REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

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

1. The Review Panel revokes the Certificate of Medical Assessor Wing Chan dated

16 August 2023 and issues a new Certificate determining that:

(a) The following injuries caused by the motor accident give rise to a permanent impairment of 12% and IS GREATER THAN 10%:

(i) right ankle - Weber A fracture and subtalar arthodesis;

(ii) right foot - fracture of navicular bone and surgical reconstruction of midfooot, and

(iii) skin - post-surgical scarring of right foot and ankle injuries.

1. On 6 December 2018, Jennifer Tongi (the claimant) was sitting in her vehicle outside the K Mart store in Blacktown. As she was reversing slowly out of her parking spot, the insured vehicle sped behind her car. The claimant slammed her right foot onto the brake. The insured vehicle hit the tow ball of the claimant's car. Nether ambulance nor police officers attended. The claimant says that no part of her body impacted the interior of her vehicle. The claimant exchanged details with the driver of the other car and continued on her way. The claimant says there was later onset of pain in her right knee and right leg for which she consulted her general practitioner (GP) the next day. The claimant was referred to Mount Druitt Hospital where she remained overnight. The claimant was later found to have sustained a Weber A fracture in her right ankle and a fracture in the navicular bone of her right foot.
2. The claimant developed a Charcot foot and underwent foot reconstruction surgery 21 months post-accident. The claimant required four surgeries in total.
3. The claimant has a past history of lower back pain before the subject accident with laminectomy of L4/L5, L5/S1 in March 2007 at Westmead Hospital and discectomy in 2010. The claimant returned to playing netball and basketball after the back surgery and had occasional low back pain.
4. The insurer indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
5. By letter dated 2 August 2022, the insurer informed the claimant that it declined liability for statutory benefits after 26 weeks, as the claimant was assessed as having sustained a non-minor injury. The apparent inconsistency was not explained. The insurer subsequently failed to respond to the claimant's request that it concede her physical whole person impairment exceeds the 10% threshold. The insurer's deemed decision to deny liability for whole person impairment damages was confirmed on

1. As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Wing Chan for assessment:

(a) right ankle - post-traumatic;

(b) Weber A fracture of right ankle requiring surgical reconstruction and subtalar arthrodesis;

(c) right foot - post-traumatic Weber A fracture of the navicular bone in the right foot requiring surgical reconstruction and subtalar arthrodesis;

(d) lumbar spine - lower back, and

(e) skin scarring - post-surgical scarring of right foot and ankle.

1. Medical Assessor Chan certified on 16 August 2023 as follows:

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

• Right ankle - Weber A fracture and subtalar arthrodesis
• Right foot - fracture of navicular and surgical reconstruction of mid foot
• Skin - post-surgical scarring of right foot and ankle injuries

Medical Assessor Chan assessed 6% whole person impairment for the right ankle, 2% whole person impairment for the right mid foot and 2% whole person impairment for right lower limb scarring. He made no adjustment for pre-existing/subsequent impairments nor treatment effects.

1. Medical Assessor Chan noted there was no mention of any complaint of low back pain in the clinical records in the six months after the subject accident. He found that an injury to the lumbar spine was not caused by the motor accident but he did not so certify.

1. The claimant sought a review of Medical Assessor Chan's certificate on the basis that the assessment was incorrect, within the meaning s 7.26 of the Act, in a material respect. The claimant brought the application within the time prescribes by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
2. The claimant's submissions mainly were directed at the finding by Medical Assessor Chan that the lumbar injury was not caused by the motor accident. The claimant relied upon the opinion of Dr Poplawski to the effect that the various foot reconstruction surgeries had caused problems of standing and walking, with an abnormal gait, resulting in aggravation of pre-existing, but previously well settled, problems in her lower back.
3. The claimant's review application was opposed by the insurer on various grounds. Briefly, the insurer disagreed with the claimant's submission that Medical Assessor Chan:
   • erred in assessing the lumbar spine injuries as not causally related to the subject accident, and
   • erred by not disavowing Dr Poplawski's theory of injury to the lumbar spine.
4. The insurer submitted that Medical Assessor Chan correctly and accurately assessed the lumbar spine and provided a clear path of reasoning in the determination.
5. President's delegate Rachel Britliff issued a Determination of an Application for Review of a Medical Assessment on 24 July 2024 which stated the satisfaction of the President's delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated as follows:

"the claimant made submissions which were before Medical Assessor Chan that her lumbar spine injury was consequential upon an altered gait which resulted from her frank injuries. Permanent impairment arising from a consequential injury is assessable where such an injury is found to be related to injuries caused by the accident..... I am satisfied that there is reasonable cause to suspect that Medical Assessor Chan did not consider whether the claimant's lumbar spine injury may have been the result of her altered gait and therefore be causally related to the accident."

Accordingly, the review application was accepted and was referred to the Review Panel.

1. The Review Panel is to assess all of the injuries that were referred to Medical Assessor Chan. They are as follows:
   • right ankle - post-traumatic Weber A fracture of right ankle requiring surgical reconstruction and subtalar arthrodesis;
   • right foot - post-traumatic Weber A fracture of the navicular bone in the right foot requiring surgical reconstruction and subtalar arthrodesis;
   • lumbar spine - lower back, and
   • skin - scarring, post-surgical scarring of right ankle and foot.
2. At its first teleconference held on 25 September 2024, the Review Panel identified a possible material error in Medical Assessor Chan's assessment of permanent impairment arising from subtalar fusion, such that the claimant's whole person impairment would exceed the 10% threshold. The Review Panel did not think that any physical examination of the claimant was required as it would not change the proper outcome.
3. Table 81 of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) (the AMA4 Guides) prescribes 4% whole person impairment (WPI) for subtalar fusion instead of the 2% WPI allowed by Medical Assessor Chan. For that reason, the Review Panel did not think it necessary for it to consider, nor make any findings, in relation to the lumbar spine. The parties were invited to make submissions in response to that proposition.

In the event, the claimant was happy to proceed on that basis. However, the insurer requested the Review Panel to proceed with an examination of the claimant, on the basis that the claimant's right ankle range of motion and scarring must be assessed by the Review Panel, necessitating an in-person physical assessment of both the affected and unaffected ankle. In relation to the right ankle, the insurer submitted that the Review Panel should address the issue of apportionment of the claimant's right ankle impairment, in light of her pre-accident history of well-documented severe diabetic neuropathy affecting her right lower limb and significant degenerative changes in the ankle. The Review Panel accepted there was force in that submission and decided to proceed with a re-examination.

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to 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. In Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] 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 relied upon the following material which the Review Panel has considered:

A1 Claimant's submissions on review application (previously summarised).

A2 Plaintiff's Summary of Argument (Supreme Court Proceedings) (not relevant to the present review).

A3 Judgment of Elkaim A J in Tongi v NRMA Insurance [2024] NSWSC 406 (not relevant to the present review).

A4 Report dated 23 February 2022 by Dr Zbigniew Poplawski, orthopaedic surgeon, to the claimant's lawyers.

The assessment was conducted via video conference due to the COVID-19 restrictions. Dr Poplawski did not think that a direct face-to-face consultation was necessary. Dr Poplawski notes the claimant's personal history and the circumstances of the subject accident. He notes the gradual onset of pain in her right ankle. The morning after the accident, the claimant had a markedly swollen right lower leg with tenderness in the calf area. The claimant attended Mount Druitt Hospital where a diagnosis of DVT was made.

The claimant's GP arranged an X-ray study of the right ankle which reported the presence of a Weber A fracture of the ankle and subsequently a further diagnosis of a fracture of the navicular bone was made. The claimant was treated with a CAM boot which she wore for about five weeks. The claimant subsequently developed a Charcot foot and required foot reconstruction surgery, which was performed on 15 September 2020, this being followed by three further surgeries, including Cerament V bone graft substitute injection, and implant insertion which subsequently required removal following development of a wound infection. The claimant said she had four surgeries to her right lower leg since the accident.

Dr Poplawski records that all the implants were removed.

Dr Poplawski also records that following the accident and the difficulties that progressively developed in her right ankle, the claimant's pre-existing lower back pain became aggravated and she is now troubled by a fairly constant lower back discomfort, which becomes painful when she is on her feet standing or walking.

As to the claimant's past medical history, Dr Poplawski notes that inter alia the claimant underwent laminectomies from L1 to L5 in 2007 and discectomy in 2010 from which she made good recoveries. The claimant said that she had occasional discomfort in her lower back prior to the accident, but no significant difficulty with her back, as she was able to work and play netball.

Dr Poplawski records the results of his physical examination which was conducted remotely. There was asymmetric moderately severely reduced range of motion in her lumbar spine in all directions. Range of movement in the ankles was as follows:

• Dorsiflexion - left 20°, right 10°
• Planta flexion - left 40°, right 0°
• Inversion - left 30°, right 0°
• Eversion - left 20°, right 0°

Range of motion in the midfoot was in the normal range. There was extensive scarring around the right foot and ankle with blotchy discoloration, which the claimant finds disfiguring, sensitive to touch and irritated by contact with clothing. The scars are easily visible when she is not wearing socks. Her right foot is misshapen and boat-shaped.

Dr Poplawski finds that the claimant sustained an injury to her right foot and ankle when she stomped her right foot forcibly onto her car brake pedal in an attempt to prevent a collision. He makes the following diagnosis:

• Post-traumatic Weber A fracture right ankle and fracture of the navicular bone in the right foot requiring surgical reconstruction and subtalar arthrodesis.
• Consequential aggravation of previously essentially settled lower back pain. Dr Poplawski finds that the claimant's prognosis is guarded.

Dr Poplawski records that he had no documentation, including x-rays, to verify his diagnosis.

In a separate Impairment Assessment of the same date, Dr Poplawski assessed the claimant's right ankle and foot by the range of motion method, as follows:

• Planta flexion of 0° is Severe = 12% WPI
• Extension of 10° is Moderate = 6% WPI
• Inversion - 0° is Severe = 2% WPI
• Eversion - 0° is Severe = 2% WPI
• Right midfoot motion of 0° is Severe and is assessed as similar to hindfoot movement = 2% WPI

Adding the above equals 24% WPI. Dr Poplawski deducts 50% for pre-existing neuropathic arthropathy with softening of the bones in her foot equals 12% WPI.

Dr Poplawski assessed the claimant's lower back problem by the DRE method as follows:

DRE lumbar Category II equals 5% WPI (clinical history and examination findings are compatible with a specific injury, there is asymmetrically reduced range of motion in her lumbar spine, Table 72 (page 110 AMA 4).

A6 Report dated 8 June 2022 by Dr Min Fee Lai, plastic reconstruction surgeon, to the claimant's lawyers.

The clinical examination was conducted via video link to its optimal limits. Examination of the claimant's right foot revealed that it was deformed with a flat sole. The scars over the claimant's lateral and medial side of the foot and ankle were dark in pigmentation. They appeared atrophic and the scars were also widened significantly. Over the right medial leg, there was also a longitudinal scar which was long, depressed and widened. The scar was also darkly pigmented and appeared atrophic as well. No breakdowns were obvious. Over the dorsum of the right foot distally, there was an area of skin grafting, presumably from the debridement of the diabetic ulcer in 2014.

Dr Lai gives a diagnosis of severe scarring of right leg, ankle and foot resulting from multiple operations for the right ankle Weber A fracture. In a separate Impairment Assessment of the same date (with colour photographs), Dr Lai uses the TEMSKI table for assessment of impairment of the claimant's scarring. Dr Lai opines that the impairment is at the lower end of the 5% to 9% WPI range with an impairment of 6% WPI.

A8 Report dated 19 July 2022 by Dr Robin Diebold, orthopaedic surgeon, to the insurer.

This assessment was conducted by the Zoom platform which Dr Diebold says was adequate for undertaking the assessment effectively. Dr Diebold gives a detailed history of injury and previous medical history. He lists the documents and diagnostic investigations provided to him.

Dr Diebold records there is diffuse pain under the midfoot. It is worse with walking. There is also constant swelling of the right entire foot. He records that the claimant stopped driving after the injury and has not been able to return to it. She has standing and walking tolerances of ten minutes. She constantly wears a Diaped boot. The claimant was having no analgesia or physiotherapy at the time of examination. She walked with a mild limp favouring the right foot. There was moderate diffuse swelling of the right foot relative to the left. She had bilateral pes cavus. The toes of the right foot sit up slightly relative to the left. There was extensive scarring.

Dr Diebold records the range of motion in the right ankle as follows:

Dr Diebold records that the lower back could not be meaningfully examined by Telehealth, but the claimant described no significant change in the symptoms in her lower back, since the injury.

Dr Diebold describes the diagnostic investigations as follows:

X-rays of the right ankle dated 28 December 2018

"Conclusion: Marked changes and soft tissue swelling centred at the navicular. There is collapsed loss of the navicular which was present (sic) on the previous X-rays from May 2017."

(The Review Panel notes that X-rays from May 2017 are not included in the material listed Dr Diebold, nor have any such X-rays been provided to the Review Panel.)

CT scan of the right ankle and foot dated 23 January 2019

"Conclusion: Advance comminuted fracture of the navicular bone with impaction and multi focal displacement."

Under the heading OPINION, Dr Diebold states as follows:

"The initial diagnosis from the accident was one of an acute fracture of the distal fibula and navicular, as documented on later X-rays. More significantly, over the days and weeks following the injury, she developed acute diabetic neuropathy (Charcot neuropathy) of the right foot. Secondary to this, she developed collapsed and non-union of her navicular fracture. This acute episode of Charcot neuropathy of the right foot was triggered by her motor vehicle accident. Although the underlaying diabetic neuropathy of the foot is the main cause of her condition, the triggering effect of the motor vehicle accident has been a substantial contributing factor. The acute affect of the motor vehicle is based on the following:

(a) The absence of acute symptoms before the injury.

(b) Subacute onset of symptoms after the accident.

(c) The mechanism of injury of a sudden force on the bottom of the foot on the brake pedal is consistent with causing the fractures and being a trigger for the Charcot neuropathy.

(d) The continuous chain of ongoing pain in the foot since the injury."

Dr Diebold agrees with the assessment of Dr Poplawski that 50% causation be attributed to the underlying condition of chronic diabetic nephropathy of the right foot, and 50% to the triggering of the condition by the motor accident.

Dr Diebold finds an acute fracture of the navicular and distal fibula from the accident is not a minor injury (section 5 - 2 of the Guidelines).

Dr Diebold also finds that the claimant's condition has stabilised and assesses whole person impairment as follows:

Dr Diebold says there was no pre-existing impairment with no pre-injury symptoms or imaging abnormality. He finds no lower back symptoms and assesses 5% whole person impairment for the right foot condition. He notes that impairment for scarring is addressed by Dr Lai.

Dr Diebold notes that he and Dr Poplawski examined the claimant remotely which makes an assessment of movement somewhat difficulty. He says that their respective reports differed in four ways.

Dr Poplawski found a greater inhibited movement than I identified.

Dr Poplawski performed additions of impairment within the same joint.

Dr Poplawski made finding of 50% deduction for previous impairment, where I did not.

Dr Poplawski made the finding of a lumbar spine condition related to the motor vehicle accident, which I was unable to identify".

Dr Diebold commends Dr Lai's justification and substantiation for her finding of 6% WPI for scarring.

A9 Xray right ankle reported on 28 December 2018 by Dr Sonia Kariappa

CONCLUSION: Marked changes and soft tissue swelling centred at the navicular. There is collapsed/loss of the navicular which was not present on the previous X-ray from May 2017. Findings are not typical for trauma. A CT scan and clinical correlation is recommended for further evaluation in the first instance.

A18 CT epidural lumbar spine reported on 10 March 2023 by Dr Sherif.

CONCLUSION: Severe degenerative changes as described causing multilevel high-grade spinal and foraminal stenoses from L2 through L5.

A19 CT epidural lumbar spine reported on 3 April 2023 by Dr Connolly.

Jennifer has had previous surgery and has significant marked foraminal and canal stenosis at the L4/L5 level and because of this, I performed transforaminal epidural injections at this level. I do feel however that her degree of canal stenosis is so severe she may need further surgical review."

A10 Clinical notes of Blacktown Mount Druitt Hospital as at 19 March 2021

A11 Clinical notes from Plumpton Medical Centre 2014 -2021.

A13 Nepean Hospital Discharge referral dated 9 December 2018.

A14 Clinical notes of Nepean Hospital as at 2 April 2022 (extract only).

A16 S Khan physiotherapist report date 14 July 2021.

A17 Dr Shines rheumatologist report dated 5 February 2022.

A20 Dr Boquir rheumatologist report dated 25 April 2023.

A21 Eric Ye physiotherapist report dated 29 April 2023.

A24 Westmead Hospital Discharge Summary dated 5 January 2024.

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

RR1 Insurer's reply submissions dated 11 October 2023 to claimant's review application (see previously).

R1 Insurer's submissions dated 17 April 2023 in reply to claimant's application for assessment of whole person impairment.

The insurer relies on the independent medical examination report of orthopaedic surgeon, Dr Robin Diebold, dated 19 July 2022 (A5) (see previously) and the report of Consultant Endocrinologist, Professor John Carter, dated 10 August 2022 (summarised below). The insurer submits as follows:

• As a result of the subject accident, the claimant sustained a Post-Traumatic Weber A fracture of the right ankle and fracture of the navicular bone in the right foot requiring surgical reconstruction and subtalar arthrodesis. She also developed post-surgical scarring of the right foot and ankle.
• The available medical evidence does not indicate that the claimant sustained an aggravation of previously settled lower back pain. The insurer submits there was no injury to the lumbar spine sustained by the claimant in the accident.
• The clinical examination findings of all independent medical examiners ae unreliable as they were conducted via video conference/video link. The assessments do not comply with the assessment procedures prescribed by the AMA 4 Guides in that the independent medical examiners reported on the outcome of clinical examination tests self-administered by the claimants. As such, the insurer submits that these findings of the independent medical examiners cannot be relied upon.
• The claimant has complex pre-existing issues and apportionment has not been undertaken in accordance with cl 6.31 - 6.33 of the Guidelines, particularly considering the different assessment methods, given the significant recurrent issues in the lower limbs arising from the claimant's comorbidities.
• The claimant has extensive scarring, some of which is attributable to the effects of the accident, and other scarring that is not related to the subject accident i.e. skin grafting presumably from the debridement of a diabetic ulcer in 2014. The insurer highlights that apportionment has not been undertaken.
• The insurer submits that the estimation of permanent impairment made by the independent medical examiners does not comply with the procedures for assessment of permanent impairment as specified within the AMA 4 Guides and the Motor Accident Guidelines and is incorrect.

The insurer concludes by submitting that, based on the available medical evidence, the claimant does not have a degree of permanent impairment of greater than 10% as a result of the injuries sustained in the subject accident.

R2 Application for personal injury benefits dated 18 January 2021.

R3 Updated liability notice - benefits after 26 weeks dated 2 August 2022.

R4 Application for common law damages dated 6 December 2021.

R5 Internal Review Certificated dated 29 November 2022.

R6 Clinical records - Plumpton Medical Centre as at 31 March 2021.

R7 Clinical records - Mount Druitt Hospital received 6 April 2021.

R8 Medico-legal report dated 10 August 2022 by Professor John Carter, consultant endocrinologist (not relevant to the current review).

Collision report of Tia Gaffney dated 14 August 2024

This is a biomedical (biomechanical) engineering report. It deals with liability issues that are not relevant for the Review Panel's consideration.

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

The Claimant, Ms Jennifer Tongi attended the assessment alone.

Pre-accident medical history and relevant personal details

Ms Tongi is a 46 year old women. She was born in New Zealand and came to Australia in 1979.

She worked for NDIS three days a week as an area-co-ordinator when she had the subject accident. She had done this for 7 years. Her job entailed her attending community events and assesses clients in their home. After the accident, she worked on and off from her home. She has been on extended leave from her job since April 2023 because of her low back pain and then the back surgery and complications from this.

Ms Tongi lives with her parents and is her primary carer for her mother. Her mother has had a stroke and is paralysed. The Aged Care community service comes daily to shower her.

Ms Tongi was diagnosed with diabetes in 1998 and was initially treated with diet and exercise and tablets . In July 2008, she commenced treatment with insulin.

Ms Tongi had a past history of lower back pain before the accident with laminectomy of L4/5, L5/S1 in March 2007 at Westmead Hospital and discectomy in 2010. She returned to playing netball and basketball after the back surgery and had occasional low back pain.

In June 2015, she had hysterectomy for endometrial carcinoma with post operative radiotherapy. She is clear of cancer now. During the treatment she had a right upper limb thrombosis in association with a PIC line.

In 2015, she had bilateral retinal detachment: right eye was saved, but the left eye became blind.

In November 2017 she had an ulcer on the dorsum of the right foot from wearing thongs which she described as "cutting into her foot". She had some sensory change in the foot but no swelling prior to this. She was seen by the Blacktown High Risk Foot Service. The dorsum of the foot required debridement and it healed. After the healing she could wear normal shoes. There was no problem with the left foot.

On Thursday 6 December 2018 Ms Tongi's car was parked in a parking spot outside the Kmart store in Blacktown. As she was reversing slowly out of her spot she was ¾ out when a car sped behind her car. She slammed her right foot onto the brake. The other car hit the tow bar ball of her car. Her car did not hit any car next to her car.

No police of ambulance attended the accident. She exchanged details with the driver of the other car which was involved in the accident.

History of symptoms and treatment following the motor accident

She said her body did not hit the interior of her car. Shortly after she reached home, she fell asleep. She woke up later with pain in her right knee and right leg.

She took two Panadol. Ms Tongi consulted her GP at Plumpton Medical Centre the next day, Friday 7 December 2018.

She was referred to Mount Druitt Hospital. The hospital's clinical record stated that she presented with 'Pain described as tightening feeling'. On examination of the lower limb the hospital clinical notes stated "power 5/5 right and left, touch sensation intact warm peripheries, right lower leg swelling 3+ below knee level, non-pitting in nature. Tenderness over right calf area - Left leg NAD."

The doctor in attendance thought she had DVT - a Doppler ultrasound the next day on Saturday 8 December 2018 did not show this.

On the Sunday 9 December 2018 morning, Ms Tongi complained that the pain in her right leg and right foot was worse. She could not weight bear with her right lower limb due to the pain.

She attended Nepean Hospital ED. The clinical notes of Nepean Hospital stated that she had "Throbbing pain radiate from her knee to her foot. Due to neuropathy pt can't feel if leg is sore to touch, although pt states when she stands is when the pain increases". She had an x-ray of her right ankle and foot performed at Nepean Hospital. No fracture was identified on the x-ray. The D-Dimer result was normal.

As there was a recent past history of radiotherapy, the Nepean Hospital ED doctor considered the swelling and the tight feeling in her right leg as possibly due lymphoedema from the radiotherapy treatment.

Ms Tongi said she could barely walk and the following Thursday, she saw her podiatrist who rang Nepean Hospital's orthopaedic registrar and secured an appointment at the fracture clinic. She said the doctor in the fracture clinic found that she had a Weber A fracture in her right ankle and prescribed a Cam boot for her to wear for five weeks.

Ms Tongi said that two months later her right foot was still swollen. She had another x-ray which showed that in addition to the ankle fracture, she had a fracture in the navicular bone of her right foot.

On the 20.4.19, whilst attending a funeral in Newcastle, she slipped, fell and presented to ED at John Hunter Hospital with "bilateral ankle pain and right knee pain...fell on right knee, bumped right Cam boot, since injury increased right ankle pain, right knee pain and left ankle pain."

She had x-rays of both ankles and no acute fracture was detected in the ankles.

In July 2019 with increasing back pain she had a CT scan of the lumbar spine. This showed widespread degenerative disease with central canal stenosis.

With ongoing right foot pain Ms Tongi had reconstruction of her right foot at Nepean Hospital on the 15 September 2020 with a subtalar fusion procedure. This was complicated by infection of the surgical wounds.

She had four operations to her right foot from the 15 September 2020 to 20 January 2021. She said she was on a wheelchair for a year until August 2021.

She said she had to wear a special Diaped boot for nearly 3 years with follow-up visits to the fracture clinic.

Ms Tongi said the pain in her lower back pain became more noticeable and then she noticed with weakness in both legs in March/April 2023.

She was seen in Mount Druitt Hospital and had cortisone injection to her lower back on the 28 April 2023 and 22 May 2023. The injection only eased the lower back pain for a few hours and the low back pain returned.

On the 5 June 2023, she consulted Dr J McMaster, Neurosurgeon. He recommended spinal surgery for spinal stenosis.

She had a lumbar laminectomy on 15 August 2023. This was complicated by a dural leak and infection. She spent 6 months in hospital and was only discharged in January 2024. She has had rehabilitation since as she tried to get back on her feet. She is now walking with a walking frame.

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

She had a fall in Newcastle on the 20 April 2019 and had x-ray of her right ankle. No acute fracture was detected in the x-ray. She said she fell and landed on her left side a year ago. She had no complaint in her lower back then.

The major condition she has suffered since is the lumbar surgery and the major complications which followed.

Ms Tongi uses a walking frame to mobilise even at home.

After walking for a short distance, she experiences pain and swelling in her right foot. She wears a special purpose- built shoe for her right foot.

Walking or standing can bring on the pain in her lower back. She has weakness in the legs she states.

She struggles with cooking and shopping. She has home delivery of groceries. She cannot stand at the stove for very long.

She is on medications for her diabetes- Metformin1000mg SR and insulin injections. She is on Coversyl Plus, amlodipine and atorvastatin.

She has physiotherapy and chiropractic as well as attending a gym with a Personal Trainer.

Ms Tongi walked into the consulting room favouring her right foot and with no walking aid.

Her height was 173cm with her weight being 120.4kg. This gave her a BMI of 40 (placing her in the Class 3 range for obesity).

She had asymmetrical limited movement in the lumbar spine. Flexion was to 2/3 normal but extension was only 1/3 normal. Lateral flexion to the left and right was only 1/3 normal.

The calf circumference on the right was 44.5cm and on the left 42cm when measured 10cm below the tibial tubercle.

There was an 18.5cm laminectomy scar which was widened and pigmented.

There was a decrease in pin prick sensation from the calves down.

Sitting on the chair, she could extend her knees fully - the sciatic stretch test was negative in both lower limbs.

She had marked restriction in right ankle range of motion. The active range of movement of her ankles and hindfoot was measured with a goniometer and the measurements were recorded in the table below.

There were six scars in her right leg and foot with one scar due to a healed ulcer on the dorsal aspect of her right foot. Five scars were related to the surgeries to her right foot. She was conscious and able to locate the scars. None of the scars affected her ADLs and all were covered by her footwear.

Ms Tongi was conscious of the scars in her right leg and foot. The location of the scars and their details would be documented below. Lateral aspect of her right leg foot

There was a horizontal scar 6.5 cm long on the dorsal lateral aspect of the right foot. The scar was pigmented but not raised nor adherent.

At the base of the right big toe was a 4 cm long by 0.2cm wide longitudinal scar. There was pigmentation of the skin along the length of the scar. There was no adherence and it was not raised.

On the medial/dorsal aspect of the midfoot was a horizontal scar 6.5 cm long and 0.2 to 0.3 cm wide scar with pigmentation the length of the scar. There were no suture marks and no adherence. The scar appeared atrophic and was somewhat depressed.

On the medial aspect of her right ankle and behind the medial malleolus, was a thin 6 cm long oblique scar.

On the medial aspect and middle third of her right leg was a linear area of pigmentation10cm long and 1 cm wide, with a very faint scar a few mm wide covered by the pigmentation.

Ms Tongi was co-operative and consistent throughout the assessment.

Summary of relevant radiological and medical imaging and other investigations

27.6.14 - CT Lumbosacral spine report stated that there was "prominent degenerative disease throughout the lumbar spine" with "Laminectomies at L4/5 and L5/S1 levels decompress the thecal sac. There is however moderate to severe canal stenosis at the L2/3 level and moderate canal stenosis at the L3/4 level. There is bilateral L3 and L4 neural foramina stenosis. Lateral recess stenosis bilaterally at the L4/5 level potentially impinges upon the traversing L5 nerve roots."

25.7.18 - X-ray of both feet report states "There is mild degenerative change in the TMT joints of all toes. Calcaneal spurs are noted. No osteomyelitis".

8.12.18 - Ultrasound doppler report stated that there was no evidence of DVT in both calves.

9.12.18 - X-ray right ankle report states "Soft tissue swelling is noted over the lateral malleolus. Some radiopaque densities seen in the soft tissue lateral to the lateral malleolus and should be correlated with history of any trauma. No definite periosteal reaction or acute fracture is identified. Degenerative changes are seen involving the tarsal bones."

28.12.18 - X-ray right ankle report stated that there was "Marked soft tissue swelling is seen overlying the lateral of the ankle as well as involving the dorsal aspect of the midfoot extending to the metatarsals. There is collapse/loss of navicular which was not present on the previous x-ray from May 2017."

23.1.19 - CT scan right ankle and foot report stated that "There is advanced comminuted fracture of the navicular bone with superior impaction and multiple displaced fracture fragments throughout the medial, superior and anterior ankle joint recess, The medial cuneiform appears intact. The intermediate cuneiform distally shows an area of bony irregularity in keeping with a minimally displaced fracture."

16.3.19 - MRI right foot report stated "There is marrow oedema involving all of talus, anterior aspect of the calcaneum, cuneiform bones as well as cuboid. Oedema is also seen affecting the bases of the 2nd, 3rd and 4th metatarsals as well as the 5th metatarsal base as well as the shaft. The navicular is loss with fragmentation and increased signal in keeping with marrow oedema. There is also soft tissue thickening and enhancement in the same region. There is fluid within the synovial sheath of the tendons surrounding the ankle joint. MRI features would be in keeping with Charcot's disease affecting proximal and mid-foot. There is no definite finding to suggest osteomyelitis."

30.7.19 - CT Lumbosacral spine report stated that she complained of low back pain right sided with shooting pain to right leg. Post laminectomy 12 years ago and discectomy nine years ago: "L2/3 - significant facet joint degenerative change, central canal stenosis, foraminal stenosis; L3/4 - Central canal stenosis, significant facet joint degenerative change and exit foramina stenosis; L4/5 -Laminectomy at this level, central canal remains narrow and exit foramina stenosis; L5/S1 - Broad based disc bulge, subarticular recesses narrowed and marked narrowing of exit foramina". Conclusion: "Widespread degenerative changes seen throughout the lumbosacral spine. There is posterior element degenerative changes and anterior aspect degenerative changes causing central canal stenosis. No changes noted in to-day's study appear acute. There is broad based disc bulge at L5/S1."

Statement about permanent impairment 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."

Her last foot and ankle surgery was on 20 January 2021. Her clinical findings in the right leg have not changed significantly over the last 12 months. The impairment has stabilised.

During the accident she forcefully pushed down on the brake with her right foot. Over the days following the right foot pain and swelling gradually increased and she could not weight bear. Fractures were diagnosed. The Panel believes the motor vehicle caused the foot fractures leading to eventual surgery in this women with peripheral neuropathy secondary to diabetes mellitus.

Ms Tongi had significant past history of low back pain and surgery as outlined above. She reported however that she was asymptomatic before the accident.

She did not have any complaint about her lower back immediately after slamming on the brakes nor when she saw her GP or presented to Mt Druitt or Nepean Hospitals.

The CT of the lumbo-sacral spine was performed on 30 July 2019, one year after the accident.

The Panel considered whether this was a consequential injury due to her abnormal gait secondary to her ankle and hindfoot injury. However, considering the extent of her pre-existing degenerative lumbar disease with severe spinal stenosis the abnormal gait was felt not to be a significant contributor to her lumbar pain and eventual need for lumbar surgery.

The Panel believes that the aggravation of her lumbar spine degenerative disease was not related to the accident.

The injuries /fracture in her right ankle and the right navicular bone and surrounding tarsal bones were causally related to the subject accident. The surgical scars on the right leg and foot were due to the surgery to treat the injuries in her right ankle and foot. Hence, the surgical scars in her right leg and foot were causally related to the subject accident.

• Weber Type A fracture of the right ankle
• Comminuted fracture of the right navicular bone with eventual sub-talar arthrodesis

Apart from one scar due to an ulcer on the dorsal aspect of her right foot, the other scars, five in total, were scars due to the surgery to treat the right ankle fracture and the right navicular bone fracture and midfoot deformity.

Ms Tongi's lumbar spine problems leading to surgery in 2023 were not causally related to the subject accident.

The following injuries WERE caused by the motor accident:

• Right ankle - Weber A fracture and subtalar arthrodesis

• Right foot - Fracture of navicular and surgical reconstruction of mid foot

• Skin - Post surgical scarring of right foot and ankle injuries

The following injury WAS NOT caused by the motor accident:

Using Table 42 and Table 43 on page 78 of AMA 4th Edition, the lower extremity impairment (LEI) of the right ankle and hindfoot were assessed. The loss of ankle flexion gives a 15% LEI and the loss of extension a 7% LEI. The maximum is used as per the SIRA NSW Motor Accident Impairment Guidelines. The ankle impairment is therefore 15% LEI.

The hindfoot impairments are moderate/severe in inversion (5% LEI) and mild in eversion (2% LEI). The AMA 4th Edition on page 81 states as well that the subtalar ankylosis in neutral position gives a 10% LEI (4% WPI). Table 6.5 on page 100 of the SIRA Guides does not permit the impairment due to the subtalar fracture/fusion to be combined with a range of motion assessment. Therefore the hindfoot impairment is 10% LEI.

Combining 15% for the ankle with 10% for the subtalar fusion gives 24% LEI - this converts to 10% WPI using Table 6.4 on page 99 of the SIRA Guides.

Ms Tongi is conscious of the multiple scars in her right leg and foot. The scars were easy to locate as most of them have some pigmentation which was visible against the skin on her leg and foot. There were no trophic changes, no contour effect, no adherence to the underlying structures and no treatment was required except for one scar which was atrophic and had contour effect. The scars in her foot were not usually visible with her podiatric footwear. The scars had no limitation in the performance of ADL. Using the principle of best fit, Table 6.18 TEMSKI of the Motor Accident Guidelines Permanent Impairment, the scarring merits 2%WPI.

Combining the permanent impairment of the right ankle (6%) , right hindfoot (4%) and post surgical scarring on the right lower limb (2%) gives 12% WPI.

AMA 4 Page 81 reference to subtalar fusion; Table 43 page 78

While there is no doubt Ms Tongi had peripheral neuropathy and probable microvascular changes secondary to diabetes mellitus in the right foot, she had no problems other than the ulceration caused by the thongs in November 2017. This healed. There was no evidence of Charcot's foot prior to the injury. She only attended the Blacktown High Risk Foot Clinic for the ulcer. The Panel does not believe that there is any deduction appropriate for any pre-existing or subsequent conditions.

1. The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Review Panel adopts the examination findings and reasons of Medical Assessor David Gorman with which Senior Medical Assessor Drew Dixon concurs. The Review Panel is not required to choose between medical opinions and is required to form its own opinion.[7]
2. The Review Panel notes that the insurer's concluding submission is contrary to its own independent medical evidence. The Review Panel infers that the insurer's criticisms of the independent medical expert opinions relate equally to its own experts (Dr Diebold and Dr Lai) and to the claimant's qualified medical expert (Dr Poplawski) notwithstanding that the insurer relies upon Dr Diebold's opinion.
3. Although the Review Panel initially was inclined not to conduct a physical examination of the claimant, for the reasons previously stated, the examination was useful in establishing that, despite her pre-existing diabetes, the claimant did not have ongoing foot problems before the accident. Specifically, she did not have a Charcot's foot before the accident.
4. As to the lumbar spine, there is no doubt that the lumbar pain was not present in the weeks immediately after the accident. There is also no doubt that the claimant had a significant element of spinal stenosis before the accident after two spinal decompressions. Lumbar pain took 12 months to build up during which time the claimant did have definite abnormal gait with ankle boot and a CAM boot in place. Whilst the Review Panel acknowledges that there are good arguments to support a causal connection between the subject accident and the claimant's lumbar pain and eventual need for lumbar surgery, the Review Panel is of the view that, based upon the totality of the evidence, the aggravation of the claimant's lumbar spine degenerative disease was not related to the accident. That finding is not critical to the outcome.
5. Medical Assessor Wing Chan noted that the claimant had a CT of the lumbosacral spine on 27 June 2014 which showed prominent degenerative disease throughout the lumbar spine. Laminectomies had been performed at L4/L5 and L5/S1 levels, decompressing the thecal sac. There was moderate to severe canal stenosis at L2/L3, moderate canal stenosis at L3/L4 and bilateral L3/L4 neural foraminal stenosis. Lateral recess stenosis was present bilaterally at L4/L5, potentially impinging on the traversing L5 nerve roots.
6. The Medical Assessor noted that the CT scan done on 30 July 2019 showed wide-spread degenerative changes throughout the lumbosacral spine with posterior degenerative change and anterior degenerative change causing central canal stenosis. There were no changes in the study to appear acute and there was a broad-based disc bulge at L5/S1. The Medical Assessor commented that there was no mention in the CT scan report of any boney injury and that the degenerative changes in the CT scan of the lumbar spine were degenerative changes, not caused by the subject accident, and that the degenerative changes in the lumbar spine were reported previously in the 2014 CT scan. The Review Panel agrees with those findings.
7. The Review Panel believes that these pre-existing degenerative changes eventually would have led to further degenerative narrowing of the canal and narrowing of the exit foramina, which would ultimately require decompression laminectomy, recommended by Dr Jacqueline McMaster, neurosurgeon.
8. Medical Assessor Chan did not find any evidence of radicular complaint or neurological deficit, wasting, tenderness, muscle spasm, nor guarding of the parametrial muscles, although there was some asymmetry in the range of motion of the lumbar spine. He found no non-verifiable radiculopathy and no signs that were consistent with radiculopathy arising from the lumbar spine. The Review Panel made the same or similar findings.
9. The clinical records of Plumpton Medical Centre contain no mention of complaint of low back pain in the six months after the accident. The claimant reported to Medical Assessor Wing Chan that the lower back pain became more noticeable in March/April 2023, for which she had a cortisone injection to her lower back in April and May. On 5 June 2023, the claimant consulted Dr McMaster, neurosurgeon, who planned for decompression laminectomy on

15 August 2023 for spinal and foraminal stenosis. 10. Having reviewed all of the medical material, the Review Panel is satisfied that the pre-ponderant cause of the claimant's back pain was severe spinal stenosis and degenerative disease, such that she would have come to lumbar surgery eventually, absent the motor accident. The Review Panel notes that the claimant did not complain of back pain for a considerable period after the motor accident. The claimant also suffered a number of falls. 11. The Review Panel differs from Medical Assessor Wing Chan in the assessment of the subtalar fusion. Table 81 of the AMA 4 Guides prescribes 4% WPI for subtalar fusion instead of the 2% WPI allowed by Medical Assessor Chan. 12. The findings of the Review Panel are not dissimilar to those made by Dr Poplawski. They differ significantly from those of Dr Diebold, with whom the Review Panel respectfully disagrees, for the reasons stated. Dr Diebold failed to include the subtalar fusion in his assessment.

1. For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Wing Chan on 16 August 2023 should be revoked. The new certificate appears 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.

[7] Allianz Insurance Australia Group Limited v Keen [2021] NSWCA 287.