Tawk v QBE Insurance (Australia) Ltd
[2025] NSWPICMP 530
•22 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Tawk v QBE Insurance (Australia) Ltd [2025] NSWPICMP 530 |
CLAIMANT: | Charbel Tawk |
INSURER: | QBE Insurance (Australia) Ltd |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Thomas Rosenthal |
DATE OF DECISION: | 22 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); initial assessment by Medical Assessor assessed the claimant as having 9% whole person impairment (WPI) which, together with a certificate from another Medical Assessor (MA) gave a combined assessment of 11% WPI; review sought by the insurer; claimant alleged injuries to his cervical spine, right hip, thoracic spine, lumbar spine and right ankle; claimant made no complaint about his right ankle until after he suffered a fall at his home down some steps and thereafter sought medical treatment resulting in immediate surgery; Held – Review Panel not satisfied that the right ankle injury arose as a result of the accident; Review Panel assessed the claimant as having 0% WPI; Review Panel revoked the initial MAC and the combined MAC and issued a new combined MAC for a total WPI of 2%. |
DETERMINATIONS MADE: | 1. The Panel revokes the certificate and reasons of Medical Assessor Bodel dated 2. As a result of the accident the claimant suffered the following injuries: (a) cervical spine – soft tissue injury; (b) right hip – soft tissue injury; (c) thoracic spine – soft tissue injury, and (d) lumbar spine – soft tissue injury. 3. The Panel is not satisfied that the claimant suffered injury to his right ankle in the accident. 4. The Panel has assessed the claimant’s whole person impairment at 0%. 5. The Panel revokes the Combined Certificate of Medical Assessor Curtin dated (a) Certificate of this Panel of 0% whole person impairment: (i) cervical spine – soft tissue injury; (ii) right hip – soft tissue injury; (iii) thoracic spine – soft tissue injury, and (iv) lumbar spine – soft tissue injury. (b) Certificate of Medical Assessor Curtin dated 8 October 2023 for assessment of 2% whole person impairment: (i) scarring to the claimant’s right ankle 6. Using the Combined Values chart at page 322 of the American’s Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition, the combined impairment is 2%. |
STATEMENT OF REASONS
INTRODUCTION
The insurer seeks a review of the decision of Medical Assessor Bodel dated
5 March 2024.The Medical Assessor found the following injuries caused by the motor accident gave rise to a permanent impairment of 9%:
(a) cervical spine – soft tissue injury;
(b) right ankle – appearances of a sub-acute on chronic syndesmotic injury. there is a sub-acute on chronic syndesmotic injury, partial-thickness tear involving the malleolar insertion of the anterior talofibular ligament (atfl);
(c) right hip – soft tissue injury;
(d) thoracic spine – soft tissue injury, and
(e) lumbar spine – soft tissue injury.
There is a dispute between the claimant and the insurer about the degree of permanent impairment under Schedule 2, s 2(a) of the Motor Accident Injuries Act 2017 (the Act).
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) cervical spine – soft tissue injury;
(b) right ankle – appearances of a sub-acute on chronic syndesmotic injury. There is a sub acute on chronic syndesmotic injury, partial-thickness tear involving the malleolar insertion of the ATFL;
(c) right hip – soft tissue injury;
(d) thoracic spine – soft tissue injury, and
(e) lumbar spine – soft tissue injury.
The claimant was also assessed by Medical Assessor Curtin with respect to an assessment of scarring. Medical Assessor Curtin assessed the scarring as having a 2% whole person impairment (WPI).
A combined certificate of assessment issued in the amount of 11% WPI.
The insurer has only sought a review of the assessment of Medical Assessor Bodel of 9% WPI.
After the accident, on 20 June 2019, the claimant had an episode where his injured right ankle gave way on him while he was carrying his daughter. He fell, causing further injury to the ankle and he went back to his local doctor and his orthopaedic specialist, Dr Chang. He was initially assessed primarily for the left ankle but Dr Chang diagnosed the right ankle as being more troublesome and that it needed urgent surgery.
Surgery was immediately arranged for the right ankle.
Post-operatively, he was in a cast and then a boot but the ankle was still not right and he subsequently had a total of four operations.
The Medical Assessor said that the outcome has been no better than before he first had any surgery.
The accident
The claimant was involved in a motor vehicle accident that occurred at about 11.00am on 10 March 2019. He was the driver of his Citroen Berlingo, a small commercial van and he was wearing his seat belt.
The claimant was slowing down to a speed of about 50kmph, as he was approaching a stationary car, waiting to make a right-hand turn into a driveway on the right. He was braking in a normal manner. The insured driver failed to stop and a collision occurred pushing the claimant forward, but there was no second collision with the vehicle in front.
The claimant was able to drive to his nearby business but thereafter, his vehicle was towed from the business to the repair shop and was repaired.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The 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, in much the same manner as parties not referring to or not specifically relying on 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 and nor is it required that each piece of evidence be mentioned (WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46]).The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel is to come to its own conclusion and to take its own history.
Insurer’s submissions
The insurer submits that the Medical Assessor made the following errors in his assessment of the claimant:
(a) failed to give real and genuine consideration of the surveillance footage or the issues raised in relation to the surveillance footage, including the claimant's credit;
(b) failed to clearly engage with the causation issue in regard to the claimant's right ankle injury, and
(b) failed to accurately assess the claimant’s WPI in accordance with the Motor Accident Guidelines (the Guidelines) or detail the assessment findings in regard to the lumbar spine.
The insurer says that in his certificate, Medical Assessor Bodel made the following determinations:
(a) the claimant’s cervical spine, right hip and thoracic spine injuries were soft tissue only, and there was no permanent impairment;
(b) the claimant’s lumbar spine injury was a soft tissue injury and attracted a WPI of 5%;
(c) the claimant had a right ankle sub-acute on chronic syndesmotic injury, partial thickness tear involving the malleolar insertion of the ATFL. The claimant’s right ankle injury was casually related to the subject accident;
(d) the assessed WPI attributed to the claimant’s right lower extremity impairment was 4%, and
(e) the Medical Assessor did not attribute any impairment resulting from the claimant’s subsequent fall and resulting ankle injury.
Regarding consideration of the surveillance footage which the insurer relied on, it referred to surveillance reports with accompanying surveillance footage from Quantumcorp from a period of 7 July 2022 to 9 July 2022.
The insurer made the following submissions regarding the findings in the surveillance footage in their submissions to the initial dispute:
(a) The claimant was depicted completing the following activities:
(i)appeared to walk quickly and without restriction;
(ii)drives without restriction;
(iii)bending at the waist, and
(iv)appeared to work serving customers and operating equipment at the bakery.
(b) The surveillance material was of such significance that it warranted an alteration in the opinion of Dr Breit, orthopaedic surgeon.
(c) The surveillance footage was at direct odds with the claimant’s reported capacity, particularly to Dr Breit. On assessment by Dr Breit, the claimant alleged he was unable to work, could only walk 300m without ankle shakiness, was unable to negotiate stairs.
(d) In Dr Breit’s supplementary report, he concluded that the surveillance “tends to confirm my opinion that there was significant exaggeration and maximisation regarding the lumbar spine”.
The insurer submits that it is not clear whether or not the Medical Assessor actually viewed the surveillance footage, or whether he just read the surveillance reports.
In any event, the insurer submits that the Medical Assessor does not engage with the insurer’s abovementioned arguments relative to the surveillance footage and the raised issue of credibility.
The insurer, in submissions, highlighted the issue of credit as follows:
(a) ‘The claimant’s credit is squarely in issue. He has told multiple doctors that he has not returned to work at all since the accident.’
In relation to credibility, the insurer noted that the Medical Assessor stated in his review of the submissions;
(a) ‘The insurer’s submissions begin with a heading of “Credit”. This relates to the surveillance footage from 7 July to 9 July 2022 in which it is asserted by the insurer that Mr Tawk is back working in his business.’
The insurer says that the Medical Assessor then stated:
(a) ‘The claimant’s clinical complaints are consistent. He acknowledges that he is involved in his businesses but in a much-reduced capacity. That is an important statement, when taken in consideration of reviewing the surveillance material.
He does, however, indicate that he was unable to work in any capacity for 2½ years. He had no income support at that time, as he says, but he is now back doing some light duty work, supervising the two bakeries that he still has, but doing none of the heavy physical bakery work. He states that the business has employed others to do that role.’
The insurer submits that the claimant, with the hindsight and benefit of the surveillance footage served on him, has altered his reporting of his history in relation to work, but that this does not mean his credibility is no longer in issue.
The insurer highlights that the claimant made inconsistent contemporaneous statements about his work history and functional capacity to an expert practitioner. The insurer says that this fact is not remedied by the claimant altering his subjective history as told to the Medical Assessor and submits that the Medical Assessor should have brought the inconsistency to the attention of the claimant.
The insurer says that this is even more so the case in circumstances where the insurer has clearly raised the issue of credibility and defined the clear inconsistency in its submissions.
The insurer submits notwithstanding the above history obtained, the Medical Assessor does not acknowledge or appropriately address the credibility issues that arise due to the contradiction between the claimant's reporting that he was not working and the evidence that he, in fact, was.
The insurer submits the Medical Assessor did not give real and genuine consideration of the surveillance footage or the issues raised in relation inconsistencies, as put by the insurer.
With respect to causation, the insurer submits that the Medical Assessor failed to adequately engage with the issue of causation of claimant’s alleged right ankle injury.
The insurer says that the following historical medical evidence was set out in the insurer's submissions;
(a) In the Application for Personal Injury Benefits dated 20 March 2019 there was no mention of any right ankle injury.
(b) In the initial Certificate of Capacity dated 20 March 2019, there was no mention of any right ankle injury.
(c) In the AHRR 1 Physiotherapist dated 22 March 2019, there was no mention of a right ankle injury.
(d) In the Certificate of Capacity dated 9 May 2019 there was no mention of a right ankle injury, the claimant was certified normal hours up to 6 June 2019.
(e) On 22 June 2019 the claimant twisted both ankles falling down three stairs while carrying his child, as reported in the initial consultation report of
Dr Chang, dated 15 August 2019.(f) An MRI performed 7 August 2019 after the subsequent fall, reports chronic syndesmotic injury. The claimant was reported to have fallen downstairs a few days earlier.
(g) The claimant first mentioned an accident-related right ankle injury to
Dr Chang, an orthopaedic surgeon, on 15 August 2019, five months after the subject accident.(h) In the medico-legal reports of Dr Breit, orthopaedic surgeon, dated
10 May 2022 and 9 August 2022, he said that if the claimant sustained a syndesmotic ligament injury in the subject accident, “it is unlikely that (the claimant) would have been able to walk and certainly not continue to work.” There would have been evidence of “severe swelling and pain” on the day of the subject accident.(i) Dr Breit notes that the claimant reports that after the subject accident he was able to continue his drive to work and then complete a full day of work.
(j) The insurer argues that the medical evidence clearly indicated there was no accident-related right ankle injury.
(k) The insurer says that in relation to causation of the right ankle injury, the Medical Assessor simply stated: “I accept that he did have an injury to the region of the right ankle which has required multiple surgical procedures”.
The insurer submits that the Medical Assessor does not acknowledge the lack of contemporaneous complaints of right ankle pain or injuries to his treating doctors in the five months following the subject accident.
The insurer submits that the Medical Assessor further acknowledged the claimant's right ankle was ‘aggravated by the fall down the stairs’, however, the insurer submits that in assessing the WPI, this subsequent injury was not attributed any causation for the assessed permanent impairment.
The insurer submits that the Medical Assessor failed to clearly engage with the causation of the alleged right ankle injury and/or appropriately attribute impairment to the subsequent fall which resulted in injury.
Accuracy of the assessment of the lumbar spine
The insurer noted that the Medical Assessor assessed the permanent impairment attributable to the claimant's lumbar spine to be diagnosis related estimate (DRE) II, this equating to 5% impairment.
The insurer noted that in the certificate, the Medical Assessor made the following examination findings relating to the lumbar spine:
(a) discomfort over right buttock;
(b) evidence of dysmetria;
(c) no significant wasting in the thigh;
(d) no reflex abnormality or sign of sensory impairment in a dermatomal distribution in the lower limbs, and
(e) no clinical signs of radiculopathy in either leg.
The insurer submits that it appears that the presence of ‘dysmetria’ is the reason for the DRE category II rating.
The insurer says that in the Guidelines Version 9.2, as commenced on
10 November 2023, table 6.8 states the following in relation to non-uniform loss of spinal motion or ‘dysmetria’:“When assessing non-uniform loss of range of motion (dysmetria), medical assessors must include… two planes of motion for the lumbosacral spine (flexion/extension and lateral flexion). Medical Assessors must record the range of spinal motion as a fraction or percentage of the normal range…. Medical Assessor must not refer to body landmarks (such as able to touch toes) to describe the available (or observed) motion.”
The insurer says that in his findings, the Medical Assessor recorded that the claimant:
“reaches forward in flexion with his hands to the knees. There is increasing back and right buttock pain at this point and also pain on extension and lateral bending to the left”. The insurer submits that the Medical Assessor therefore:
(a) Does not assess the claimant's lumbar spine motion as a fraction or percentage of the normal range.
(b) Refers to other body landmarks (i.e. stating ‘reaches forward in flexion with his hands to the knees’) to describe the available motion.”
The insurer submits the claimant's lumbar spine impairment was therefore not assessed in accordance with the Guidelines, or alternatively, not appropriately recorded as required by the Guidelines, to enable his path of reasoning to be deciphered.
The insurer also made submissions in its initial reply to the claimant’s application for assessment of WPI.
Credit
The insurer says that the claimant’s credit is squarely in issue. The insurer says that the claimant has told multiple doctors that he has not returned to work at all since the accident. For example:
(a) Dr Breit reports the claimant stated “he was working 15-16 hours a day [prior to the accident], but now he does nothing”, and
(b) Dr Abu-Arab, psychologist, in his report dated 23 October 2021 stated the claimant claims “his wife manages the business and he hired three workers to perform the duties that he used to do” following the subject accident.
The insurer submits that surveillance footage obtained by Quantumcorp on
7 July 2022, 8 July 2022 and 9 July 2022 clearly shows him working.The insurer says the Medical Assessor should hesitate before accepting any of the history of events as recounted by the claimant.
Causation of ankle fracture
The insurer says the right ankle syndesmosis injury was not caused by the subject accident. It relies on the opinion of Dr Breit in this regard.
Cervical spine
The insurer accepts the claimant sustained a soft tissue injury to the cervical spine in the subject accident.
However, the insurer says that on examination, Dr Breit said that the claimant had sustained a soft tissue injury to the neck in the subject accident which had settled.
The insurer submits there is no permanent impairment resulting from any injury to the
cervical spine sustained in the subject accident.
Right ankle
The insurer submits that there is no mention of any injury to the right ankle in the Application for Personal Injury Benefits dated 20 March 2019. There is also no mention of any injury to the right ankle in the Certificate of Capacity dated 20 March 2019.
The insurer says that the claimant underwent an MRI scan of his right ankle on
7 August 2019 after he had a fall a few days earlier. The scan revealed an acute on chronic syndesmotic injury. The insurer notes that the claimant sought medical treatment as he was experiencing discomfort in his left ankle.The insurer notes that the clinical notes of Dr Chang, dated 15 August 2019, the claimant stated that he had sustained an injury to his right ankle in the subject accident. This insurer says that this is five months after the subject accident. Dr Chan concluded this injury to be a “forced dorsiflexion and external type rotation injury to the right ankle when he was rear ended with his brake on the pedal 3 months prior to the next injury.”
The insurer submits that Dr Breit noted that “it is unbelievably rare for someone to know the mechanism of a claimed injury to an ankle from a motor vehicle accident in which we would have by reflex put the foot on the brake with some force.”
Moreover, the insurer submits that Dr Breit noted that the claimant reports that after the subject accident he was able to continue his drive to work and then complete a full day of work. The insurer submitted that this suggests the subject accident was minor in nature.
The insurer noted that Dr Breit said that if the claimant sustained a syndesmotic ligament injury in the subject accident, “it is unlikely that (the claimant) would have been able to walk and certainly not continue to work.” He said that there would have been evidence of “severe swelling and pain” on the day of the subject accident.
The insurer submits there was no injury to the right ankle sustained in the subject accident. Any injury to the right ankle deemed to have been caused by the accident is submitted not to have resulted in any permanent impairment.
Right hip
The insurer says that the Certificate of Capacity dated 20 March 2019 diagnoses the claimant with a left hip strain. The insurer says that there is no mention of any injury to the right hip.
The claimant underwent an MRI of his right hip on 3 May 2019. The scan revealed that
“the right hip has a normal appearance”.
The insurer says that on examination, Dr Breit noted that the claimant had tenderness over his sacroiliac joint rather than his right hip joint. In any event, Dr Breit stated that the claimant’s “claims regarding lower extremities of his back have nothing to do with the with the motor accident but relate to his later fall down the stairs.”
The insurer referred to a report of Dr Vickery, psychiatrist, who said that the claimant disclosed to him that he was involved in another motor vehicle accident in April 2019. This was reported to have resulted in back and hip pain.
The insurer submits there was no injury to the right hip sustained in the subject accident. The insurer says that any injury to the right hip deemed to have been caused by the accident is submitted not to have resulted in any permanent impairment.
Thoracic spine
The insurer says that there was no mention of any thoracic spine pain in the Application for Personal Injury Benefits dated 20 March 2019.
Further, the insurer says that there is no mention of any injury to his thoracic spine in the Certificate of Capacity dated 20 March 2019.
The insurer submits that there is no evidence of any radiological investigation into a thoracic spine injury.
The insurer submits that the claimant makes no mention of any injury to his thoracic spine to Dr Breit in his report dated 10 May 2022.
Dr Breit states in his report dated 9 August 2022 that he “was told that his (the claimant) pain had settled and I therefore conclude that he has no impairment of the cervicothoracic spine.”
The insurer submits that there was no injury to the thoracic spine sustained in the subject accident.
The insurer submits that any injury to the claimant’s thoracic spine deemed to have been caused by the accident has not resulted in any permanent impairment.
Lumbar spine
The insurer says that in the Application for Personal Injury Benefits dated
20 March 2019, the claimant stated he experienced lower back pain more toward the right hip as a result of the subject accident.The insurer says that the claimant underwent an MRI of his lumbar spine on
3 May 2019. No abnormality was found. The insurer submits that thereafter, on examination by Dr Breit, the claimant was reported to have no lumbar tenderness but some tenderness over the right sacroiliac joint.The insurer says that Dr Breit goes on to say that the tenderness over the right sacroiliac joint could have occurred as a result of the fall that the claimant had following the subject accident.
The insurer submits that there was no injury to the lumbar spine sustained in the subject accident.
The insurer submits that any injury to the lumbar spine deemed to have been caused by the accident has not resulted in any permanent injury.
The insurer submits that any physical injury causally related to the subject accident does not result in any permanent impairment.
Claimant’s submissions
Regarding the insurer’s submission that the Medical Assessor did not view the surveillance relied on by the insurer, the claimant says that the Medical Assessor explicitly indicates that he has "seen and considered" the surveillance. The claimant says that the Medical Assessor repeatedly referenced it and described its contents. The claimant submits that the inescapable conclusion is that he had regard to it.
The claimant submits that the Medical Assessor was aware that causation was an issue, and he has given adequate reasons. The claimant submits that she need only show a non-negligible contribution of the accident to her injuries.
The claimant submits that the Medical Assessor was explicitly aware that causation was in issue. The claimant says that he deals with the report of Dr Breit and his arguments on causation in detail.
The claimant noted that Dr Breit considered that the injury to the claimant’s right ankle was not caused by the accident, but rather the subsequent stumble. However, the claimant submits Dr Breit's opinion, was not as the insurer suggests.
The claimant referred to the insurer’s submissions that there are a number of documents upon which the claimant relies which this provides no reference to a right ankle injury. The claimant submits that even if this is true, it has repeatedly been said by the Courts that a determination that no injury was caused based solely on a lack of early reporting is erroneous (see Owen v Motor Accidents Authority of NSW [2012] NSWSC 650, Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804). The claimant submits that to rely on those documents alone would be asking the wrong question.
The claimant submits that there is no suggestion that the Medical Assessor was unaware of the causation issue.
The claimant refers to the insurer’s remarks on the clinical notes regarding the stumble. The claimant says that there is no dispute about this event. The claimant says that both he and the Medical Assessor accept that it occurred.
The claimant says that the Medical Assessor disagrees with Dr Breit's causation "determination", as is his right. The claimant submits that the Medical Assessor does not think that the accident was as low impact as suggested by Dr Breit, as the seat was broken in the collision. The claimant notes that Dr Breit refers to this is his report and also that the claimant struck his knees on the dashboard. Further, it is submitted that the Medical Assessor noted that the claimant had his right foot on the brake and there was a transfer of force.
The claimant submits that it should be noted that in his report of 10 May 2022, Dr Breit conceded that the broken seat suggested a higher energy impact. The claimant submits that the insurer should not in the circumstances, submit to the contrary. It is also to be noted that this report indicated that he could not say whether there was an injury to the ankle in the accident because he perceived there to be inadequate information. The claimant says that in his later report of 9 August 2022, Dr Briet continued to say he had inadequate information on that issue.
As to the submission that Dr Breit's opinion that the injury was not caused in the accident or was not of such severity that the claimant would not have been able to drive or walk, the insurer submits:
(a) he did not give that opinion. He said he did not have sufficient information. The claimant says that reliance on his report as a dogmatic statement to that effect is inappropriate;
(b) this is contrary to the position that the claimant is manufacturing his symptoms, and
(c) it ignores the later aggravation in the stumble, as accepted and explained by the Medical Assessor.
The claimant reiterated in his submissions that the insurer’s submissions are nothing more than a complaint that the Medical Assessor disagreed with it. The claimant says that the Medical Assessor was not bound to accept the insurers submissions and had dealt with the issue in detail.
Back impairment
The claimant submits that this complaint is similarly misconceived. The claimant says that the insurer noted that dysmetria in the back was found. The claimant submits that the insurer failed to note that the Medical Assessor recorded that he also found guarding.
The claimant said that this is the reason for the finding of DRE category II. However, the claimant says that it is clearly both dysmetria and guarding.
The claimant says that the question is whether the Medical Assessor has provided sufficient reasons. In response to this question, the claimant says that while the Medical Assessor did not provide a range as a fraction or percentage, there was dysmetria in relation to the lateral bending place, as well as extension and flexion.
The claimant refers to the Guidelines which state:
“4.18 DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm.
or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips. In assigning category
DRE II, the Assessor must provide detailed reasons why the category was chosen.”
The claimant says that if one considers either dysmetria or guarding, the result is the same. There is no error.
Medical evidence
The certificate from which this review arises, from Medical Assessor Bodel, is dated
5 March 2024.The Medical Assessor made reference to the admission into evidence of the surveillance undertaken at the request of the insurer however thereafter, there was little further reference to this this.
The Medical Assessor referred to the claimant’s subsequent fall with a history provided by the claimant that this occurred when his right ankle gave way on him whenhe was carrying his daughter. It was reported that he fell, causing further injury to the ankle. He was referred to Dr Chang who arranged for the claimant to have immediate surgery to his right ankle, the following day. This fall was said to have occurred about five months post-accident however Dr Chang had referred to the fall incident as occurring on 22 June 2019.
The Medical Assessor found that the claimant suffered a soft tissue injury to the neck which had recovered, a soft tissue injury to the thoracic spine which had also recovered, a soft tissue injury to the lower part of the back involving the lumbosacral spine, the right buttock and hip, which is still symptomatic and has left him with asymmetry of movement. He accepted that he did have an injury to the region of the right ankle which has required multiple surgical procedures.
The injury to the right ankle was said to have also been aggravated by the fall down the stairs when he stumbled while carrying his young child.
The Medical Assessor assessed WPI at 9% as follows;
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | ORE Cervicothoracic Category I Table 73 on Page 3/110 ofAMA4 | Yes | 0% | Nil | 0% |
| 2 | Right Lower Extremity (right ankle) | Table 42 & Table 43 on Page 78 of AMA4 | Yes | 4% | Nil | 4% |
| 3 | Lumbar spine | ORE Lumbosacral Category II Table 72 on Page 3/110 ofAMA4 | Yes | 5% | Nil | 5% |
Medical Assessor Home provided a certificate of 10 March 2021. He assessed the claimant with respect to whether he had a threshold injury of his right and left ankles. Medical Assessor Home determined that an injury to the claimant’s right ankle was not caused by the accident.
In his reasons, Medical Assessor Home said:
“Whilst syndesmosis injuries can be relatively asymptomatic, and missed in the presence of acute ankle trauma, the absence of any post-accident symptoms of pain with weight bearing or post-trauma swelling is inconsistent with material trauma to the syndesmosis in the subject motor accident.
I am satisfied that in the subsequent fall down stairs, the claimant sustained a high ankle injury, leading to an acute syndesmotic injury, superimposed upon old changes.”
As Medical Assessor Home found that the right ankle injury was not caused by the accident but rather by the falling incident on 21 June 2019, he made no determination whether the claimant had suffered a minor injury.
Dr Maniam, for the claimant, provided a report of 28 January 2022. He provided a history of the accident when the claimant was hit from behind and propelled forward about 3 to 4m. His right knee was said to have struck the dashboard and his right ankle was dorsiflexed. Air bags were not deployed.
Dr Maniam referred to the claimant falling at his home on 21 June 2019 when he was going down steps, with his four-year-old daughter in his hands. The claimant reported that he felt a weakness in his back and fell down several steps, developing a willing and pain in the left ankle.
Dr Maniam said that the history alone suggested that as far as the right ankle injury was concerned, the claimant distinctly remembered having dorsiflexed and externally rotated his right ankle in the incident on 10 March 2019.
Dr Maniam said the right ankle injury was distracted by other issues relating to the axial spine, the opposite ankle and the right hip.
Dr Maniam said that the claimant also gave a history of multiple ankle ligament injury due to a feeling of instability between the period 10 March 2019 and 20 June 2019. He said that given all these facts, an injury to the right ankle, initially sustained on
10 March 2019 could not be discounted.Dr Maniam assessed WPI at 14% made up of 12% WPI for right ankle motion impairment and 2% WPI for right hind foot impairment.
Bankstown Hospital notes show the claimant attending on 21 June 2019 and complaining about left ankle swelling and a reduced range of motion. There was no reference to any injury to his right ankle. The claimant reported that he tripped over and fill on his left ankle.
The clinical notes of the claimant’s general practitioner (GP) commenced in October 2006. The first mention of injury was on 10 March 2019. “This morning his car was hit from the back now having neck pain up to the base and right trapezius muscle”. The examination noted “paravertebral tenderness. No bruising due to seatbelt”. There were no further consultations until 24 June 2019 when he had a fall down the stairs.
The next consultation was on 7 August 2019 after having removed the left leg plaster and with an MRI. “Now having pain in the right hip radiating down the right leg. Accident happened 10 March”.
On 20 March 2019 the claimant attended a GP, Dr Calvache-Rubio. He complained only of neck and back injuries with right hip pain. There was no mention of an ankle injury although on testing, there was reference to “Flexion:ankle, VAS (visual analog score) 7/10”. Which ankle this related to was not identified and no further entries were made concerning any ankle complaint. It was later noted on 9 May 2019 that the claimant was having pain in his back and hip which was worse when walking, standing and driving. No reference was made to any pain to either ankle when walking. The claimant did not appear to consult this practice after his fall on 22 June 2019.
Dr Chang, has provided several reports which are seen within each of the party’s respective bundles.
In her report however, of 1 July 2019 she referred to the claimant twisting both ankles, stumbling over three steps on 22 June 2019.
In her report of 18 July 2019, she said she referred the claimant for an MRI scan of his right ankle for a reported acute on chronic syndesmotic injury involving all three components of the syndesmosis. A left ankle MRI showed moderate ankle swelling and palpable soft tissue swelling.
Dr Chang reported that the claimant started experiencing right heel pain from overweight bearing while resting the left side. He mentioned he did have a background history of right ankle recurrent instability with inversion injury every couple of weeks prior to this current episode. He denied pain in between instability episode.
Dr Chang said in her report of 18 July 2019;
“I reviewed Charbel in my Burwood room today. We called him back early for review after his right ankle MRI reported acute on chronic syndesmotic injury involving all 3 components of the syndesmosis. Upon further questioning, Charbel stated he had a forced dorsi flexion and external rotation type injury to his right ankle during a motor vehicle accident where he was rear-ended 3 months ago. He felt that his ankle was never quite right after in that it clicked and did not feel stable. His left ankle symptoms have improved slowly despite persistent swelling which I reassure him was normal at this stage of recovery. He does have significant bone bruising on the left ankle MRI which would delay his recovery.”
Dr Chang reported that the claimant likely sustained a right ankle syndesmotic injury during his motor vehicle accident three months earlier and never quite recovered from that. She said that he had resprained, resulting in acute on chronic syndesmotic injury. This was said by her to be a significant injury as all three components of syndesmosis were involved.
Dr Chang was of the view that this injury to the claimant’s ankle was the result of an injury to the ankle when his right foot was stuck on the brake pedal at the time of the rear impact motor accident. She eventually proceeded to carry out a right ankle arthroscopy, ligament reconstruction and syndesmotic fixation operation on
22 August 2019.Medical Assessor Roberts examined the claimant for psychiatric purposes, finding that the accident caused a persistent depressive disorder with anxious distress which was a non-threshold injury.
The insurer obtained two reports from Dr Breit dated 10 May 2022 and
9 August 2022.Dr Breit said that if, as was claimed, the syndesmotic ligaments were damaged in the accident then a large amount of force would have been necessary and this would have been associated with severe swelling and pain. He said that it was unlikely that the claimant would have been able to walk and certainly not continue to work.
Dr Breit said that the basis of determining whether the injury occurred relates to the mechanism of the motor vehicle accident and the forces involved. On the one hand his description that he was able to drive 400m and the vehicle was repaired would indicate low impact. That the seat broke indicates more significant force. That he had a fall down some stairs suggest that was the cause of his right ankle injury.
Dr Breit concluded by saying;
“The General Practice notes are consistent with a minor motor vehicle accident in which he sustained a soft tissue injury to his neck with some trapezial pain, he did not have seatbelt bruising and there were no other symptoms. Specifically, there were none with respect to the ankle. As I indicated previously significant force is required to tear the syndesmotic ligaments and he would have had quite significant pain and swelling at the time of the accident which was not the case.
In my opinion the various other claims regarding lower extremities of his back have nothing to do with the motor accident but relate to his later fall down the stairs and his weight is unhelpful. The reason he is unable to carry out his pre-injury duties does not relate to the accident but his subsequent injuries.”
Medical Assessor Curtin provided a certificate and reasons of 8 October 2023 following assessment of the claimant on 6 October 2023. He assessed it 2% WPI with respect to skin scarring of the claimant’s right ankle.
Medical Assessor Curtin discussed causation of the scarring of the ankle. He said;
“The scarring of his ankle is a direct result of surgery to correct an orthopaedic condition resulting from the motor vehicle accident. Whether or not this orthopaedic condition resulted from the motor vehicle accident in question is entirely a matter for an assessment by an orthopaedic surgeon.”
Surveillance
The Panel has viewed surveillance reports and video surveillance concerning the claimant. It is not up to the Panel to say whether the claimant was conducting or participating in a business when he was seen to be driving a delivery van with a number plate very similar to the name of Dough Boss, a business/bakery where the claimant was seen. He was also driving with a disability parking permit.
The claimant’s movements throughout the surveillance were not seen to be restricted in any manner, by way of observation. A considerable amount of the surveillance involves the claimant sitting in his van talking, presumably on his mobile telephone, driving his delivery van, attending and walking around a shopping centre and stooping to pick something up off the ground without difficulty. The claimant was observed to stand and talk for various periods, sometimes lengthy and to carry various items to and from his van and other places.
According to the firm supplying the surveillance report, Quantumcorp, dated
20 July 2022, a total of nearly 300 minutes of surveillance was recorded.The insurer has submitted that the surveillance footage depicts the claimant undertaking activities which are inconsistent with his alleged accident-related impairments.
Medical examination
The claimant was examined by Medical Assessor Moloney and Medical Assessor Rosenthal on 18 June 2025. Their report follows;
“Mr Tawk attended the medical suites at PIC on 18 June 2025. He was unaccompanied apart from the interpreter Mr Hafez Assoum NAATI no. 35338. He was interviewed and examined by Medical Assessors Rosenthal and Moloney.
Pre-accident history
Mr Tawk migrated from Lebanon and lives with his wife and 2 teenage children. Prior to the accident he was running four bakeries and states that he was in good health.
History of motor accident
Mr Tawk was driving his Citroen delivery van. On 10 March 2019, he was slowing down when hit from the rear. He was wearing a seatbelt at the time, but airbags did not deploy. He was able to get out of his car and exchanged details with the other driver and drove a short distance to 1 of his bakeries. His vehicle was later towed to a repair shop and repaired.
History of symptoms and treatment following the motor accident
Mr Tawk states that he developed neck and low back pain involving the right side of his body and right hip later on the day the accident. There was a small abrasion to the right knee and he consulted his GP who prescribed analgesics. He maintains that he injured his right ankle by suddenly dorsiflexing the right foot on the brake pedal at the time of impact.
About 3 months after the accident, Mr Tawk was carrying his daughter who weighed about 20 kg at that time and fell down 3 steps at home. He states that he twisted both ankles at that time with more immediate pain in the left ankle. He attended Bankstown Hospital where they did an x-ray of the left ankle and placed him in a cam boot.
His treating GP referred Mr Tawk to an orthopaedic surgeon, Dr Chang who consulted him on 1 July 2019 which was 4 months after the accident. He gave Dr Chang a history of twisting both ankles when falling on 22 June 2019. He recorded that he could not weight bear on the left foot but was able to on the right. Dr Chang recorded that there was mild right ankle sprain and a quite significant left ankle sprain with associated bone bruising. A follow-up consultation on 18 July 2019, recorded that Mr Tawk started experiencing right heel pain from over weight-bearing whilst resting the left side. He was referred to physiotherapy for bilateral ankle rehabilitation for instability. At that time, an MRI of the right ankle was organised which reported acute on chronic syndesmosis injury. This was treated surgically by a right ankle arthroscopy, lateral ligament reconstruction and syndesmosis fixation on 22 August 2019. A post-operative infection developed with osteomyelitis in the distal fibula requiring 2 surgical debridements, complete hardware removal on 27 December 2019 and a prolonged course of IV antibiotics.
There was also a referral to another orthopaedic surgeon, Dr Sullivan who recommended avoiding further surgery due to the risk of recurrent infections.
Current symptoms
Mr Tawk states that he has continued right ankle pain which occasionally locks for a brief duration. The left ankle is now asymptomatic. He also gets pain down the right posterior thigh associated with pins and needles, which increases with prolonged sitting or walking. There is low back pain which radiates into the right buttock region but the thoracic spine is asymptomatic. He is able to drive but walking is limited to 500 metres. He states that there has been a weight gain of 20 kg since the accident.
There is an occasional ache in the neck posteriorly which radiates into the right scapula region on looking left. At present, Mr Tawk is running 3 bakeries.
Current treatment
Mr Tawk takes Panadol 2 tablets 3 times a day and occasionally Panadeine Forte. He is a poor sleeper and takes an occasional sleeping tablet.
He does his own home exercises and attends a pool twice a week with some gentle hydrotherapy. He continues to see his physiotherapist fortnightly for treatment on the right lower leg and ankle.
No radiological studies were available for inspection and Mr Tawk states that he was having a CT scan of the right ankle after our examination.
Clinical examination
Mr Tawk sat comfortably during the interview and stated that he is right-handed. His height was measured at 187 cm and weight of 132 kg.
Cervical spine
On inspection of the cervical spine there was a normal contour and on testing range of movement, flexion/extension, side bending and rotation were all 80% of expected range with no asymmetry. On palpation, there was tenderness over the right lower paravertebral muscles and right trapezius muscle but no guarding or spasm was noted in the cervical musculature.
There was a full pain free range of movement of both shoulders.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes noted. There was no muscle wasting with the circumference of the upper arms 36 cm on the right and 35 cm on the left (10 cm above the olecranon process) and in the upper forearm 35 cm on the right and 34 cm on the left (10 cm below the olecranon process). This is within normal limits for a right-handed man.
Thoracic spine
On testing range of movement there was a full range of flexion/extension, side bending and rotation with no tenderness or pain on palpation. There are no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region.
Lumbar spine
Mr Tawk walked with a normal gait but had difficulty standing on his heels and toes due to pain in the right ankle. He was able to squat to 50% of expected range due to low back pain and discomfort in the right ankle. On testing range of movement, flexion/extension was 60% of expected range as was side bending with no asymmetry noted. On palpation there was tenderness in the right buttock region but no guarding or spasm was noted in the lumbar musculature. Straight leg raise when lying was 60° bilaterally and 80° when seated with negative sciatic nerve root tension signs.
On neurological examination of the lower limbs, there was normal sensation except for some numbness around the surgical scar of the right ankle. Reflexes were equal but the right ankle reflex was absent due to surgery. No muscle wasting was apparent with the right lower thighs 53 cm in the right and 54 cm on the left (10 cm above the superior patella pole) and at the maximum circumference of the calves 44 cm bilaterally. There were no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs.
He had a full pain free range of movement of the knees.
Hips
On palpation there was no tenderness over the greater trochanters. Active movements were measured using a goniometer and repeated. There was a normal pain free range of movement of both hips.
| Hip Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 120° | 120° |
| Extension | 0° | 0° |
| Adduction | 20° | 20° |
| Abduction | 30° | 30° |
| Internal Rotation | 30° | 30° |
| External Rotation | 40° | 40° |
Ankles
On inspection of the ankles no effusions were noted but there was a large surgical scar over the right lateral ankle (which has been assessed in another certificate)
| Ankle Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Dorsiflexion | 0° | 20° |
| Plantarflexion | 30° | 30° |
| Hindfoot Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Inversion | 10° | 30° |
| Eversion | 10° | 20° |
Discussions
Cervical spine – soft tissue injury
The treating GP recorded an injury to the neck in a certificate of capacity 10 days after the accident as well as on the personal injury claim form. The Panel accepts that Mr Tawk sustained a soft tissue injury to cervical spine at the time of the accident which gives a classification of DRE l using table 73 of AMA 4th edition which is 0% WPI. There was no dysmetria on testing range of movement with no guarding or spasm noted on palpation. There were no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs.
Thoracic spine – soft tissue injury
There may have been an initial soft tissue injury to the thoracic spine at the time of the accident but this is now asymptomatic and therefore resolved.
Lumbar spine – soft tissue injury
The treating GP recorded that Mr Tawk had low back pain 10 days after the accident in his certificate of capacity which was also investigated by an MRI in May 2019. There is ongoing pain in this region and the Panel accepts that Mr Tawk sustained a soft tissue injury to this region at the time of the accident. This is also a classification DRE l which is 0% WPI using table 72 of AMA 4th edition. At the time of our examination, no dysmetria was noted on testing range of movement with no guarding or spasm noted on palpation and there were no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs.
Hips – soft tissue injuries
In the initial certificate of capacity 10 days after the accident, the treating GP recorded left hip but in the personal injury claim form, Mr Tawk noted a right hip injury. At an MRI in May 2019 the right hip was investigated and again in October 2020. The Panel accepts that the initial recording a left hip may well have been a typographical error and there was a soft tissue injury to the right hip at the time of the accident.
The right hip was assessed by range of movement which is 0% WPI using table 40 of AMA 4th edition.
Right ankle
In the initial certificate of capacity 10 days after the accident, there was no record of any injury to the right ankle. In Mr Tawk’s personal injury claim form there was also no mention of an ankle injury. Dr Eric Lim at the Workers Doctors clinic on 20 March 2019 did not record any injury to the right ankle. The first documentation of any injury appears to be after a fall at home down 3 steps whilst carrying his daughter when he states that he twisted both ankles on 20 June 2019 which is 3 months after the accident. Mr Tawk was assessed at Bankstown Hospital on 21 June 2019 when both ankles were x-rayed but there was more significant pain and swelling in the left ankle which was treated with a cam boot.
The Panel has determined that there was no injury to the right ankle sustained in the subject accident. Mr Tawk injured both ankles in a fall whilst carrying his daughter down 3 steps at home 3 months after the accident. The Panel considers that had there been an acute tear of the right syndesmosis at the time of the accident, it would have been immediately painful with difficulty walking and discussion with his treating GP.
The claimant’s total WPI is 0%.”
The Panel met on 7 July 2025 to discuss the Medical Assessors findings on examination. The legal Member of this Panel did not participate in the medical examination but prior to the Panel meeting on 7 July 2025, the legal Member has had the benefit of reading and considering the Medical Assessors examination report. On 7 July 2025 the Panel met and all discussed the examination findings and the issues going to causation and assessment of WPI. It is from this teleconference of the Panel that the Panel has agreed and reached its final conclusion and determination.
The Panel adopts the report and findings of Medical Assessor Moloney and Medical Assessor Rosenthal.
Causation/Reasons
The Motor Accident Guidelines
The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.
Clause 6.6 provides:
“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.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”
The authorities
In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
134.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation";[4] and
[4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
"scope of liability".[5]
[5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[6]
[6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”..
Campbell J in Owen v Motor Accidents Authority (NSW),[7] adopted Justice Johnson's approach with a caution touching upon the CLA:
[7] [2012] 61 MVR 245; [2012] NSWSC 650.
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is 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 Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[8]
[8] At [27].
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues determined in Kinchela involved applying the definition of “minor injury” (now referred to as threshold injury) and involved a question of causation in respect of an amputated toe.
The principles relating to causation, which were discussed in Kinchela, follow:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW(2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen(2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d)(of the Motor Accidents Compensation Act). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error’.”
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said;
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a “left posterolateral annular tear” with “mild disc desiccation” shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) “[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period”, and Mr Briggs only had post-accident MRI results;
(2) “a delamination may not fall within the definition of a tear”; and
(3) “the defect may not be the source of his pain and disability”.69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
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.”
72 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].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
“the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.”
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 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; and
(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.76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgment” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question”
The Panel must, amongst other things, consider whether, with the claimant’s right ankle injury and complaints, the disability is causally related when there was little or no complaint about this area of disability for three months post-accident.
While the lack of contemporaneous complaint or record is not determinative, the reality is that there is essentially no evidence of immediate complaint of extreme pain of the ankle following the accident, before the Panel, and which would be expected. Dr Breit found this to be significant, as does the Panel.
There is no mention of any injury to the right ankle in the Application for Personal Injury Benefits dated 20 March 2019.
There is no claim of any injury to the right ankle in the Certificate of Capacity dated
20 March 2019.The claimant had an MRI of his right ankle on 7 August 2019. This was about six weeks after he had a fall at his home on 21 June 2019. The scan revealed a subacute on chronic syndesmotic injury of the right ankle. It should be noted that the claimant had sought medical treatment from Dr Chang as he was experiencing discomfort in his left ankle.
Clinical notes of Dr Chang dated 15 August 2019 record the claimant stating that he had sustained an injury to his right ankle in the subject accident. This record is five months after the subject accident. Dr Chang gave her opinion that this injury was a “forced dorsiflexion and external type rotation injury to the right ankle when he was rear ended with his brake on the pedal 3 months prior to the next injury.”
Dr Breit said that “it is unbelievably rare for someone to know the mechanism of a claimed injury to an ankle from a motor vehicle accident in which he would have by reflex put the foot on the brake with some force.” However, the claimant did say that he was slowing down and it might be assumed that he was braking in this process with his right foot on the brake pedal.
Dr Breit noted that the claimant reported that after the accident he was able to continue his drive to work and then complete a full day of work.
Medical Assessor Roberts, assessing the claimant for psychiatric injury, took a history from the claimant that he explained that on driving home from work on the day of the accident, he felt a sensation of “heat” is neck and deep pain in his pelvis. The claimant reported to Medical Assessor Roberts that he did not go to the doctor and considered that his symptoms were of a minor nature. The claimant made no mention of an ankle injury.
Dr Breit said that if the claimant sustained a syndesmotic ligament injury in the accident, “it was unlikely that he would have been able to walk and certainly not to continue to work.” He said that there would have been evidence of “severe swelling and pain” on the day of the accident.
Dr Chang, in her report of 18 July 2019, noted that the claimant said that he felt that his right ankle was not normal after the car accident in the sense that it clicked and did not feel stable. He said that he felt that this initial injury from the motor vehicle accident contributed to him not being able to steady himself resulting in that second fall causing significant left ankle sprain and repeat right ankle sprain with acute on chronic syndesmotic injury. The timing and mechanism of injury and symptoms according to
Dr Chang were consistent with syndesmotic injury shown on the MRI scan.The Panel considers that had there been an acute tear of the right syndesmosis at the time of the accident, it would have been immediately painful with difficulty walking and discussion with his treating GP. Such an injury would have required immediate attention and treatment given the pain that would have been evident, and as evidenced when the claimant sought treatment from his GP and Dru Chang, following his fall in June 2021.
Regarding this fall in 2021 at his home, the claimant gave a history to Medical Assessor Home in his certificate of 10 March 2021 that he was at his home descending four steps carrying his four-year-old daughter who weighed approximately 20kg. He is uncertain what happened but believes that he may have missed a step. He fell down several steps and noticed a severe pain and swelling at his left ankle. There is nothing in this history about a weakness of his right ankle or of the right ankle giving way.
The assertion by the claimant that his ankle did not feel right, it clicked, and it felt unstable cannot be accepted when there was no complaint at any stage by the claimant, after the accident and until he saw Dr Chang. If the claimant felt his ankle was unstable, then it is arguable that it would be unlikely, as a prudent parent, that he would carry his daughter down stairs.
The Panel must, amongst other things, consider whether, with the claimant’s right ankle injury and complaints, the disability is causally related when there was little or no complaint about this area of disability for three months post-accident. The Panel does not consider that the accident has had a more than negligible effect on his right ankle due to the mechanism of the collision and injury. The complaint by the claimant for an ankle injury only arose after the claimant fell at his home, down some steps and while carrying his daughter. It is the finding of the Panel that this was the cause of the claimant’s ankle disabilities, and not anything arising from the subject accident.
The Panel is mindful that a lack of reported complaint of right ankle pain should not preclude a conclusion that this condition arose from the accident.
Scientifically, there is a possibility that the accident could have caused an ankle injury. The Panel must consider, did the accident contribute to the claimant suffering a right ankle injury when no immediate complaint of extreme pain was made by him?
While the lack of contemporaneous complaint or record is not determinative, the reality is that there is essentially no evidence of immediate complaint of extreme pain, or at all, following the accident, before the Panel, and which would be expected. Dr Breit found this to be significant, as does the Panel.
The Panel must also ask itself in considering whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, whether the claimant’s condition arises because of contribution by the accident, and whether the accident materially contributed to that condition and need for treatment.
On the balance of probabilities, can it be said that the claimant suffered a right ankle injury because of the accident? Further, was the fall incident, down stairs in June 2019 caused by an inherent weakness in the claimant’s right ankle, caused by the accident.
For the reasons discussed above in the report of the Medical Assessors, the Panel does not find that these questions can be answered in the affirmative because, as the Medical Assessors said, had there been an acute tear of the right syndesmosis at the time of the accident, it would have been immediately painful with difficulty walking and discussion with his treating GP. It was only after the fall in June 2020 that the claimant sought medical treatment due to his new symptoms which caused immediate pain, and for which he sought immediate treatment.
Would the impairment have occurred, if not for the accident? As the Panel, has discussed, it is not satisfied that the accident and impact has had a more than negligible effect on the right ankle condition suffered by the claimant. His condition arose because of a fall incident in June 2019. There is nothing to suggest that an inherent weakness in his right or left ankle, which may have been brought about by the subject accident in March 2020, caused him to fall, while carrying his daughter down some steps.
The Panel acknowledges that the lack of immediate complaint is not determinative of causation. However, for the reasons provided, the Panel is satisfied that the lack of complaint comes about because the claimant did not suffer an injury to his right ankle at the time of the accident.
Medical Assessor Curtin has provided a certificate dated 8 October 2023. He assessed scarring at the site of surgery on the claimant’s right ankle. The Medical Assessor assessed 2% WPI. Regarding causation, Medical Assessor Curtin said that the scarring on the claimant’s ankle was a direct result of surgery to correct an orthopaedic condition resulting from the motor vehicle accident. However, he went on to say that whether or not this orthopaedic condition resulted from the motor vehicle accident was a question which was entirely a matter for an assessment by an orthopaedic surgeon. These are contradictory statements, and the Panel is able to form its own conclusions about causation, as Medical Assessor Curtin seems to have envisaged. The Panel cannot alter his conclusions as that is not the subject of this review. The Panel has not formed the view that the injury to the claimant’s right ankle arises from the accident.
Regarding the surveillance footage and the observations therein and the findings of the Medical Assessors following their examination of the claimant on 16 October 2024, the Panel says that the footage does little to assist it. The claimant is seen to be leading a normal and active life on a day-to-day basis. The examination results are indicative of this.
Conclusion
The Panel is not satisfied that the claimant’s injury to his right ankle was caused by the accident.
The Panel is satisfied that the claimant suffered some soft tissue injuries as a result of the accident on 10 March 2019.
The Panel has assessed the claimant’s WPI at 0%.
Determination
The Panel revokes the certificate and reasons of Medical Assessor Bodel dated
5 March 2024.As a result of the accident the claimant suffered the following injuries;
(a) cervical spine – soft tissue injury;
(b) right hip – soft tissue injury;
(c) thoracic spine – soft tissue injury, and
(d) lumbar spine – soft tissue injury.
The Panel is not satisfied that the claimant suffered injury to his right ankle in the accident.
The Panel has assessed the claimant’s WPI at 0%.
The Panel revokes the Combined Certificate of Medical Assessor Curtin dated
7 March 2024 and issues a new Combined Certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment assessment of 2%:(a) Certificate of this Panel of 0% WPI:
(i)cervical spine – soft tissue injury;
(ii)right hip – soft tissue injury;
(iii)thoracic spine – soft tissue injury, and
(iv)lumbar spine – soft tissue injury.
(b) Certificate of Medical Assessor Curtin dated 8 October 2023 for assessment of 2% WPI:
(i)scarring to the claimant’s right ankle.
Using the Combined Values chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition, the combined impairment is 2%.
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