Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. Revokes the certificate issued by Medical Assessor Menogue dated 5 August 2025.
2. Certifies that the claimant's whole person impairment resulting from the motor accident of

24 September 2021 is 8% which is not greater than 10%.

A statement setting out the Panel's reasons for the assessment is included with this certificate.

1. Craig Utiger was involved in an accident on 24 September 2021. He was at work removing trees. A crane driver was lifting a tree, or part of a tree out of the ground, when the claimant was struck and knocked to the ground.
2. Mr Utiger says he injured his lower back, right shoulder and right leg in the accident and his right leg injury in particular (and surgery he had for it) caused scarring. Mr Utiger made a claim for statutory workers compensation benefits as he was injured at work. He has also made a claim for damages against Suncorp (Queensland),[1] the third-party insurer of the motor vehicle that Mr Utiger says caused his accident.
3. A medical dispute about the degree of the claimant's whole person impairment (WPI) has arisen in connection with Mr Utiger's damages claim and on 11 February 2025 the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
4. On 31 July 2025, Medical Assessor Fukui determined the claimant had a WPI of 8% in relation to his psychological injuries. The Panel understands no application for review has been lodged in respect of that determination.
5. On 5 August 2025 Medical Assessor Menogue determined Mr Utiger had a WPI of 11% which is of course greater than 10%. The insurer lodged an application with the Commission seeking a review of the Medical Assessor's decision.
6. On 22 October 2025, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment made by Medical Assessor Menogue and has allowed the Review and on 23 October 2025 the President's delegate convened this Panel to conduct the Review.

1. Mr Utiger's claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). There is a significant controversy in

Mr Utiger's claim about whether the circumstances of his accident and injury are a "motor accident" and therefore whether the MAI Act applies. 2. Mr Utiger's claim for damages has been exempt from assessment at the Commission and he has commenced proceedings in the District Court of New South Wales. Suncorp has denied liability for the claim on the basis the accident is not a motor accident and has declined to indemnify the owner or driver of the motor vehicle on that basis. The Panel understands there is a motion before the Court to determine the liability and indemnity issue but that the Court has deferred that matter until the Review Panel's decision in the current proceedings is issued. 3. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss. Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. The quantum of non-economic loss damages in a motor accident claim is limited to a maximum amount in accordance with s 4.13[2] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident. 4. If there is a dispute about the degree of the claimant's permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]

1. Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Menogue's, further medical assessments and the review of medical assessments by this Panel.[4]
2. Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment "was incorrect in a material respect" (s 7.26(1)). If the President, or his delegate is satisfied "there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect" then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
3. The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is "a new assessment of all the matters with which the medical assessment is concerned" (s 7.263A).
4. Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

1. Permanent impairment is assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[5] which are largely based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
2. Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant. In particular the sections relevant to the spine, the upper limb and the lower limb need to be considered.

1. Medical Assessor Menogue examined the claimant on 5 August 2025 and issued his certificate on 18 August 2025. The Medical Assessor confirms at [2][6] that he was asked to assess the following injuries:

(a) lumbar spine;

(b) right shoulder;

(c) right leg - compound fracture to right tibia and fibula and Achilles tendon injury, and

(d) scarring.

1. Medical Assessor Menogue determined at [21] that the claimant sustained an injury to the right shoulder, right leg (including scarring), and injury to his Achilles tendon and lumbar spine in the incident on 24 September 2021 primarily on the basis that contemporaneous evidence supported the listed injuries.
2. At [22] he diagnosed the injuries as follows:

(a) a soft tissue injury to the right shoulder on a background of pe-existing degenerative changes;

(b) a soft tissue injury to the lumbar spine with no evidence of nerve root involvement and in particular no radiculopathy;

(c) a right compound fracture of the tibia and fibula with hardware remaining;

(d) a soft tissue injury of the knee with a possible medical meniscal tear, and

(e) surgical scarring.

1. In assessing impairment, Medical Assessor Menogue at [27] said:

(a) in the lumbar spine there was no dysmetria, muscle guarding or radicular symptoms and no radiculopathy therefore WPI was 0%;

(b) both shoulders were examined and the claimant was determined as having a 3% WPI for loss of range of right shoulder motion;

(c) both knees were examined and the claimant found to have a WPI of 0% due to not assessable loss of range of motion;

(d) both ankles were examined and the impairment related to the loss of motion in the right attracted a 6% WPI, and

(e) scarring of the right leg was 2%.

Original submissions in relation to the Medical Assessment

1. The insurer explains at [1] - [4] that liability had been denied on the basis the claimant's accident was not a motor accident, exemption of the damages claim had occurred, and District Court proceedings had been commenced. The insurer submitted at [5] that the claimant's WPI should not be assessed.
2. The insurer notes at [9] - [10] the claimant's qualified psychiatrist Dr Khan has a history of a previous psychiatric admission, drug use and addiction issues and Mr Utiger had developmental trauma and assessed WPI at 20% less 2% for a pre-existing condition.
3. The insurer notes at [11] - [14] Dr Bodel's assessment of Mr Utiger's physical injuries in November 2023. Dr Bodel had stated the claimant's condition had not stabilised because

Mr Utiger had recent shoulder surgery. 4. The insurer had submitted again at [15] that the WPI assessment should not proceed on the basis the accident was not a motor accident and in addition until the claimant served evidence that his injury had stabilised.

Submissions lodged in support of the application for Review

1. The insurer submits there was an error in the assessment of the right ankle assessment at 6% on the basis of tables 42, 43 and 44 for the following reasons:

(a) the insurer does not take issue with the assessment of 3% WPI for loss of flexion and extension of the ankle in accordance with table 42;

(b) the insurer says the Medical Assessor has not mentioned varus or valgus deformity in the clinical examination findings and therefore table 44 appears to be not applicable, and

(c) table 43 does apply and the insurer accepts there was 20 degree inversion and 10 degrees eversion in hindfoot measurements, both of which are "mild impairments" attracting 1% WPI;

(d) however, cl 4.85 of the Guidelines permits only one of those 1% WPI figures for the hindfoot to be included not both.

1. Therefore, the insurer says the right ankle impairment should be 4% and not 6%, and the total WPI should be 9% not 11%.

Submissions in response to the insurer's in the original application

1. The claimant requested the assessment proceed on the basis that the insurer would suffer no prejudice if the District Court found the accident was not a motor accident.
2. The claimant relied on the report of Dr Khan in support of the claimant having a WPI of greater than 10%. The claimant also relies on the report from the workers compensation insurer concerning his psychological condition.
3. In terms of his physical symptoms the claimant submitted that his last surgery was

28 May 2022, and he was not contemplating having any further shoulder surgery.

Submissions lodged in support of the reply to the insurer's review

1. The claimant has not provided a copy of any submissions made to the original Medical Assessor.
2. The claimant's submissions in response to the insurer's application for Review accept the error alleged by the insurer however the claimant also challenges the assessment of the degree of impairment for the skin suggesting the best fit is 3 - 4% not 2%.

Procedural matters and steps in the proceedings

1. The Panel issued directions to the parties on 31 October 2025 seeking bundles of the documents relied on by the parties.
2. The insurer provided a bundle of 423 pages, and the claimant provided his bundle comprising 481 pages.
3. The Panel met on 15 January 2026 and reported to the parties the next day. The Panel noted the major controversy in the claim being the dispute about whether the claimant's accident is a "motor accident" within the statutory definition. The Panel queried whether the insurer disputed the claimant had been injured or the diagnosis of the injuries sustained.
4. The insurer responded on 23 January 2026 and submitted:

(a) the claimant's condition has not deteriorated. Once Medical Assessor Menogue's error is correct the claimant would have a WPI of less than 10% [6] - [7];

(b) the claimant had a pre-existing knee condition [8] and extensive pre-accident medical history [9] - [11] consistent with the details given to Medical Assessor Menogue;

(c) the claimant injured his right shoulder (soft tissue) but records indicate there was a pre-existing symptomatic condition in both shoulders at the time of the accident with symptoms recorded in the right [12] - [31];

(d) causation of a lumbar spine injury was disputed on the basis of no clear evidence of a lumbar spine injury but that if there was there is a 0% WPI and an extensive history of a symptomatic pre-existing condition [32] - [42];

(e) injury to the right lower limb was not disputed but the insurer says the claimant has made a good recovery [43] - [61], and

(f) there is limited reference to scarring but the Medical Assessor noted nine scars which he assessed at 2% and there is no evidence of deterioration of that scarring since then [62] - [68].

1. The claimant attended the re-examination on 28 January 2026 and the Panel met again on 18 February 2026 in order to discuss the findings and finalise the review.

1. The insurer's submissions do not dispute that an accident occurred and that the claimant was injured. Causation has been in issue in terms of the claimant's pre-accident injuries and medical history and in respect of the claimant's lower back and right shoulder injuries.
2. There is, as has been mentioned earlier a clear controversy as to whether Mr Utiger's accident was a motor accident and whether Suncorp has a liability to pay any damages at all to Mr Utiger. The challenge to Medical Assessor Menogue's assessment was a challenge only to the impairment assessment and the proper application of the Guidelines.
3. While the Panel has considered all of the evidence, it is unnecessary, in our view to summarise all of the evidence concerning for example the claimant's right leg injury and the treatment he has had over the last five years.

1. Mr Utiger completed a claim form on 11 October 2023. He alleges injuries to his right leg, right shoulder and a psychiatric injury. He denied any previous motor accident claims or any pre-existing relevant condition. He documents the cause of the accident and the injuries he sustained including a post-traumatic stress disorder.
2. There is a copy of the police report and ambulance records. The ambulance records note the claimant's leg injury, the bleeding and state "nil other injuries". The claimant was administered four doses of Morphine and seven of Ketamine in the one and half hours he was attended to by ambulance officers. Mr Utiger complained of pain at 10 out of 10 but had no loss of consciousness.
3. Hospital notes confirm the claimant was admitted to Liverpool Hospital on

24 September 2021 and discharged on 9 October 2021. The focus of these documents was on the claimant's fractured leg. 4. The claimant provided a statement dated 28 July 2022 which refers to:

(a) an industrial deafness claim, 15 - 17 years previously;

(b) a partially fused wrist 12 years ago;

(c) a claim arising out of severed tendons in the right wrist following a work accident in 1987;

(d) left biceps surgery seven years ago, and

(e) arthroscopy for left hip spurs, left knee issues and groin and stomach hernias.

1. The claimant details the accident and his treatment. He says at [17] he heard his leg snap and he fell onto his right shoulder. He acknowledges at [27] he had depression for some time but that it worsened in January after the accident.
2. He outlines his physical and psychiatric state and a significant event after the accident involving a family member which has impacted his mental health. He says at [59] he uses a stick because his knee sometimes buckles and fails.
3. In a supplementary statement dated 10 October 2023 Mr Utiger says he has seen Dr Dave and had four surgeries. He is having counselling with psychologist Ms Lander and psychiatrist Dr Rastogi, and he sees a pain management specialist Dr Chow Chow. He lists the 12 medications he is taking.
4. Mr Utiger says he has pain and nerve damage in his right knee to his toes which is constant and it "feels like phantom pain" but is also sharp with pins and needles. It is aggravated by activity. He says he has sharp pain in the right ankle and he is worried about falling so uses a walking stick. He says he has adapted some of his activities of daily living and has poor sleep.
5. He reports difficulty with his motorcycle hobby due to pain, difficulties with driving due to pain, difficulties with shopping due to physical and psychological issues. He reported suicidal thoughts.
6. There does not appear to be any specific mention of lower back pain or symptoms in either of Mr Utiger's two statements.
7. A safe work incident report created on 24 September 2021[8] records that the claimant's leg was crushed against another tree by the stump that was being removed by crane. The stump was described as being "the size of a small car." A register of injuries for St George Cranes was completed identifying only right leg and ankle injuries.

1. A certificate of capacity and fitness completed by Dr Moussa is dated 28 October 2021 and diagnoses a "comminuted compound fracture of the right leg, PTSD and post traumatic neuropathic pain disorder, SLAP tear and rotator cuff injury right shoulder, CRPS." There is no mention of the lower back.
2. The insurer has provided bundles of records from Dr Moussa, Dr Dave, My Health and One Point Health and the Sydney Pain Clinic.
3. Dr Cunningham, sport and exercise physician has also treated the claimant:

(a) on 10 February 2022 Dr Cunningham was concerned only with the right shoulder following PRP injections;

(b) on 17 February 2022 the claimant's right ankle was causing pain and he had restricted mobility. The claimant had had a PRP injection into his shoulders.

Mr Utiger was still having physio and struggling with mental health issues;

(c) on 3 March 2022 the right ankle and right knee were the focus;

(d) on 31 March 2022 the claimant's right shoulder was improving after the course of three PRP injections;

(e) on 22 April 2022 the claimant had tried walking without his stick but struggled with pain. Mr Utiger had ceased the antidepressant and pain medication because of blood pressure issues;

(f) on 12 May 2022 the claimant had a further shoulder injection after a flare up of pain;

(g) in a report dated 29 December 2022, Dr Cunningham noted the treatment for the right shoulder with ongoing problems and that rotator cuff surgery was delayed until mid-2023. Surgery of the right ankle for a reconstruction had been approved. He was mobilising without a stick at home but utilised the stick when not at home, and

(h) on 16 March 2023 the claimant's mobility was improving but the claimant appears to have had symptoms in his previously fused right wrist.

1. The most recent report from Dr Gupta, orthopaedic surgeon is dated 21 September 2023. There had been a recurrent tear of the left shoulder rotator cuff with ongoing persistent pain and restriction of movement. The right shoulder surgery had been approved but the claimant was advised to delay it, and the claimant was said to be having "treatment for his back pain and lower limb radiculopathy."
2. The most recent report from Dr Dave, orthopaedic surgeon is dated 23 September 2023. The claimant was making steady progress with his lower limbs but was having swelling and needed help for his household chores.
3. A report from Dr Chow Chow's dated 26 September 2023 includes a summary the claimant's pain management history noting it was complex and "compounded by psychosocial factors such as ongoing unhappiness and dissatisfaction with life, medical history and current medical management." Ongoing education, opioid management, counselling and a further trial of a spinal cord stimulator were recommended.

1. The insurer does not rely on any medico-legal or other expert reports.
2. Dr Bodel saw the claimant on 9 November 2023. He noted injuries to the right tibia and fibula and an injury to the right shoulder (he does not mention a back injury).
3. Dr Bodel has a consistent history of the accident and the claimant's early treatment. He does not appear to have had a complete history of Mr Utiger's work-related injuries and claims.
4. The claimant complained of pain and stiffness in the right leg, nerve pain into the left foot in the distribution of the superficial peroneal nerve, ankle pain and stiffness, difficulties with prolonged standing or walking, a sharp stabbing pain in the right shoulder with some movements.
5. The claimant was using a walking stick and had restricted shoulder motion on both sides. He had recently undergone left shoulder surgery.
6. There were no signs of cervical radiculopathy or of any radicular symptoms in the upper limbs.
7. In the right leg there was loss of sensation detected in the distribution of the superficial peroneal nerve in the right lower leg and over the right foot with hypersensitivity. Knee motion was restricted.
8. In the lumbosacral spine there was backache, guarding and dysmetria in lateral bending but no signs of radiculopathy or symptoms of radiculopathy.
9. Dr Bodel assessed WPI at 20% as follows:

(a) lumbosacral spine - DRE category II 5%;

(b) right shoulder loss of motion - 8% WPI;

(c) right leg - 8% including 3% for sensory impairment, and

(d) scarring - 1%.

1. The claimant also relies on reports from Dr Khan, psychiatrist dated 14 March 2024. He considered the claimant's pre-accident history and determined Mr Utiger had a post-traumatic stress disorder and persistent depressive disorder with an opioid use disorder. He considered the prognosis poor.
2. He assessed WPI at 22% and reduced this by 2% for the pre-existing disorder with limited reasoning.
3. While the submissions suggested there was an updated report from 2025 this appears to have been a typographical error and the report is dated 2024.
4. Dr Young, psychiatrist provided two reports to the workers compensation insurer. He has a detailed history of the accident and treatment and a consistent and also detailed history of the claimant's pre-accident mental health and medical issues. He diagnosed a post-traumatic stress disorder and major depressive disorder which was related to his employment and the accident he had sustained. He assessed WPI at 17%.

1. Medical Assessor Fukui examined the claimant on 10 July 2025 and issued her certificate on 31 July 2025. She notes at [2] she was referred the following injury: "posttraumatic stress disorder, including depression and anxiety."
2. The claimant was at that time 64 years of age and living alone. He reported abuse from his parents and that "he has done much psychological work regarding his early life". He also reported depression in 2010 following the breakup of a relationship and was prescribed Duloxetine, but he did not see a psychologist or psychiatrist. He did have an overnight admission to hospital for "acute emotional distress" 15 years previously.
3. The claimant gave a history of drug use but had been "clean" for more than 20 years.
4. Despite this history Medical Assessor Fukui records the claimant had a stable mental state, was working full time, in a long terms relationship and had good relationships with his children, stepchildren and parents. He had friendships, hobbies and was not having any treatment.
5. She has a history of the accident and notes the claimant sustained a compound fracture of his tibia and fibula and lost four litres of blood and that he reported feeling "he was fading and was going to die". The possible amputation of his leg was discussed by hospital personnel.
6. He gave a history of significant psychological symptoms and of seeing a psychologist and psychiatrist as well as a pain specialist.
7. Medical Assessor Fukui diagnosed a post-traumatic stress disorder involving a life-threatening accident and serious physical injury. She diagnosed a post-traumatic stress disorder and persistent depressive disorder.
8. She assessed WPI as follows:

(a) Self-care and personal hygiene - class 2;

(b) Social and recreational activities - class 2;

(c) Travel - class 1;

(d) Social functioning - class 2;

(e) Concentration, persistence and pace - class 2, and

(f) Adaptation - class 5.

1. This produced a median class value of 2, an aggregate score of 14 and a WPI of 7%. She added 1% for the effect of treatment.

RE-EXAMINATION FINDINGS - MEDICAL ASSESSOR GORMAN

1. The claimant attended the re-examination with Medical Assessor Gorman on behalf of the Panel. The re-examination was conducted on 28 January 2026 at the Commission's medical suites.

1. Mr Utiger is a 64-year-old man who worked in the construction industry. He had been with St George Cranes since May 2021. He had worked there previously but for a time had worked with Fullers Mobile Cranes.
2. He lives alone. He and his partner have separated. He has stepchildren aged 26 and 37 years.
3. He has industrial deafness. He injured his right wrist in a work accident which required a partial fusion. He still wears a firm splint, which he had on at the time of the examination.
4. He had a left hip replacement in 2025 (after the subject accident but which he related to advanced osteoarthritis). He also has had a left shoulder replacement in 2025 (after the subject accident but which he related to a previous left shoulder injury).
5. He had a left knee arthroscopy 12 years ago and hernia repair surgery five years ago.
6. He has hypertension and gout.

1. On 24 September 2021 Mr Utiger said he was lifting large trees from the campus of the University of Western Sydney. He was directing the crane, which was lifting a large stump and roots. Usually, there is the clear direction from the person guiding the process as to when to lift - in this case Mr Utiger says the crane driver lifted the stump before he could fully get out of the way and the large stump swung toward him and struck his right side (upper and lower limb) knocking him to the ground. He says he fell on his right shoulder.
2. He sustained a compound fracture of the right tibia and fibula. There was substantial bleeding, and he eventually required four units of blood transfusion.
3. He required open reduction and internal fixation of the fracture. He required two weeks of rehabilitation. He remained non-weight bearing with crutches for some time.

1. He was followed up by Dr Dave (orthopaedic surgeon) and had physiotherapy and hydrotherapy. As a result of ongoing lower limb pain the surgical hardware was removed on 28 May 2022.
2. He had ongoing right ankle pain and had an arthroscopy and lateral ligament reconstruction. He had an operation on the right great toe (extensor hallucis longus release) in early 2023. He has had PRP injections around the right Achilles tendon.
3. He had ongoing bilateral shoulder pain. The MRI of the right shoulder on 14 December 2021 showed degenerative changes but evidence of adhesive capsulitis, AC joint arthrosis, partial thickness supraspinatus tears and a SLAP tear. The left shoulder had degeneration unrelated to the accident, and he has gone on to have a reverse left shoulder replacement (also unrelated to the accident).
4. He has seen Dr Chow Chow (pain specialist). Mr Utiger has been prescribed medication and trialled a spinal stimulator. He had a 40% improvement in pain but did not want to go ahead with the permanent placement of an implant.
5. He has been diagnosed and treated for post-traumatic stress disorder after this episode.

1. He has right ankle pain over the right Achilles tendon.
2. He has right knee pain. He has been told that he eventually will need a knee replacement, and that the workers compensation insurer has said that they will pay for it. He admitted also having left knee pain after the accident where it is "bone on bone" he says. He has "nerve pain" shooting from just below the right knee to the right great toe.
3. Due to an absence of complaint, I asked him about his lumbar spine which he said is "playing up a little". He goes to a chiropractor for deep tissue massage. His right shoulder was of minimal concern to him compared to the left shoulder which was not injured in the accident.

1. He continues on Palexia 50mg (immediate release), Palexia 50mg (slow release) at night, Gabapentin 300mg, an anti-hypertensive and Duloxetine for depression.

1. He had a long-standing rigid splint on his right wrist. He walked without a limp but walked with a stick in his right hand. He did not lean on it significantly. He said he used it because it gave him confidence - he was worried about the right knee giving way and people gave him space if they noticed the walking stick and were less included to bump into him. He walked normally without the stick.
2. His height was 177cm with his weight being 107.1kg. At the time of the accident, he said his weight was around 110kg.
3. Range of active movement recorded below were all verified using a goniometer and repeated three times.

1. There was wasting and scarring around the left shoulder from the more recent (unrelated) left shoulder replacement. The right shoulder was not tender nor wasted. There was mild restriction in range of motion as outlined below.

1. He had mildly restricted range of movement to 2/3 normal in all planes. There was no dysmetria. There was no tenderness or guarding.
2. Power, sensation and reflexes in the lower limbs was normal. Sciatic stretch testing was negative.
3. There was no wasting of any of the muscles of the lower limbs,

(a) thigh circumference 10cm above the patella was 46cm on the left and 46.5cm on the right (which is not a clinically significant difference but is likely to his right leg injury), and

(b) calf circumference was 38cm on both sides measured 10cm below the tibial tubercle.

1. Mr Utiger could slowly stand on tip toes and heels. He could only perform a half squat.
2. The knees were not swollen nor was there any crepitus or ligamentous instability.
3. The right knee has a 5 degrees valgus angulation. The range of movement of the right knee was 0 -110 degrees and the left knee 0 -130 degrees. There was no flexion contracture.
4. The ankle and hindfoot on the right side had limited range of dorsiflexion, inversion and eversion as outlined below.

1. Noted the findings of Medical Assessor Bodel, there was no numbness or hypersensitivity in the superficial peroneal distribution demonstrated to me on pin prick or light touch testing.

1. All the lower limb surgical scars were fine and well healed. He could point them out, but some were not easily seen amongst the existing vascular pigmentation. None were adherent nor did they affect his activities of daily living and he was having no treatment for them. There were no visible suture marks. Mr Utiger wore shorts to the assessment, and this was his usual attire in the warmer months.
2. He has other scars relating to pre-accident injuries and post-accident unrelated conditions. Of the scars he identified as related to the injuries caused by the accident:

(a) the right suprapatellar scar was 5cm in length. It was easy to see and depressed. There was no pigmentation nor suture marks;

(b) just below and medial to the patella was a 3cm fine scar which was difficult to see;

(c) there was a "Z" shaped scar over the front of the shin with the two vertical sections measuring 5cm in length and the horizontal part of the scar 7cm. The distal part of the scar had a slight contour defect and minor pigmentation;

(d) there were two posterior calf scars 2cm and 6cm in length. The 2cm scar is just visible. The 6cm scar was visible and slightly depressed;

(e) there was a 5cm scar over the lateral right ankle with minor pigmentation and no visible contour defect;

(f) there is a 7cm anterior ankle scar which was pigmented and depressed;

(g) there was an area of non-surgical scarring over the medial ankle 7cm by 2cm which had some pigmentation and was depressed minimally, and

(h) the widened scar 10cm in length medial to the knee was an old laceration not related to the accident.

1. Mr Utiger gave a consistent history of the accident, his pre-accident complaints and work injuries.
2. When he was examined, he was consistent in all his movements and entirely co-operative throughout the one-hour assessment.

1. The claimant referred injuries to his lumbar spine, right shoulder, right leg and scarring for assessment. The insurer has raised causation as an issue in particular with regards to the claimant's lower back and right shoulder injuries.
2. The test of causation of injury and impairment posed by the Guidelines (cl 6.5 - 6.7) requires the consideration of two questions, could the accident have caused or contributed to the injury and did the accident in fact cause or contribute to the injury.
3. The Panel notes the claimant was hit by a tree stump as it was pulled out and moved from a creek bed. The tree stump was described as the size of a small car. The claimant fell on his shoulder and sustained a compound comminuted fracture of the leg.

1. There is no real issue of causation of this injury. It was the subject of a safe work investigation, the claimant was treated at the scene, taken by ambulance to hospital and had extensive surgical treatment.
2. The Medical Assessor's diagnosis is of a compound fracture of the right tibia and fibula with an Achilles tendon injury. The Medical Assessors note the claimant has significant arthritis in his left uninjured knee (describes as bone on bone) and it is reasonable to assume the claimant would have had degeneration of his right joints. The Medical Assessors consider the mechanism of the accident could have contributed, in a material way, to the aggravation of ankle and knee degenerative disease.
3. The scarring of the right lower extremity has been clearly caused by the accident and subsequent surgeries. There are multiple scars over his right leg.

1. The Medical Assessors note that according to the claimant's history of the accident he fell onto his right shoulder. The claimant was clearly hit with considerable force noting the size of the object that hit him and the severity of his lower limb injury. The Panel notes that both the claimant's right and left shoulders had significant degenerative disease and therefore both were vulnerable to further injury. While the insurer relies on the ambulance report to suggest there was no injury other than the leg injury, the Panel notes Mr Utiger sustained a very severe and painful leg fracture and lost 4l of blood. In those circumstances it is not surprising that health professionals were focussed on Mr Utiger's life and lower limb.
2. The Panel is satisfied that the circumstances of the accident are likely to have caused a right shoulder soft tissue injury which aggravated pre-existing degenerative changes and led to a restriction in motion and pain. The claimant complained of right shoulder symptoms to

Dr Moussa who records them in his report of February 2022.

1. The claimant is also alleged to have sustained injury to his lower back. The claimant was hit by a tree stump and crushed against another tree before falling to the ground onto his right shoulder. It is the clinical judgment of the Medical Assessors that those circumstances and the forces involved could have caused injury to the claimant's lumbar spine.
2. The insurer points to a lumbar spine CT scan performed a year before the accident due to lower back pain and says the claimant had nerve blocks at L3 and L4 a year after the accident. The Medical Assessors note these appear to have been done in respect of the claimant's right leg injury. The insurer also points out that the claim form and the certificate of capacity from October 2023 do not mention a lumbar spine injury. Mr Utiger at the re-examination says his lower back is not a major concern.
3. While it is by no means certain, the circumstances of the accident, the forces involves and the subsequent abnormal gait (while the claimant was non-weight bearing, using crutches and so on) are likely to have caused a soft tissue injury or lumbar spine symptoms even though they may not have been the initial focus due to the severity of the right leg injury. In the light of the degree of WPI that the Panel has found, we do not propose to write further reasons on the issue of causation of any lumbar spine injury.

1. It is now more than four years since the motor accident. Mr Utiger is not having any specific treatment. His symptoms and signs have not changed for more than six months. He is stable for the purposes of undertaking an assessment of WPI.

1. Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. The Guidelines permit only the diagnostic related estimate (DRE) method of assessment (see cl 6.111). The spine is divided (in cl 6.131) into three regions: cervical; thoracic, and lumbar.
2. If injury to more than one region of the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (see cl 6.131). If there are multiple impairments within one spinal region the impairments are not combined but the highest rating category is chosen (cl 6.132).
3. There are five diagnostic related categories. Clause 6.125 provides that the starting point in determining which of the five categories is appropriate, is Table 6.7. The DRE descriptors from pages 102 - 107 of the AMA 4 Guides as amended by the Guidelines are also to be considered. There are neurological differentiators (for example radicular symptoms versus radicular signs) and structural inclusions (for example vertebral fractures) to be considered.
4. The first category is DRE category I which is selected if there are symptoms which may include pain.
5. A finding of DRE category II (where there are no structural inclusions) requires there to be:

(a) pain with guarding or

(b) non-uniform range of motion - dysmetria or

(c) non-verifiable radicular complaints defined in Table 6.8 as:

(i) symptoms (shooting pain, burning sensation, tingling), and

(ii) which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.

1. A DRE category III classification (without structural inclusions) requires radiculopathy which is defined in cl 6.138 as "the impairment caused by dysfunction of a spinal nerve root or nerve roots". Five signs of radiculopathy are identified and there must be at least two for a finding of radiculopathy to be made. The signs of radiculopathy are:

(a) the loss or asymmetry of reflexes (see Table 6.8);

(b) positive sciatic nerve root tension signs (see Table 6.8);

(c) muscle atrophy or decreased limb circumference (see Table 6.8);

(d) muscle weakness (a loss of power) that is anatomically localised to an appropriate spinal nerve root distribution, and

(e) reproducible sensory loss that is also anatomically localised to an appropriate spinal nerve root distribution.

1. In the lumbar spine, Mr Utiger has intermittent pain but at the time of the re-examination with Medical Assessor Gorman, there was no guarding, no dysmetria and no non-verifiable radicular signs. The shooting "nerve" pain he describes in the right leg originates in the right knee and is related to his significant fracture in that area and does not follow a dermatomal pattern. He does not satisfy any of the criteria for a DRE category II impairment.
2. At the re-examination with Medical Assessor Gorman there were none of the give signs of radiculopathy evident and Mr Utiger does not have a DRE category III impairment.
3. Mr Utiger's assessment of lumbar spine impairment is therefore 0% that is DRE category I based on complaints of pain.

1. The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments and adding others. Regional impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4.
2. There are several methods of assessment permitted by the Guides and Guidelines:

(a) amputation (part 3.1b);

(b) sensory loss of the digits (part 3.1c);

(c) abnormal range of motion (part 3.1d);

(d) peripheral nerve disorders (part 3.1k);

(e) vascular disorders (part 3.1l), and

(f) other disorders (part 3.1m).

1. In Mr Utiger's case, the Panel's view is that the most appropriate method of assessing shoulder impairment is in accordance with part 3.1d.
2. The abnormal range of motion requires the measurement of six units of motion on three planes:

(a) flexion and extension;

(b) abduction and adduction, and

(c) internal and external rotation

1. Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA4.
2. Mr Utiger's right shoulder impairment is assessed as follows:

(a) flexion - normal is 180 degrees, Mr Utiger could flex to 150 degrees. In accordance with figure 38 at page 43 of the AMA 4 Guides, that results in a 2% UEI;

(b) extension - normal is 50 degrees and Mr Utiger can only manage 40 degrees. Again in accordance with figure 38, this results in a 1% UEI;

(c) abduction - normal is 180 degrees and Mr Utiger could abduct to 150 degrees only. Pursuant to figure 41 at page 44 of AMA 4 Guides, that results in a 1% UEI;

(d) adduction - normal is 50 degrees and Mr Utiger could achieve only 40 degrees. In accordance with figure 41 this does not attract any degree of impairment;

(e) internal rotation - normal is 90 degrees and the claimant demonstrated a 10 degree loss of motion. In accordance with figure 44 on page 45 in the AMA 4 Guides this attracts a 0% UEI, and

(f) external rotation - normal is 90 and the claimant was able to achieve 90 degrees. There is therefore o impairment for external rotation.

1. The total UEI therefore totals 4% which equates to 2% WPI based on Table 3 on page 20 of the AMA 4 Guides.

1. The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:

(d) limb length discrepancy (3.2a);

(e) gait derangement (3.2b);

(f) muscle atrophy (3.2c);

(g) manual muscle-testing (3.2d);

(h) range of motion (3.3e);

(i) joint ankylosis (3.2f);

(j) arthritis (3.2g);

(k) amputations (3.2h);

(l) diagnosis-based estimates (3.2i);

(m) skin loss (3.2j);

(n) peripheral nerve injuries (3.2.k);

(o) causalgia and reflex sympathetic dystrophy (3.2l), and

(p) vascular disorder (3.2m).

1. Clause 6.70 and table 6.5 states which of the above methods can and cannot be combined and table 6.6 provides guidance is selecting the most appropriate method. The Guidelines at cls 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment.
2. If both limbs are injured, each limb is assessed and each injury (if there are multiple injuries in each limb) is assessed separately.
3. The Panel is of the view that the most appropriate method of assessment is the range of motion method.
4. Mr Utiger sustained a badly fractured right leg, but he has made a remarkable recovery.
5. In the right knee there was:

(a) minor restriction in range of motion - Mr Utiger achieved 0 - 110 degrees of flexion in his right knee as opposed to 0 - 130 degrees in the uninjured leg. Table 41 at page 78 of the AMA Guides allows 4% WPI for a mild impairment when there is "less than 110" degrees of motion. As Mr Utiger has 110 degrees of motion and not less than 110 degrees, he therefore has no assessable impairment, and

(b) 5 degrees of valgus angulation which in accordance with Table 41 (page 78 of the AMA 4 Guides) does not attract an impairment percentage.

1. The ankle which has two elements (the ankle and the hindfoot) had:

(a) no loss of plantar flexion but there was a loss of dorsiflexion (extension) at 0 degrees which in accordance with Table 42 gives a 3% WPI, and

(b) the hindfoot had mild impairments in both inversion (20 degrees which attracts a 1% WPI) and eversion (10 degrees which attracts a 1% WPI) based on Tables 42 and 43 on page 78 of the AMA 4 Guides. Clause 6.85 of the Guidelines provides that where there is a loss of motion in more than one direction/axis of the same joint, only the most severe deficit is to be used, "the ratings for each motion deficit are not added or combined." As both hindfoot impairments attract a 1% WPI, only one of those can be used and the claimant therefore has a 1% hindfoot impairment.

1. The Panel notes that Dr Bodel gave the claimant a WPI rating for peripheral nerve impairment on the basis of loss of sensation from below the knee to the foot. At the re-examination with Medical Assessor Gorman there was no loss of sensation on pin prick or light touch testing and therefore there is no nerve impairment.
2. Clause 6.85 of the Guidelines makes it clear that impairments arising from motion deficits in separate tables can be combined. The right lower extremity impairment is therefore 3% (ankle) combined with 1% (hindfoot) giving 4%.

1. The claimant says he sustained scarring to his right leg as a result of this accident.
2. The AMA4 Guides provide in Chapter 13 for the assessment of injuries to the skin. Table 2 identifies five classes of impairment ranging from class 1 which attracts a WPI of between 0 - 9% and class 5 which attracts a WPI of between 85 and 95%.
3. It is the Panel's view that the claimant's scarring falls within class 1 because of the degree of his:

(a) signs and symptoms;

(b) limitation of activities, and

(c) no treatment of intermittent treatment is required.

1. As there is no method in the AMA 4 Guides for determining where minor skim impairments fall, the Guidelines provide the Table of the evaluation of minor skin impairments or TEMSKI. There are 10 criteria to be applied under the TEMSKI and Mr Utiger's scoring is as follows:

Relevant evidence from the claimant and the examination - MA Gorman

The claimant is conscious of his many scars in particular the right leg scars

Some scars have minor pigmentation but there is no marked contrast with surrounding areas and vascular pigmentation in non-scarred regions

The claimant can easily locate the scars and there are many of them

There were no clearly visible staple or suture marks

The claimant's scars were clearly visible with shorts on, which is the claimant's preference during summer months

There was a definite contour defect in some scars - some were clearly depressed - but not in others

The scarring has no effect on activities of daily living

None of the scars were adherent to the surrounding structures

1. The note below the TEMSKI says "this table uses the principle of best fit". That is scores are not added, combined or averaged. The note goes on to say:

"Medical assessors should assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment. A skin impairment will usually meet most, but does not need to meet all criteria to best fit a particular impairment category."

1. While the claimant scored 0% for half of the criteria, he scored 1 and mainly 2% for the other criteria. It is the Medical Assessors' view that, due to the number of scars and the scores for the individual criterion where there was a score, that the best fit is 2%.
2. The claimant submitted that the best fit was 3 - 4%. The Panel has considered this but as there was no easily identifiable colour contrast, no trophic changes, no clearly visible staple or suture marks, contour defect in only some scars, no limitation on activities of daily living, no treatment and no adherence, the Panel considers a 3 - 4% range is not the best fit.

1. Mr Utiger's degree of whole person impairment is 8% made up of the following:

(a) lower back DRE I = 0%;

(b) shoulder 2%;

(c) knee 0%;

(d) ankle 3%;

(e) hindfoot 1%, and

(f) scarring 2%.

1. As the Panel has arrived at a different conclusion to that of Medical Assessor Menogue it follows that his certificate must be revoked and a fresh certificate issued.

[1] For ease of reference the insurer will be referred to as Suncorp.

[2] The current maximum as of October 2025 is $691,000.

[5] Section 7.21. The current version of the Guidelines is Version 10.

[6] The numbers in square brackets are a reference to the section number in the Medical Assessor's reasons.

[7] The numbers in square brackets are a reference to the paragraph number in the submissions.