AAI Limited t/as AAMI v Sefian
[2023] NSWPICMP 8
•10 January 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as AAMI v Sefian [2023] NSWPICMP 8 |
| CLAIMANT: | Majed Sefian |
INSURER: | AAI Limited t/as AAMI |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 10 January 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical dispute about minor injury under section 1.6 and review of Medical Assessor’s assessment under section 7.26; claimant involved in rear-end collision on M1 motorway and claimed injury to lumbar and cervical spine, both knees, right hip and right wrist; claimant was a builder who had anterior cruciate ligament (ACL) repair in right knee in 2010; claimant concedes only injury in dispute was right knee; right knee magnetic resonance imaging (MRI) revealed medical meniscus tear; insurer argued not caused by the accident due to mechanism of injury and first mention of knee injury six weeks after the accident; Held – no evidence of knee symptoms between 2010 and accident; mechanism involved claimant firmly braking with his right leg and knee hyper-extended and first complaint of knee pain was in claim form and certificate of capacity dated less than three weeks after accident; Panel accepts tear caused by accident and therefore injury to right knee is not a minor injury; no matter of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Confirms the certificate of Medical Assessor Moloney dated 9 March 2022. 2. Certifies that the right knee injury sustained by Mr Sefian is not a minor injury for the purposes of the Act. |
STATEMENT OF REASONS
introduction
On 19 July 2020, Mr Majed Sefian was stationary in the driver’s seat of his own car when it was hit from behind by AAMI’s insured. Emergency services did not attend,
Mr Sefian’s airbags were not deployed, and he was able to drive home.
Mr Sefian made a claim against AAMI, the third-party insurer of the vehicle that ran into him. AAMI paid Mr Sefian some statutory benefits but 26 weeks after the accident stopped paying Mr Sefian any statutory benefits on the basis that, in AAMI’s view,
Mr Sefian had sustained only minor injuries in the accident.
Mr Sefian asked for an internal review of that decision and following AAMI’s decision to affirm its determination, Mr Sefian referred the medical dispute about his injuries to the Personal Injury Commission (the Commission) for assessment.
On 9 March 2022, Medical Assessor Moloney determined that the claimant had sustained a non-minor injury in the accident being a medial meniscal tear to
Mr Sefian’s right knee. The insurer disagreed with that result and lodged an application for review with the Commission.
On 24 June 2022 the President’s delegate determined there was reasonable cause to suspect a material error in the assessment and on 28 June 2022 the President convened the Panel.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Sefian’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to statutory benefits under the MAI Act[1], there are some disentitling provisions and limits to the amount and extent of benefits available. One of these is that statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person in the accident are “minor” injuries[2].
[1] See s 3.1.
[2] See ss 3.11(1) and 3.28(1).
It should also be noted that in a common law damages claim, no damages are payable if the claimant’s injuries are “minor” injuries. Therefore, a decision about whether an injured person has “minor” or non-minor injuries is a significant one.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Minor injury
A minor injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) provides that a soft tissue injury is:
“… an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.” [emphasis added]
In summary, if a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusions mentioned in s 1.6(2) (underlined above) the injured person’s statutory benefits will cease in accordance with ss 3.11 and 3.28.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act[3].
[3] The current version of the Guidelines I version 8.2 effective 8 April 2022.
The method of assessment in Part 5 does not appear to be limited to the assessment of minor injury disputes by Medical Assessors and Panel members but would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).
the assessment under review
Medical Assessor Moloney examined the claimant on 28 February 2022. He was asked to assess:
(a) lumbar spine – injury to back and radiculopathy;
(b) cervical spine – injury to neck;
(c) left knee – medial meniscal tear;
(d) right knee – medial meniscal tear;
(e) right wrist – injury to wrist, and
(f) right hip – injury to hip.
The claimant was reported to be a builder working full-time in his own business. He reported a 2010 rupture of the right anterior cruciate ligament (ACL) which was repaired. He had lower back complaints in 2012 investigated by Magnetic Resonance Imaging (MRI) and treated with physiotherapy and an exercise program.
The claimant said he attended his general practitioner (GP) the day after the accident and was prescribed pain relief and referred for physiotherapy, massage and acupuncture. He was then referred to Dr Huang and then Dr Nagamori for knee pain.
Medical Assessor Moloney documents the claimant’s current symptoms:
(a) low back pain on the right, radiating into the right hip;
(b) pain in both knees increasing with bending and lifting and the right knee clicks and occasionally locks;
(c) his wrist symptoms settled a few weeks after the accident, and
(d) his neck is asymptomatic.
There was no complaint of right or left hip pain documented.
On examination, Medical Assessor Moloney:
(a) does not record any findings suggestive of radiculopathy and there were no non-verifiable radicular complaints;
(b) does not record any findings suggestive of radiculopathy or non-verifiable radicular complaints;
(c) squatting was limited due to knee pain;
(d) there was tenderness over the right sacroiliac joint;
(e) the right hip demonstrated a free range of movement with no tenderness however there was a slight restriction (10 degrees) of flexion in the right hip, and
(f) there was no effusion in either knee or ligament laxity. There was tenderness in the right knee with clicking heard on motion. The right knee had a surgical scar due to the previous knee reconstruction.
Medical Assessor Moloney reviewed the documents including the original certificate of capacity dated the day after the accident and the notes of the GP which recorded lower back pain, pain into the right knee and calf. He reviewed the imaging noting an MRI of the right knee showed the ACL graft and a tear in the medical meniscus.
Medical Assessor Moloney found in respect of the injuries referred to him:
(a) the lumbar spine was injured by way of a soft tissue injury without radiculopathy therefore a minor injury;
(b) accepts the claimant’s history of left knee injury found a “soft tissue injury” and no evidence of a tear therefore a minor injury;
(c) accepts the claimant had right knee pain after the accident and has been referred to two orthopaedic surgeons which revealed a medical meniscus tear which is not a minor injury, and
(d) accepts the claimant may have injured is right hip on the basis his GP had a history of right hip tenderness which has now resolved and was and is a minor injury.
In terms of the claimant’s wrist, Medical Assessor Moloney found this injury was not documented and as there were no complaints of wrist pain the wrist was not assessed. In addition, Medical Assessor Moloney found there was no documentation of neck pain and no symptoms or complaints in that area at his assessment and therefore he found no injury to the claimant’s neck caused by the accident.
PROCEDURAL MATTERS AND SUBMISSIONS
Insurer’s submissions
The insurer argues that Medical Assessor Moloney failed to give sufficient reasons in relation to his findings and failed to properly assess “minor injury”.
The insurer says at [17] the Medical Assessor had a history of a past ruptured ACL. The insurer says at [20] that the Medical Assessor has accepted the claimant’s account but has not considered the mechanism of the accident and how the meniscus could have been torn.
The insurer says at [21] the injury was pre-existing and not caused by the accident.
The insurer summarised the GP’s notes and records at [22] saying there was no mention of any knee pain at the attendance on the day after the accident or in the certificate of capacity completed two days after the accident. At [23] the insurer notes the first mention of right knee injury was in a certificate of capacity dated 6 August 2020 where the claimant’s GP diagnosed an exacerbation of a previous right knee injury. The insurer says at [24] that the first entry in the notes of right knee injury or complaints in the right knee is on 31 August 2020, six weeks after the accident.
The insurer notes at [25] both Dr Huang and Dr Nagamori have a history of bilateral knee pain immediately after the accident which is based on the claimant’s history and is not consistent with the records in the GP’s notes. The insurer suggests there could have been an intervening event or that the tear was pre-existing and was aggravated.
The insurer observes at [26] that Dr Nagamori reports the claimant did not remember hitting his knees on the dashboard and that meniscus tears are more usually caused “by a forceful twist or rotation” which is not consistent with the mechanism of the accident.
Claimant’s submissions
The claimant on page three at [2] refers to his statement as to the mechanism of the accident. He also says in this statement that immediately after the accident he had pain in his knees.
The claimant notes on page 4 at point [c] that there is a complaint of knee pain on
6 August 2020.
The claimant says he did not wait six weeks to complain of knee pain but reported knee pain immediately after the accident and on 6 August 2020. The claimant points out the anatomical difference between the reconstruction of his ACL in 2011 and the meniscal tear in the accident.
Procedural matters
On 4 July 2022, the Panel issues directions to the parties for bundles of document in order to facilitate the efficient review of the material and to ensure all material before Medical Assessor Moloney was considered. The insurer uploaded a bundle of 26 documents on 18 July 2022[4]. The claimant uploaded his bundle of documents on
3 August 2022[5].
[4] The index of documents is identified as document AD1 in the Commission’s electronic file and the documents themselves are document AD2.
[5] Document AD3 in the Commission’s file.
The Panel met on 12 August 2022 and sent a report of the deliberations to the parties. The Panel noted that the submissions from both parties focussed almost exclusively on the claimant’s right knee injury and asked the claimant to confirm that he conceded all other injuries assessed by Medical Assessor Moloney were “minor injuries”.
The Panel also noted that the claimant’s statement at page 31 of his bundle was undated and unsigned and requested he date and sign it and include within it when he first reported knee symptoms to his doctor and whether there had been any intervening incidents or accidents.
The Panel also requested notes from the claimant’s physiotherapist and notes including operation notes from the person who conducted the surgery on the claimant’s knee in 2010 or 2011, the records of the GP from 2010 to 2020 and photographs and any other records relating to the damage done to the vehicles involved in the accident.
The claimant provided a signed and dated further statement and advised his only pre-accident knee treatment providers (for his knee condition were Drs Quan, Huang and Nagamori). The claimant conceded that the only injury in issue was the claimant’s knees and that all other listed injuries were “minor” injuries.
The insurer provided photographs of the two vehicles but advised that it had been unsuccessful in obtaining notes from 2010 to date from the claimant’s physiotherapist, GP or specialist. The insurer requested the Panel continue with its assessment.
REVIEW OF THE EVIDENCE
Claim form, liability and Mr Sefian’s statement
The claimant’s claim form is dated 6 August 2022 and it reports:
“There were overhead signage stating traffic ahead to slow down. I kept my distance behind the car in front and when the traffic arrived, I stopped and the vehicle behind hit me and didn’t stop moving forward. She stated she had a water bottle stuck under her brakes pad.”
and
“I instantly got winded due to the accident and then shock with pain to my back, neck, wrist, knee and hip”.
The insurer’s liability notice declining ongoing statutory benefits is dated
11 November 2020. The insurer considered the application (claim form) and found the claimant not at fault. AAMI then determined, on the basis of the first certificate of fitness, the MRI of the right knee and the reports of Dr Huang and Dr Nagamori that the claimant had soft tissue injuries to the lower back and exacerbation of a right knee injury.
AAMI also determined that Mr Sefian’s medial meniscus tear in the right knee was not caused by the accident, “because the clinical findings of Dr Huang and Dr Nagamori are not consistent with an acute right medial meniscus tear” and because the mechanism of injury reported to Dr Nagamori was unlikely to cause the tear.
The claimant’s signed statement dated 2 September 2022 says[6]:
[6] The statement is document AD4 in the Commission’s electronic file.
(a) he is currently working reduced hours because of his injuries [4];
(b) he was driving in traffic on the M1 when he was rear ended [5];
(c) the driver could not stop because she said her water bottle had slipped under her brake [6];
(d) on impact he was “propelled forward towards the dash”. He did not hit the dash but was winded [7] ;
(e) after the accident he was disoriented and in pain [8];
(f) in 2011 he had torn his meniscus requiring reconstruction surgery performed by Dr Nagamori and he made a full recovery [9];
(g) immediately after the accident he felt pain in his right knee, and it was swollen, tender and “I was also experiencing mechanical difficulties” restricting his mobility [13];
(h) he followed up with his GP on 6 August 2020 and had investigations [14] – [15];
(i) “I remain debilitated by pain to my right knee” [16], and
(j) his pain has been consistent since the accident, and he has not had any further injury to his right knee since the accident [17].
The Panel notes the unsigned and undated statement at page 31 of the claimant’s bundle differs slightly to this version. It does not have the original paragraph 7 which describes a “heavy impact” and it does not include this part of the original paragraph 8 that the force of the collision “caused my leg to hyperextend as I had my right foot firmly applied to the brake”. The Panel therefore is proceeding on the basis that the signed and dated statement is the correct version of events and the Panel will not consider the previous unsigned and undated statement.
Photographs provided by the insurer show the rear end of the claimant’s BMW with what appears to be significant malformation of the lower rear bumper bar and what appear to be scrape marks from right to left. The photographs of the insured vehicle show a Kia motor vehicle with damage to the right driver’s front with cracked light housing, a mildly deformed bonnet and damage to the bumper on the passenger side. The damage to the claimant’s vehicle appears to be more significant.
Treating medical chronology
The records of Dr Quan begin with an entry on 20 July 2020 which says:
“Had rear ended in MVA yesterday on M1. Back pain and hamstring pain. How car chassis moved and now stiffness in back. O+ muscular tightness radiating down to bilat thigh.”
At that consultation, Dr Quan prescribed Panadeine Forte and Voltaren Rapid, referred the claimant for physiotherapy and completed the certificate of capacity and fitness which includes the following:
(a) diagnosis - low back / sciatica;
(b) injury was consistent with description of cause and the cause was said to be “rear ended”;
(c) pre-existing factors relevant were L4-5 annular tear and right knee reconstruction;
(d) claimant required physiotherapy (Jee Sung Physio), analgesia, Voltaren and Panadeine Forte;
(e) restrictions were placed on his work including: no lifting, carrying, pushing, pulling, bending, twisting or squatting and only 40 minutes of sitting and 30 minutes of standing and driving, and
(f) the claimant was to be reviewed on 27 July 2020.
Dr Quan’s notes record no consultation on 27 July, but a further consultation is recorded on 6 August 2020 which says:
“Seeing physio and doing fortnightly. No improvement. Voltaren relief some of the pain but still worse after walking eg up a hill.
Still in pain … Now pain in T spine but radiating down to R knee and calf.
O+ tender in R paravertebrals. Very tight paravertebrals on R. Back movts limited by pain.”
At this consultation, Dr Quan requested a CT scan of the thoracolumbar spine ceased the Voltaren Rapid and prescribed Voltaren and Nexium.
On 31 August 2020, Dr Quan saw the claimant again and the record in the notes says:
“1. SB [seen by] Rehab provider Louise Cadby by CTP. Discussed for MRI knee and add to CTP form. Pain post physio / deep tissue work 36 h later. Discussed exercise physiology – Guardian EP in future. Discussed small business employer for casual member to offer wage subside. Update MC [medical certificate] for WC [work capacity].
2. Recent MVA Jul 20, back, right hip and right knee pain after [rear end]. Seeing physio. Apparently still tight and physio. Problems walking up stairs and had knee taped. Pt unable to do lifting. Worse when walking up and down stairs and needing to grab handrails. Past meniscal repair R > 10 year. Ref to CTP repair. Needing help with
O+ R knee crepitus
History: No neck pain. Back pain. No shoulder pain. Right hip pain. No elbow pain. Right knee pain. No wrist pain. No ankle pain. No hand pain. No foot pain. No painful fingers. No painful toes. Injury.
Examination: Musculo-skeletal: Affected joints. Right hip – not swollen. Tender. No deformity. Movement restricted. Right knee swollen. Tender. No deformity. Movement restricted. Crepitus slight laxity in Lat collat lig.
Reason for visit: Right knee injury”
Dr Quan’s actions stemming from that consultation included requesting an MRI scan of the right knee with the referral noting clinical details given of “crepitus” and “instability” with suspected meniscal injury.
Dr Quan’s further certificate of capacity dated 31 August 2020 – low back pain / sciatica and “exacerbation of R knee injury from > 10 years ago”. Also of this date is a handwritten report from Dr Quan answering a series of questions from the insurer.
Dr Quan said:
(a) the claimant required future treatment including exercise physiology;
(b) he had back pain, right hip pain and right knee pain;
(c) Mr Sefian was tender in the right low lumbar spine, tender and knotted muscles in the right hip and right knee collateral ligament laxity;
(d) there were no symptoms of whiplash, and
(e) he was awaiting imaging to confirm the injury diagnosis.
The insurer referred the claimant for assessment by APM Workcare. This assessment included an interview with the claimant and liaison with Dr Quan and the claims officer with an attempt to speak with the claimant’s physiotherapist. A report dated
8 September 2020 from Ms Cadby of APM has been provided which records:
(a) a history of low back pain after the accident and a visit to the doctor the day afterwards because of shock, anger, wrist, neck and low back pain;
(b) knee pain recorded by Dr Quan on 31 August;
(c) the claimant’s symptoms are right lower back pain referred to the hip, sciatic pain in the right leg to the knee and calf, poor sleep, physio for the back, hip and right knee, right knee instability;
(d) the claimant reported some improvement (he had stopped Panadeine Forte) and that he has had to stop some of his building projects and delayed work as a result. He was having difficulty walking and with prolonged sitting and driving;
(e) a previous car accident 10 years ago which led him to change his job and so he was concerned about the impact of the current car accident on his business and activities of daily living;
(f) ongoing knee injuries – Dr Quan indicated the claimant had ACL and meniscal repair 10 years ago, and
(g) a number of recommendations were made including wage support, ongoing treatment subject to the MRI, provision of a standing desk at home, domestic cleaning assistance and support for physical activity.
An MRI report of the right knee dated 18 September 2020 showed an intact ACL graft but a tear of the medical meniscus.
Dr Quan conducted a telephone consultation with the claimant on 23 September 2020 to discuss the MRI of the right knee and Mr Sefian was also asked to come in because of a report that he was taking Voltaren and “getting palpitations”.
At this consultations a referral was given to Dr Huang an orthopaedic surgeon in another part of the practice where Dr Quan worked. This referral noted a history of L4/5 annular tear in November 2011 and a lesion spinal disc lumbosacral on 20 July 2020.
On 29 September 2020 the claimant was reviewed for the purposes of a work capacity certificate. The reasons for the visit were said to be right knee injury, chest pain and insomnia. It was noted the claimant was still having knee pain and that he had developed chest pain two weeks earlier. An ECG was requested and a prescription for temazepam was provided.
Dr Huang also saw the claimant on 29 September 2020 and the notes of the Holdsworth Street practice include his note “Problems with both knees … Left knee swollen and painful”.
Dr Huang appears to have prescribed Mobic and an X-ray of both knees noting “prev MVA, degen knee – R ACL recon” and an MRI of the left knee noting “Prev MCA, degen ? meniscal pathology” on the referrals.
Dr Huang wrote to Dr Quan on 29 September 2020 referring to the 2020 accident and that “he has subsequently had problems with both of his lower limbs with his right knee and left knee giving him issues”. He also said, “since then, he has had an ACL reconstruction”. This history is troubling to the Panel as the ACL reconstruction occurred in 2010 or 2011 possibly after the claimant’s first car accident.
The radiology of 9 October 2020 revealed:
(a) no evidence of established osteoarthritis in the either knee, and
(b) degenerative signal in the medical meniscus “but no convincing tear evident”.
In his second letter to Dr Quan on 13 October 2020, Dr Huang noted that “his left knee has signal change in the posterior horn of the medical meniscus” which did not require surgical intervention. In respect of the right knee, the claimant was still experiencing symptoms and it was said to be early on in his management and the claimant was to continue with physiotherapy and a review was scheduled 4 – 6 weeks later or earlier if his condition deteriorated.
On 22 October 2020, the notes record a further consultation with Dr Quan as follows:
“1. SB Jee and not Brett Andrew [physiotherapists]
2. SB Dr Phil Huang
Discussed letters re knee and injury. Pt seeks 2nd opinion. Dr Huang wants to wait”
As a result of this consultation, Dr Quan wrote a referral to Dr Nagamori in respect of “bilateral knee meniscus pathology”. It was noted that he had seen Dr Huang and copies of Dr Huang’s letters and radiology were provided.
Dr Nagamori wrote to Dr Quan on 27 October 2020. The significant features of that report are as follows:
(a) the claimant was hit from behind by a car travelling “at speed”;
(b) “he did not hit the dashboard but recalls lunging forward in the seat resulting in bilateral knee aching and mild swelling for which he saw his general practitioner the following day”;
(c) Mr Sefian was experiencing bilateral knee aching aggravated by getting up from a squat or bending down and walking up and down stairs was uncomfortable and pain made worse going up and down ladders;
(d) right knee symptoms included catching and clicking and possible locking;
(e) the claimant had a right ACL reconstruction and medical meniscus repair in 2010;
(f) on examination the claimant had crepitus and discomfort more marked on the left side;
(g) both knees were stable, and
(h) discomfort in the right knee was on the medial joint line and in the left medical discomfort.
Dr Nagamori was of the view the claimant’s knee symptoms were patellofemoral with the right medical meniscus being more troublesome that the left. He considered a right knee arthroscopy with meniscectomy or meniscus repair the object but no surgery to the left but further physiotherapy.
While Dr Quan’s notes end with a consultation on 27 October 2020, there are further certificates of capacity provided by him in the insurer’s bundle as follows:
(a) 26 November 2020 – has the same diagnosis (back pain and exacerbation of right knee injury) and pre-existing factors as before and the same work restrictions. It was noted that the claimant was having physiotherapy twice a week with Brett Andrews;
(b) 15 December 2020 – no significant differences other than “need MRI and XR/scan of back. Referred to Dr Phil Huang orthopod for review”;
(c)
15 January 2021 – no significant difference other than the note that
Dr Nagamori was involved and that referrals to Dr Huang and Dr Nagamori had been given with approval sought for surgery by insurer;
(d)
23 February 2021 – no difference at all – claimant was due for review on
24 March 2021, and
(e) 24 March 2021 – no differences other than handwritten note “need approval for pain specialist”.
Re-examination
The re-examination was undertaken by Medical Assessor Cameron at his Ultimo rooms on 20 December 2022. Mr Sefian attended unaccompanied.
History from the claimant
Mr Sefian lives alone in the inner west. Mr Sefian is 42 years of age, a non-smoker and consumes limited alcohol. He has worked as a builder for about 15 years. He currently has his own company with multiple employees. He works in the office and also on building sites.
Mr Sefian said his past medical history was generally good. In 2010, while playing Austag, Mr Sefian described an injury to his right knee. He was advised he had ruptured his right anterior cruciate ligament. This was repaired surgically by
Dr Nagamori. Mr Sefian said that the surgery was successful, and he returned to work after about a month.
Mr Sefian described the motor accident on 19 July 2020. He said he was the driver of a vehicle on the motorway out of Sydney. He slowed down and stopped and had his right foot on the brake pedal and his left foot was supported by a footrest. He was hit from behind. He said that this transmitted significant force through both legs. He also had pain in other parts of his body.
Mr Sefian said he immediately felt pain in both knees. He recalls mentioning it to the other driver. He said he was also shocked.
Mr Sefian said he consulted his GP, Dr Quan, soon after the accident and that he mentioned the knee pain to his GP as well as pain from other parts of his body. He said he had no explanation for Dr Quan not recording knee pain at the first consultation.
At subsequent consultations with Dr Quan the Panel notes that right knee pain is documented.
Mr Sefian said he understood he had a cartilage injury to his right knee which he wishes to have surgically repaired.
Current status
Mr Sefian said he has right knee pain. This was an aching predominantly felt behind the kneecap. He noticed it after prolonged standing. He also has knee pain on more strenuous activity, for example when jumping.
There is no instability in the right knee or other symptoms. Mr Sefian said he takes Nurofen Plus once or twice a week and rarely takes Panadeine Forte.
His GP continues to be Dr Quan.
Mr Sefian said that he continues to work as a builder for about 40 hours per week. His work continues to be office based as well as site work. He drives an automatic vehicle.
Examination
Mr Sefian is right-handed, 176 cm in height and weighs 95 kg.
In the light of the concession as to his other injuries, the examination was confined to Mr Sefian’s lower extremities.
At the right knee there are medial scars which are said to be due to the 2010/2011 injury and cruciate ligament repair. There is also a scar over the tibial tuberosity from a childhood accident.
The range of motion at the right knee was 0 to 130 degrees (normal is 140 to 150 degrees), there was some pain on full flexion. There was no crepitus and the right knee was stable.
Range of motion at the left knee was 0 to 130 degrees.
Circumferences of the lower extremities above the knees was 46 cm on the right and 47cm on the left while the below knee circumferences was 40 cm on the right and
39 cm on the left. Taking into account Mr Sefian’s hand dominance the difference in circumferences above the knee is significant and indicative of loss of muscle due to injury while that below the knee is not significant.
Mr Sefian walked with a normal gait.
Imaging
Mr Sefian did not bring any of his imaging studies to the re-examination.
The Panel notes the following radiology reports from the documentation:
(a) 18 September 2020 - MRI right knee – history possible acute meniscal tear. Crepitus. The repaired ACL graft was visible. There was a tear of the posterior third of the medial meniscus. The lateral meniscus was intact;
(b) 9 October 2020 – x-ray right and left knee – history suspected osteoarthritis but no osteoarthritis was found, and
(c) 9 October 2020 – MRI left knee – degenerative changes suggested in the left medial meniscus but no evidence of a tear.
CONSIDERATION OF THE ISSUES IN DISPUTE
What is the significance of the GP’s notes?
The claimant agrees that the only injury for the Panel to assess is the claimant’s right knee injury. The Panel notes that the real issue in the proceedings is:
(a) whether the claimant injured his right knee in the accident, and if so
(b) what is the nature of the injury caused by the accident I particular whether the medial meniscus tear found in the posterior horn of the right knee was caused by the accident or not.
The claimant had pre-accident right knee issues (in 2010) and there is an issue with the lack of contemporaneous complaints of an actual knee injury in the GP’s notes.
The Court of Appeal decision in AAI Ltd v McGiffen[1] noted that the presence or absence of a contemporaneous complaint “is relevant in this context [but] it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or mis-record histories of accidents” (Davis v Council of the City of Wagga Wagga[2]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[3]) which may explain any absent complaint.
[1] [2016] NSWCA 229 at [64]-[66].
[2] [2004] NSWCA 34 at [35] (Davis).
[3] [2014] NSWSC 888 (Bugat) at [31]-[32].
Brereton J in Norrington v QBE Insurance (Australia) Limited [2021] NSWSC 548 said at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1) and that this is jurisdictional error.”
While most of the cases involve disputes about whole person impairment under the previous compensation scheme, they are nevertheless relevant to the assessment of causation in a minor injury dispute such as this one.
Did the claimant injure his right knee in the accident?
The claimant’s accident occurred on 19 July 2020. He saw his doctor for the first time on 20 July 2020 the day after the accident and there is no complaint of knee pain. On
6 August 2020 the claimant complained to his GP of thoracic spine pain “radiating down to R knee”. It was not until 31 August 2020, six weeks after the accident that the GP notes record complaints of actual right knee pain (as opposed to pain radiating into the knee from the thoracic spine).
The Panel notes there are no intervening attendances between the three attendances on Dr Quan referred to above.
The photographs of the two damaged vehicles do not show significant damage and the impact on the claimant’s vehicle is unlikely to have resulted in any significant rotational stress on his right knee which is the usual mechanism of a medical meniscus tear. However, the claimant has said that his right knee was held in an extended position with his foot on the brake. It is the medical members of the Panel’s clinical judgment that a medial meniscus injury could have occurred under the circumstances, particularly considering that the medial meniscus may have been weakened in some way from his earlier injury.
The claimant says he has had consistent pain in his right knee since the accident. He also said he did complain to Dr Quan about knee pain on the day after the accident. He said he complained to the driver of AAMI’s insured car of pain in his knee.
In his claim form dated 6 August 2020 Mr Sefian refers to pain to his knee (not radiating pain from his thoracic spine). In the certificate of capacity completed by
Dr Quan on 6 August 2020 there is a reference to “exacerbation of R knee injury” there is no reference to pain radiating into the knee from the thoracic spine.
When considering the entry in Dr Quan’s notes of 6 August 2020 and the certificate of capacity of the same date, the Panel prefers to rely on the certificate of capacity.
Dr Quan would have been aware that this document was being prepared for the purposes of an insurance claim and of the need to have an accurate record of the injuries. The Panel is therefore satisfied that as of 6 August 2020, less than three weeks after the accident, the claimant was complaining of pain in his knee due to an injury to his knee.
Because of the 6 August discrepancy the Panel has cause to doubt the accuracy of
Dr Quan’s entry on 20 July 2020. The Panel considers it possible that the claimant did complain of pain to Dr Quan on 20 July 2020 but that Dr Quan did not document it. It is quite possible that having had previous back complaints Dr Quan was more concerned about the claimant’s complaints of sciatic pain.
The claimant has seen his GP three times in six weeks. He is clearly not a frequent attender at his doctor’s surgery. Even if he did not mention his right knee to Dr Quan at the first consultation the day after the accident, this cannot be considered as conclusive evidence that the claimant did not injure his right knee in the accident.
There is one entry, the first entry that does not mention the claimant’s right knee and other records, supporting documents and a consistent pattern of treatment for an injury to the right knee. The claimant’s unchallenged evidence is that there was no subsequent or intervening incident or accident after the 19 July accident.
Based on the information provided by Mr Sefian and a review of all the submitted documentation and information the Panel is satisfied that Mr Sefian sustained an injury to his right knee in the subject motor vehicle crash.
What is the nature of the claimant’s right knee injury?
Dr Quan, on 6 August 2020, included in the certificate of capacity an injury of aggravation of a previous right knee problem. On 31 August 2020 Dr Quan wrote to the insurer reserving his final opinion until the radiology was obtained.
The Panel has before it records which post date the accident only. The Panel has called for but has not been provided with any pre-accident records in particular any records from the claimant’s known treating doctors between his previous ACL surgery and meniscus repair in 2010 and the date of the accident. The insurer has not provided any expert evidence on causation, nor has it obtained a report from Dr Nagamori on the issue of causation. The insurer requests the Panel proceed on the documentation and information currently before it and has not sought a deferral while it makes further attempts to obtain them.
There is evidence from Dr Nagamori that the claimant had a medial meniscus repair in 2010 presumably to repair a previously torn meniscus.
The claimant says he recovered fully from his 2010 right knee surgery. There is no evidence provided by the insurer to challenge the claimant’s evidence.
The radiology undertaken within three months of the accident revealed a tear of the right medial meniscus. Dr Nagamori recommended meniscectomy or repair if the meniscus tissue was viable. There is therefore evidence that the claimant currently has a tear of his meniscus. Without the operation notes of Dr Nagamori or the 2010 radiology it is impossible for the Panel to determine whether the claimant’s current meniscus tear is a new tear or a further tear of the previous tear.
The claimant has consistently complained of right knee pain since the accident. The Panel accepts that the torn medial meniscus is a cause of the claimant’s ongoing right knee symptoms.
The Panel is for all the reasons set out above satisfied that the claimant sustained a tear of his right medical meniscus in the accident.
Dr Nagamori also suggests the claimant has patellofemoral symptoms but in the light of the Panel’s finding in relation to the medial meniscus tear there is no need to consider whether there is any further injury to the claimant’s right knee anatomy.
Is the claimant’s right knee injury a “minor injury”?
The medial meniscus (and the lateral meniscus) are bands of thick fibrocartilaginous structures located between the femur and the tibia. It is, simply stated, a form of cushion between these two bones of the lower limb.
Meniscus is a form of bodily tissue that is soft when compared to bone. An injury to a soft tissue is a minor injury within the definition of s 1.6(1) of the MAI Act unless it is “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage” as provided for in s 1.6(2).
A meniscal tear is a rupture of the meniscus. Without viewing the actual radiology, it is impossible for the medical members of the Panel to determine whether the rupture is complete or partial. It is more likely, in the clinical judgment of the medical members of the Panel, to be a partial rupture. Whether it is a complete or partial rupture is in any event of no significance as a complete tear of the medial meniscus, or a partial tear of the medial meniscus are not minor injuries.
If the claimant has retorn the previously repaired meniscus or torn a completely different part of the medial meniscus is also not significant as either would be considered a partial rupture of the meniscus and therefore either would not be a minor injury.
CONCLUSION
As the Panel has come to the same view as Medical Assessor Moloney, his certificate will be affirmed. The Panel is satisfied that for the purposes of the MAI Act, Mr Sefian has an injury that is not a “minor injury”.
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