and is an indirect consequence of the subject accident.
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Panel adopts the examination findings and reasons of Medical Assessor Moloney with which Medical Assessor Gorman concurs.
[6] Section 7.26(6) of the Act.
The Panel is not required to choose between medical opinions and is required to form its own opinions.[7] The Panel has explained the reasons why it differs to the findings of Medical Assessor Kuru. These are in relation to assessment of the lumbar spine and left ankle. The Panel accepts the claimant’s submission that Medical Assessor Kuru’s methodology, for assessment of the left lower extremity, contravened cl 6.85 of the Guidelines.
[7] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.
The medical assessment of permanent impairment is made at the time of the examination. In that respect, the assessments made by other medical examiners are outdated, and do not reflect current symptomatology in the Medical Assessors’ opinion. The Medical Assessors note that Dr Giblin assessed the left lower limb somewhat differently, as did Dr Dias, with whom they respectfully disagree, for the reasons stated.
The Panel considers that the dysmetria that is noted in the lumbar spine when testing range of movement is now due to the chronic antalgic gait and is an indirect consequence of the subject accident, as a matter of medical determination, and as a matter of non-medical factual determination.
CONCLUSION
For the above reasons, the Panel concludes the certificate issued by Medical Assessor Kuru dated 5 November 2024 should be revoked. The new certificate appears at the commencement of these reasons.
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