Medico-legal report of Dr Herald, dated 17 July 2024

(a) compound fracture of right tibia and fibula with subsequent fixation with bone loss;

(b) true shortening of right lower limb by 6mm;

(c) patellofemoral osteoarthritis of right knee;

(d) right calcaneal fracture with subtalar joint ankylosis, fixed in inversion;

(e) bilateral Achilles tendonitis;

(f) prominent hardware over right leg, and

(g) multiple compound scarring with muscle herniation and nerve injury.

1. Causation - The fracture of his right tib fib and subsequent secondary injuries to his Achilles tendons, right hand, and right ankle have occurred as a result of his motor vehicle accident as described above.
2. Prognosis - His prognosis is poor. He will likely develop subtalar osteoarthritis and right knee arthritis over time. He may develop secondary back problems due to his limping.
3. WPI - When using the combined values chart, 0% for his Achilles tendonitis, 0% for his prominent hardware, 4% for his right knee, 8% for his right tibial fracture, 1% for his right calcaneal fracture, and 2% for his scarring, he scores a total of 15% WPI for his injuries.

Medico-legal report of Dr Dias dated 28 May 2025

1. Diagnosis - With respect to Mr Bhaskar's compensable physical injuries stemming from the subject motor vehicle accident of 4 June 2023, Mr Bhaskar has symptoms and signs consistent with the following conditions:

(a) Mr Bhaskar suffers from chronic right leg pain and discomfort, with associated significant residual scarring and sensory loss, secondary to a comminuted open compound fracture of the right tibia/fibula. Mr Bhaskar underwent a right tibial shaft open reduction and internal fixation procedure for management of his right comminuted tibial shaft fracture on

5 June 2023. He has continued to suffer with ongoing pain, stiffness and discomfort affecting his right leg, and has been left with shortening of his right lower limb by 8mm (as measured by true leg length), as a consequence of his involvement in the subject accident;

(b) Mr Bhaskar sustained a persistent aggravation of pre-existing right Achilles tendinopathy, and consequential left-sided Achilles tendinopathy, as a result of altered gait patterns due to his right lower limb injuries;

(c) Mr Bhaskar suffers from chronic right knee patellofemoral dysfunction, secondary to an acute right knee soft tissue impaction injury;

(d) Mr Bhaskar suffers from chronic right ankle pain, stiffness and discomfort, with associated sensory deficits in the distribution of the right lateral plantar nerve, secondary to an acute right hindfoot/mid foot injury with an associated open comminuted intraarticular calcaneal fracture, and

(e) Mr Bhaskar suffers from consequential left knee patellofemoral dysfunction, secondary to prolonged overcompensation and altered gait patterns as a result of his right lower limb injuries. His left knee symptoms began to manifest over the course of the past six months (at the time of my assessment of Mr Bhaskar on 28 May 2025).

1. Prognosis - Mr Bhaskar's prognosis for significant clinical improvement with respect to his accident-related injuries would have to be judged as relatively poor at the present time.

Mr Bhaskar has sustained significant injuries to his right lower limb, and has continued to suffer with ongoing symptoms and disabilities associated with his right lower limb as well as consequential left lower limb symptomatology over the course of the past two years since the subject accident on 4 June 2023. Given the chronicity of Mr Bhaskar's symptoms and disabilities, and considering the underlying pathology associated with his injuries, in my opinion, it is doubtful that Mr Bhaskar's accident-related injuries will ever clinically improve to the point where he would be pain free and/or free from functional compromise on a day-to-day basis in the foreseeable future. His right lower limb injuries in particular are likely to be at risk of further degeneration and deterioration into the long-term future, further compromising his occupational, recreational and domestic functioning on a long-term basis.

Report of George Milner, podiatrist, dated 12 September 2023

1. The report essentially described an exercise program aimed at improving gait and weight-bearing ability.

1. This report referred to the previous osteotomy of the tibia where he considered healing to be satisfactory from a surgical perspective. He noted the right ankle issues and that he walked on the outer edge of his foot. Dr Dave considered that podiatry and physio may be helpful. In regard to the right leg, he considered he should return to full mobilisation.

1. 22 January 2020 - Right ankle injury (lateral malleolus) - X-ray.
2. There were a succession of further entries relating to right ankle pain and right heel pain

(11 May 2023 - three weeks prior to the subject accident). 3. The history obtained at this injury was sudden onset right heel pain, query Achilles tendonitis, or query gout. Investigations had noted a raised uric acid. 4. A review on 26 May 2023 of his right ankle pain noted that imaging had identified bony spurring at the Achilles insertion and that this was consistent with calcific tendinosis. This is clearly a pre-existing condition.

1. The report noted left shoulder pain, deformity right lower leg with nil mid-line tenderness involving the cervical spine.

1. The discharge referred to a right compound tibial shaft fracture requiring open reduction and internal fixation with a tibial nail. Conservative treatment in the form of a Cam walker boot was considered reasonable for his calcaneum fracture.

1. This report refers to ongoing treatment relating to the open fracture of the right tibia and fibula, and associated left Achilles tendon pain. Examination noted a full range of movement involving the right ankle, but made no references to whether this included the subtalar joint. The treating physiotherapist was Mr Burkic.

1. 12 May 2023 - Ultrasound right ankle - Bony spurring at Achilles insertion with calcification consistent with calcific tendinosis.
2. 4 June 2023 - X-rays Liverpool Hospital.
3. Chest X-ray - NAD.
4. CT cervical spine, brain, pelvis, abdo, angiogram - All NAD with no remarkable findings.
5. CT right leg - There is a transverse compound undisplaced fracture of the right tibia and fibula. There is a compound comminuted intra-articular fracture involving the right calcaneum.
6. Post-reduction X-rays indicate anatomical alignment.
7. 21 August 2023 - X-ray right leg - Tibial open reduction and internal fixation with rods and screws noted - anatomical alignment.
8. 16 September 2023 - leg length assessment - There is a 2° valgus involving the left and right lower limbs. The acetabular roof on the left side is 3mm higher than the right, consistent with right lower limb shortening.

1. The Panel summarises the submissions of the insurer dated 31 March 2025 by reference to paragraph numbers:

[1.1]-[1.4] The insurer seeks a review of Medical Assessor Nigel Menogue's certificate of 7 March 2025 and submits that the Medical Assessor failed to correctly apply the motor accident guidelines ('Guidelines') when assessing the claimant's scarring and lower extremity impairment.

[2.1]-[2.4] The insurer submits that the Medical Assessor was asked to assess a right calcaneal fracture and that he referred to Table 64 of AMA 4 but chose instead to use Tables 42, 43, and 44. The insurer submits that no reasons were given for this choice and that given its significance, reasons were required and the failure to provide them amounts to denial of procedural fairness, justifying referral to a Review Panel.

[3.1]-[3.6] As to scarring, the insurer submits that the Medical Assessor misapplied TEMSKI and the best fit principle. The Medical Assessor's reasons showed scarring consistent with 2% WPI (negligible ADL impact, no treatment, no adherence) and despite this, the Medical Assessor placed scarring in the 3% category based on one feature. The insurer submits this did not meet "most" of the 3% criteria, contrary to the Guidelines. The insurer further submits that given the total WPI was 11%, the 1% error is material.

[3.7]-[3.11] As to the hindfoot, the insurer submits the Medical Assessor alternated between lower extremity and body-part assessments, creating error. The Medical Assessor allowed 3% lower extremity impairment for the subtalar joint (Table 43) and concluded an overall 14% lower extremity impairment (6% WPI). However, the insurer submits the impairment table suggested a body-part rating, though figures were for the lower extremity. The insurer submits the 3% subtalar impairment was incorrectly assessed, or alternatively, the reasons for the method were not sufficient.

[3.12]-[3.16] As to the knee, the Medical Assessor accepted 2% WPI for right knee crepitus (Table 62). The Guidelines require conversion via lower extremity impairment before converting to WPI and the insurer submits that is unclear why the knee was excluded from lower extremity calculation. The insurer submits it should have been 5% lower extremity impairment, not 2% WPI and the failure to do so was an error.

[3.17]-[3.19] If corrected (5% knee, 2% subtalar, 7% ankle, 4% plantar nerve), the right lower limb would be 18% (7% WPI). This reduces overall WPI by 1%, below the threshold and the insurer submits that the error is material.

1. The Panel summarises the submissions of Mr Bhaskar dated 22 April 2025 by reference to paragraph numbers:

[1]-[3] Mr Bhaskar notes that the insurer submits the certificate of Medical Assessor Menogue dated 7 March 2025 is materially incorrect. Mr Bhaskar submits the certificate is not materially incorrect, nor has the insurer shown reasonable cause to suspect error. The review should be dismissed.

[4] Mr Bhaskar submits that AAI Limited v Fitzpatrick [2015] NSWSC 1108 confirms a Medical Assessor must form their own opinion, not choose between competing arguments, relying on their own expertise and examination. Reasons must disclose the path of reasoning but need not be scrutinised over zealously (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2).

[5] Further, Mr Bhaskar submits Bratic v Motor Accidents Authority of New South Wales [2010] NSWSC 1244 confirms that reasons need not be extensive; assessments involve judgment within a legitimate range.

[6] Mr Bhaskar lastly submits Bugat v Fox [2014] NSWSC 888 at [32] confirms reasons should not be subjected to minute textual criticism.

[7] Mr Bhaskar submits the principles from above are:

(a) reasons must be provided;

(b) clinical examination considered, and

(c) reasons not scrutinised zealously or at length.

[8] Mr Bhaskar submits the Medical Assessor satisfied these duties.

[9]-[11] Mr Bhaskar submits the insurer alleges the Medical Assessor gave no reasons for using Tables 42-44 instead of Table 64. He further submits that no such reasons were required and that clause 6.69 of the Guidelines allows the method most specific to the impairment.

[12]-[13] Mr Bhaskar submits the Medical Assessor determined Tables 42-44 were more specific and that the use of Table 64 was not required. Mr Bhaskar submits no error is established.

[14]-[15] Mr Bhaskar submits the Medical Assessor assessed 3% WPI due to boggy prominence, contour defect, and visibility. He further submits that no further detail was required under Vegan and Zahed.

[16]-[18] Mr Bhaskar submits cl 6.265 provides that the skin disorder should meet most, but does not need to meet all, of the criteria. He accordingly submits that 7 of 10 criteria for 3% WPI were satisfied and that no error was shown.

[19]-[20] Mr Bhaskar submits the Medical Assessor may have erred by applying ankle motion (foot) rather than hindfoot impairment, but that no error was made in relation to the hindfoot.

[21]-[22] Mr Bhaskar submits the correct calculation should be; ankle 10%, hindfoot 3%, sensory 4% = 17%. He further submits that a 17%-foot impairment equates to 7% WPI.

[23] Mr Bhaskar submits this is an "obvious error" under s 7.23(9) MAA 2017, which may justify referral for a replacement certificate.

[24]-[25] Mr Bhaskar submits cl 6.71 requires separate assessment of multiple injuries. He submits the Medical Assessor correctly assessed the knee separately.

[26] Mr Bhaskar submits if the knee should have been combined, the 'obvious error' provisions allow correction, giving 19% lower extremity, or 8% WPI.

1. The Panel summarises the submissions of the insurer dated 4 July 2025 by reference to paragraph numbers:

[1.1] The insurer relies on submissions of 10 October 2024 and 31 March 2025.

[1.2]-[1.3] The insurer notes Mr Bhaskar lodged additional documents on

27 June 2025, despite directions requiring filing by 1 June 2025. The new documents include:

(a) unsigned statement of Mr Bhaskar;

(b) signed statement of Monisha Bhaskar (11 April 2025), and

(c) report of Dr Dias (28 May 2025).

[1.4]-[1.6] The insurer objects to their inclusion. The insurer submits the documents concern new injuries not referred to Medical Assessor Menogue and that the documents do not go to the real issues and should be excluded under PIC Procedural Direction MA6, 13.

[2.1]-[2.3] The insurer submits the unsigned statement of Mr Bhaskar is unverified and should not be considered and that it is irrelevant to the impairment issues and appears intended for damages. The insurer submits that the statement of

Mrs Bhaskar likewise addresses activities of daily living and psychological symptoms, which are not in issue in this review.

[3.1] The insurer notes that Mr Bhaskar did not rely on Dr Dias' report at the time of Medical Assessor Menogue's assessment; it is new.

[3.2]-[3.3] The insurer submits an additional medico-legal report does not assist with the issues in dispute. The report concerns a left lower extremity injury, which was not referred to Medical Assessor Menogue or to the Review Panel.

1. The Panel summarises the submissions of Mr Bhaskar dated 25 August 2025 by reference to paragraph numbers:

[1.1]-[1.2] Mr Bhaskar submits the insurer is incorrect in its submissions of 4 July 2025; and that the supplementary statement dated 11 April 2025 was included in the

[1.3] Mr Bhaskar submits he recently suffered from an injury to is left lower extremity due to an overcompensation stemming from his injury and therefore his signed supplementary statement of 11 April 2025 should be included under PIC Procedural Direction MA6, 13.

[1.4]-[1.5] Further, Mr Bhaskar relies on Dr Dias' report of 28 May 2025, which identifies consequential left-sided Achilles tendinopathy and left knee patellofemoral dysfunction due to altered gait from right limb injuries. He submits that Dr Dias' report should be included, noting the injuries only arose after Medical Assessor Menogue's assessment.

[2.1] Mr Bhaskar maintains the additional documents are relevant to the dispute and should be admitted, particularly given the insurer contests an orthopaedic review.

1. Medical Assessor Shane Moloney examined Mr Bhaskar for the Panel. The findings of the Medical Members of the Panel are reproduced below.
2. Mr Bhaskar attended the medical suites at the Commission on 6 August 2025 unaccompanied.

1. Mr Bhaskar stated that he was in good health prior to the accident and regularly went running and attended the gym. He was very keen motorbike rider. He was married with two children aged 9 and 15 and was working full-time at the time of the accident in the cyber security industry.
2. There was a past history of a fracture to the right elbow treated with a plate and screws in 2018 and a diagnosis of right Achilles tendinitis which had been investigated with an ultrasound and diagnosed as calcific tendinosis prior to the accident.

1. On 4 June 2023, Mr Bhaskar was riding his motorbike when a car failed to give way and hit him from the right side. He states that he was knocked off his bike and went about 6 to 7m in the air before landing on the road. He was wearing a helmet at the time and the bike jacket. He states that he had immediate pain in the right leg and could see the bend due to the fracture. He was assisted by a passerby and treated by ambulance officers.

History of symptoms and treatment following the motor accident

1. The ambulance took him to Liverpool Hospital where X-rays confirmed a compound fracture of the right tibia and fibula and right calcaneum. A surgical open reduction and internal fixation took place with the insertion of an intramedullary nail. The calcaneum fracture was managed conservatively. After an admission for five days, he was discharged home and was followed up by his GP and community nurse for dressings. He was on Clexane injections for two months.
2. He wore a Cam boot for three to four months with routine dressings by the nurse and later treatment by the physiotherapist and podiatrist. The podiatrist fitted him with an orthotic but due to discomfort he discarded it. He continues to have physiotherapy on a weekly basis funded by the insurer.

1. On 24 February 2024, he had a fall with increased pain in the right shin. He was taken to theatre and a bony fragment near the skin surface was removed. He recovered from this procedure.

1. Mr Bhaskar has persistent pain in the right leg, over the dorsum of the right foot, the lateral heel and sometimes a sole of his foot. He tends to walk on the outer margin of his right foot. After about 10minutes walking there is increased pain in the foot and he drives short distances.
2. He feels there is a crackling noise in the right knee which is painful and increases in cold weather. The right knee becomes more painful when walking downstairs and he needs the assistance by hanging onto the rails. The knee pain is laterally and in the infra patella region. The left knee occasionally crackles with slight pain. Mr Bhaskar considers that he has poor proprioception as he feels unstable with walking at times. He feels some discomfort at the insertion of both Achilles tendons.
3. At present, Mr Bhaskar is back working full-time with most hours at home but he attends the office when necessary. He states that the use of an uber taxi for this was paid by the insurance company.

1. Mr Bhaskar takes an occasional Panadol and states that psychiatrist has treated him with Catapress 100mg in the morning and sertraline 50mg at night for post-traumatic stress disorder and anxiety. This treatment started six weeks ago and he has not noticed any significant improvement yet. He continues to attend a physiotherapist on a monthly basis. No radiological studies were available.

1. Mr Bhaskar's height was 173cm and weight of 79kg.
2. Mr Bhaskar walked into the rooms with a normal gait and was unaided. He was able to stand on his heels and toes and could squat to 50% of expected range with limitation due to stiffness in the right ankle. The right foot was in a varus position when standing. No muscle wasting was noted in the right leg with the circumference of the lower thighs 43cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 33cm bilaterally.
3. The following limb measurements were taken: On the right measurements from the ASIS to the medial malleolus was 89.5cm and on the left 91cm.

Active measurements were obtained using a goniometer. No effusions were apparent and no ligament laxity noted. On palpation there was tenderness over the right lateral joint line and infra patella region with slight tenderness on patella pressure. On passive movement crepitus was noted in the right knee.

There was some loss of range of movement in the right ankle and hindfoot.

1. There was some decrease in sensation around the larger scars and on testing for sensation of the right foot, there was decreased sensation over the lateral right foot and right lateral ankle to light touch and sharp. This is an injury to the lateral plantar nerve.

1. The larger scar is over the anterior right shin which is irregular in shape in approximately

16cm x 3cm. Suture marks are easily identified and trophic changes noted with colour contrast. A contour defect is easily visible on inspection. Mr Bhaskar it easily able to locate all of these scars and they are clearly visible when wearing shorts. 2. Another scar is over the medial side of the right lower leg which is 3 x 2cm in area. A contour defect is evident with trophic changes. There is a smaller scar over the arch of the right foot with suture marks and in two scars over the right lateral heel and right lateral knee. 3. No treatment was required for any of these scars and there is no adherence the underlying structures. There is a negligible effect on any activities of daily living except for avoiding excess sunlight on the larger scars.

Right leg - compound fracture right tibia and fibula

1. This injury was well documented by the treating surgeon and is associated with a soft tissue injury to the right knee and ankle.

1. The right knee is assessed by range of movement using table 41 and using the footnote table 62, there was crepitation on passive movement was patellofemoral pain. This is a WPI of 2%.

1. The right ankle is assessed using table 42 and 43 of the American Medical Association Guides to the Evaluation of Permanent Impairment, fourth edition (AMA 4 Guides). There is loss of dorsiflexion and 10° is 7% left extremity impairment (LEI) (3% WPI). Loss of inversion 10° is 2% LEI% (1% WPI). This adds to 4% WPI for the right ankle range of movement loss. There is no ankylosis of the ankle joint.

1. There is documentation of calcific tendinosis to the right Achilles tendon prior to the accident. In the medico-legal read reports, there has been some mention of tenderness over the Achilles tendon bilaterally. The ultrasound of the right ankle diagnosing calcific tendinosis was taken three weeks before the accident and the Panel does not consider that the subject accident has changed this condition. At the time of our examination there was minimal tenderness over the Achilles insertion but no definitive diagnosis of Achilles tendinitis bilaterally was made.

1. There is loss of sensation in the distribution of the lateral plantar nerve of the right foot. Using table 68 of AMA 4 Guides, this gives 5% LEI (2% WPI). According to the Guidelines 6.106 peripheral nerve injuries for the lower limb are to be graded using table 11 a of AMA 4 Guides. This was defined as a grade 4 injury which is 80% of 5% LEI is 4% LEI.

1. Scarring is assessed using the Temski chart. Classification of best fit is 3% WPI. Mr Bhaskar was conscious of the scars. There is an easily identifiable colour contrast with surrounding skin and he is easily able to locate the scars. Trophic changes were evident to touch with suture marks clearly visible. The anatomical location of the scars is usually visible with his usual clothing. A contour defect is clearly visible in the scars. There is a minor limitation in the performance of the few ADLs with no treatment required except avoidance of sun exposure to the larger scar on the anterior right shin and no adherence to the underlying structures. Medical Assessor Menogue came to the same conclusion.
2. The WPI is calculated in reference to Table 6.4 of the Guidelines 2% for the right knee, 4% for the right ankle, 2% loss of sensation. These are then combined using the AMA 4 Guides Combined values table to yield 8%WPI. This is then combined with 3% for scarring. This yields 11% WPI.

1. The full Panel met on 19 August 2025 at 3.00pm and discussed the findings of the medical examiners and all of the issues in the case.
2. The full Panel concluded that for the reasons articulated by the Medical Assessors above, the total of the WPI was 11% and the findings of Medical Assessor Menogue should be confirmed.
3. In coming to this finding, the Medical Assessors reviewed the submissions of both the claimant and the insurer.

1. The Medical Review Panel affirms the certificate of Medical Assessor Nigel Menogue of

7 March 2025 that the injuries caused by the accident give rise to a permanent impairment of 11%.