MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant was injured in a motor vehicle accident; food delivery truck turned in front of the claimant and he fell off of his motorbike and was run over by the truck's wheel; Medical Assessor (MA) determined the claimant's whole person impairment (WPI) was 15%; insurer applied under section 7.26 of the Act for referral of assessment to the Review Panel; Held - Review Panel conducted its own examination and found that WPI as a result of injuries sustained in the accident was 11%; certificate of the MA was revoked.

1. The Review Panel revokes the certificate of Medical Assessor Nigel Menogue, dated

4 March 2025, and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident, gave rise to a whole person impairment of 11%.

1. On 10 April 2022, the claimant Alistair Read (Mr Read), was riding his motorcycle when a truck turned in front of him. Notwithstanding hard braking, the bike skidded off to one side and skidded and slid under the truck. Mr Read was subsequently run over by one of its wheels.
2. Insurance Australia Limited t/as NRMA (the insurer), was the CTP insurer.
3. Mr Read was airlifted to Royal North Shore Hospital where he was admitted to ICU with a hemopneumothorax.
4. He remained an inpatient for the next week. In hospital, he was taken to theatre for an open reduction and internal fixation of the left clavicle fracture.
5. He remained an inpatient for a further five days until discharge on 22 April 2022.
6. On 18 February 2025, Mr Read was assessed for whole person impairment (WPI) by Medical Assessor Nigel Menogue who, on 12 March 2025, certified that as a result of the accident, Mr Read had a degree of permanent impairment of 15%.

1. A medical dispute about the degree of Mr Read's WPI has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the Motor Accident Injuries Act 2017 (MAI Act).
2. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
3. The dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Nigel Menogue for assessment.
4. On 18 February 2025, Medical Assessor Menogue assessed Mr Read and on 4 March 2025, certified that the injuries sustained from the accident to his left clavicle, ribs, right knee, right ankle, scarring, and thoracic spine led to 15% WPI.

1. The insurer sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
2. A delegate of the President of the Commission determined there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Panel.
3. Part 5 of the Personal Injury Commission Act 2020 (PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
4. The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
5. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) provide that a review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.

1. Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
2. However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
3. Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
4. Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
5. Clause 6.6 of the Guidelines notes:

"6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

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

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

"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."

1. Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
2. The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
3. Clause 6.32 of the Guidelines states:

"The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.'

1. Medical Assessor Menogue examined Mr Read on 18 February 2025 and issued his certificate on 4 March 2025. He considered all documents provided in the application and reply.
2. Medical Assessor Menogue listed the injuries referred for assessment at [2]:
   • clavicle - fractured left clavicle;
   • ribs - multiple rib fractures;
   • knee - injury to right knee;
   • ankle - injury to right ankle;
   • skin scarring minimal - scarring, and
   • thoracic spine - residual intercostal left sided nerve damage.
3. At [3], he then set out the submission made by Mr Read, noting that it considered all evidence to April 2024 and relied on the reports of Dr Dixon, arguing that the WPI was greater than 10%.
4. The Medical Assessor then set out the insurer's submissions at [4], which submitted that relying on the report of Dr Rimmer, WPI was less than 10%.
5. At [8], he then set out a pre-accident history and at [9], the history given to him of the accident.
6. The Medical Assessor continued at [10] to list the history of symptoms and treatment, which he was informed, followed the accident.
7. At [12], he listed the current symptoms, including those to the left ribs and thoracic spine.
8. Medical Assessor Menogue clinically examined Mr Read at [15]-[21] and the Panel partially reproduces his findings:

On examination he was of average stature and average build; he walked with a normal gait. He rose steadily using both hands to push himself off the chair.

He stood independently on each leg without support.

He had a normal posture; there was no evidence of pelvic tilt or limb shortening.

Gait and stance on tiptoe and heel did not show any evidence of loss of agility, muscle weakness, discomfort or limp and he was able to perform a full squat.

He was encouraged to demonstrate maximal effort during the assessment process but short of unacceptable symptom levels.

The cervical spine was not listed for assessment, however was included in the examination involving the upper extremity.

Examination of the cervical spine showed the neck to be short and thin; the attitude was neutral and normal with no evidence of torticollis.

There was no tenderness over the spinous processes, interspinous ligaments or paraspinous muscles. There was no evidence of paracervical muscle guarding or trapezius spasm and there was no region acting as a trigger area.

There was an observed fractional loss in range of movement from the expected normal of one-quarter when examining cervical flexion and extension, lateral rotation and lateral flexion and this reduction in movement was symmetrical.

He commented that lateral rotation to the right and lateral flexion to the right caused pain in the base of the left side of the neck - posterior to the shaft of the clavicle.

Overall, there was no observed non-uniform loss of motion when assessing the cervical spines today.

The upper and lower arms were symmetric in dimension and there was no evidence of loss of tone, wasting or tenderness about the muscles of the upper arms or forearms.

The grip of the hands was equivalent with no evidence of small muscle wasting.

Objective assessment of thumb power was normal and there was no evidence of tenosynovitis or tendonitis relating to the abductors or extensors.

There were no sensory disturbances detected when assessing the upper limbs that followed any anatomically derived dermatome and reflexes were present and equivalent at the wrist and elbow.

[17] Thoracic and lumbar spine (thoracolumbar)

Examination of the chest noted bony asymmetry involving the mid part of the left lateral chest wall - residual from fractured left ribs. Chest expansion was equal at 6cm.

He was generally tender on palpating the left chest wall.

Two-point discrimination testing over the left pectoral was no different to that from the right, although Mr Read commented that generally speaking, he considered sensation over the entire anterior chest wall to be "different". This distribution did not follow any specific peripheral nerve.

Examination of the thoracic spine did not reveal any skeletal deformity or abnormality. There was no scoliosis, lumbar tilt or rotational deformity. The kyphotic and lordotic curves were normal.

Palpation revealed maximum discomfort from the T4 through to the T7 level in the mid-line.

There was no evidence of paraspinous muscular guarding or sacrospinalis spasm but the region at the T4/5 level was acting as a trigger area.

There was an observed fractional loss in range of movement from the expected normal of one-quarter when examining thoracic flexion and one-half when examining thoracic extension. This reduction in movement was asymmetrical.

Lateral flexion to the left was reduced by one-quarter and to the right by one-quarter; lateral rotation was reduced by one-third to the left and one-quarter to the right. This reduction in movement was asymmetrical.

There was observed non-uniform loss of motion when assessing the thoracic spines.

He sat up on the couch bending forward and the fingertips reached the mid shin area.

He could achieve 90 degrees of bilateral hip flexion with the legs outstretched and this is usually associated with at least 70 degrees of active straight leg raising.

Power in the quadriceps, hamstrings, extensor and flexor hallucis longus muscles was equivalent.

There was no measured muscle wasting in the thigh or calf.

There were no sensory disturbances detected when assessing the lower limbs that followed any anatomically derived dermatome and reflexes were present and equivalent at the knee and ankle.

Examination of the upper limbs showed them to be asymmetric. Medical Assessor Menogue had already referred to the asymmetry involving the left chest wall consistent with the healing of the ribs on the left side. He also noted that there was partial winging of the left scapula compared with the right, and evidence of spinate muscle wasting when considering the supraspinatus muscles posterior to the left clavicle.

Examination of the shoulders noted prominence of the left clavicle but no gross bony deformity.

Palpation of the acromioclavicular joints was unremarkable.

The following shoulder movements were obtained (goniometer verified):

Examination of the lower limbs showed them to be symmetric with no obvious wasting, scarring, bony joint or soft tissue abnormality.

Examination of the knees did not demonstrate any condylar or patellar expansion, synovial hypertrophy or effusion.

The following knee movements were obtained (goniometer verified):

Repeated flexion extension movements were not associated with any sustained retro patellar femoral crepitus when assessing both knees.

There were no bursii or cysts associated with the knee joint.

There was no knee increased anterior drawer movement or collateral ligament instability. There was no abnormal patellar mobility, nor was there pain on retro patellar pressure.

There was no circumferential difference between left and right thigh or calf measurements.

Examination of the ankle joints (with goniometer) did not identify any malleolar expansion, ligamentous or capsular thickening or tenderness.

The following ankle joint movements were obtained (goniometer verified):

Examination of the subtalar joints noted the following range of movement (goniometer verified):

The scarring was observed over the left clavicle and the scarring was assessed using the TEMSKI chart. The following was noted:

• he was conscious of the scar;
• the scar was white, exhibiting colour contrast with the surrounding skin as a result of ongoing healing;
• he was able to locate the scar;
• there were no trophic changes;
• suture marks were barely visible;
• anatomical location was visible when not wearing upper clothing;
• there was a minor contour effect;
• no treatment was required, and
• there was no adherence.

He was undemonstrative and there was no inconsistency.

1. After his clinical examination, the Medical Assessor arrived at the permanent impairment findings set out in the chart on page 15 reproduced below:

AMA4 Guides/Guidelines References (chapter/page/table)

1. The Medical Assessor concluded that Mr Read suffered a WPI of 15% due to injuries caused by the accident.

Medicolegal report of Dr Drew Dixon, orthopaedic surgeon, dated 18 October 2023

"1. Healed fractured left clavicle with ORIF with post traumatic stiffness with tender surgical scar which is painful if tapped or bumped;

1. Flail left rib fractures 2-10 with a fracture of the 1st rib proximal segment treated with thoracic epidural and breathing exercises with a small pneumothorax;
2. Right 5th to 6th rib fractures;
3. Sensory change in the left pectoral region;
4. Left hemi-pneumothorax and pulmonary contusion;
5. Coincidental COVID positive test while in hospital;
6. Loss of consciousness at the accident site without direct head injury and no skull fractures or brain injury on CT scan;
7. Dysthesiae in the pectoral region of his chest;
8. Traction injury to the supraclavicular brachial plexus which is palpable and tender;
9. Lateral chest wall pain without pleuritic pain on deep inspiration and no shortness of breath;
10. Partial winging of the scapula secondary to probable long thoracic nerve injury;
11. Neck strain injury with post traumatic stiffness;
12. Thoracic spine injury with post traumatic stiffness with sensory change on the chest wall;
13. Weakness of the IP joint of his left thumb with sensory change at the tip of the thumb which may be related to his brachial plexus traction injury;
14. Impaction of his injuries on his ADL's;
15. Reliance on analgesia;
16. PTSD, with treatment with Valium."
17. In a further report of 19 October 2023, Dr Drew Dixon gave his assessment of WPI:
    • neck strain injury with post traumatic stiffness, DRE II, 5% WPI;
    • injury to the long thoracic nerve with partial winging of the left scapula resulting in 5% upper extremity impairment;
    • stiffness of the right shoulder, giving 5% upper extremity impairment;
    • painful dysesthesia across the chest wall due to sensory changes of the intercostal nerves in the trunk is by analogy to the axillary nerve, giving 5% upper extremity impairment;
    • weakness of the left thumb at the IP joint, giving 2% upper extremity impairment;
    • thoracic spine where he has traumatic stiffness with dysmetria and scoliosis, secondary to his rib fractures with costo-vertebral joint pain DRE II, giving 5% whole person impairment;
    • scarring at the left shoulder, giving 1% WPI;
    • retro-patellar crepitus of his right knee, giving 2% WPI, and
    • stiffness of the right ankle and subtalar joint, giving 4% WPI.
18. Dr Dixon arrived at a combined 23% WPI.

Report of Dr Stephen Rimmer, orthopaedic surgeon, dated 26 July 2024

1. The report of Dr Rimmer is reproduced in full below. The report is discussed by the Review Panel at [103]-[115] of this certificate.

"Appointment Commenced: 10:00am Appointment Concluded: 10:30am

(a) Application for personal injury benefits dated 6 May 2022;

(a) NSW Ambulance report dated 10 April 2022;

(b) NSW Police report dated 11 May 2022;

(c) Records of Royal North Shore Hospital dated 18 March 2024;

(d) Initial Report of Associate Professor Wrigley dated 21 November 2022;

(e) Initial report of Carlingford Active Health dated 7 July 2022;

(f) Clinical records of Health First Medical Practice as at 22 December 2023;

(g) Clinical records of Carlingford Active Health as at 15 April 2024;

(h) Neurology Report of MQ Health dated 30 June 2022;

(i) Report of Dr Andrew Sherrah dated 21 September 2022;

(a) MRI report of left chest wall and brachial plexus dated 14 July 2022;

(a) Report of Dr Matthew Marchant dated 27 March 2024 and 10 April 2024

(b) Functional Capacity Evaluation Report dated 16 June 2023;

At the commencement of the interview I explained the purposes of an independent medico-legal examination. I indicated that I was not a treating doctor and that I was not able to provide any advice. My report is based on the history provided by Mr Read, the appropriate clinical examination and the documentation provided. There were no radiological investigations present today.

Thank you for referring this 50-year-old claimant to the Sydney office. He is right hand dominant. He is a self-employed aquarium technician for the last 15 years. Date of Motor Vehicle Accident - 10/04/2022. He describes riding his motorcycle when he was struck by a truck which subsequently ran over his chest. He was brought in by ambulance to Royal North Shore Hospital. He was admitted to the Intensive Care Unit. He sustained the following injuries:

• Left 2nd to 10th rib fractures (flail segment)
• Right 5th and 6th rib fractures
• Fractured left clavicle
• Musculoskeletal strain cervical spine
• Musculoskeletal strain lumbar spine
• Soft tissue injury right knee
• Soft tissue injury right ankle

He describes undergoing open reduction and internal fixation of the left clavicle fracture. All other injuries were treated conservatively. He was discharged home on 22/04/2022 with a left broad-arm sling. After a period of time he underwent extensive physiotherapy to all anatomic sites. He was reviewed by Dr Sherrah (Cardiothoracic Surgeon) on 21/09/2022 due to ongoing neuropathic pain in his left hemithorax. He was subsequently sent to a pain management clinic. He has been prescribed Lyrica, however for personal beliefs he declined to use this. He returned to work approximately three months post-accident in a restricted fashion. This has steadily increased to pre-injury duties which remains the case to date.

He denies a previous history of injury to any anatomic site.

He describes intermittent pain. He points to the left side of his neck. He describes a crunching sensation. He describes intermittent weakness in his left thumb.

He stated the following "feels pretty broken". He points to the midline. There is no evidence of radiculopathy to either lower limb.

He describes intermittent pain. It is global in position.

He describes intermittent pain that is global in position. There is no clicking, swelling, locking or instability.

He had extensive physiotherapy in the past which has now ceased. He takes Panadol daily. Valium as required. He attends massage therapy as required (self-funded).

He works his normal hours and duties as a self-employed aquarium technician. He stated "I'm doing my best".

He continues to drive a vehicle. He continues to shop and fish. He claims his participation in squash and playing drums has been affected.

He is married with three dependent children. He smokes ten cigarettes per day. He does not drink alcohol.

Pleasant claimant of stated age. Height 179cm. Weight 71kg.

Normal alignment in both planes. Mildly tender to firm palpation throughout the left side of his neck. He had the following active range of motion:

• forward flexion, chin on chest;
• extension, 20°;
• left lateral rotation 45°;
• right lateral rotation 45°;

all of which reproduced left-sided neck pain. There was no evidence of cervicobrachial irritation.

Well-healed surgical scar consistent with known surgery. He was mildly tender to firm palpation throughout. He had the following active range of motion:

• flexion 160°;
• extension 40°;
• abduction 160°;
• adduction 40°;
• external rotation 80°;
• internal rotation 60°;

Tone, power, sensation, and reflexes all present and symmetrical.

Normal alignment in both planes. Gait was normal. He had the following active range of motion in the erect position:

• forward flexion, fingertips to mid-shins;
• extension, 20°;

both of which were performed without any obvious discomfort. With the claimant supine, straight leg raise bilaterally was 75° and pain-free. Tone, power, sensation, and reflexes all present and symmetrical.

With the claimant undressed and standing, the overall alignment of the knee is physiological valgus. With the claimant supine, quadriceps musculature is symmetrical. There is no effusion. There is no joint line tenderness. Collateral and cruciate ligaments are intact. Range of motion is 0-130° (left = right) and pain-free.

Symmetrical in appearance, i.e. no evidence of swelling, discolouration, etc. He was able to tiptoe and heel weight-bear without difficulty. With the claimant supine, he was non-tender to firm palpation throughout. He had the following active range of motion:

• plantar flexion 25°; right =left
• extension 15°; right =left
• inversion 25°; right =left
• eversion 15°; right =left

all of which were performed without any obvious discomfort.

Nerve conduction studies, 30/06/2022 show decreased recruitment of motor units in the left flexor pollicis longus but there was no denervation.

(2) Case history (any comments on the Claimant's work, medical, accident and injury history).

1. Open reduction and internal fixation of the left clavicle fracture.
2. Extensive physiotherapy to multiple anatomic sites which has now ceased.
3. Participation in a pain management clinic due to left hemi-thoracic neuropathic pain.
4. Regular massage therapy which is ongoing (self-funded).
5. Daily Panadol intake.

(6) Diagnosis and disabilities (from the accident).

Without the benefit of radiological investigations:

1. Fractured left clavicle with subsequent open reduction and internal fixation.
2. Left hemithorax rib fractures 2-10.
3. Right hemithorax rib fractures 5,6.
4. Musculoskeletal strain, cervical spine.
5. Musculoskeletal strain, lumbar spine.
6. Soft tissue injury right knee.
7. Soft tissue injury right ankle.

With regards to disability, see "Current Symptoms".

(7) Recommended treatment (only to the extent necessary, stating frequency and length):

(j) medical;

(i) hospital;

(ii) surgery;

(iii) medication;

(iv) physiotherapy;

(v) occupational therapy; and

(vi) other treatment or rehabilitation;

Basically he attends massage therapy on an as-needed basis.

Given today's history and examination, I rate it as remarkably good given the circumstances of the motor vehicle accident.

(9) Earning capacity (from the point of view of your specialty)

(a) Past earning capacity

(i) Has there been an impact on the Claimant's capacity for work in the past as a result of the injuries caused or materially contributed to by the accident?

Yes. He was off work for approximately three months.

(ii) (If so, over what period was there an accident-related limitation?

(iii) (Please describe the limitation, eg was that limitation in the range of duties they could work, or the days/hours they could work, and if so, how were these restricted and/or limited?

Yes, he was unable to participate in any of his work duties.

(b) Future earning capacity

(i) Please advise whether the Claimant's capacity for employment is restricted and/or limited as a result of the injuries caused or materially contributed to by the subject accident.

No it is not. He is basically working his pre-injury duties.

(ii) If so, is that in terms of the range of duties they can work, or the hours they can work, and if so, how are these restricted and/or limited?

(iii) Is there a limit on the length of their working life as a result of injuries sustained in the accident?

(iv) Please comment on the Claimant's likely employment capacity with suitable treatment and rehabilitation.

(c) Future earning capacity (had the accident not occurred) Please comment on the Claimant's likely future employment capacity irrespective of the accident occurring, in view of any pre-existing issues you diagnose. This should include reference to:

(i) likely retirement age due to progression of any pre-existing or subsequent conditions;

(ii) whether they would have been fit for part-time or full-time hours until likely retirement age;

They would be fit for full-time hours until retirement.

(10) Please provide your assessment of whole person impairment (if any) in accordance with the AMA4 guides and the Motor Accident Authority's Guidelines for the assessment of permanent impairment.

Table 73, page 110: Clinical signs he is DRE impairment category 2 ie; clinical sings of neck injury are present without evidence of radiculopathy which is 5% WPI. Table 73, page 110:

His clinical signs are consistent with DRE category II, i.e. the history and findings are compatible with specific injury and include intermittent muscle guarding with nonverifiable radicular complaints. There is no objective evidence of radiculopathy or loss of structural integrity, which is 5%.

Table 72 page 110 he is DRE impairment category 1 ie; the claimant has no significant clinical findings, no muscular guarding, no documented neurological impairment which is 0%.

Motor Accident Guidelines 6.23 ie; certain injuries may not result in an assessable impairment covered by these guidelines and the AMA 4 Guides. For example uncomplicated healed sternal and rib fractures do not result in assessable impairment. Therefore 0% WPI.

Therefore combining 5% WPI of the cervical spine with 3% WPI of the left shoulder with 0% WPI of the lumbar spine with 0% WPI of the right knee and 0% WPI of the right ankle with 0% WPI of the left hemithorax and 0% WPI of the right hemithorax is 8% WPI.

(11) Apportionment of disability to: (a) the accident; and 100%. (b) any prior or subsequent injury or condition.

1. The Panel summarises the relevant sections of each of the submissions below with respect to paragraph numbers:

[1]-[3] The insurer has communicated a decision materially impacting Mr Read's rights to compensation under the MAI Act. Mr Read submits that the decision is incorrect and requests it be overturned.

The insurer's decision being referred for Commission assessment

[4]-[6] On 3 April 2024, Mr Read requested the insurer concede that his permanent impairment exceeds 10% due to motor vehicle accident injuries. On

3 July 2024 the insurer advised it does not concede that Mr Read sustained physical or psychiatric injuries exceeding 10% permanent impairment.

Mr Read disagrees and requests a Commission determination.

[8] Mr Read submits the insurer failed to consider or give proper weight to

Dr Drew Dixon's report dated 19 October 2023, which indicates accident-related physical injuries amount to more than 10% permanent impairment.

[9]-[10] Mr Read submits the insurer made an incorrect determination substantially affecting his right to compensation. Mr Read submits the insurer is bound by s 6.4 of the MAI Act to resolve the claim justly and expeditiously, and the most effective way is to concede entitlement to non-economic loss.

[11] Mr Read submits the insurer failed to consider or accord proper weight to

Dr Dixon's medico-legal reports of 18 and 19 October 2023.

[12] Dr Dixon provided a comprehensive assessment, diagnosing:

(a) healed fractured left clavicle with ORIF and post-traumatic stiffness with tender scar;

(b) flail fractures of left ribs 2-10 and proximal first rib fracture;

(c) right 5th-6th rib fractures;

(d) sensory change in left pectoral region;

(e) left hemi-pneumothorax and pulmonary contusion;

(f) Dysthesiae in chest pectoral region;

(g) traction injury to supraclavicular brachial plexus;

(h) lateral chest wall pain;

(i) partial winging of scapula;

(j) neck strain injury with stiffness;

(k) thoracic spine injury with stiffness, and

(l) psychological injury - post-traumatic stress disorder.

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

(b) right upper extremity - 7%;

(c) thoracic spine DRE category II - 5%;

(d) scarring - 1%;

(e) right knee - 2%, and

(f) right ankle - 4%.

[14] Dr Dixon observed neuropathic pain, allodynia, paraesthesia in left anterior chest, ongoing right knee and ankle discomfort, and ankle stiffness.

[15] Mr Read submits he now has restricted movements, including neck flexion/extension reduced by one quarter, right lateral flexion reduced by one half with left shoulder pain, plus lateral chest wall pain and axillary sensitivity.

[16] Dr Dixon noted an 8cm tender surgical scar below the clavicle, radiating thoracic pain from intercostal nerve damage, and emphasised that Mr Read's neuropathic pain is not expected to improve beyond 3%. He stressed the injuries are significant and not minor, with neck and thoracic stiffness, dysmetria and scoliosis.

[17] Mr Read submits Dr Dixon's findings demonstrate permanent impairment exceeding the 10% threshold.

[2.1]-[2.3] The insurer agrees there is a dispute as to whether Mr Read's impairment exceeds 10% WPI. The insurer disputes that Mr Read's impairment exceeds 10% WPI.

[4.1] Mr Read's Personal Injury Benefits application lists:

(a) crushed chest;

(b) sore hips and legs;

(c) damaged back;

(d) damaged left lung;

(e) broken left clavicle;

(f) two broken right ribs, and

(g) 10 broken left ribs.

[4.2] In this WPI dispute, Mr Read seeks assessment of:

(a) fractured left clavicle;

(b) multiple rib fractures;

(c) pneumothorax;

(d) right knee injury;

(e) right ankle injury;

(f) scarring, and

(g) thoracic spine injury with intercostal nerve damage.

[4.3] The insurer submits Mr Read had pre-accident shoulder and elbow conditions, relying on the following treating materials:

(a) Dr Shan Lin (3 Jan 2020) - tendinosis and tear, and

(b) December 2019 - right elbow pain at work, no relief with treatment.

[4.4] The insurer submits the fractured clavicle has healed, relying on the report of Dr Rimmer (26 July 2024).

(a) X-ray 12 April 2022 - left clavicle fracture;

(b) surgery 17 April 2022 by Dr Ellis;

(c) Dr Sherrah - injuries healed but neuropathic chest/axilla pain remains, and

(d) RNSH progress notes 6 July 2022 - fractures healing well.

[4.6]-[4.7] Dr Dixon noted that the injuries were not minor due to fractures and adjacent regions. He also observed mild C5/6 degenerative changes.

[4.8] Dr Rimmer assessed 3% WPI for left shoulder; scar healed, mildly tender.

[4.9] The insurer submits rib fractures have resolved and do not cause assessable impairment.

[4.10] Records show flail chest fractures 1-10 managed conservatively, healing well by July 2022, with physiotherapy. Dr Lin, on 5 May 2022, noted ribs "not painful" and "able to do deep breathing".

[4.11] Dr Dixon reported no shortness of breath or pleuritic pain, only residual discomfort.

[4.12] The insurer relies on Dr Rimmer's report and s 6.23 Guidelines that uncomplicated healed rib fractures are not assessable.

[4.13] The insurer submits pneumothorax resolved without assessable impairment (Dr Rimmer).

[4.14] Dr Dixon found full chest expansion without pleuritic pain.

[4.15] The insurer relies on s 6.23 Guidelines that "uncomplicated healed sternal and rib fractures do not result in assessable impairment."

[4.16] The insurer submits the right knee suffered only soft tissue injury, not resulting in WPI.

[4.17] Hospital and rehab records show full flexion, unrestricted function, full range of movement by September 2022.

[4.18] Dr Rimmer found symmetrical musculature, no tenderness, pain free movements, diagnosing soft tissue injury with 0% WPI.

[4.19] Dr Dixon also recorded full range of movement with stable knees and no wasting.

[4.20] The insurer submits the ankle injury was soft tissue only. Dr Rimmer found normal appearance, ROM without discomfort, 0% WPI.

[4.21] Dr Dixon acknowledged it was a soft tissue injury.

[4.22] The insurer notes the 8cm surgical scar. Dr Dixon assessed 1% WPI.

[4.23] Dr Rimmer found the scar well-healed, mildly tender.

[4.24] The insurer notes the thoracic spine not mentioned in initial hospital records.

[4.25] Physiotherapy records show stiffness in Aug 2022, but full range of movement by September 2022; notes from March 2023 report only general stiffness relieved with therapy.

[4.26] Functional Capacity Evaluation report of 16 June 2023 recorded tightness, worse with work, eased by rest/therapy.

[4.27]-[4.29] Dr Rimmer diagnosed musculoskeletal strain. He found no significant clinical findings, guarding, or neurological impairment. Dr Rimmer assessed 0% WPI for the spine.

[5.1]-[5.3] The insurer relies on Dr Rimmer and submits Mr Read's physical injuries amount to 8% WPI. The insurer submits the evidence shows physical injuries do not exceed 10% WPI.

[1.1]-[1.3] Mr Read was assessed at the Commission by Medical Assessor Menogue. Medical Assessor Menogue certified on 4 March 2025 that, as a result of the accident, Mr Read sustained injuries to the thoracic spine, left clavicle, right knee, right ankle and scarring. The Medical Assessor assessed WPI at 15%. The insurer submits there is reasonable cause to suspect the medical assessment is incorrect in a material respect and requests that the President's delegate refer the WPI dispute to a Review Panel.

[2.1] The insurer submits that the medical assessment of Medical Assessor Menogue is incorrect in a material respect because the Medical Assessor applied an incorrect methodology when assessing the long thoracic nerve injury.

Error 1 - Incorrect methodology for long thoracic nerve injury

[3.1]-[3.2] Medical Assessor Menogue assessed 5% WPI for residual intercostal left-sided nerve damage at the thoracic spine. The insurer submits this was not undertaken pursuant to the Guidelines and AMA Guides (4th edition).

[3.3] The Medical Assessor relied on Table 6.7 of the Guidelines, and Tables 74, 11 and 15 of the AMA Guides, in arriving at the 5% allocation.

[3.4] He found injury to the left long thoracic nerve and referred to AMA Table 15, which provides 15% upper extremity impairment for combined motor/sensory deficit (0% sensory, 15% motor). He noted scapular winging, reduced shoulder motion and altered sensation of the chest wall.

[3.5]-[3.6] The Medical Assessor then applied Table 11 (sensory deficit), classifying Mr Read's symptoms as Grade 3 ("decreased sensibility with or without abnormal sensation or pain, interfering with activity"), producing 9% U.E.I, equating to 5% WPI. The Insurer submits this introduced an impermissible sensory component not supported by the Guidelines.

[3.7]-[3.8] Table 15 provides 0% for sensory deficit of the long thoracic nerve, and medical literature does not support a sensory component. Therefore, the Insurer submits reliance on Table 11 was erroneous.

[3.9] The insurer submits the Medical Assessor also failed to provide reasons under Table 12 regarding the motor component.

[3.11]-[3.12] In AAI v Fitzpatrick, Schmidt J confirmed that reasons must reveal the reasoning process and that failure to do so justifies suspicion of material error. Her Honour further held at [51] that this obligation requires intellectual engagement with all relevant issues and competing views, and an explanation of how the assessor reached the conclusion.

[3.13] At [60]-[64], Schmidt J held it is insufficient to merely identify impairments and apply the Guidelines; assessors must resolve the medical dispute between the parties in accordance with the Guidelines.

[3.14] In Campbelltown City Council v Vegan [2006] NSWCA 284 at [121]-[122], Basten JA held that where one of two competing conclusions is preferred, the reasons must explain why.

[3.15] The insurer submits there were no complaints or evidence of sensory deficit in Mr Read's reporting or examination, contrary to cls 6.19 and 6.40-6.41 of the Guidelines.

[3.16] The insurer submits the Medical Assessor's reasons did not address the Grade 3 sensory criteria, and in any event, Tables 11 and 15 were misapplied.

[3.17] The insurer submits a further error is that the Medical Assessor only addressed 9 of 10 TEMSKI criteria in assessing scarring. While the Insurer does not dispute the TEMSKI rating, the omission demonstrates error in methodology.

Claimant's submissions [UNDATED] uploaded to the Commission's portal on

[3] Medical Assessor Menogue observed asymmetrical thoracic spine movement on extension and lateral flexion, partial winging of the left scapula, supraspinatus muscle wasting, and left clavicle prominence.

[4] He noted Mr Read was symptomatic in the mid-line thoracic spine, with injuries to the chest wall likely causing thoracic spine injury. He found insufficient evidence for a soft tissue thoracic injury alone.

[5] Mr Read was noted to have intermittent weakness in the left thumb tip and mid-line ache from T4-T7, exacerbated by activity.

[6] It was considered that Mr Read sustained a thoracic spine soft tissue injury and residual left-sided long thoracic nerve damage. The Medical Assessor observed that symptoms were peripheral, not related to nerve root injury.

[7] Medical Assessor Menogue assessed 5% WPI for the thoracic spine on two independent bases:

(a) objective dysmetria findings - DRE II, and

(b) long thoracic nerve injury causing motor and sensory deficits.

[8] Mr Read submits the insurer does not dispute (a), which is alone fatal to its application. Mr Read further submits the insurer has not shown reasonable cause to suspect error in the long thoracic nerve assessment.

[9] The insurer asserts Medical Assessor Menogue "erred by applying an incorrect methodology for the long thoracic nerve injury assessment."

[10] The insurer submits the extremity impairment was wrongly assessed for both motor and sensory deficits, claiming AMA Guides Table 15 provides 0% for sensory alteration of the long thoracic nerve, and that medical literature shows it has no sensory component. It argues Table 11 was erroneously used for impairment determination.

[11] Mr Read submits the insurer's argument is internally inconsistent: it claims the nerve has no sensory component, yet also that 0% applies because the injury is limited to sensory deficit.

[12] Mr Read submits the insurer overlooks Medical Assessor Menogue's findings supporting motor deficit, including:

(a) partial winging of the left scapula;

(b) spinate muscle wasting, and

(c) left clavicle prominence.

[13] Mr Read submits these findings align with Medical Assessor Menogue's observation that symptoms are peripheral, not nerve root related, and demonstrate a motor deficit component contrary to the insurer's claim.

[14] Mr Read submits Medical Assessor Menogue clearly articulated his reasoning and applied clinical judgment appropriately, leaving no basis to suggest inadequacy.

[2.1] The insurer submits that the original Medical Assessor was not required to assess Mr Read's cervical spine as it was not referred or listed as an area for assessment.

[2.2] Mr Read's submissions at A1 of the Medical Assessment Application, uploaded to the portal on 19 September 2024, clearly listed the following injuries:

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

(b) right upper extremity (Left scapula, right shoulder, left thumb) - 7%;

(c) thoracic spine - DRE category II - 5%;

(d) scarring - 1%;

(e) right knee - 2%, and

(f) right ankle - 4% WPI.

[2.3] Mr Read submits that the cervical spine was omitted from the online form due to an administrative error, and that he should not be disadvantaged by this.

[2.4] The Commission has requested the insurer's consent to include the cervical spine in the assessment. By letter dated 4 August 2025, the claimant requested that the Insurer consent to its inclusion, noting the comments of the Review Panel in its report of 1 August 2025. The insurer did not respond.

[2.5] The insurer submits that Medical Assessor Menogue found no dysmetria, degenerative changes, or other inclusion criteria for the purpose of assessing DRE category II, and that he provided a clear path of reasoning. However, at paragraph 16 of his report he found:

• a fractional loss in range of movement from the expected normal of one quarter when examining cervical flexion, extension, lateral rotation, and lateral flexion;
• that this reduction was symmetrical, and
• that lateral rotation and lateral flexion to the right caused pain in the base of the left side of the neck, posterior to the shaft of the clavicle.

[2.6] The insurer submits that no further assessment is required in relation to the claimant's cervical spine as it has already been assessed.

[2.7] The claimant submits that, as no formal assessment of WPI was done in the original assessment, the cervical spine should be included in the list of injuries referred to the Panel.

[3.1] Mr Read submits that an axillary nerve injury cannot be excluded as plausible in circumstances where a truck drove over his chest.

[3.2] While the axillary nerve was not specifically listed by Mr Read, the right upper extremity was listed in submissions attached to the application, and the ribs were listed as a bodily region of injury in the online application.

[3.3] Mr Read submits that the method of listing injuries on the portal is problematic, particularly in relation to nerve injuries or referred pain where pinpointing a specific body part is difficult. The claimant relies on his submissions at A1 of the application as referring more precisely to the areas injured.

[3.4] In this regard, Mr Read submits that the right upper extremity (left scapula, right shoulder, left thumb) or rib area could have referred to an injury to the axillary nerve.

[3.5] The insurer submits that the axillary nerve was not listed in the claimant's original Medical Dispute Application, nor was it considered by either party's experts or the original Medical Assessor. There is also no mention of damage to this nerve in any treatment records before the Commission.

[3.6] The claimant submits that the Commission is not attempting to amend the scope of the injuries referred, as the relevant bodily regions were referred for assessment.

[4.1] Mr Read submits that it is reasonable to include the axillary nerve as part of either:

(a) injury to the ribs in the portal application; or

(b) right upper extremity as submitted in the claimant's submissions at A1 of the application.

[4.2] Mr Read further submits that it is reasonable for the cervical spine to be included in any further assessment by the Panel, as it was included in his submissions and no formal WPI assessment was made by Medical Assessor Menogue in the original assessment.

[2.2] The insurer submits that a rib fracture cannot cause an injury to the axillary nerve given its lack of proximity to that area.

[2.3] The insurer objects to the Panel's suggested inclusion of the axillary nerve as an area for assessment on the basis that it was not omitted from the claimant's application by way of an obvious error.

[2.4] The insurer refers to s 7.25 of the MAI Act which provides that the assessment of a medical dispute by way of further medical assessment or review may be made on the basis of agreement by the parties as to:

(a) the degree of permanent impairment that has resulted from a particular injury, and

(b) whether a particular injury was caused by a motor accident.

[2.5] The insurer submits that the axillary nerve was not listed for inclusion in the Claimant's original Medical Dispute Application, nor was it considered by either party's experts or the original Medical Assessor. There is also no mention of axillary nerve damage in any treatment records before the Commission.

[2.6] The insurer submits that the claimant has had ample opportunity to complain of such an injury, and that multiple experts (IME, treating practitioners and the Commission's Medical Assessor) have examined him without forming the view that assessment of the axillary nerve was required.

[2.7] The insurer submits that there is no injury to the axillary nerve requiring examination.

[2.8] Should the Panel disagree, the insurer submits that the Commission has no power to amend the scope of injuries referred in the present context.

[2.9] For the avoidance of doubt, the Insurer submits that there would be no argument to be made to the contrary following the precedents in Mandoukos, Cahill and Toole.

[3.1] The insurer submits that the original Medical Assessor was not required to assess the Claimant's cervical spine as it was not referred or listed as an area for assessment.

[3.2] Should the Panel consider that this area was omitted by the claimant's solicitors in the original Application for Medical Assessment, the Insurer submits that an assessment of this area has already been performed by Medical Assessor Menogue.

[3.3] The insurer refers to paragraph 16 of Medical Assessor Menogue's reasons, which included an assessment of the claimant's upper extremity but made no attribution of WPI to the cervical spine in relation to the subject accident.

[3.4] Medical Assessor Menogue found no dysmetria, no degenerative changes, and no other inclusion criteria for the purposes of DRE category II, providing a clear path of reasoning for his conclusion.

[3.5] Accordingly, the insurer submits that no further assessment of the claimant's cervical spine is required.

[4.1] The insurer submits that there was no obvious error by the Medical Assessor in failing to include the axillary nerve.

[4.2] If there was an error by the claimant's solicitors in not referring the cervical spine to the Panel for assessment, the Insurer submits that this area was already considered by Medical Assessor Menogue.

[4.3] The insurer does not agree to the inclusion of the axillary nerve in the Review Panel assessment and submits that no further assessment of the cervical spine is required.

1. Member Stern, on behalf of the Panel, asked the Insurer to make any further submissions it wishes to make on the inclusion of the Intercostal Nerve and the Long Thoracic Nerve by 5.00pm on 12 December 2025.
2. The Insurer's submissions are reproduced below:

[1.1] "We refer to the message from Member Terence Stern OAM placed on the PIC portal on 4 December 2025, inviting the Insurer to make any further submissions on the inclusion in the assessment of the Intercostal Nerve and the Long Thoracic Nerve. Intercostal Nerve

[1.2] The Insurer notes that the Claimant has referred in its Application for Medical Assessment, to the thoracic spine and specifically the '[r]esidual intercostal left sided nerve damage'.

[1.3] The Insurer respectfully refers to its submissions made in reply dated 11 October 2024 and originally provided to Assessor Nigel Menogue in relation to his assessment. Further, the Insurer refers to its submissions dated 8 April 2025 made in its Application for Review. Long Thoracic Nerve

[1.4] In relation to the long thoracic nerve, the Insurer relies on its submissions made in relation to its Application for Review dated 8 April 2025."

1. Medical Assessor Michael Couch examined Mr Read on behalf of the Panel on 18 July 2025. A lengthy examination occupying two hours.
2. The Panel has been provided with a report by the Medical Assessor, into which his fellow examiner, Medical Assessor Christoper Oates, has had significant input.
3. The permanent impairment disputes to be assessed were:

(a) permanent impairment disputes to be assessed;

(b) ankle - injury to right ankle;

(c) clavicle - fractured left clavicle;

(d) knee - injury to right knee;

(e) ribs - multiple rib fractures;

(f) skin scarring (minimal) - scarring, and

(g) thoracic spine - residual intercostal left sided nerve damage.

Pre-accident history and relevant personal details

1. Mr Read grew up in Sydney. After school, studied in Tafe, worked in various jobs before specialising in aquariums and had operated his own aquarium business since 2010.
2. He told the Medical Assessor that he now mostly doing aquarium maintenance work, with two employees the heavier physical work.
3. He is married with three children, aged between 15-20, who are at home.
4. He did not ride motorbikes a lot and had not injured himself in the past.
5. He described himself as previously of average fitness for his age.

1. On 10 April 2022, Mr Read was riding a 600cc off-road motorcycle. He had a helmet, dirt bike armour, spine protection, trousers, good boots and gloves. Riding on a medium-sized road, his speed was around the 100kmph limit. A delivery truck approached in the opposite direction, indicating to turn right. The truck suddenly turned across his path. Braking hard,

Mr Read's back wheel left the road. He fell off and ended up under a wheel which ran over him and trapped him temporarily. The truck wheel came right up on his right thigh, across his abdomen, and "parked on my chest - that's when he stopped on top of me". He told the Medical Assessor that he felt his left-sided ribs breaking and thought he was dying. He was unable to breathe. The truck driver reversed off of him. 2. He waited a long time for a road ambulance and later transferred by helicopter to Royal North Shore Hospital (RNSH). He was in extreme pain.

History of symptoms and treatment following the accident

1. At RNSH, Mr Read required ICU admission with left-sided rib fractures from rib 2-10, with a flail segment and fractures of the right 5th and 6th rib. He was also noted to have a fracture of the left clavicle, which was treated by open reduction and internal fixation (ORIF), strains of the cervical spine and lumbar spine and soft tissue injuries to the right knee and right ankle.
2. The rib fractures were complicated by extreme pain and difficulty breathing by a haemopneumothorax which was treated without a chest drain.
3. Mr Read was in hospital for 12 days.
4. The Medical Assessor specifically noted that Mr Read had been referred to Dr Andrew Serrah, a cardiothoracic surgeon, who stated:

"He has been left with neuropathic pain, allodynia and paraesthesia to his left anterior chest wall and weakness of his left thumb. I have asked for his investigation reports to be sent through and he will be bringing his imaging (done at Macquarie Medical Imaging) including CT chest and MRI brachial plexus and chest wall demonstrating left rib fractures 1-10 with ribs 2-5 showing over-riding fragments. The C8 nerve root appears to be damaged with partial effacement of the perineural fat plain and this may be in keeping with his thumb weakness. Needle EMG showed decreased recruitment of motor units in the left flexor pollicis longus. There is also mild displacement of C8 and T1 around the first rib fracture callous and thickening of T2 associated with a rib 2 fracture. I think these injuries, along with a clavicle fracture, would be enough to explain his symptoms. He would like your opinion on his injuries (specifically rib fractures) and potential for recovery..."

1. Dr John Read, radiologist, summarised his MRI of the left brachial plexus and chest wall:

"Impression: 1. Fractures of left ribs 1-10 (see body of report for description).

2. Appearances thought "suspicious" (but not alone diagnostic) for possible left C8 nerve root tethering to callous at a healing proximal fragment of first rib.

3. Appearances thought "suggestive" (but not alone diagnostic) for left T2 neuroma adjacent to a healing proximal-segment fracture of 2nd rib.

4. Appearances thought "suspicious" (but not alone diagnostic) for left T5 intercostal nerve injury in the posterior axillary line adjacent to the markedly over-riding fragments of a fracture of 5th rib."

1. Medical Assessor Couch undertook a physical examination.
2. Mr Read attended promptly and came alone. He presented a reasonably healthy-looking middle-aged man. He had greying hair and a short, greying beard. At height 170 cm and weight 74 kg, his weight was within the healthy weight range. He was cooperative and somewhat talkative, but there was no suggestion of exaggeration or dramatization of his symptoms. At one stage he stated that he was "still very grateful to be alive". During the testing he showed excellent effort, with no suggestion of abnormal pain behaviours, self-limitation or inconsistency.

(Note: This body area had not been referred to Medical Assessor Menogue, although it had been commented on previously by both Dr Dixon for the claimant and Dr Rimmer for the respondent.)

1. Posture of the cervical spine was within normal limits. On palpation there was no significant tenderness over the midline in the cervical spine or adjacent muscles. Trapezius muscles were not significantly tense or tender. Flexion and extension of the cervical spine were full and approximately symmetrical. There was some asymmetry of cervical spine rotation, which was three-quarters of normal to the right and two-thirds of normal to the left - on left rotation, Mr Read commented that "it jams up more". Lateral flexion was full bilaterally. There was no detectable muscle guarding or spasm and he was not described non-verifiable radicular complaints in the upper limbs.

1. Posture of the thoracic spine was within normal limits. Mr Read reported slight tenderness to palpation in the midline from T3 to T10, with also slight tenderness either side of the midline. There was also pain reported in the same area to percussion over the spine. (Note that by comparison there was no reported tenderness at all over the lumbosacral spine.)
2. Flexion was full but extension was reduced to half of normal, with reported pain. When rotation (which mainly occurs in the thoracic spine) was tested with Mr Read seated to stabilise the pelvis, there was definite dysmetria. Rotation was very full to the right at 60 degrees and significantly less to the left at 40 degrees (both within normal limits but reproducibly different). Thoracic rotation reproduced pain in this area.

1. Posture of the lumbosacral spine with Mr Read standing was within normal limits. There was no reported tenderness to palpation in this area. Flexion was full but extension was about a third of normal - this appeared to in fact be restricted by pain in the thoracic spine - note that it is difficult to extend one area without the other. Lateral flexion was about two-thirds of normal bilaterally. There was no muscle guarding or spasm in the lumbosacral spine and he was not describing non-verifiable radicular complaints in the lower limbs.

1. There was obvious visible deformity of the left chest wall, with areas of prominence. There was easily palpable callous/deformity of several ribs in the anterior axillary line, although these areas were not particularly tender. Chest expansion on inspiration was measured at slightly less than 5 cm.
2. As noted above, Mr Read was describing definite sensory change and dysaesthesia/allodynia over the left anterolateral chest and breast. On examination, light touch sensation (with a tissue) was definitely perceived as different in quality over the left chest, with tingling reported, whereas it was normal on the right. There was also some diminution in sensitivity to pinprick over the same area, but when pinprick was felt, it was particularly unpleasant (thus the findings were of sensory impairment and allodynia. It was evident to the examining Assessor that Mr Read was describing definite neuropathic symptoms over a quite wide area of the left anterolateral chest).
3. The examination of the upper extremities was reported as follows:

"Both upper arms measured 30 cm in girth, the right (dominant) forearm 27 cm and the left 26.5. Biceps, triceps and brachioradialis reflexes were normal and symmetrical. There was no detectable weakness or sensory loss in either upper limb, apart from weakness of left serratus anterior-see below. The left hand was carefully examined and there was no convincing weakness of either flexion or extension of the interphalangeal joint (IPJ) of the left thumb.

There was a visibly and palpably prominent swelling over the left clavicle caused by the underlying fixation plate and screws. He reported moderate tenderness to palpation over this area. He said that his treating surgeon said that this might feel better if the hardware was removed, but he was not keen to have any further procedures.

There was an 80 mm long surgical scar over the plate. This was slightly widened, with some visible suture marks. The scar was pale compared with surrounding skin, but not depressed or prominent and not adherent to underlying tissues. It was easily located by the patient and visible with usual clothing. On questioning, Mr Read said he did not need to apply any special creams or other applications to the scar.

Initially, Mr Read was holding the right shoulder girdle slightly lower than the left, but this was not a constant finding. AROM of the shoulders was measured with repetition with a goniometer - Mr Read showed excellent effort. There was partial winging of the left scapula when he stood away from the wall and leant forward, taking weight with his left hand. This indicates Grade 4/5 weakness of serratus anterior, innervated by the long thoracic nerve. (Assessor Menogue and Dr Dixon had previously found the same)"

1. Lower limbs were grossly normal in appearance. Measured 10 cm proximal to the patella, the right (dominant) thigh measured 42 cm in circumference, the left 41.5. Both calves measured equally in girth at 35.5 cm.
2. Both lower limbs were neurologically normal, with normal and symmetrical knee jerks and ankle jerks and normal plantar responses. Power of ankle eversion (S1 nerve roots) and extensor hallucis longus (L5 nerve roots) was normal bilaterally. Light touch sensation was preserved in both lower limbs. Straight-leg-raising was within normal limits at 60 degrees bilaterally, with some pulling described in the hamstrings but no evidence of neural tension.
3. Both knees were normal in appearance. The right knee measured 37 cm in circumference, the left 36. The left knee was entirely normal, with no tenderness, range of motion from 0-150 degrees of flexion with no palpable crepitus, and ligaments were all intact. There was no patellofemoral irritability with Clarke's test or patellofemoral grinding.
4. On the right there was full extension of 0 degrees and flexion was slightly less than the right at 140 degrees, but still within normal limits. There was slight palpable clicking on movement but no actual crepitus. There was no significant tenderness to palpation around the right knee. The ligaments were all intact. No patellofemoral pain could be reproduced with patellofemoral grinding or Clarke's test.
5. Ankles were normal to inspection. Measured around the malleoli, the right ankle measured 24.5 cm and the left 24. There was slight tenderness reported distal to the lateral malleolus of the right ankle but not the left.
6. AROM of the ankle joint and hindfoot was measured with repetition with a goniometer as tabulated.

Summary and conclusions following the examination

1. Medical Assessor Couch and Medical Assessor Oates came to the following diagnoses and conclusions following the examination which are set out below at [76]-[86]:

"Alistair Read is a now 52-year-old man who approximately three years earlier was involved in a serious and potentially fatal motorcycle accident, when a truck suddenly turned in front of him and he lost control, skidding along the road and subsequently being run over by a truck wheel. He required ICU admission and managed to recover from fractures of nearly all of the left-sided ribs with a haemopneumothorax and great pain and difficulty breathing, without intubation and ventilation. This required epidural anaesthesia for pain control, followed by opiate analgesia.

Other injuries documented at RNSH were a fractured left clavicle, soft tissue injuries to the cervical spine, lumbar spine, right knee and right ankle. As Mr Read himself realises, he has generally made a good recovery, given the severity of the accident and his injuries, but he has significant residual symptoms and abnormal signs. His worse symptoms are pain in the thoracic spine region and pain, and disturbed sensation and dysaesthesia/allodynia in the left anterolateral chest. He also has lesser symptoms in the right knee and right ankle. He describes minor weakness in the left thumb (as previously investigated by Dr Powell, Neurologist), although examination on this occasion found no objective weakness.

Injuries diagnosed by the Panel and caused by the accident:

• Right ankle - soft tissue injury
• Left clavicle - fracture
• Right knee - soft tissue injury
• Ribs - multiple displaced fractures left 1st to 10th ribs, right 5th and 6th ribs with injury to one or more intercostal nerves and also the long thoracic nerve The rib fractures are therefore not uncomplicated healed rib fractures. (Note: these nerves all run close to the rib cage. With multiple displaced rib fractures, some of which show overriding ends, damage to one or more nerves was quite probable. Dr John Read, Radiologist (para 56 above) commented on possible nerve entrapment at fracture sites)
• Skin scarring - left clavicle ORIF surgical scar

With respect to the thoracic spine, the Medical Assessors concluded that there was a soft tissue injury with residual pain and definite dysmetria. There was dysmetria in the flexion and extension and rotation planes (as previously noted by Assessor Menogue). This injury is assigned to DRE Thoracolumbar Category II, giving 5% WPI.

There was visible and palpable deformity of the left chest wall from healed rib fractures.

However, as also noted by Assessor Menogue, Mr Read does have significant sensory symptoms in the left chest wall, both laterally extending towards the scapula and anteriorly, where pectoral tightness and burning is experienced. On the posterior thoracic area, there was also partial winging of the left scapula on resisted protraction, attributed to injury of the long thoracic nerve, giving 5% WPI (as previously noted by Assessor Menogue and Dr Dixon Orthopaedic Surgeon, in his IME). From Table 15 of AMA4, Maximum impairment for motor loss of the long thoracic nerve gives 15% UEI. Referring to Table 12 of AMA4, Grade 4 is assessed as 25% motor deficit. 25% of 15% is 3.75%, rounded up to 4% UEI. This converts to 2% WPI.

Although the original Medical Assessor reported altered sensation over the entire anterior chest wall, with no differential between the left and right sides, careful examination by the Panel Medical Assessor showed impaired sensation and definite allodynia over quite a large area of the left anterolateral chest wall. It is difficult to attribute this to injury of one particular nerve - the Panel notes that Dr Powell, treating Neurologist, commented on possible nerve root irritation from the displaced and subsequently healed rib fractures, and that MRI, which she arranged, also reported on 14/07/2022 suggestion of a left T2 neuroma adjacent to a healing fracture of 2nd left rib and also suspicion of injury to the left T5 intercostal nerve, adjacent to markedly overriding fragments of a fractured left 5th rib.

After discussion, the Panel considers that there has been injury to at least one, and more likely than not more, intercostal nerves, causing sensory impairment, dysaesthesia and demonstrable allodynia. This is not a peripheral nerve injury directly mentioned in AMA4 or MAG. The Panel considered that it was appropriate to assess impairment by analogy with a listed nerve, in accordance with MAG clause 6.24. The Panel considered that the most similar condition was sensory impairment of the axillary nerve. (The axillary nerve in fact innervates an area of skin over the deltoid muscle, considerably smaller than the area of chest affected in Mr Read's case).

Referring to Table 15 of AMA4, maximum sensory impairment (without motor loss, which is much more clinically significant), is assessed as 5% UEI. Referring to Table 11 of AMA4, the Panel considers that the best description of sensory deficit or pain in this case is Grade 3, because this grade includes both diminished sensation and abnormal sensations or pain ie., dysaesthesia). The MAG specifies that for Grade 3, 60% of the maximum possible impairment is assessed. This is 60% of 5%, i.e. 3% UEI or 2% WPI. (Note: The Panel considers this assessment to be conservative, given the nature of Mr Read's symptoms and the large skin area involved. The Panel considered the option of assessing injury to more than one intercostal nerve by this method, giving a higher total impairment, but considered it preferable to assess as for injury to one intercostal nerve.)

The Panel notes Dr Dixon found dysaesthesia over the left ribcage and Dr Rimmer reported neuralgic pain in the left hemithorax but he did not report clinical findings for thoracic spine and assessed 0% WPI from healed fractured ribs.

'Like Assessor Menogue, re-examination showed slightly reduced AROM of the right ankle and in addition some loss of eversion in the hindfoot. Referring to Tables 42 and 43 of AMA4, there is nil impairment for the ankle, and 1% WPI for the hindfoot.'

With respect to the right knee, the Medical Assessors found:

'Although Mr Read describes some ongoing symptoms, and active flexion of the right knee was minimally less than the left, there were no positive abnormal signs to allow other than 0% WPI assessment.'

With respect to the left clavicle, the Medical Assessors found:

'Visible and palpable deformities as a result of ORIF were noted. There was a full AROM of the left shoulder. The only assessable impairment with regard to this injury is from the resultant scarring - see below.'

With respect to scarring, the Medical Assessors found:

'Scarring from surgery for ORIF of the left clavicle is described in detail above. The Panel considers that the 'best fit' with the TEMSKI table is 1% WPI- Assessor Menogue found the same.'

With respect to the ribs, the Medical Assessors found:

"Multiple rib fractures, which have healed but are not 'uncomplicated' as referenced in MAG clause 6.23, owing to the nerve injuries resulting from the rib fractures.

Finally, the combined impairment for the referred injuries is derived from the above figures of 5% WPI for the thoracic spine, 1% for the left ankle and hindfoot, 2% for long thoracic nerve injury, 2% for the intercostal nerve injury and 1% for scarring, are combined sequentially using the Combined Values Table to give 11% WPI.

There was no evidence of any pre-existing symptomatic condition or impairment in the areas being assessed, hence no indication for making a deduction.

The Panel also notes that both Dr Dixon for the claimant, and Dr Rimmer for the respondent, assessed 5% WPI for DRE II in the cervical spine. At this Panel re-examination there was slight dysmetria in the cervical spine. However, an injury to this area had not been referred to Assessor Menogue. Accordingly, the Panel has not included this body part in the final combined assessment of whole person impairment."

1. After the initial meeting of the Panel on 13 June 2025 at 3.00pm, the Panel met again on

30 July 2025 and 20 August 2025. 2. All members of the Panel joined in and contributed to the discussion and carefully examined all of the issues, without limiting the generality, the diagnoses and conclusions. 3. After this discussion, the Panel came to the following conclusions:

(a) there was a 1% WPI for the right hindfoot;

(b) there was a 0% WPI for the right knee;

(c) the only assessable impairment of the clavicle was from scarring;

(d) there was a 1% WPI from scarring;

(e) there was a 2% WPI for the long thoracic nerve injury;

(f) there was a 2% WPI for the intercostal nerve injury, and

(g) there was 5% WPI for the thoracic spine injury.

1. The Panel discussed the insurer's submissions of 15 August 2025.
2. The Panel, following the medical examination of the Medical Assessors, found a 2% WPI for the intercostal nerve injury.
3. The Panel noted that upon clinical examination, the Medical Assessors observed that what it described as an 'obvious physical deformity of the left chest wall ... there was easily palpable callous/deformity of several ribs in the anterior axillary line.'
4. The Medical Examiners continued, 'as noted above, Mr Read was describing definite sensory change and dysesthesia/allodynia over the left anterior lateral chest and breast.' The Medical Review Panel continued with a discussion of its observations. For example, the Medical Assessors note that when a pinprick was felt, it was particularly unpleasant - thus the findings were of sensory impairment and allodynia.
5. The examining Medical Assessor commented that Mr Read was describing definite neuropathy symptoms over quite a wide area of the left anterior lateral chest.
6. In its conclusions, the Review Panel refers to the rib injuries - multiple displaced fractures to the left 1st-10th ribs, right 5th and 6th ribs, with injury to one or more intercostal nerves and also the long thoracic nerve.
7. The Medical Review Panel notes that intercostal nerves run in the intercostal spaces between the ribs and are responsible, for example, for expansion and contraction of the ribs while breathing and, in short, play a crucial role in the motor and sensory functions of the thoracic and abdominal walls.
8. The location of the long thoracic nerve explains why a chest injury of this nature was connected with injury to the long thoracic nerve.
9. The Review Panel points out that Mr Read's chest was crushed underneath a food delivery truck wheel which rolled onto his chest and then rolled back off of it.
10. The injury described in the list of injuries referred to the Panel was "ribs - multiple rib fractures", but the context made it clear that the chest was actually crushed, and everything associated with the chest, including the intercostal nerves located in the chest, were necessarily implicated in that description.

1. Dr Rimmer provided a report on a Medicolegal basis for Hall & Wilcox, solicitors for the insurer.
2. The date of the consultation was 17 July 2024.
3. The consultation was very brief (in comparison with the time that Medical Assessor Michael Couch took in his examination, being two hours), with the session commencing at 10.00am and concluding at 10.30am.
4. There must be some doubt as to what material Dr Rimmer had available in terms of radiological investigations, as he states in the introduction that "there were no radiological investigations present today."
5. He does appear, however, to have had an MRI report of the left chest wall and brachial plexus of 14 July 2022.
6. He took only what can be said as a very brief history of the accident comprising of three lines:

"He describes riding his motorcycle when he was struck by a truck which subsequently ran over his chest. He was brought in by ambulance to Royal North Shore Hospital. He was admitted to the Intensive Care Unit."

1. That is the full extent of the description of the accident, and no doubt consistent with the fact that Dr Rimmer only took 30 minutes with the interview.
2. Dr Rimmer listed the injuries as follows:

• Right 5th and 6th rib fractures
• Fractured left clavicle
• Musculoskeletal strain cervical spine
• Musculoskeletal strain lumbar spine
• Soft tissue injury right knee
• Soft tissue injury right ankle"

1. In the recount of current symptoms, Mr Read describes 'neuralgic' pain when asked about the left hemithorax.
2. The recount of current symptoms was also very brief.
3. I reproduce the clinical examination below:

"Pleasant claimant of stated age. Height 179cm. Weight 71kg.

Normal alignment in both planes. Mildly tender to firm palpation throughout the left side of his neck. He had the following active range of motion:

• forward flexion, chin on chest;
• extension, 20°;
• left lateral rotation 45°;
• right lateral rotation 45°;

all of which reproduced left-sided neck pain. There was no evidence of cervicobrachial irritation.

Well-healed surgical scar consistent with known surgery. He was mildly tender to firm palpation throughout. He had the following active range of motion:

• flexion 160°;
• extension 40°;
• abduction 160°;
• adduction 40°;
• external rotation 80°;
• internal rotation 60°;

Tone, power, sensation, and reflexes all present and symmetrical.

Normal alignment in both planes. Gait was normal. He had the following active range of motion in the erect position:

• forward flexion, fingertips to mid-shins;
• extension, 20°;

both of which were performed without any obvious discomfort. With the claimant supine, straight leg raise bilaterally was 75° and pain-free. Tone, power, sensation, and reflexes all present and symmetrical.

With the claimant undressed and standing, the overall alignment of the knee is physiological valgus. With the claimant supine, quadriceps musculature is symmetrical. There is no effusion. There is no joint line tenderness. Collateral and cruciate ligaments are intact. Range of motion is 0-130° (left = right) and pain-free.

Symmetrical in appearance, i.e. no evidence of swelling, discolouration, etc. He was able to tiptoe and heel weight-bear without difficulty. With the claimant supine, he was non-tender to firm palpation throughout. He had the following active range of motion:

• plantar flexion 25°; right =left
• extension 15°; right =left
• inversion 25°; right =left
• eversion 15°; right =left

all of which were performed without any obvious discomfort."

1. Dr Rimmer arrives at his diagnosis at question [6] of his report which is reproduced below:

"Without the benefit of radiological investigations:

1. Fractured left clavicle with subsequent open reduction and internal fixation.
2. Left hemithorax rib fractures 2-10.
3. Right hemithorax rib fractures 5,6.
4. Musculoskeletal strain, cervical spine.
5. Musculoskeletal strain, lumbar spine.
6. Soft tissue injury right knee.
7. Soft tissue injury right ankle."
8. The Panel concludes that Dr Rimmer's assessment of the claimant was generally very superficial, and the Panel would go so far as to say that in the absence of radiological investigations and given the period of time allocated for the assessment, it should not be relied on and certainly not to the extent that it has been relied upon by the insurer.

1. The Review Panel revokes the certificate of Medical Assessor Nigel Menogue, dated

4 March 2025, and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident, gave rise to a WPI of 11%.