Sellaro v QBE Insurance (Australia) Ltd - [2025] NSWPICMP 455

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICMP 455
Decision Date: 26 June 2025

CaseChat Overview and Summary

The case of Sellaro v QBE Insurance (Australia) Ltd involves a claimant who suffered a severe crush injury to his left foot in an incident where a fellow employee drove a forklift over it. The dispute centred on the degree of permanent impairment attributable to the injury and the corresponding compensation. The case was heard in the relevant Australian court, which was tasked with reviewing the Medical Assessment Certificate (MAC) issued under the Motor Accident Injuries Act 2017.

The primary legal issue before the court was the proper application of the assessment methodology for determining the degree of permanent impairment, particularly in relation to clause 6.85 of the Motor Accident Guidelines. The original Medical Assessor had concluded that the claimant had an 11% whole person impairment (WPI) for the left lower extremity and additional impairment due to surgical scarring. However, the Review Panel employed a different methodology, finding dysmetria arising from a chronic antalgic gait caused by the accident, and subsequently assessed the impairment at 12% WPI.

The court examined the evidence and submissions from both parties, considering the methodologies applied by the original Medical Assessor and the Review Panel. It was determined that the Review Panel had appropriately applied the provisions of clause 6.85 of the Motor Accident Guidelines. The court found that the Review Panel's assessment was supported by the evidence, particularly in identifying the chronic antalgic gait as a factor contributing to the claimant's condition. Consequently, the court upheld the Review Panel's decision to revoke the original MAC and issue a new certificate reflecting the 12% WPI.

The final orders of the court included the revocation of the original Medical Assessment Certificate and the issuance of a new certificate reflecting the 12% whole person impairment for the left lower extremity. The claimant was entitled to compensation reflecting the revised assessment of permanent impairment.

Orders