AAI Limited t/as GIO v Sapkota
[2024] NSWPICMP 579
•19 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Sapkota [2024] NSWPICMP 579 |
CLAIMANT: | Parbin Sapkota |
INSURER: | AAI Ltd t/as GIO |
REVIEW PANEL | |
MEMBER: | Ray Plibersek |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Michael Couch |
DATE OF DECISION: | 19 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was injured when his car was hit on the driver’s side at an intersection; claimant received injuries to his spine, right knee and foot; whether threshold injuries; Held – claimant’s right knee injury was caused by an earlier motor accident in 2018 based on medical evidence; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated (a) The following injuries caused by the motor accident are threshold injuries (formerly minor injuries) for the purposes of the Motor Accident Injuries Act 2017 (MAI Act): (i) right foot - heel and big toe - soft tissue injury; (ii) cervical spine - soft tissue injury, and (iii) lumbar spine - soft tissue injury. (b) The following injuries were not caused by the motor accident for the purposes of the MAI Act: (i) right knee – soft tissue injury with osteochondral lesion of the patella-femoral articulation. |
STATEMENT OF REASONS
INTRODUCTION
On 17 April 2020, Mr Parbin Sapkota (the claimant) was driving his car on Lindsey Street Camperdown NSW when it was hit by another car emerging from Condamine Street. The impact was on the driver’s side of the claimant’s car.
After the accident the claimant did not attend hospital but went home and then later saw his general practitioner (GP) Dr Nathan Zhou.
The claimant made an Application for Personal Injury Benefits dated 24 April 2020. He reported his injuries included the right knee hitting the steering wheel.[1]
[1] Insurer’s bundle R 6 pp 31 - 35.
AAI Ltd trading as GIO Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Sapkota under the Motor Accident Injuries Act 2017 (MAI Act).
By letters dated 24 July 2020 the insurer wrote to the claimant accepting liability for the payment of statutory benefits for 26 weeks from the date of the motor accident.[2]
[2] Insurer’s bundle pp 41-43.
The insurer wrote to the claimant declining the claim for statutory benefits after 26 weeks from the date of the motor accident.[3]
[3] Claimant’s bundle pp 13-14.
The claimant sought an internal review of the insurer’s decision. The insurer determined its internal review decision on 2 September 2020.[4] The outcome of the internal review was that the minor injury determination was confirmed and the claimant could not make a claim for damages.
[4] Claimant’s bundle pp 21-32.
The claimant sought a medical assessment of his injuries which included: right foot - heel and big toe, cervical spinal, lumbar spine and right knee injuries. The claimant was medically assessed by Medical Assessor Cameron on 14 February 2023 who issued a certificate dated 28 February 2023.[5]
[5] Insurer’s bundle R 4 pp 10 - 15.
Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “(e) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[6]
[6] Section 7.20 of the MAI Act.
On 31 March 2023 the insurer’s solicitors filed an application with the Personal Injury Commission (Commission) seeking a Panel review of the certificate of Medical Assessor Cameron.
This Panel has been constituted to review the certificate of Medical Assessor Cameron dated 28 February 2023.
ASSESSMENT UNDER REVIEW
The dispute was initially referred to Medical Assessor Cameron who assessed the right foot, cervical spine, lumbar spine and right knee. Medical Assessor Cameron issued an assessment certificate dated 28 February 2023.
The Medical Assessor found injuries to the right foot - heel and big toe - soft tissue injury; cervical spine - soft tissue injury; and lumbar spine - soft tissue injury; were caused by the accident and are minor (threshold) injuries for the purposes of the MAI Act. The Medical Assessor also found injuries to the right knee - soft tissue injury with osteochondral lesion of the patella-femoral articulation were caused by the accident and are non-minor (threshold) injuries for the purposes of the MAI Act.
Medical Assessor Cameron medically examined the claimant on 14 February 2023. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
In his clinical examination Medical Assessor Cameron found as follows:
“At the cervical spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders.
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
No difference in circumferences of the upper extremities was detected.
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
In the right lower extremity had surgical scars at multiple sites in the thigh, consistent with the previous femoral shaft and potentially femoral neck injury.
At the right knee range of movement was 0-120°. There was no crepitus or instability.
There was a full range of motion at the left knee. There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities were: above knee 43cm, 43cm; below knee 34cm, 34cm.
Mr Sapkota walked unaided with a normal gait.”
Medical Assessor Cameron’s diagnosis of the claimant’s injuries were as follows:
“In the motor vehicle crash on 17 April 2020, Mr Sapkota sustained soft tissue injuries to multiple body parts. These reportedly were to his right knee, right heel and right foot.
While there were past significant injuries to the right lower extremity, Mr Sapkota has had right knee pain since the subject motor vehicle crash. Orthopaedic surgical assessment and investigations have shown an osteochondral injury at the patello-femoral articulation at the right knee. This is an injury to cartilage and thus is not a minor injury.”
REVIEW PROCEDURE
An application for review of the medical assessment and the certificate of Medical Assessor Ian Cameron dated 28 February 2023 was lodged within 28 days of the date on which the certificate was made available to the parties.
On 11 May 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that she accepted the insurer’s submission that Medical Assessor Cameron failed to provide adequate reasons or outline with sufficient clarity his finding that the claimant’s osteochondral lesion in the right knee was caused by the accident given the pre-accident medical material available. Medical Assessor Cameron noted Dr Jones’ report dated
17 February 2020 but failed to address the pre-accident osteochondral lesion in his reasons as to causation.Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[7] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[7] Section 7.26(5A) of the MAI Act.
Part 5 of 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.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued Directions to the parties dated 4 August 2023 directing that it did not intend to re-examine the claimant. The Panel wrote that it considers a re-examination of the claimant is not required. The Panel advised the parties that it is able to form an opinion as to the claimant’s injuries caused by the accident having regard to the available medical reports including reports of Dr Jones, X-rays and imaging undergone by the claimant.
The Panel issued Directions to the parties dated 4 August 2023 directing each party to file a bundle of documents. The insurer filed its bundle of documents on 11 August 2023. The claimant’s solicitors replied by email on 5 September 2023 that: “The Claimant relies on Assessor Cameron's certificate and has no further documents to serve.”
On 15 July 2024 the parties were contacted by the Commission and asked if they wished to make any further submissions. The claimant’s solicitor replied as follows: “The application was lodged by GIO. Our client's common law claim has settled. We do not have further documents and submissions and rely on the Assessor's certificate.” On 18 July 2024 the insurer responded:
“While it is correct the common law damages claim has resolved, the claimant remains entitled to have their reasonable and necessary treatment expenses paid. The claimant has not indicated they are no longer proposing to have the treatment such that the insurer's position is there remains dispute as to whether the treatment is reasonable and necessary. Therefore the insurer is not withdrawing the application and submits it is required to be determined.”
On 19 July 2024 the Commission advised the parties that the Panel intended to complete its consideration of the matter based on the submissions and materials currently before it.
THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n 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.”
Section 1.6 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
ASSESSING THE CAUSATION OF INJURIES
The difficult issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[10] his Honour Justice Wright stated at [35]:
[10] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“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 principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There 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.’”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 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;
(4) a careful and thorough physical examination; and
(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.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[11] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cls 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
[11] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41].
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[12] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73. The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74. For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
[12] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].
EVIDENCE BEFORE THE REVIEW PANEL
Application for Personal Injury Benefits
The claimant made an Application for Personal Injury Benefits dated 24 April 2020. His reported included the right knee hitting the steering wheel and he was recovering from his previous accident which aggravated his right knee in this accident.[13]
Police and ambulance reports
[13] Insurer’s bundle R 6 pp 31 - 35.
The NSW ambulance and police did not attend at the motor accident and there were no ambulance or police reports included in the parties bundles of documents.
Hospital reports
There are hospital notes included in the insurer bundle but most of these are not related to the subject motor accident but relate to his prior two accidents.
Statement of Prabin Sapkota dated 17 May 2021
There is a detailed statement from Mr Sapkota dated 17 May 2021.[14] This statement sets out in detail how the subject matter accident has affected the claimant’s treatment, his medical issues and his ability to work. The statement also references his two prior accidents.
[14] Insurer’s bundle R pp 587-594
In the workplace accident on 5 May 2002 he states that he sustained a compound fracture of the right femur and damage to his right forearm and right forearm tendons.
The claimant refers to his first motor accident dated 5 May 2018 where he states that he injured his right knee by hitting the steering wheel and also injured his lower back. The first motor accident dated 5 May 2018 resulted injuries to his: neck, upper back, lower back, right knee and psychological injury.
The claimant refers to his second subject motor accident dated 17 February 2020 which he states caused an aggravation to his back, right knee and neck from the previous motor accident on 5 May 2018. In addition, he says that the subject motor accident dated
17 February 2020 also caused an additional injury to his right heel.
Treating medical evidence
Pre-accident treating records
There were limited medical records available for the claimant’s medical history prior to the subject motor vehicle accident.
In bundles of documents the parties produced over 600 pages of clinical and treating medical records for the claimant prior to and after the subject motor vehicle accident. The Panel has reviewed all the treating medical records produced by both the claimant and the insurer.
The medical history given by the claimant prior to the subject motor accident is that he had previous history of right knee, right leg, neck and back injuries or problems.
The claimant had two previous accidents. One was a serious workplace accident in 2002 and the other was a rear end motor vehicle accident in 2018. In the 2002 workplace accident he sustained a seriously fractured right femur, fractured right hip, and an injured right arm with tendon damage. In the previous motor vehicle accident in 2018 he sustained injuries to his right knee, neck and lower back.
In a Certificate of Capacity/Certificate of Fitness dated 25 February 2020 Dr Janki Seermaran, a treating GP for the claimant, made a diagnosis for a workplace or motor accident. He diagnosed the claimant with right knee cartilage damage and osteochondral injury and ongoing knee pain. He also diagnosed the claimant with ongoing lower back pain.[15] He attribute these injuries as being caused by the motor vehicle accident on
5 May 2018.
Post-accident treating records
[15] Insurer’s bundle R 15 pp 491- 495.
There are numerous Certificates of Capacity and clinical records available from the claimant’s treating GP, Dr Nathan Zhou.[16]
[16] Insurer’s bundle R 15 pp 56 - 95.
In a Certificate of Capacity/Certificate of Fitness dated 6 May 2020 Dr Nathan Zhou found a diagnosis of right knee, right heel, right shoulder and an aggravation of a lower back injury. Dr Zhou recommended physiotherapy and X-rays of the right knee and right heel.
On 13 May 2020 Dr Zhou referred the claimant for an MRI scan of the right knee and a CT scan of the right heel. Dr Zhou reported the reasons for the referral as an X-ray of the right knee showed osteoarthritis. It was noted that the claimant had a previous arthroscopy for meniscal pathology and an X-Ray of the right heel was clear.
Between 13 May and 18 August 2020 there were a number of Certificates of Capacity/Certificates of Fitness provided by Dr Zhou. Dr Zhou’s diagnosis as previously noted was right knee, right heel, right shoulder, aggravation of lower back injury, right knee osteoarthritis and right heel soft tissue injury.
There were numerous Allied Health Recovery Request – Physiotherapy dated 25 May,
22 June, 20 July and 28 August 2020 provided by a physiotherapist, Mr Ka Haang Ng. [17]He noted the following diagnosis:(a) cervical spine musculoligamentous strains with possible discogenic/neurogenic pathology;
(b) lumbar spine musculoligamentous strains with possible discogenic/neurogenic pathology;
(c) right shoulder rotator cuff injuries with impingement signs;
(d) right knee patellofemoral injuries, and
(e) right ankle soft tissue injuries.
[17] Insurer’s bundle R 16 pp 96 - 140.
Dr Hugh Jones, orthopaedic surgeon
There are several reports from Dr Hugh Jones who is a treating orthopaedic surgeon for
Mr Sapkota.[18] These reports start prior to the subject accident and range in date from30 August 2018 to 26 April 2021.[18] Insurer’s bundle pp 170-179.
In the report dated 30 August 2018 Dr Jones writes that Mr Sapkota reported the first motor accident dated 5 May 2018 where he states that he injured his right knee by hitting the steering wheel. He presents with a reduced range of motion in the knee with localised tenderness and complaints of ongoing pain. Mr Sapkota had an MRI which showed an acute or sub-acute osteochondral injury to the medial femoral condyle.
In the report dated 11 October 2018 Dr Jones writes that Mr Sapkota had recent elective right knee arthroscopic surgery. He had two grade 3 to 4 chondral lesions involving the medial distal trochlear and medial femoral condyle. Loose flaps were debrided and synovitis was noted in the knee and the remaining the including menisci and cruciate ligaments were noted to be intact.
In the report dated 5 March 2019 Dr Jones writes that Mr Sapkota’s right knee continues to make slow improvements. He has a good range of movement and no effusion.
In the report dated 24 June 2019 Dr Jones writes that Mr Sapkota’s right knee continues to make slow improvements. His knee is currently stable.
In the report dated 14 October 2019 Dr Jones writes that Mr Sapkota is complaining of right leg sciatic type pain which is being investigated.
In the report dated 17 February 2020 Dr Jones writes that Mr Sapkota is complaining of painful right knee. [19] He has a known osteochondral lesion of the patella – femoral articulation and the MRI has confirmed the presence of this without any particular pathology at this point.
[19] Insurer’s bundle pp 502.
In the report dated 26 April 2021 Dr Jones writes that Mr Sapkota consulted him about pain and swelling in his left knee.
Dr Renata Abraszko, neurosurgeon
There are several reports from Dr Renata Abraszko who is a treating neurosurgeon for
Mr Sapkota.[20][20] Insurer’s bundle pp 167-169.
In a report dated 18 December 2018 Dr Abraszko writes there is no evidence of nerve root compression affecting the spine at L5 -S1. The claimant’s bone scan showed intense focal osteochondral activity in the intercondylar region of the right femur possibly due to active osteochondral defects although osteonecrosis is not excluded. There might be also patella chondromalacia. There is an old right knee femoral shaft fracture. He complains of pain in both the left and right knees. Dr Abraszko explained that it is most likely his arthritic changes got aggravated by the recent motor vehicle incident.
In reports of Dr Abraszko dated 30 October 2019 and 18 December 2019 Dr Abraszko found that the claimant showed, “Intense focal osteochondral activity in the intercondylar region of the right femur.”
REVIEW OF THE RADIOLOGY
There are a number of X-rays, MRIs and CT scans reporting on the claimant’s spine, legs and knees.
There is an MRI scan of the right knee dated 26 July 2018.[21] This shows a marrow oedema. There is a chronic full thickness cartilage fissure on the median patellar ridge characterised by linear articular cartilage low signal with a small focus of subchondral oedema subjacent to it. No patellar articular cartilage defect is demonstrated. Thin inferior pole patellar articular cartilage is most likely a normal variation. There is no patella alta. Trochlear articular cartilage is otherwise normal. Quadriceps and extensor tendons are normal. The medial and lateral menisci are intact. The anterior and posterior cruciate ligaments are intact. There is mild increased signal within the tibial insertion of the ACL consistent with a low-grade sprain. The femoral attachment is normal. The collateral ligaments and posterolateral and posteromedial stabilising structures of the knee are intact. There is a small knee effusion. No loose body is demonstrated. There is no Baker's cyst. There is evidence of previous intramedullary nail within the femur.
[21] Insurer’s bundle p 161 and 548.
There is an MRI scan of the claimant's right knee dated 10 January 2020 by Dr Sugendran Pilay. [22] The anterior and posterior cruciate ligaments are intact. The ligaments and the medial meniscus are all intact. The concluding comment in the report was there was no cruciate, collateral ligament or meniscal injury.
[22] Insurer’s bundle p 165.
There is a CT scan of the claimant's right foot and heel dated 18 May 2020 from Dr Siroos Nasibi.[23] The conclusions from this report are that there is no acute fracture of the visualised proximal metatarsals noted. There is no focal soft tissue swelling. There is no acute fracture of the right calcaneus and tarsal bones noted.
[23] Insurer’s bundle p 70.
There is an MRI scan of the claimant's right knee dated 18 May 2020 from Dr Siroos Nasibi.[24] The comments from this report are that there is a small joint effusion within the suprapatellar bursa. Anterior and posterior collateral ligaments are intact. No focal abnormality of the medial and lateral collateral ligaments noted. There is minimal signal in the periphery of the medial meniscus which is nonspecific. No evident focal tear is noted. Lateral meniscus is intact. Moderate degenerative changes of the medial tibiofemoral and patellofemoral joints further characterised with areas of subchondral cyst, bone oedema and mild to moderate chondropathy. There is also degeneration involving the posterior aspect of the lateral femoral condyle. Extensor mechanism is intact. There is no Baker‘s cyst. There is no acute ligamentous or meniscal injury. No acute fracture. Moderate degenerative changes of the medial tibiofemoral and patellofemoral joints as described.
SUBMISSIONS
[24] Insurer’s bundle p 70.
Insurer’s submissions
The insurer has provided written submissions dated 31 March 2023 and
14 December 2020.[25][25] Insurer’s bundle pp 1-2 and pp 6-9.
The insurer’s primary submission is that it is evident that Medical Assessor Cameron has not applied the correct test of causation when assessing the right knee injury.
In the submissions dated 31 March 2023 the insurer contends that Medical Assessor Cameron failed to provide adequate reasons or outline with sufficient clarity his finding that the claimant’s osteochondral lesion in the right knee was caused by the accident given the pre-accident medical material available. The insurer submits that Medical Assessor Cameron noted Dr Jones’ report dated 17 February 2020 but failed to address the pre-accident osteochondral lesion in his reasons as to causation.
The insurer refers to several reports from Dr Jones from 2018 which show that the claimant’s osteochondral lesion in the right knee was not caused by the accident but was pre-existing.
In the earlier submissions dated 14 December 2020 the insurer submits that the injuries to the claimant’s cervical spine, lumbar spine, right knee and right foot are all soft tissue injuries which meet the definition of a minor injury.
Claimant’s submissions
The claimant’s solicitors did not provide detailed written submissions supporting the decision of Medical Assessor Cameron other than the brief responses referred to above.
The Panel notes that in response to Panel’s Directions the claimant’s solicitors indicated that they did not have further documents or submissions and that the claimant relies on Medical Assessor Cameron's certificate.
DIAGNOSIS, CAUSATION AND SUMMARY OF THE PANEL’S OPINION
In the motor vehicle accident on 17 April 2020 Mr Sapkota sustained a number of injuries caused by the accident.
Apart from the right knee injury, in the Panel’s view all of these injuries sustained by
Mr Sapkota in the subject motor accident were soft tissue or threshold injuries.The Panel accepts that Mr Sapkota had an existing injury to his right knee that was not caused by the subject motor accident on 17 April 2020.
Right knee – osteochondral lesion of the patella-femoral articulation
The Panel accepts that Mr Sapkota sustained a non-threshold injury to his right knee as a result of an earlier motor accident on 5 May 2018. The claimant’s right knee was injured in an earlier motor vehicle accident with the right knee hitting the dashboard or steering wheel. His right knee symptoms presented immediately and were investigated and recorded in
May 2018.Mr Sapkota had been consulting his treating GP about a prior workplace accident in 2002 and a prior motor accident in 2018. In the workplace accident on 5 May 2002 he states that he sustained a compound fracture of the right femur and damage to his right forearm and right forearm tendons. In his statement the claimant refers to his first motor accident dated
5 May 2018 where he states that he injured his right knee by hitting the steering wheel and also injured his lower back. The first motor accident dated 5 May 2018 resulted injuries to his neck, upper back, lower back, right knee and psychological injury.In a Certificate of Capacity/Certificate of Fitness dated 25 February 2020 Dr Janki Seermaran’s diagnosed the claimant with right knee cartilage damage and osteochondral injury and ongoing knee pain. He also diagnosed the claimant with ongoing lower back pain.[26] He attribute these injuries as being caused by the motor vehicle accident on
5 May 2018.[26] Insurer’s bundle R 15 pp 491- 495.
Shortly after the subject motor accident from May 2020 onwards there were also a number of Certificates of Capacity/Certificates of Fitness provided by Dr Zhou. Dr Zhou’s diagnosis for Mr Sapkota was right knee, right heel, right shoulder, aggravation of lower back injury, right knee osteoarthritis and right heel soft tissue injury. Dr Zhou also diagnosed the claimant with right knee osteoarthritis.
There are also numerous detailed CT and MRI scans of the claimant’s legs, knees and feet. The radiology from January 2020 and May 2020 confirms the anterior and posterior cruciate ligaments are intact. The ligaments and the medial meniscus are all intact. The concluding comment in the January 2020 report was there was no cruciate, collateral ligament or meniscal injury. However an MRI scan of the right knee dated 26 July 2018 shows a marrow oedema. There is a chronic full thickness cartilage fissure on the median patellar ridge. The July 2018 report also found the collateral ligaments and posterolateral and posteromedial stabilising structures of the knee are intact.
Dr Hugh Jones observed a reduced range of motion in the claimant’s right knee, accompanied by localized tenderness. The MRI scan conducted on 26 July 2018 revealed oedema adjacent to the osteochondral defect, indicating an acute injury. This finding is further corroborated by the intense focal osteochondral activity noted in the bone scan dated 18 December 2018. These combined findings support the presence of a knee injury sustained as a result of the motor vehicle accident on 5 May 2018 resulting in an acute osteochondral injury.
In a report dated 30 August 2018 Dr Hugh Jones writes that Mr Sapkota reported the first motor accident dated 5 May 2018 where he states that he injured his right knee by hitting the steering wheel. He presented to Dr Jones with a reduced range of motion in the knee with localised tenderness and complaints of ongoing pain. Mr Sapkota had an MRI which showed an acute or sub-acute osteochondral injury to the medial femoral condyle. In October 2018 Dr Jones writes that Mr Sapkota had recent elective right knee arthroscopic surgery. He had two grade 3 to 4 chondral lesions involving the medial distal trochlear and medial femoral condyle. Shortly before the subject motor accident, in a report dated 17 February 2020,
Dr Jones writes that Mr Sapkota is complaining of painful right knee. [27] He has a known osteochondral lesion of the patella – femoral articulation and the MRI has confirmed the presence of this without any particular pathology at that time.[27] Insurer’s bundle pp 502.
Given the clear diagnosis made by Dr Janki Seermaran and Dr Jones, the Panel’s conclusion is that Mr Sapkota’s right knee injury was caused by the first motor accident dated 5 May 2018 and not the second subject accident on 17 April 2020.
In reaching its conclusions about the causation of the claimant’s right knee injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is satisfied that the subject motor vehicle accident did not materially contribute to the claimant’s right knee injury or caused or exacerbated any such injury.
The common law test of causation in such a case doesn't require that the accident be a direct cause of the knee injury only that the accident made a material contribution to the injury. See Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J and AAI Ltd t as AAMI v Ahmed [2023] NSWPICMP 126.
The injury to the knee does not need to be solely caused or even substantially caused by the accident. The claimant merely needs to show that the accident has contributed to the knee problem in a way that is more than negligible.
Accordingly the Panel finds that Mr Sapkota’s injury to his right knee was not caused by the subject motor accident.
Cervical spine, lumbar spine, right foot - heel and big toe - soft tissue injury
The Panel also accepts that Mr Sapkota’s sustained soft tissue threshold injury to his cervical spine, lumbar spine and to his right foot - heel and big toe as a result of the subject motor accident.
In his clinical examination of the cervical spine Medical Assessor Cameron found:
“At the cervical spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.”
In his clinical examination of the lumbar spine Medical Assessor Cameron found:
“At the lumbar spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.”
In his clinical examination of the right foot - heel and big toe Medical Assessor Cameron found there was a full range of motion at the lower extremity joints and no neurological abnormalities in the lower extremities.
The Panel notes that in response to Panel’s Directions, detailed above, the claimant’s solicitors indicated that they did not have further documents or submissions and that the claimant relies on Medical Assessor Cameron's certificate.
In the submissions dated 31 March 2023 the insurer contends that Medical Assessor Cameron failed to provide adequate reasons or outline with sufficient clarity his finding that the claimant’s osteochondral lesion in the right knee was caused by the accident. The insurer accepted that findings of Medical Assessor Cameron and submitted that the injuries to the claimant’s cervical spine, lumbar spine, right knee and right foot are all soft tissue injuries which meet the definition of a minor injury.
Given the examination findings of Medical Assessor Cameron and the submissions of the parties, the Panel finds that the injuries to the claimant’s cervical spine, lumbar spine and right knee are all soft tissue injuries which meet the definition of a threshold injury.
CONCLUSION AND CERTIFICATION
The Panel’s opinion is that the subject accident caused injuries to the claimant’s right foot - heel and big toe and to his cervical and lumbar spine.
The Panel’s opinion is that the subject accident did not cause the injuries to the claimant’s right knee.
For the above reasons the Panel revokes the certificate of Medical Assessor Cameron dated 28 February 2023 and issues a replacement certificate determining that:
(a) The following injuries caused by the motor accident are threshold injuries (formerly minor injuries) for the purposes of the MAI Act:
(i)right foot - heel and big toe - soft tissue injury;
(ii)cervical spine - soft tissue injury, and
(iii)lumbar spine - soft tissue injury.
(b) The following injuries were not caused by the motor accident for the purposes of the MAI Act:
(i)right knee – soft tissue injury with osteochondral lesion of the patella-femoral articulation.
The new certificate is attached at the commencement of these reasons.
0
3
0