REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 (the Act)

1. The Review Panel revokes the certificate dated 2 September 2024 and issues a new certificate determining that:

(a) the Review Panel declines to make an assessment under s 7.21(4) of the Act. The following injuries are not yet permanent:

• lumbar spine

1. The Review Panel's interim assessment of permanent impairment under s 7.22(2) of the Act is that it is probable that the degree of permanent impairment of the following injuries IS GREATER THAN 10%:
   • cervical spine;
   • left elbow;
   • left hand;
   • right hand, and
     • lumbar spine.

The permanent impairment of these injuries should be capable of assessment within twelve months of the claimant's undergoing a Right L4/L5 microdiscectomy which the Panel finds is reasonable and necessary resulting from the accident.

REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE - CAUSATION

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act)

1. The Review Panel confirms the certificate dated 2 September 2024.

REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE - REASONABLE AND NECESSARY

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act)

1. The Review Panel revokes the certificate dated 2 September 2024 and issues a new certificate determining that:

(a) the following treatment and care:

• right L4/L5 microdiscectomy

IS REASONABLE AND NECESSARY in the circumstances.

1. Tyron Wright-Ingle (the claimant) was involved in a motorcycle accident on 19 May 2022. At that time, he was riding a 1800cc motorbike wearing a helmet a full protective gear on Forest Road at Bexley. Whilst he was stationary facing a red traffic control light at an intersection, a truck driver travelling behind him was distracted by a truck fire on the opposite side of the road, and collided with the rear of the claimant's motorcycle, which was pushed into another car. The claimant does not remember the impact. He only remembers the sound of "getting crushed between the car and the truck". The claimant is unsure if he lost consciousness because he could not recall being hit but remembered laying on the road. He thought he was dying. Ambulance, Fire Brigade and Police Officers attended. He was taken by ambulance to St George Hospital where he was complaining of right anterior chest wall pain and right-sided lower back and pelvic pain. The claimant underwent a X-ray examination of his pelvis which showed no evidence of fracture. He was prescribed analgesic medication and discharged home later that day.
2. QBE (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the Act). The insurer admitted liability for the claim beyond the first 26 weeks.

1. There is a dispute between the parties about:
   • the degree of permanent impairment under Schedule 2, cl 2(a) of the Act;
   • whether any treatment and care relate to an injury caused by the accident under Schedule 2, cl 2(b) of the Act, and
   • whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, cl 2(b) of the Act.
2. The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Wallace for permanent impairment assessment:
   • Cervical spine;
   • Left elbow;
   • Left hand;
   • Right hand, and
   • Lumbar spine
3. The following treatment and/or care disputes were referred by the Commission to Medical Assessor Wallace for further assessment:
   • Right L4/L5 microdiscectomy
4. Medical Assessor Wallace certified on 2 September 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 13% and IS GREATER THAN 10%:

• Cervical spine
• Left elbow
• Left hand
• Right hand
• Lumbar spine

RELATES TO THE INJURY caused by the motor accident.

IS NOT REASONABLE AND NECESSARY in the circumstances.

Medical Assessor Wallace found 0% whole person impairment (WPI) for the cervical spine, 3% WPI for the left thumb and 10% WPI for the lumbar spine. He found there is no evidence of any pre-existing symptomatic condition at the cervical spine, left elbow, bilateral hands or lumbar spine. Medical Assessor Wallace found that the claimant's lumbar spinal condition was caused by injuries sustained in the accident. The Medical Assessor found that the claimant's right-hand injury and left elbow injury have resolved.

1. Medical Assessor Atsumi Fukui certified on 15 September 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%:

• Adjustment disorder with mixed anxiety and depressed mood

1. The insurer sought a review of Medical Assessor Wallace's certificate on the basis that the medical assessment was incorrect in a material respect. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
2. The insurer submitted that Medical Assessor Wallace erred in his Certificate as follows:

(a) failure to give appropriate consideration to the evidence, and

(b) failure to correctly apply the Motor Accident Guidelines (Guidelines) and American Medical Associations Guides to the evaluation of permanent impairment, 4th Edition (AMA 4 Guides).

1. The insurer noted that Medical Assessor Wallace did not make any deduction for

pre-existing injuries/conditions. The insurer further submits that Medical Assessor Wallace failed to appropriately consider the evidence before him which confirms (in the insurer's submissions) that the claimant presented with pre-existing symptomatic conditions prior to the accident. Evidentiary particulars are given in support of that submission. The insurer particularly takes issue with Medical Assessor Wallace's finding that the claimant met the criteria for right L5 radiculopathy. 2. In relation to the treatment and care dispute regarding a right L4/L5 microdiscectomy, the insurer notes Medical Assessor Wallace's finding that:

"It is highly likely that Mr Wright-Ingle's current residual lumbar spinal or right leg symptoms will resolve with an ongoing conservative regime of treatment over the next year."

The insurer contrasts that finding, which supported the Medical Assessor's conclusion that the surgery is related to injuries caused by the accident, but is not reasonably necessary as his symptoms "would not be significantly reduced by surgical intervention at this time", with his finding that the claimant's physical injuries have reached maximum medical improvement for the purposes of cl 6.19 of the Guidelines (permanent impairment assessment).

1. The insurer's review application was opposed by the claimant. As the claimant's submissions were not accepted by the President's delegate, it is not necessary to refer to them in detail. Briefly, they can be summarised as follows:

(a) the Medical Assessor read and considered all documents and specifically those which the insurer alleges were not considered;

(b) the Medical Assessor undertook a detailed assessment and identified each injury using the AMA 4 Guides for the assessment;

(c) the fact that the insurer disagrees with the Medical Assessor's decision is subjective and not grounds for a review;

(d) the insurer failed to identify any clear errors in the Certificate, and

(e) if there are any errors in the Certificate, which is not admitted, those errors are not material, as a review is unlikely to alter the whole person impairment assessment of 13% to under 10%.

The claimant did not respond to the insurer's submissions regarding materiality of error.

1. President's delegate Melinda Drew issued a Determination of an Application for Review of a Medical Assessment on 25 October 2024 which stated the satisfaction of the President's delegate that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. The President's delegate referred to the insurer's evidentiary particulars and submissions in some detail. The President's delegate finds there is a reasonable cause to suspect that the Medical Assessor may not have given adequate consideration to the medical evidence before him referencing the pre-accident history of back and spinal pain, as he was required to do by the Guidelines. The President's delegate made no reference to the treatment dispute.
2. As the insurer's review application was accepted, the Panel is to reassess all of the injuries and disputes that were before Medical Assessor Wallace for determination.

1. A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
2. Part 5 of the Personal Injury Commission Act 2020 (the 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.[1]
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. Causation of injury is addressed in the Guidelines as follows:

"6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

Causation means that a physical, chemical or biological 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 contributed to the worsening of the impairment, which is a non-medical determination.

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

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. See Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):

"The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries."

1. Wright J then described the Panel's role in a medical review which is to:

"Consider whether the motor accident did cause or contribute to (the claimant's condition). This requires, not a consideration of material derived as a result of an internet search... but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

(2) a review of all relevant records available at the assessment;

(3) a comprehensive description of the injured person's current symptoms;

(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. The claimant is required to establish that the treatment and care is both "reasonable and necessary". This test differs from the worker's compensation legislation which requires a worker to establish that the treatment and care is "reasonably necessary". There is a stricter requirement under the Act because there is no moderation of the requirement that the treatment and care is "necessary".
2. When discussing the meaning of "reasonably necessary" under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[6] Grove J stated:[7]

"22. I return to the expression 'reasonably necessary' in s 60. Dictionaries stipulate that 'necessary' as relevant definition as 'indispensable, requisite, needful, that cannot be done without' - (shorter Oxford English Dictionary, 3rd Edition) and 'that cannot be dispensed with' - Macquarie.

1. The essential issue is what effect flows from conditioning such qualities as 'reasonably'. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word 'necessary' if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what may be 'reasonably necessary', there is these statutory obligations specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of 'necessary' in this context."
2. Similar observations have been made subsequently by the Court of Appeal on the meaning of "reasonably necessary" under other legislation.[8]
3. Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker's compensation legislation are well-settled.[9] They include:

(a) the appropriateness of particular treatments;

(b) the availability of alternative treatments;

(c) the costs of the treatment;

(d) the actual or potential effectiveness of the treatment, and

(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.

1. Whilst the observations in Diab were directed to the test of "reasonably necessary" in the worker's compensation legislation, we adopt it in so far as they have relevance, although not determinative, of the stricter test of "reasonable and necessary".
2. The words "in the circumstances" in the context of whether the treatment is "reasonable and necessary" must refer to the particular circumstances of the claimant. This is because Schedule 2 of the Act refers to treatment "provided or to be provided to the claimant".
3. The test of "reasonable and necessary in the circumstances" does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment "relates to the injury caused by the accident".

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to "analyse every piece of information from every opinion contained in a document with which it was provided". The Panel has come to its own conclusions and has taken its own history.

1. The claimant relied upon the following material which the Panel has considered:

The appearance suggests a hyperabduction-flexion mechanism of injury complicated by a partially healed non-retracted phalangeal ablution of the thumb main MCP UCL demonstrating some mature scar remodelling and late subacute-early chronic bulbous fracture deformity to the bolar radial aspect of the thumb metacarpal head. Some possibly reactive or functional FPL tenosynovial effusion as detailed.

(a) Appearances which could correlate clinically with a non-specific dorsal mid-carpal sprain injury.

(b) Palmer 1A type tear of the TFC articular disc which may have pre-dated the clinical presentation.

(c) Apparent partial dorsal non-palmer tear of the TFC between DRUL and the articular disk with some associated synovitis along the line of the dorsal DRUJ capsule. Is there clinical evidence of DRUJ instability?

(d) Small bolar radiocarpal ganglion.

(a) No apparent bone trauma.

(b) No advance degenerative changes.

(c) No erosive changes.

(d) Small boney spurs on the head of first metacarpal.

At C3/C4 there is some very early right-sided uncovertebral arthropathy but no foraminal narrowing. The appearances at all other levels are unremarkable. The cervical cord is normal in contour.

Large right posterolateral/right far lateral disc bulge/herniated disc located at the L4/L5 level which mildly to moderately compresses the exiting right L4 nerve root.

Report by Zbigniew Poplawski, orthopaedic surgeon, to the claimant's lawyers

The claimant was involved in a motorcycle v car MVA resulting in a fracture of his right thumb requiring subsequent surgery and injury to his neck and lower back.

• Whiplash injury cervical spine Grade 2.
• Low back pain with non-verifiable radiculopathy.
• Missed fracture metacarpal head right thumb requiring subsequent corrective osteotomy.

1. Dr Poplawski thought that the long-term prognosis for the claimant's right thumb injury is guarded. Before offering an opinion as to future treatment, Dr Poplawski thought that the claimant should have an MRI scan of his neck and a repeat MRI scan of his lower back. He did not think that any of the claimant's injuries were not caused by the subject accident.
2. In a separate WHOLE PERSON IMPAIRMENT ASSESSMENT of the same date,

5% WPI (minor impairment, clinical signs of neck injury are present without radiculopathy, Table 73, page 3/110 AMA 4)

5% WPI (minor impairment, clinical signs of thoracolumbar spine injury without radiculopathy. Table 74, page 3/111 AMA 4)

5% WPI (minor impairment, clinical signs of lumbar injury without radiculopathy. Table 72m page 3/111 AMA 4)

Combining Spine with Upper Extremity equals 15% plus 8% WPI equals 22% WPI.

Report of Associate Professor Ali Ghahreman, neurosurgeon and spine surgeon

He has disc injury at L4/L5 with protruding fragment in the lateral recess on the right side. Associated with disc there is some disco-vertebral desiccation and loss of disc height. At T11/T12 there is some endplate degeneration and schmoil nodes.

Management options for lumbar disc disease were outlined. I recommend three months of physiotherapy including three sessions per week of core strengthening and remedial treatment. I also recommend a right L4/L5 transforaminal epidural injection. Injections are very low risk procedures, generally benefit half of those attempt them and their effect is durable in half of those with an initial response. The risk of an injection include medication reactions, infection, haematoma, nerve injury (new numbness or paralysis/paresis) and occasionally patients complain of increased pain. Serious complications have a very remote possibility. Microdiscectomy or other surgical options can be considered if above treatment is ineffective.

1. The insurer relied upon the following material which the Panel has considered:

Insurer's submissions in support of review application (See previously)

The insurer relies on the expert opinion of Dr Andrew Keller, occupational physician (R2) and submits that the proposed treatment is not related to the subject accident because:

1. the claimant was suffering from pre-existing relevant condition prior to the subject accident;
2. the claimant suffered soft tissue injuries in the subject accident; and
3. the treatment, if required, is in response to his degenerative lumbar spine condition which is unrelated to the subject accident.

Particulars are given in support of each of those submissions.

The insurer submits there is a real causation issue regarding the claimant's current lumbar spine condition. The insurer says the claimant's past medical history indicates the claimant has a pre-existing lumbar spine condition and that the available contemporaneous evidence does not support any significant lumbar spine injury following the accident. There is no mention of any lower limb sciatica symptoms (noted by Associated Professor Ghahreman in 2023) in the physiotherapy records or the available records of Dr Rajan.

The insurer says the available treatment records indicate the claimant's initial back complaints stemmed predominately from the thoracic spine which resolved by 1 September 2022 according to Dr Rajan's records.

The insurer observes the claimant's lower back became symptomatic in about July 2023 (more than one year following the accident), which is when the lumbar spine MRI was undertaken. The MRI detected degenerative pathology only and no features of a traumatic injury.

The insurer submits that the claimant's reported low back symptoms arise from his degenerative lumbar spine condition which was investigated more than one year after the subject accident. The insurer further submitted that the claimant's lumbar spine condition and resulting need for treatment is unrelated to the accident.

The insurer concluded that, in light of the evidence, the proposed treatment is:

1. not causally related to injuries sustained in the accident because radiological investigations confirmed that the claimant suffered from degenerative changes;
2. not reasonable and necessary in the circumstances because the claimant only suffered soft tissue injuries, as opined by Dr Keller and Professor Ghahreman's recommendation is based on an incomplete history; and
3. if required, the treatment relates to the claimant's denigrative lumbar spine condition, which is unrelated to the subject accident.

Report of Andrew Keller, occupational physician, to the insurer's lawyers

Dr Keller notes that the claimant denies any prior contributing factors which differs from the information provided. Dr Keller observes that it appears the claimant had been diagnosed with an autoimmune complaint and had previous back and right hip pain and previous problems with his neck and thumb.

"In my opinion, it is plausible that the accident caused in soft tissue injuries to the neck, back and right-sided ribs. There is no evidence for fractures. It is not clear to me that his disc bulge in the lumbar spine relates to his complaint, rather than to his prior back pain."

"It is plausible that he had pains as described following the accident. It is not clear to me that his need for injections into his lumbar spine and his subsequent surgery in the left thumb relate to the effects of the accident rather than prior conditions..... He is unlikely to receive any lasting benefit from ongoing passive physical therapies. He should be able to manage his symptoms with personal exercise. There are no indications for further injections or surgery."

Dr Keller says he would expect any soft tissue injuries caused by the accident to have recovered within three months of the accident. Dr Keller provided a separate WPI report which the Panel does not have.

Dr Support Program Report of Medical Assist Network

Injury Management Wellbeing Plan of Blind Safety of Wellbeing System

The MRI of the lumbar spine was unremarkable. On the MRI of the SI joints, there was no fat metaplasia to suggest previous inflammatory episode. There were no erosions. There was no osterbin.

This gentleman has bone scan abnormalities involving the right SI joint and with the MRI normal this suggests strain of the joint with the symptoms possibly caused by abnormalities involving the right hip.

1. The report of Medical Assessor David Gorman is as follows:

Pre-accident medical history and relevant personal details

Mr Wright-Ingle is 43 years of age and right hand dominant.

He was born in South Africa and grew up in Scotland. He came to Australia in 2016.

He is employed as a Technician by Toohey's Brewery based at Lidcombe from March 2022 (6 weeks before the accident). He was employed on a full-time basis at the time of the accident maintaining machinery and moving cases of beer and labelling pallets of stock.

He had 6 weeks off after the accident and returned on light duties. He had a further 3-4 weeks of after the operation in January 2023.

He had an operation on his left knee in 2018 - it was a work injury. The symptoms there have resolved.

He was diagnosed with ankylosing spondylitis on 20 March 2018 after presenting with back pain. He is HLA-B27 positive. He is not on any treatment for this.

He had a lumbar spine injury in November 2029 whilst at work. He had increased back pain climbing up on a machine.

He did have back pain in 2020 and had an MRI on15 September 2020. It showed no abnormality. There was no evidence of lumbar disc protrusion or nerve root compression.

He notes no previous history of injury or episodes of pain at his cervical spine or upper limbs.

Mr Wright-Ingle was involved in a motorbike accident on 5 May 2022. At that time, he was riding an 1800cc motorbike wearing a helmet and full protective gear on Forest Road, Bexley. Whilst his bike was stationary at a red light at a traffic light intersection, a truck driver travelling behind him was distracted by a truck fire on the opposite side of the road and collided with the rear of his motorbike - Mr Wright-Ingle stated that the truck was doing 60km/hr.

On impact, his motorbike was hit by the truck and his head impacted the truck windscreen behind him. He does not recall if he sustained loss of consciousness.

I reviewed the pictures that he had showing the cracked helmet where his head hit the truck.

History of symptoms and treatment following the motor accident

Police, fire trucks and four ambulances attended the scene and he was transported by ambulance to St George Hospital where he was complaining of right anterior chest wall pain and right-sided lower back and pelvic pain. He underwent an X-ray examination of his pelvis which showed no evidence of fracture and he was prescribed analgesic medication and discharged home later that day.

He was later reviewed by his Local Medical Officer and referred for physiotherapy which continued for 2 years.

In regard to his left thumb, he was referred for a specialist review with Dr Aggarwal, Hand Surgeon at Kogarah who initially assessed him on 19 December 2022. Dr Aggarwal recommended operative intervention at the left thumb.

He was admitted to Kogarah Private Hospital on 19 January 2023 and underwent ostectomy of the left thumb metacarpal head. In the post-operative period, he completed a 2 month course of hand physiotherapy.

In regard to his left elbow, he underwent 2 corticosteroid injections at the joint.

In regard to his lumbar spinal condition, he was referred for a specialist review with Dr Ghahreman, Neurosurgeon at Kogarah who initially assessed him on 13 September 2023. Dr Ghahreman diagnosed a right L5 radiculopathy due to a disc protrusion at the L4/5 level and ordered an epidural steroid injection.

On review with Dr Ghahreman on 12 December 2023, he recommended operative intervention in the form of right L4/5 microdiscectomy.

Details of any relevant injuries or conditions sustained since the motor accident

Mr Wright-Ingle has suffered no relevant injuries or conditions since the motor vehicle accident.

He first mentioned low back pain and "middle" back pain every day. It is accompanied by a "burning" sensation overlying the region.

It radiated down his right leg over the lateral thigh and calf to the top of the foot.

In his cervical spine, he reports constant aching pain at the cervical spine with no radiation to his shoulders or arms. It is not as bad as it was he says, however.

At the left elbow, he notes intermittent aching pain at the lateral epicondyle which has no precipitating or relieving factors. He describes an unusual sensation over the left elbow. It is worse if it is bumped or rubbed. He notes no stiffness at the joint.

At the left hand, he notes intermittent aching pain at the dorsum of the left thumb which is worse with gripping or motorbike riding and is relieved by rest. The thumb clicks. He complains of stiffness at the left thumb.

He cannot play the guitar which he used to enjoy. He can only ride his motor cycle for 1 hour at the most.

In his previous right hand symptoms the 4th finger occasionally locks up.

He has some pain in the right elbow if it is fully extended.

Mr Wright-Ingle takes Nurofen as needed, magnesium and vitamins.

He is on escitalopram - he lost a relationship since the accident. He says he is now "neither happy nor sad".

The physiotherapy was ceased by the insurance after 2 years.

He has ceased pregabalin and oxycodone which he was on before.

Mr Wright-Ingle is 175cm tall and weighs 103.5kg. Before the accident he was 85kg. He did get up to 112kg after the accident.

He walks with a slight limp favouring his right leg with the foot externally rotated - this was somewhat unusual and not the usual "foot drop" gait the Panel noted.

Examination of his cervical spine shows no swelling or deformity. There are no tender areas.

The range of motion was normal in all planes. There was no dysmetria.

Neurological examination of his upper limbs shows equal and symmetrical reflexes. His power and sensation were intact. There was no atrophy

Examination of his lumbar spine showed no swelling or deformity.

He had an active range of movement of forward flexion to the knees (1/2 normal). He indicated pain over the lumbar spine and mid-thoracic spine. Extension was to 2/3 normal. Left lateral flexion was to 2/3 normal which was better than to the right which was ½ normal.

He has straight leg raise to 30° on the right and 60° on the left.

Neurological examination of his lower limbs shows equal and symmetrical reflexes. His power was reduced in the right foot and great toe with dorsiflexion 4/5 normal in both ankle and great toe. There is decreased light touch sensation over the 1st and 2nd toes of the right foot.

There is no atrophy. Thigh circumference was 47cm on the right and 46.5cm on the left. Calf circumference was 41cm bilaterally.

Examination of the left elbow shows a normal active range of movement of 0-150° flexion with pronation 80° and supination 80°. There is no swelling at the joint. There is no tenderness at the lateral epicondyle but he feels the sensation there when touched is unusual".

Examination of the left hand shows a 3cm longitudinal scar at the dorsum of the 1st MCP joint which is raised and slightly paler than the surrounding skin. There is a further 2cm V-shaped scar at the volar aspect of the 1st metacarpal which is fine and pale.

At the left thumb, he has an active range of movement of 0-50° abduction with adduction lacking 3cm and opposition lacking 4cm. MCP joints of his left thumb shows an active range of movement of 0-40° flexion. At the IP joint of the left thumb, he has an active range of movement of +10-80° flexion.

He has a full range of movement at the fingers of the left hand.

Examination of the right hand shows a full range of movement of the fingers and thumb.

Summary of relevant radiological and medical imaging and other investigations

15 September 2020 - MRI Investigation Lumbar Spine: Shows no abnormality. In particular, there is no evidence of lumbar disc protrusion or nerve root compression.

5 May 2022 - X-Ray Examination Pelvis: Shows no evidence of fracture.

7 May 2022 - X-Ray Examination Left Hand: Shows no evidence of fracture.

28 November 2022 - MRI Investigation Left Wrist & Thumb: Shows evidence of a partially healed avulsion of the ulnar collateral ligament of the MCP joint of the right thumb.

9 January 2023 - CT Examination Left Thumb: Shows some bony spurs at the head of the 1st metacarpal. 9 May 2023 - Ultrasound Left Forearm: Shows no evidence of neuritis at the superficial radial nerve or lateral cutaneous nerve of the forearm.

27 June 2023 - MRI Investigation Cervical Spine: Shows no significant abnormality.

7 July 2023 - MRI Investigation Lumbar Spine: Shows a large right-sided disc protrusion at the L4/5 level compressing the right L4 nerve root in particular.

The determination as to permanent impairment is made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Motor Accident Permanent Impairment Guidelines 2017.

Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p.315) as follows:

"Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment."

Mr Wright-Ingle is now some 3 years post injury and has suffered a permanent impairment as a result of injuries sustained in the index motor vehicle accident of 5 May 2022. His impairment has become stable as he is not having any further treatment at present. His impairment could change if he were to have the decompression surgery. It is unlikely to change substantially or by more than 3% in the next year without the decompression surgery.

Mr Wright-Ingle suffered injuries at his cervical spine, left elbow, bilateral hands and lumbar spine as a result of the index motor vehicle accident.

The injuries noted above are consistent with the mechanism of injury described of a motorbike versus truck accident which occurred on 5 May 2022.

1. Musculoligamentous strain cervical spine.
2. Soft tissue injury left elbow.
3. Ulnar collateral ligament injury MCP joint left thumb.
4. Soft tissue injury right hand - now resolved.
5. 5. Musculoligamentous strain lumbar spine with right-sided disc protrusion L4/5 level with right L5 radiculopathy.

The following injuries WERE caused by the motor accident:

• Cervical spine
• Left elbow
• Left hand
• Right hand
• Lumbar spine

The following injuries caused by the motor accident have resolved:

Mr Wright-Ingle's condition in relation to the index motor vehicle accident of 5 May 2022 has now stabilised. He has reached maximum medical improvement.

In regard to his cervical spinal condition, he has suffered 0% whole person impairment corresponding to DRE Cervico-Thoracic DRE Category I, page 103 AMA Guides Edition 4 as he has a symmetrical range of movement at his cervical spine and no evidence of significant clinical findings, muscle guarding or documentable neurological impairment.

His left elbow injury has resolved and he has suffered no assessable whole person impairment at this joint.

In regard to his left thumb condition, one uses Figures 10, 13, 14, 16 and Tables 5, 6 and 7 on pages 26-29 as well as Tables 1, 2 and 3 on pages 18,19 and 20 of AMA 4th Edition. He has suffered a left thumb impairment of 3% as a result of loss of range in adduction and 9% as a result of loss of range of movement in opposition as well as 2% for loss of MP flexion - this gives a total left thumb impairment of 14% which corresponds to a left hand impairment of 6%, a left upper limb impairment of 5% and a whole person impairment of 3%.

In regard to his lumbar spinal condition, he has suffered a whole person impairment of 10% corresponding to DRE Lumbosacral Category III, page 102 AMA Guides Edition 4 as he meets the criteria for right L4/5 radiculopathy with reduced straight leg raise (positive sciatic stretch test). loss of sensation in L4 and L5 dermatome and reduced dorsiflexion of the right great toe and foot corresponding with the L4 and L5 myotome.

Figures 10, 13, 14, 16 and Tables 5, 6 and 7 on pages 26-29 of AMA 4th Edition; Tables 1, 2 and 3 on pages 18,19 and 20

There is evidence of pre-existing lumbar spinal pain and the diagnosis of ankylosing spondylitis. However, there is no demonstrable pre-existing impairment. The MRI scan in 2020 before the accident did not show the L4/5 disc protrusion. The L4/5 radiculopathy was not present before the accident. Therefore there is no deduction for pre-existing impairment.

Mr Wright-Ingle's lumbar spinal condition has been caused by injuries sustained in the index motorbike accident of 5 May 2022. The mechanism of injury described of motorbike versus truck accident is consistent with the known pathology.

Mr Wright-Ingle underwent an MRI investigation of the lumbar spine in September 2020, some 2 years prior to the index motor vehicle accident, at which time he had no evidence of any lumbar spinal disc protrusion.

At the time of his review at St George Hospital on 5 May 2022, the day of his injury, he was complaining of lumbar spinal pain. His disc protrusion at the L4/5 level detailed on MRI investigation carried out in July 2023 is consistent with the being caused by the index motorbike accident. Therefore, the proposed treatment of right L4/5 microdiscectomy does relate to injury caused by the motor accident.

The proposed treatment of right L4/5 microdiscectomy is reasonable and necessary in the circumstances. Mr Wright-Ingle is now some 2 years post injury and now has evidence of loss of power and sensation at his right lower limb in the right L4 and L5 dermatomes and myotomes.

His current symptoms of lumbar spinal pain radiating to the lateral aspect of the right thigh and to the dorsum of the foot and great toe in the L4 and L5 dermatome with weakness of foot and great toe dorsiflexion may be reduced by surgical intervention at this time. Conservative therapy and time have not resolved the symptoms.

Ongoing nerve root compression risks worsening his sensory symptoms and reducing the muscle power.

The proposed surgical intervention of right L4/5 microdiscectomy is reasonable and necessary in the circumstances.

Degree of permanent impairment caused by the motor accident 13%

Permanent impairment ratings take your symptoms into account, however the percentage permanent impairment is not a direct measure of disability.

The following treatment and care relates to the injury caused by the motor accident:

The following treatment and care is reasonable and necessary in the circumstances:

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[10]
2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[11] The Panel adopts the findings and opinions of Medical Assessor Gorman with which Medical Assessor Tai-Tak Wan concurs.
3. The Medical Assessors have explained the basis for their assessments and findings. The Medical Assessors note the views expressed by Dr Rimmer with which they respectfully disagree because they accept that the disc bulge in the claimant's lumbar spine relates to the effects of the subject accident, rather than prior conditions.
4. The Panel finds, as a matter of medical determination, and as a matter of non-medical factual determination, that the proposed right L4/L5 microdiscectomy is related to the motor accident.
5. The medical assessment of permanent impairment is made at the time of examination. In that respect, the assessments made by the parties' medical examiners are outdated, and do not reflect current symptomology, in the Medical Assessors' opinion. The permanent impairment findings of Medical Assessor Wallace are similar to those of the Medical Assessors.
6. Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well-stabilised and unlikely to change substantially regardless of treatment. The AMA 4 Guides (page 315) state that permanent impairment is impairment that has become statis or well-stabilised with or without medical treatment and is not likely to remit, despite medical treatment. A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% WPI in the next year, with or without medical treatment). If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to the Guidelines.
7. As the Panel is conscious that the claimant may undergo the proposed right L4/L5 microdiscectomy within the next twelve months, the Panel is not satisfied that the claimant's condition has stabilised, for the purposes of a permanent impairment evaluation. However, the Panel has stated its WPI assessment, based upon the clinical examination findings, for the parties' guidance.

1. For the above reasons, the Panel concludes that the certificates dated 2 September 2024:
   • as to WPI should be revoked;

• as to treatment and care causation should be confirmed, and

• as to necessary and reasonable treatment and care should be revoked.

The new certificates appear at the commencement of these reasons.

[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

[6] [2003] NSWCA 52.

[7] Clampett at (22) - (23), Meagher and Santow JJA agreeing.

[8] See ING Bank (Australia) Limited v O'Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113).

[9] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88).

[11] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31