Talevski v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Talevski v Allianz Australia Insurance Limited [2025] NSWPICMP 198
CLAIMANT:	Mile Talevski
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Terence O'Riain
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Tai-Tak Wan
DATE OF DECISION:	25 March 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review; claimant’s application following accident on 4 May 2018; Medical Assessor’s (MA) certificate dated 20 February 2024 assessed permanent impairment in the left ankle at 4% and 1% in the right ankle; causation for lumbar spine pain disputed; MA declined accident lumbar spine pain based on lack of contemporaneous complaints; claimant applied for review; claimant re-examined; different impairment assessed for lower limbs; lower limbs injuries could lead to altered gait and lumbar pain; claimant explained why back complaints were delayed; no objective evidence of pre or post-accident permanent impairment; DRE I for lumbar spine; 0% permanent impairment; Held – lumbar spine causally related to accident; different permanent impairment to lower limbs; Medical Assessment Certificate revoked; permanent impairment not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of permanent impairment and threshold injury Replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel has assessed that the accident caused injuries with a different degree of permanent impairment to Medical Assessor Mohammad Assem's assessment and certificate issued on 12 February 2024. 2. Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate assessing the claimant’s permanent impairment that has resulted from the injuries caused by the accident as 2% which is not greater than 10%.

REASONS

BACKGROUND

These reasons address permanent impairment under the Motor Accident Injuries Act 2017 (MAI Act).
On 4 May 2018 Mr Mile Talevski (the claimant) was standing beside his parked vehicle around 6.15pm. An unidentified vehicle struck him, and he fell to the ground. He reported a temporary loss of consciousness, and he awoke with an abrasion on the right side of his forehead and severe pain in his left ankle. An ambulance took him to Liverpool Hospital where he remained until 6 May 2018.
Scans confirmed he had a Weber B fracture in his left distal fibula and an un-displaced fracture at the base of the second metatarsal in his right foot. These injuries were treated with a pair of Controlled Ankle Motion (CAM) boots on both feet to immobilise and support the injuries. He also used crutches for the next six weeks. He was fully weight bearing on both legs six weeks after the accident.
His legs were painful and swollen, with sensory loss in the left leg. He later developed back pain, which was noted by a doctor for the first time four months after the accident, and he alleges the lumbar spine pain has gradually worsened since.
Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and statutory compensation under the MAI Act.
The claimant applied to the Personal Injury Commission (Commission) for medical assessment – permanent impairment.
The Commission referred the following injuries for assessment on the question of permanent impairment:
·        lumbar spine;
·        right foot, and
·        left ankle.

Medical Assessor Assem assessed the claimant’s physical injuries on 20 February 2024.
He issued a certificate dated 21 February 2024 assessing permanent impairment under Schedule 2, s 2(a) of the MAI Act.
He found the accident did not cause the lumbar spine injury, based on a lack of complaints contemporaneous with the accident.
He assessed permanent impairment in the left ankle at 4% and 1% in the right ankle.
This was 5% permanent impairment, which was not greater than 10%, which established that the claimant could not claim non-economic loss damages.
The claimant applied to the President of the Commission for review stating that the assessment was incorrect in a material respect, and that the Medical Assessor despite noting the claimant was restricted in his mobility due to his lumbar spine injury determining the lack of contemporaneous complaints signified the accident could not have caused a lumbar spine injury or aggravated and made symptomatic a degenerative condition. This was against a background of no back symptoms before the accident and evidence of an altered gait caused by the lower limb injuries.
The Commission’s presidential delegate Melinda Drew referred the medical assessment to a Review Panel (this Panel) on 20 May 2024.[1] The delegate based her decision to refer Medical Assessor Assem’s assessment to this review on the basis his reasons for rejecting the nexus between the accident and the lumbar spine breached the principles of Bugat v Fox.[2]
[1] Section 7.26(5) of the MAI Act.
[2] [2014] NSWSC 888.

STATUTORY PROVISIONS

The statutory provisions, relevant case law on causation and the applicable Motor Accident Guidelines (Guidelines) are set out at Appendix A.

Parties’ disputes and issues

The claimant alleges the accident caused injuries which give rise to permanent impairment greater than 10%.
The claimant relies on Dr James Bodel's report, which among other things assesses 5% permanent impairment in the lumbar spine.
The accident caused an un-displaced fracture of the base of the second metatarsal in the right foot, and an undisplaced left lower limb distal fibula fracture with loss of sensation.

Dr Robyn Fitzsimon's report dated 26 April 2022 assessed 4% permanent impairment for the claimant's neuropathic injuries. The insurer concedes that is the correct rating.
The insurer submits the claimant's injuries resulted in permanent impairment not greater than 10%. The insurer rejects a nexus between the accident and the lumbar spine, due to no initial complaints and assessments indicating movement within normal limits, suggesting 0% permanent impairment.
The insurer submits the right ankle healed within six to eight weeks after the accident, which does not support permanent impairment.
Further, the claimant did not report any back pain to Dr Fitzsimons or A/Professor Michael Shatwell.
Associate Professor Shatwell’s report dated 20 September 2022 said the claimant’s spinal movements “were within normal limits for a man of this age and build”.
Associate Professor Shatwell’s clinical examination did not note signs of guarding, non-verifiable radicular symptoms or dysmetria. DRE I (0% WPI) was the best fit.
The accident caused an undisplaced fracture on the base of the second metatarsal in the right foot.
Six weeks after the accident on 6 July 2018, Dr Christopher Reitz, orthopaedic surgeon noted repeat X-rays show union of the right foot fracture and reported the claimant’s injuries had healed. This is consistent with Dr Bodel’s findings who reported the claimant’s right ankle range of movement was within normal limits.
Associate Professor Shatwell says the orthopaedic injury would have healed within six to

eight weeks and consolidated by three months.
The claimant suffered an undisplaced distal fibula fracture of the left ankle and alleges resulting loss of sensation to the lower left limb. The insurer indicated above loss of sensation is conceded but submits there is no permanent impairment in relation to the orthopaedic injury.
The correspondence in the claimant's bundle refers to bilateral knee complaints, but these were not referred to the Medical Assessor or this Panel.

Matters considered and decided by the Review Panel

The Panel met on 19 June 2024 to discuss how this matter may proceed.
The Panel noted the insurer disputes that the accident caused or materially contributed to any permanent impairment arising from the lumbar spine condition.
The original Medical Assessor assessed the right foot and left ankle for permanent impairment. The Panel notes that the insurer does not dispute the nexus between those injuries and the accident, but it disputes the permanent impairment rating generally.
The Panel considered re-examining the claimant was required. Medical Assessor Tai Tak Wan agreed to examine the claimant on the Panel’s behalf on 19 September 2024 and write a report.

REVIEW PANEL FINDINGS

Documentation

The Panel considered the documentation in the parties’ bundles.

Re-examination

Mr Talevski attended the Commission’s medical suites unaccompanied on 19 September 2024.
The examination lasted for 1.5 hours, because the claimant brought a lot of X-rays to the appointment.

Claimant’s history given to the Medical Assessor

Pre-accident medical history and relevant personal details

Mr Talevski is about 55 years old, unemployed. He worked full time as a hairdresser before the accident, attempted to return to work, but stopped working since September 2019.

Past health

In 1995, he was driver of a car involved in a head on motor vehicle accident (accident). He injured the meniscus of his right knee, and Dr Kirsch performed an arthroscopy.
He experienced an acute myocardial infarct (AMI) two and a half years ago, with two stents put in the coronary arteries. He did not have any more angina after that.
40-years-ago, there was an undescended testis, possibly on his left side. He received surgery.
He takes tablets to treat Diabetes.
He has hypertension (HT).
He denied any history of allergy to medication.

Social history

Mr Talevski moved from Greenacre to the Central Coast over two years ago. He lives alone in a single storey house with three steps at home. He reports he has no problems walking those steps.
He smokes 10-30 cigarettes each day and does not drink.

History of the accident

Mr Talevski told the Medical Assessor that on 4 May 2018, at around 6.20pm, he had just finished his work, enjoyed a cigarette, and then went to his car.
While he stood next to his parked car, another car hit him, and he fell. He believed that he was unconscious for about 20 seconds.
The car which hit him parked just in front of his car, but the driver of that car did not get out and drove away.
A passerby came to help him and called the ambulance. He was taken to Liverpool Hospital and stayed for three days. He recalled the man who helped him did not speak much English as he was a Thai.

History of symptoms and treatment following the accident

Mr Talevski stated that shortly after the accident, he had pain in the right foot, left ankle and foot. X-ray showed fracture left ankle and right second toe (according to the documents it was a Weber B fracture in his left ankle, and fracture of the base of the right second metatarsal).
The fractures were treated conservatively without surgery. He was put in a pair of CAM boots for six weeks.
He was referred to see an orthopaedic surgeon, Dr George Kirsch, who referred him to see another orthopaedic surgeon Dr Christopher Reitz. Later X-ray confirmed both fractures were healing well. The CAM boots were taken off and he was referred to physiotherapy and hydrotherapy, which he found beneficial. He continued the physio and hydrotherapy twice a week for six to eight months.
However, he continued to have pain in the left leg, ankle and foot and the right leg and foot. He said he has ‘nerve pain’ in the left leg and foot on the lateral side. He was referred to a neurologist, who he could not name, had a nerve conduction study and the neurologist confirmed that he has a left peroneal nerve injury.
He also complained of low back pain from the accident.
Medical Assessor Tai-Tak Wan asked him about how the documents did not record any back pain until four months after the accident.
Mr Talevski replied the back pain was overshadowed by his severe left and right leg and feet pain, so he did not complain to the doctor initially. He admitted the back pain became significant four months after the accident. He was referred to see a ‘spinal surgeon’ Dr Nair. A spine MRI was done, but Dr Nair did not advise surgery.
He could not recall seeing a rehabilitation physician or pain medicine specialist.
He could not recall seeing an occupational therapist or rehabilitation provider helping him to return to work (RTW).

Details of any relevant injuries or conditions sustained since the accident

Mr Talevski denied any history of significant accidents, injuries or other relevant conditions sustained since the accident.

Current symptoms

His current complaints are as follows:
·        pain in left leg from knee downward, 5/10 in Visual Analogue Scale (VAS). It is an intermittent ‘hot and cold pain, like ant crawling.’ It is worse at night;
·        lower back pain, 8/10 in VAS. It is an intermittent sharp pain and may radiate to the right buttock. It is aggravated by prolonged sitting;
·        pain in right foot, lateral aspect of ankle, and may involve 2^nd, 3^rd, and 4^th toes;
·        pain in right shoulder, starting one year ago. He thought it is due to bursitis and not related to the accident;
·        sleep is poor, usually due to early waking. He feels tired all the time, and
·        depression – he saw a psychiatrist before, but he could not name the psychiatrist.
He reported his bowel function is normal but he urinates frequently because he has diabetes.
He said that, at most, he can sit for 10 minutes, stand for 15 minutes, walk for 10 minutes. He said he could only drive locally for 10 minutes.
He is independent in the personal hygiene care and most activities of daily living (ADL). He said that prior to the accident, he did most of the domestic duties.
He now has a cleaner once a fortnight, and a gardener mowing the lawn once a fortnight.

Current and proposed treatment

Mr Talevski stated that he has been taking the following medication:
·        Metformin 500 mg bd;
·        Diamicron 60 mg ½ tab each morning, 1 tab in the evening;
·        Atacand 4 mg each morning;
·        Metoprolol 50 mg ½ tab bd;
·        Rosuvastatin 40 mg daily;
·        Nexium 20 mg daily;
·        Cardia 100 mg each morning;
·        Amitriptyiline 10 mg in the evening;
·        Venlafaxine 100 mg daily;
·        Panadol osteo 2 tab prn tds;
·        Panadiene forte 2 tab in the evening prn, and
·        Cannabis 2 cones/night for the last two years (‘for back pain’).
He saw a psychologist regularly for two years, once a fortnight, but stopped after he moved to the Central Coast.

Clinical examination findings

Clinical examination

Examination on 19 September 2024 showed that Mr Talevski was oriented and alert. He was 178.5cm tall and weighed 108.6kg. BMI was 34, in obese range. He walked independently, without any walking aids, in a normal symmetrical gait. He declined to walk on tip toes but had no problems walking on heels. He could only half squat complaining of back pain. He had good high level balance and could walk in a tandem (heel-toe) way. He could dress and undress independently. He could get on and off the examination couch independently. He is left-hand dominant.

Cervical spine (Cervicothoracic)

Examination of the neck showed no tenderness, muscle spasm or guarding. There were restrictions in neck movement, but no evidence of dysmetria. There were no non-verifiable radicular complaints. There was no radiculopathy. (All the measurements are those of active movements. All the active ranges of movements (ROM) of the spine were measured using a goniometer and inclinometer):

Cervical spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	3/5 normal	3/5 normal	3/5 normal	3/5 normal	normal	normal

Thoracic spine (thoracolumbar)

Examination of the upper back showed no tenderness, muscle spasm or guarding. Active movements of the thoracic spine were symmetrical. There was no evidence of radiculopathy or non-verifiable radicular complaints:

Thoracic spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	Normal	Normal	3/5 Normal	3/5 Normal	Normal	Normal

Lumbar spine (lumbosacral)

Examination of the lower back showed mild tenderness but no muscle spasm or guarding. Active movements of the lumbar spine were normal, with no dysmetria. There was no evidence of any non-verifiable radicular complaints:

Lumbar spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	3/5 normal	3/5 normal	Normal	Normal	2/5 Normal	2/5 Normal

Straight leg raising was 30° on both side in supine position and 80° in sitting position.

UPPER EXTREMITY

Examination of the upper limbs showed no gross muscle wasting. Measurement of mid-forearm circumference showed that right side was 0.5cm smaller than the left side which was normal limits considering he is left hand dominant. Measurement of mid-arm circumference showed was equal on both side. Muscle power was normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. There was no consistent sensory impairment to pain and touch in the upper limbs.
Examination of the shoulders showed tenderness in the left trapezius muscle. Initially active movements of shoulders were moderately to severely restricted which was inconsistent with the observations when he was not being formally examined. Medical Assessor Tai-Tak Wan presented the inconsistency to the claimant, and he replied there was pain in the shoulders.
Medical Assessor Tai-Tak Wan asked Mr Talevski to give his best effort and repeated the measurement but there was not much improvement in consistency. All the measurements are those of active movements. The Medical Assessor used a goniometer to measure limb ROM.

Shoulder	Flexion	Extension	Abduction	Adduction	Internal Rotation	External rotation
Right /°	50,70	10,20	70,100	20,30	80,80	80,80
Left /°	70,100	10,20	70,100	20,30	80,80	80,80

Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.
Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.

LOWER EXTREMITY

Examination of the lower limbs showed no gross muscle wasting. Measurement of mid-thigh circumference and mid-calf circumference showed that they were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was no sensory impairment in both lower limbs.
There was pain along the lateral border of the left leg and left foot, but the sensation to touch and pain was intact. However, there was a patch of reduced sensation around the skin between left first and second toes, which was sensory distribution of deep peroneal nerve. There was no muscle weakness related to left peroneal nerve and its branches.
This left the impression that the sensory impairment was consistent with the sensory distribution of the left deep peroneal nerve.
Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was normal on both sides. Active movements of the hips were within normal limits.
Examination of the knees showed no deformity, swelling or effusion. There was no crepitation on moving the knees. There was no excessive anterior-posterior or medial-lateral laxity, suggesting that the cruciate and collateral ligaments were intact. McMurray’s test was normal on both sides, suggesting that the menisci were intact. Active movements of both knees were symmetrical and within normal limits.

Examination of the ankles showed no deformity or swelling. Active movements of the ankles and feet were symmetrical and within normal limits.

Ankle	Plantar flexion	Dorsiflexion	Inversion	Eversion
Right /°	45	20	15	13
Left /°	45	20	15	11

Examination of the abdomen and chest was unremarkable.

Consistency of presentation

There was some inconsistency in the examination of the shoulders and probably also the spine. However, the shoulders’ findings were not relevant because the Commission only referred lumbar spine, right foot, and left ankle injuries to Medical Assessor Assem, and hence to the Review Panel.

Documentation review

Relevant imaging studies and other investigations

Mr Talevski brought a lot of X-rays films with him but only some had the relevant reports included.
Medical Assessor Tai-Tak Wan reviewed only the films with their respective reports of the following investigations:
(a)    X-ray and MRI lumbar spine of 19 December 2018, taken at Bankstown Lidcombe Medical imaging, reported by Dr Seymour Atlas – the clinical details stated, “numbness both legs, distal third and foot? cause”. The radiologist concluded that, “There is a small central and right paracentral annual bulge with a small annular tear at L3/4 and a small central annular bulge with a small annular tear at L4/5. There is no significant canal or foraminal narrowing and no visible nerve root impingement”:
(b)    MRI and X-ray bilateral knee of 21 August 2020, taken at Bankstown Lidcombe Medical imaging, reported by Dr Behnam Moharanmi – MRI left knee showed OA change medial compartment and patellofemoral joint. There was no meniscal tear and no internal derangement. A septated popliteal cyst was noted;
(c)    MRI right knee showed OA change medial compartment with joint space narrowing and partial extrusion body of the medial meniscus with associated degeneration. No meniscal tear was seen. Patellofemoral joint OA was present. There was a large septated popliteus cyst with some leakage;
(d)    X-ray bilateral knees showed mild medial compartment joint space narrowing in the left with moderate narrowing on the right. There was subchondral sclerosis and marginal osteophyte lipping. There was bilateral mild patellofemoral joint degeneration more significant on the left. There was retro patellar subchondral sclerosis. There was no fracture of deformity, and
(e)    MRI lumbar spine of 30 April 2021, taken at Bankstown Lidcombe Medical imaging, reported by Dr Seymour Atlas – which showed small posterior annular tears at L2/3, L3/4 and L4/5 associated with small insignificant posterior annular bulges. There was no focal disc protrusion evident. There was no central canal or foraminal narrowing. Vertebral body height was maintained and there was no bone marrow oedema or fracture evident.
Overall, Medical Assessor Tai-Tak Wan agreed with the radiologists’ reports.
There were some X-rays of right and left ankles and feet with only films available. The films were old, all done in 2018, soon after the accident, so any injuries had not stabilised.
It was also not clear whether these X-rays were taken when weight bearing. Therefore, they were not suitable to assess the arthritis of ankle and subtalar joints. Unfortunately, no recent X-rays were available, which might show reduced cartilage interval related to arthritis.

Summary of relevant documentation provided for the initial assessment

Neurologist Dr Robin Fitzsimons’ report dated 26 April 2022 stated that she assessed the claimant at the request of insurer’s solicitor. The claimant reported he blanked out for
10 to 15 minutes at the accident. On examination there was an area of diminished sensation over the anterior aspect of the left lower leg, from a little below the knee and extending on the dorsum of the central part of the foot. There was weakness of dorsiflexion of the left foot and dorsiflexion of the left toes. There was milder weakness of extension of the left knee. Ankle reflexes were absent, which Dr Fitzsimons opined was likely due to diabetes mellitus. There was no wasting of left leg. She opined that there was sensory impairment of cutaneous distribution of the left superficial peroneal nerve. She assessed 4% LEI (2% whole person impairment (WPI)) for the superficial peroneal nerve. She also found partial injury to the deep peroneal nerve at the ankle and assessed 2% WPI (5% LEI) from deep peroneal nerve. She assessed 4% WPI.
, Orthopaedic surgeon A/Prof Shatwell’s report dated 20 September 2022opined that the development of degenerative changes and arthritis in the ankles, subtalar joints and mid foot were not directly related to the accident.
Orthopaedic surgeon Dr Christopher Reitz’s report dated 6 July 2018, , stated he reviewed the claimant on 26 June 2018 as the six week follow up and noted,
“… On today’s review…. Both fractures have healed and there is no tenderness over the right mid foot and Lisfranc complex as well as over the right ankle joint and the recent Weber B fracture site. Repeat x-rays show union of both fractures. I am happy for Mr Talevski now to increase his weight bearing and he discharge his boot and change into comfortable shoes with an arch support and increase his walking….”
Pain medicine physician Dr Nikunj Parikh’s report dated 19 January 2021 a, states he saw the claimant on the day, as referred by Dr Khan. He stated, “… Examination of the left mid tibia showed hypoalgesia to sharp touch. Examination of the lower limb showed normal sensation of both big toes to sharp touch….” He said he would do a ‘more thorough physical examination’ at the next appointment.
, Dr Nikunj Parikh’s further report dated 30 March 2021stated he saw the claimant on the day. but did not mention his physical findings.
Orthopaedic surgeon Dr Jonathan Herald’s report dated 3 December 2019 notes that, “…X-rays show there is healing of the Lisfranc type fracture in his left foot and of the ankle fracture in the right ankle…”
Dr Herald’s follow up dated 26 February 2019 reported altered sensation in the dorsal aspect of his foot. MRI scan showed the lumbar spine has no neural compression, however nerve conduction studies showed almost complete absence of superficial peroneal nerve and some reduced activity of the deep peroneal nerve.
, Dr Herald’s report dated 6 May 2019reported altered sensation of the peroneal area.
, Dr Herald’s report dated 17 August 2020said the claimant report he had developed bilaterally knee pain over the last six months. He stated that, “…On examination he has tenderness over his medial joint line. He has an effusion in his knee. He has a mild positive McMurray’s test.” (The consultation was more than two years after the accident, and these changes suggested acute changes that were causally unrelated to the accident).
Dr Herald’s report dated 7 September 2020stated that he reviewed the claimant on the day. The claimant was recently diagnosed with type two diabetes. Examination showed effusion in both knees and pain in the medial aspect of the knee. He stated, “…the only solution is a knee replacement however I would want to delay that for as long as possible….”
In a nerve conduction study report dated 19 February 2019, Dr Jay Parikh concluded that,
“…The left peroneal-EDB CMAP is more than 50% reduced in amplitude compared to the right, however left peroneal-TA response is equal. Left Superficial peroneal response was absent. These findings are suggestive of focal peroneal nerve injury at/above the ankle level.”
, Neurosurgeon Dr Simon McKechnie’s report dated 21 March 2019states he reviewed the claimant on the day, as referred by Dr Herald. He stated,
“…. An MRI of the lumbar spine does not demonstrate any significant thecal sac or nerve root impingement. Nerve conduction studies confirm likely peroneal nerve injury on the left side at or above the ankle…. Although a peroneal nerve exploration and decompression can be performed, I have emphasised that there is no guarantee the surgery would improve his sensory disturbance… We have agreed to continue with nonoperative treatment. He may still experience some mild improvement over the next 3 to 6 months….”
,Spinal surgeon Dr Nail Nair’s report dated 12 May 2021 stated that he reviewed the claimant as referred by Dr Khan. He stated, “… Physical examination revealed restricted lumbar range of motion, preserved knee and ankle jerks. Hip examination was not irritable…. There were no pathological lower extremity reflexes elicited…” He recommended, “… away from surgery…”
The Panel had reviewed multiple certificates of capacity/certificate of fitness (COC) issued by Dr Ljaz Khan.
The Panel had reviewed several Allied Health recovery requests (AHHR) by his physiotherapist and psychologist.
In a medicolegal report dated 28 July 2022, Dr James Bodel, an orthopaedic surgeon stated he assessed the claimant on the day at the request of claimant’s solicitor. He mentioned flat foot on the left and numbness over the dorsum of the left foot. There were restrictions in movement of the ankles. He assessed 5% WPI for the lumbar spine, 4% for the left ankle and subtalar joint, and 2% for the sensory loss.
Neurologist Dr Ross Mellick’s report dated 7 February stated that he examined the claimant on 3 February 2022 at the request of claimant’s solicitor, he reported that the gait was normal and normal movement of the trunk without paravertebral muscle spasm. There was no wasting of any muscle other than left extensor pollicis brevis and no limitation of the range of hip, knee or ankle movements. He stated, “… There was alteration of the superficial modalities of sensation within the territory of the left superficial and deep peroneal nerves, with extension on the dorsum of the left foot and the base of the 2^nd toe…” He did not assess the WPI.
Medical Assessor Mohammed Assem’s certificate dated 21 February 2024stated he assessed the claimant on 20 February 2024. On examination he reported full and normal movement of the lumbar spine, bilateral pes planus (flat foot), and could stand both on his heels and toes without difficulty. He stated, “…. He reported sensory loss along the lateral side of his lower leg and the dorsal surface of his foot, although there were no discernible changes in color, temperature or perspiration in the area…”, but did not mention his own neurological findings of the lower limbs. He reported mild restriction in movements of the left ankle and hind foot. He found that the lumbar spine injury was not causally related to the accident, as there was no mention of back pain in the ambulance report, hospital records or initial COC three months after the accident. He assessed 7% LEI (4%WPI) for left ankle and 2% LEI (1%WPI) for right ankle (inversion of 15°). He did not mention any calculation of WPI from nerve impairment, although it seems he allocated 7% LEI from some injury second paragraph of page eight of his certificate).

Additional documentation provided after the first teleconference

In a letter dated 8 November 2024, the claimant’ solicitor Theresa Shek stated that she relied on the report of Dr Bodel and submitted that the claimant had no prior history of lumbar spine injury, and he had to use CAM boots on both legs for six weeks, with crutches and therefore causing lumbar spine, thus the complaints of back pain started long after the accident. Therefore, the low back pain is a secondary injury to the lower limb injuries.
The Panel has reviewed the letter and other documents, and opined that balancing the evidence, the complained back pain was unlikely to be caused directly by the accident. Using crutches and wearing Camboot sometimes could cause back pain but usually when the injury was on one leg (not both legs), when there was asymmetry in walking gait. The claimant was allowed weight bearing on legs even when he was wearing Camboot. Even if he developed muscular back pain from using crutches and Camboot, it was likely to be temporarily, and any muscle back pain, similar to a soft tissue injury, should have settled within several weeks when he was off the camboots. The Panel found that on examination the claimant’s gait is now normal and symmetrical.
The Panel has reviewed all the supporting documentation (approximately 1,100 pages).

Conclusions

Diagnosis and Causation

Medical Assessor Tai-Tak Wan concluded given all the evidence available, including the history given by the claimant, the physical findings, investigation reports, other medical reports, and all information from the supporting documentationthat Mr Talevski,
53-years-old, was a pedestrian hit by a vehicle on 4 May 2018, sustaining Weber B fractures (involving left fibula) in his left ankle, complicated by a deep peroneal nerve injury, and a fracture to the base of the right second metatarsal. The fractures have healed satisfactorily but the peroneal nerve injury persists. There are still some restrictions in movement of the ankles.
The low back pain apparently only started four months after the accident. The MRI lumbar spine of 2018 and 2021 showed mild degenerative changes, with no fracture or bone marrow oedema. It is unlikely that the low back pain and lumbar spine symptoms due to the degenerative changes were directly causally related to the accident. However, it was possible that using CAM boot and crutches for six weeks could cause muscle stress and pain, similar to a soft tissue injury to the lumbar spine. Therefore, the Panel accepted that there was possibility of soft tissue injury to the lumbar spine and would assess the permanent impairment of the soft tissue injury to the lumbar spine.

Summary of injuries listed by the parties and caused by the accident

The following injuries WERE caused by the motor accident:
·        left ankle – weber B fracture, left deep peroneal nerve injury cutaneous sensory injury;
·        right foot – fracture of base of 2nd metatarsal, and
·        lumbar spine injury.

Summary of injuries listed by the parties and not caused by the accident

The following injuries WERE NOT caused by the motor accident:
· nil.

Permanency of impairment

Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) (AMA4) (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.”
As it has been almost seven years since the accident, all the affected physical injuries have stabilised.

Determinations

Statement about permanent impairment

The determination as to permanent impairment is made in accordance with (AMA4) and the Guidelines ver 9.3.

Degree of permanent impairment

Right lower limb injury

He had a fracture of base of second metatarsal. The best way of assessing WPI is using the ROM (range of motion) method.
ROM restriction:
· Ankle: planter flexion of 45° and Dorsiflexion of 20°, do not qualify of any WPI (table 42, p.78, AMA4), and
· Hind foot: inversion of 15° is assessed as mild impairment, corresponding to 1% WPI or 2% LEI (lower extremity impairment) (Tabel 43, p.78, AMA4).
Therefore, the permanent impairment of right foot is 1% WPI.

Left lower limb injury

He had a Weber B fractures, and restrictions in ankle movements. The best way to assess the impairment is using ROM method. However, there is also evidence of injury to the cutaneous sensory branch of left deep peroneal nerve, with no feature of motor impairment.
ROM restriction:
· Ankle: planter flexion of 45°, Dorsiflexion of 20°, do not qualify of any WPI (table 42, p.78, AMA4), and
· Hind foot: inversion of 15° is assessed as mild impairment, corresponding to 1% WPI or 2% LEI (lower extremity impairment) (Tabel 43, p.78, AMA4)

Peripheral nerve injury

Impairments from Nerve Deficits is assessed using Table 68, AMA4. However, in this table, the impairments of deep peroneal nerve injury are not listed explicitly and can only be obtained by deducting the impairments of superficial peroneal nerve from those of the common peroneal nerve (please refer to cl 6.104 - 6.105, of the Guidelines). Therefore, the impairment for the deep peroneal nerve injury should be motor 15% WPI (42% LEI), sensory and dysesthesia both 0% WPI (0% LEI).
The Panel opined that it is an anomaly of AMA4, as deep peroneal nerve definitely has a small cutaneous sensory branch, supplying the area between first and second toe. Considering the small area of the distribution, and mainly sensory impairment, the Panel found it is reasonable to give 1 % LEI for the claimant’s deep peroneal nerve cutaneous sensory branches.
There is no evidence of permanent impairment of superficial peroneal nerve injury.
Combine 2% and 1% LEI, using Combined Value Table, page 322, AMA 4, will give 3% LEI. Using Table 6.4, of the Guidelines, it is converted to 1% WPI. Therefore, the permanent impairment for the left lower limb is 1% WPI.

Lumbar spine injury

As discussed above, although the Panel assessed that the low back (lumbar spine) pain was unlikely to be caused by the accident because of delay reporting of the low back pain, considering the possibility that the accident aggravated the pre-existing degenerative changes of lumbar spine temporarily, the Panel decided to still assess the impairment of lumbar spine.
There was no evidence of radiculopathy, using the criteria of radiculopathy listed in Cl 6.138, of the Guidelines: there was no loss or asymmetry of reflexes due to the accident, no positive sciatic nerve root tension signs (straight leg raising was normal in sitting position), no muscle atrophy due to spine injury, no muscle weakness or reproducible sensory loss that was anatomically localised to an appropriate spinal nerve root distribution.
There were some restrictions in movements of lumbar spine but there was no dysmetria (asymmetrical loss of motion), and no non-verifiable radicular complaints. Although there was some tenderness, but therefore no muscle guarding or spasm.
Using Table 6.7 and 6.8 of the Guidelines, the lumbar spine impairment was classified as Diagnosis Related Estimate (DRE) 1. Using Table 72, page 110, AMA4, it corresponds to 0% WPI. Combining all the impairments, 1% and 1% gives 2% WPI.

Apportionment

Nil.

Pre-existing/subsequent impairment

Nil.

Treatment effects

Nil.
A Current % permanent impairment  2%
B Pre-existing/subsequent % permanent impairment 0%
C Adjustments % for effects of treatment                    0%
Final % permanent impairment        2%

Body Part or System	AMA Guides/ Guidelines References (chapter/ page/table)	Stabilised (YES/NO)	Current %WPI*	*%WPI from pre-existing OR subsequent causes**	*%WPI due to motor accident**
1.	Left ankle and foot (Weber B fracture and sensory deep peroneal nerve injury)	Table 43,44, p. 78, AMA4; Table 68, p. 89, AMA4	Yes	1	0	1
2.	Right ankle and foot	Table 43,44, p. 78, AMA4	Yes	1	1	1
3	lumbar spine (secondary)	Table 72, 110, AMA4	Yes	0	0	0

* %WPI = percentage whole person impairment

Total Whole Person Impairment: 2% WPI

Panel deliberations

The Panel adopted Medical Assessor Tai Tak Wan’s examination report with its conclusions and impairment assessment as evidence.
The Panel noted that although the insurer relies on reports from A/Prof Shatwell and the initial treating orthopaedic surgeon Dr Christopher Reitz that the right lower limb injury would not yield any impairment, the Panel considered that the claimant continued to have treatment for that body part and that it contributed to the claimant not being able to continue to work as a hairdresser.
In respect to the dispute about whether the accident caused or materially contributed to the claimant's lumbar spine condition, the Panel noted the claimant required CAM boots bilaterally for six to eight weeks after the accident, and that he attempted to return to work as a hairdresser. Medical Assessor Assem refers to his career as "long-standing". Clinical notes from the claimant's treating general practitioner (GP) show the claimant had to reduce his work hours due to continuing problems with his lower limbs.

The Panel considered whether the lumbar spine condition is a consequential condition caused by altered gait when the claimant was wearing CAM boots and limping due to neuropathic and orthopaedic impairment.
The claimant was able to weight bear on his legs even when he was wearing CAM boot so if he developed muscular back pain from using crutches and CAM boots it was likely to be temporary. Any muscle back pain should have settled within several weeks once he was off the CAM boots. Medical Assessor Tai-Tak Wan found that on examination the claimant’s gait is now normal and symmetrical.
The insurer submitted on 22 November 2024 it was relevant to the question of causation and reliability that the claimant did not complain about his back when A/Prof Shatwell and
Dr Fitzsimons examined him.
Medical Assessor Doron Samuell’s certificate and reasons dated 28 May 2024 refers to the claimant dealing with a lot of family and health stressors unrelated to the accident soon after the accident and it continued.
The insurer’s submissions to that Medical Assessor were that from late 2018, the claimant cared for his elderly parents and his father died in October 2019. His father’s death was psychologically impactful on him and the claimant received grief counselling. The claimant’s mother died suddenly in October 2021, and he received further grief counselling.
The claimant suffered a heart attack in March 2022.
It is reasonable to consider when a claimant has been directed to attend a medical examination that a claimant will not know it is a matter relevant to credit if they do not name every condition referred to that doctor. It would be reasonable if a claimant – who is unfamiliar with the motor accidents legislation and processes – assumed the doctor already knows why that person is there.
Also, not referring to the lumbar spine on those occasions could have been influenced by
[3] Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 and Richelmann v McCabe [2024] NSWCA 37 [134]-[141].
Mr Talevski’s documented psychological and mood conditions rather than an attempt to mislead or not having symptoms in that body part.[3]
Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
“Causation means that a physical, chemical or biologic 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:
(a) the alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination, and
(b) the alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
In Peet v NRMA Insurance Ltd [4] the Court reviewed a number of Supreme Court decisions including Justice Campbell’s observing in Owen v Motor Accidents Authority of NSW[5] that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D.”
[4] [2015] NSWSC 558.
[5] (2012) NSWSC 560.
In Hunter v Insurance Australia Ltd[6]the Court observed (at paragraph 16) that a Review Panel was obliged to apply the Guidelines which incorporated “common law principles of causation.”
[6] [2021] NSWSC 623.
Wright J’s decision in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 [70] points out “This (scientific) reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty.” In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
“Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]: ‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.”
It is accepted there was no evidence Mr Talevski’s lumbar spine problems existed before the accident and there was no event after the accident that could have made the lumbar spine symptomatic.
The presence or absence of evidence reporting injury soon after the accident is a relevant consideration on the question of causation, but a lack of early complaint is not determinative regarding causation if there is other supportive evidence available.[7]
[7] Bugat v Fox [2014] NSWSC 888.
The claimant explained to Medical Assessor Tai-Tak Wan why there was a delay in reporting the lumbar spine issues. This was reasonable to the claimant because the lower limb injuries were the sites he and his treating doctors were focussed on.
Finally, paragraph 83 of the claimant's statement dated 29 June 2018, being almost two months after the accident, refers – relevantly to the lumbar spine condition – to the claimant struggling to remain in an upright position, as well as having pain in both feet. He says he continued to struggle when he walked.
Based on the available evidence, Panel finds the accident probably caused or made a material contribution to the claimant’s lumbar spine injury.

Panel decision

The Review Panel found that the accident caused the following injuries:
·        right ankle;
·        left foot- soft tissue injury, and
·        lumbar spine- soft tissue injury.

The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· lumbar spine- soft tissue injury.
The Review Panel considered that the following injuries caused permanent impairment above 0%:
· right ankle and foot at 1%, and
· left ankle and foot- at 1%.

Permanent impairment

The accident caused injuries with total percentage permanent impairment of 2%. The total WPI is not greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.

Conclusion

The Review Panel has assessed that the accident caused injuries with a different degree of permanent impairment to Medical Assessor Assem's assessment and certificate issued on 12 February 2024.
Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate assessing the claimant’s permanent impairment that has resulted from the injuries caused by the accident as 2% which is not greater than 10%.

APPENDICES

APPENDIX A

Statutory Provisions, Guidelines and authorities

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.3 (the Guidelines).

The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.

Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

“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 biologic 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:

The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

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

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.”

Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:

(a)     loss or asymmetry of reflexes;
(b)     positive sciatic nerve root tension signs;
(c)     muscle atrophy and/or decreased limb circumference;
(d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)     reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.

The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.

Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.

The CL Act applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:

“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:

“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’

71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.

Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.

Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.

[2025] NSWPICMP 198

25 March 2025