AAI Limited t/as GIO v Sen
[2025] NSWPICMP 196
•24 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Sen [2025] NSWPICMP 196 |
CLAIMANT: | Maden Sen |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Anthony Scarcella |
MEDICAL ASSESSOR: | Rhys Gray |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 24 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed he sustained injuries to the left knee, lumbar spine, and right knee in a motor accident on 12 October 2018; Medical Assessor (MA) determined that the left knee injury was a non-threshold injury and that the lumbar spine injury was a threshold injury; MA determined that the claimant’s right knee condition was not caused by the motor accident; review sought by the insurer under section 7.26; consideration and application of section 1.6, and clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines; Held – the soft tissue injury to the left knee and soft tissue injury to the lumbar spine are threshold injuries; the claimed injury to the right knee was not caused by the motor accident on 12 October 2018; the Medical Assessment Certificate dated 20 January 2024 is revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor David McGrath dated 20 January 2024. 2. Certifies that the following injuries caused by the motor accident on 12 October 2018 are threshold injuries for the purposes of the Motor Accident Injuries Act 2017: (a) soft tissue injury to the left knee, and (b) soft tissue injury to the lumbar spine. 3. Certifies that the claimed injury to the right knee was not caused by the motor accident on 12 October 2018. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Mr Maden Sen, is a 60-year-old man who was involved in a motor accident on 12 October 2018 whilst the seat-belted driver of a motor vehicle that was rear-ended by another vehicle (the motor accident).
Mr Sen claims that he suffered injuries to his bilateral knees and lumbar spine as a result of the motor accident.
Mr Sen’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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.
On 29 October 2018, Mr Sen made a claim for personal injury benefits. The relevant compulsory third party insurer is AAI Limited t/as GIO (the insurer).
On 12 October 2020, Mr Sen made an application for damages under common law.
A dispute has arisen between Mr Sen and the insurer as to whether, for the purposes of the MAI Act, the injuries caused by the motor accident were threshold injuries.
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and is a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Alan Home for assessment.
The medical dispute was assessed by Medical Assessor Home, who issued a certificate dated 18 November 2022 wherein he determined that the injuries to the left knee and lumbar spine were caused by the motor accident and certified that they were threshold injuries (formerly minor injuries) for the purposes of the MAI Act. Further, Medical Assessor Home determined that Mr Sen’s right knee condition was not caused by the motor accident. Medical Assessor Home was also required to assess the permanent impairment dispute and assessed 0% whole person impairment (WPI) in respect of the left knee and lumbar spine injuries.
Mr Sen lodged an application for a further medical assessment of the threshold injury dispute with the Commission on the basis of new information that would materially change the previous threshold injury assessment.
The Commission assigned the further assessment of the threshold injury dispute to Medical Assessor David McGrath, who issued a certificate dated 20 January 2024 wherein he determined that the injuries to the left knee and lumbar spine were caused by the motor accident. He certified that the injury to the lumbar spine was a threshold injury for the purposes of the MAI Act. Medical Assessor McGrath determined that the left knee injury was a non-threshold injury and that the lumbar spine injury was a threshold injury. Further, he determined that Mr Sen’s right knee condition was not caused by the motor accident (the Medical Assessment).
REVIEW PROCEDURE
The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the
MAI Act (the Review).
On 15 April 2024, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. 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.
As 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: Rule 128 of the PIC Rules.
On 19 April 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
On 24 May 2024, the Panel informed the parties that it considered a re-examination of Mr Sen was required. Arrangements were made for Mr Sen to be re-examined by Medical Assessor Rhys Gray at the Commission’s medical suites on 20 June 2024. The Panel also issued the following directions:
“1. The claimant is, by close of business on 13 June 2024, to provide the Panel with the following:
(a)access to electronic copies of all medical imaging studies of the claimant’s injured parts of the body from 12 October 2017 to date and, in addition:
·the lumbar spine X-ray dated 29 August 2011;
·the left knee X-ray dated 22 February 2014;
·the left knee MRI scan dated 20 September 2014, and
·the left tibia and fibula X-ray dated 16 July 2018.
(b)alternatively, the claimant is to ensure that the abovementioned original imaging studies are made available at or before the time of the re-examination, and
(c)a copy of the certificate of Medical Assessor Herald dated 1 February 2023.”
The documents sought in the above direction were not produced in time for the scheduled
re-examination of Mr Sen by Medical Assessor Gray on 20 June 2024 and therefore, the
re-examination was cancelled. The documents sought by the Panel were eventually obtained by the insurer with Mr Sen’s authority and lodged with the Commission on 14 August 2024. The re-examination was rescheduled for 24 October 2024.
STATUTORY PROVISIONS
Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Whilst almost all injured persons are entitled to statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘threshold’ injuries.
The Motor Accidents Injuries Amendment Act 2022 provided for a number of amendments to the scheme of statutory benefits including the payment of statutory benefits on a not at fault or no-fault basis being extended from 26 weeks to 52 weeks and the repeal of s 3.28(3) of the MAI Act, resulting in no statutory benefits being payable after 52 weeks if the injuries are threshold injuries or if the claimant is wholly or mostly at fault. These amendments only apply to a motor accident that occurred after 1 April 2023: Schedule 4, Part 7 of the MAI Act.
Further, s 4.4 of the MAI Act provides that no damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries.
A threshold injury is defined in s 1.6 of the MAI Act and includes a ‘soft tissue injury’.
Section 1.6(2) of the MAI Act defines a soft tissue injury to mean 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.
Section 1.6 of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury.
Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) 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 a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.3 of the Guidelines commenced on 6 December 2024 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:
“General provisions for assessment
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 the assessment of threshold injury to the neck or spine, cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“Soft tissue assessment - injury to a spinal nerve root
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 the 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 of symmetry 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.”
In respect of causation of injuries, Wright J in Briggs v IAG Limited trading as NRMA Insurance[1] stated:
“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.”
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [35].
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“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.”
EVIDENCE BEFORE THE PANEL
The evidence before the Panel consisted of the following:
(a) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 10 May 2024 (insurer’s documents);
(b) Mr Sen’s indexed and paginated bundle of documents lodged on the Commission’s portal on 16 May 2024 (claimant’s documents);
(c) Certificate issued by Medical Assessor Jonathan Herald dated 1 February 2023;
(d) the records of Nepean Radiology and Quantum Radiology as at 16 July 2024 (Nepean Radiology’s documents);
(e) the records of Castlereagh Imaging and Penrith Imaging as at 1 August 2024, (Castlereagh’s documents) and
(f) the records of Nepean Diagnostics as at 29 July 2024 (Nepean Diagnostics’ documents).
ASSESSMENT UNDER REVIEW
Medical Assessor McGrath examined Mr Sen on 16 January 2024 and issued a certificate under s 7.23(1) of the MAI Act dated 20 January 2024.[2]
[2] Insurer’s documents at pages 14-24.
Medical Assessor McGrath was asked to assess the threshold injury dispute in respect of the following injuries:
(a) knee – left chronic patellar tendon, scarring, medial meniscus tear;
(b) knee – right consequential medial meniscus tear, and
(c) lumbar spine – soft tissue injury.
Medical Assessor McGrath noted that Mr Sen came to Australia in 1989 from Fiji. In Fiji, he had a primary school education and then was employed as a carpenter. On arriving in Australia, he obtained general labouring work in factories. He was with his last employer for 18 years as a general hand in a chemical factory. In this occupation, he was a machine operator, maintenance person and also a driver. Mr Sen reported an interest in social soccer, which he said he played up until the time of the motor accident. Recreational interests include community service and activities with his temple.
Medical Assessor McGrath took the following pre-accident medical history from Mr Sen:
“Mr Sen had an accident in 1995 in a fall at home. He received surgery around this period for a left broken kneecap. He states that he recovered from the surgery and returned to normal full-time work. GP records indicate that he had minor pains about both knees prior to the index accident. There was a GP entry in 2011 and again in 2015. Mr Sen was quizzed about these entries but indicated that he could not remember any details.
Mr Sen has not received surgery other than the left kneecap. …”[3]
[3] Insurer’s documents at page 16 at [8].
Medical Assessor McGrath took the following history of the motor accident from Mr Sen:
“Mr Sen was involved in an MVA on 12 October 2018. He was driving in a suburban zone and was hit from the rear by a P-plater while he was still travelling. He states that he was pushed forward by the impact and both his knees struck the dashboard. After exchanging details, he drove to his general practitioner, Dr Salam [sic: Dr Selim], who ordered an x-ray of the left knee. The accident occurred on a Friday and Mr Sen returned to work on the Monday but was placed on restricted duties after informing his employer of the accident. He was given some light labelling work to do, not his usual heavy tasks.
Mr Sen states that his left knee did not settle down over time and he was further investigated and then referred to an orthopaedic surgeon, Dr Coffey. His occupational rehabilitation also failed and he was forced to leave work although he cannot remember the exact date.”[4]
[4] Insurer’s documents at page 16 at [9].
Medical Assessor McGrath noted that Mr Sen disclosed he was involved in a second motor accident on 22 July 2019. Mr Sen described it as a minor accident and reported no injury.
The Panel notes that Mr Sen’s latter statement was inconsistent with the documents produced by Insurance Australia Limited t/as NRMA Insurance (NRMA).[5] Those documents revealed that Mr Sen made an application for personal injury benefits for chest wall pain, neck pain, headaches, blurred vision and exacerbation of low back pain in respect of the motor accident on 22 July 2019. On 13 December 2019, NRMA determined that Mr Sen had sustained a minor injury (now known as a threshold injury) in the second motor accident and on this basis, declined the claim for statutory benefits beyond 26 weeks following the accident.[6] Such determination was confirmed on review on 22 January 2020.[7]
[5] Insurer’s documents at pages 1,272-1,513.
[6] Insurer’s documents at pages 1,505-1,506.
[7] Insurer’s documents at pages 1,509-1,513.
In respect of current symptoms, Medical Assessor McGrath noted that Mr Sen indicated that he had bilateral knee pains and low back pain which also arose after the surgery on his left knee by Dr Coffey on 24 July 2019.
In respect of current and proposed treatment, Medical Assessor McGrath noted that Mr Sen was not receiving any active exercise treatment and was taking Mobic tablets for inflammation.
In respect of general presentation on clinical examination, Medical Assessor McGrath observed that Mr Sen walked with a walking stick held in the left hand. Gait was uneven and on questioning, he had an antalgic and loss of range of motion gait. He was unable to fully extend the left knee.
On examination of Mr Sen’s lumbar spine, Medical Assessor McGrath observed a restricted range of motion in all dimensions. There was no muscle spasm or guarding. There were no non-verifiable radicular complaints. Neurological examination of the lower limbs was normal apart from some wasting of the left leg not associated with the spine, that is, he had normal deep tendon reflexes, power and sensation. Straight leg raising was normal and there was no radiculopathy.
On examination of Mr Sen’s knees, Medical Assessor McGrath measured active range of motion of the right knee at 120° on flexion and 0° on extension; and active range of motion of the left knee at 100° on flexion and 5° on extension. The left knee had a restricted range of motion. There was an extension lag to 5°. Flexion was also restricted by discomfort and pain. The right knee had a full range of motion after several trials. There was wasting in the left leg. Upper and lower leg circumference was measured at 51cm/47cm for the right leg and 40cm/39cm for the left leg. Cruciate ligaments appeared intact. There was tenderness over the left kneecap and there were crepitations with passive movement as well as active movement.
Medical Assessor McGrath observed a very long 30cm scar over the anterior aspect of the left knee that had widened to about 1cm thickness in parts. The scar itself was not tethered but there were some trophic signs within the scar.
In respect of consistency on presentation, Medical Assessor McGrath observed:
“Mr Sen comes across as a relatively uneducated gentleman with poor recollection and memory of events and details. He appeared passive with respect to treatment and rehabilitation. History taking was arduous through the interpreter, and needed cross referencing through the available documents. Some items of history could not be validated.”[8]
[8] Insurer’s documents at pages 18-19 at [15].
Medical Assessor McGrath referenced relevant documents, medical assessment certificates, radiological and medical imaging.[9]
[9] Insurer’s documents at pages 19-21 at [16]-[19].
Medical Assessor McGrath opined that on the available information there was clinical support for Mr Sen having suffered soft tissue injuries to his left knee and lumbar spine. He further opined as follows:
“There is no credible evidence for internal derangement injuries to either knee or lumbar spine.
There is a history of previous pains to all of these regions. In addition, there is evidence that he had a gait derangement from the time of his first accident and left knee surgery. Both Certificates and IME doctors record poor left knee function prior to the MVA and some postulate that the right knee was being strained over decades as a compensation. I agree with this. The degree of pathology in the left knee, virtually guarantees a compensatory gait pattern.
After the accident, he did not have right knee symptoms which required investigation or treatment. Any increase in gait disturbance since the last left knee procedure, is not likely to be a factor more than negligible to his established arthritis. His increased gait disturbance possibly increased right knee and back pains, but not enough to alter the natural history of established arthritis. Right knee pathology and symptoms have no causal connection to the MVA.
I accept that the 2nd MVA probably did not contribute to the injuries or create new injuries.
In summary, Mr Sen has received corrective surgery for an old left knee injury aggravated by the dashboard impact, with poor functional outcome.”[10]
[10] Insurer’s documents at page 22 at [21].
Medical Assessor McGrath determined that the injury to Mr Sen’s left knee was a
non-threshold injury. In this regard, he stated:
“It is clear, from Dr Coffey, that he had a ‘sub-acute patella tendon rupture’. This implies, it was mostly ruptured prior to the MVA. He also believes the final rupture of remaining fibres in weeks following the accident, implying the vast majority of damage was already present. This is supported in pre MVA records.”[11]
[11] Insurer’s documents at page 23.
Medical Assessor McGrath opined:
“The pivotal issue in this case, centres around the reasons for the surgery [performed by Dr Coffey in 2019]. In particular, was the MVA injury to the left knee more than negligible as a cause for reconstructive surgery? Mr Sen has had two previous surgeries to the knee. The first in Fiji stabilised a kneecap fracture. The second removed hardware (at least) and the final post MVA surgery repaired a completely torn patella tendon which had been mostly present prior to the MVA.
Overall, the information available supports a conclusion that the MVA did not just contribute to a ‘temporary increase in left knee symptoms’. The reason for surgery was progression of the pre-accident condition with an acute trauma superimposed upon on a chronic condition.
The MVA was a cause more than negligible, for knee surgery. He was not seeking surgery prior to the accident.
For these reasons, the left knee injury is non-threshold.”[12]
[12] Insurer’s documents at page 24.
Medical Assessor McGrath determined that the injury to Mr Sen’s lumbar spine was a threshold injury. There was no evidence of radiculopathy or an injury to nerves or a complete rupture of tendons ligaments, menisci or cartilage. Mr Sen had lumbar spine pathology which was normal for his age and occupation and the pathology was unrelated to the motor accident. No acute injuries to the lumbar spine were ever identified.
REVIEW OF THE EVIDENCE
Application for personal injury benefits
In evidence, there was an application for personal injury benefits signed by Mr Sen on 29 October 2018.[13]
[13] Insurer’s documents at pages 46-50.
The application form set out the basic particulars of the motor accident. The description of the motor accident provided by Mr Sen lacked detail. There was a diagram of one motor vehicle being rear-ended by another, the registration number of the vehicles and a reference to being hit from behind.
In the application form, Mr Sen described the injuries caused by the motor accident as:
“left leg – severe pain
back – painful
neck – painful.”[14]
[14] Insurer’s documents at page 47.
Mr Sen denied suffering an illness or injury to the same or similar body parts at the time of the motor accident. The Panel noted that this statement was inconsistent with the records and the reports of Mr Sen’s medical treatment providers in evidence in respect of his left knee and back.
There was no specific reference in the application form to an injury to the left knee. However, there was reference to severe left leg pain.
There was no reference in the application form to an injury to the right knee.
NSW Police Force
In evidence, there were documents produced by NSW Police Force in respect of the motor accident under cover of a letter dated 8 February 2021.[15] The documents consisted of event E 588218891 in the Centralised Operational Policing System (COPS) dated 8 February 2021 and an entry in the notebook of Probationary Constable Scott Williamson on 14 November 2018.
[15] Insurer’s documents at pages 1,514-1,523.
The COPS report referred to Mr Sen as the driver of vehicle 2 and Ms Sharna Watson as the driver of vehicle 1 and stated as follows:
“At the above T/D, DR2 was driving VEH2 in westerly direction along Luxford Road Lethbridge Park. DR1 was driving VEH1 a short distance behind VEH1. As VEH2 approached Pitcairn Avenue VEH1 has collided with its rear. Both drivers have exited their vehicles and exchanged details. Later that afternoon DR2 has attended a local GP in relation whplash [sic]. DR2 received no treatment as a result.
About 1:30 pm on Wednesday the 14/11/2018, DR2 attended Mount Druitt Police Station. DR2 advised Police of the collision. DR2 told police that he was experiencing pain in his left knee, left hip and neck due to the collision.
DR2 requested Police provide him with an event number as he would be returning to a local GP and making an insurance claim.”[16]
[16] Insurer’s documents at page 1,520.
There was no reference to a back injury in the COPS report. However, the entry in the notebook of Probationary Constable Williamson on 14 November 2018 noted Mr Sen’s injuries as “injury to left knee/hip, back – X-ray only”.[17]
[17] Insurer’s documents at page 1,523.
Ms Sharna Watson’s evidence
In evidence, there is a statement by Ms Sharna Watson dated 2 February 2021 taken by an investigator commissioned by the insurer.[18]
[18] Insurer’s documents at pages 1,531-1,540.
Ms Watson was the driver of the motor vehicle that rear-ended Mr Sen’s motor vehicle in the motor accident.
Ms Watson stated that she recalled that the motor accident occurred on 12 October 2018. It had been raining prior to the motor accident but was not raining at the time of the accident. The roadway was clearly wet at the time of the motor accident.
Ms Watson stated that the motor accident occurred on Luxford Road, Lethbridge Park. The speed limit at the location of the motor accident was 60kmph. There were two marked lanes on each side of the roadway.
Ms Watson stated that she was driving her motor vehicle, an SUV, in the right lane on Luxford Road behind the vehicle driven by Mr Sen. She had been travelling at about 55kmph but slowed down as she approached a set of traffic lights. The traffic in front of Mr Sen was quite heavy but flowing. She estimated that she was 2.5 seconds behind Mr Sen’s vehicle. She could clearly see the rear end of it. She had only been behind Mr Sen’s vehicle for a short distance. She believed that he had been waiting at a red traffic light that had turned green as she approached. The vehicles in front of her had begun to move.
Ms Watson did not provide an estimate of her speed at the time of the collision.
Ms Watson stated that there was no traffic in the left lane as the cars in the left lane had turned into the side street at the traffic lights. She then noticed a car speeding down the left lane. It continued past her and then quickly swerved into the right lane directly in front of Mr Sen’s vehicle. The speeding car had a red P plate.
Ms Watson stated that the cars ahead of her slammed on their brakes, as did she. However, she conceded that “I must have reacted a second late”.[19] By the time she applied her brakes, she felt her car skidding and she ended up hitting the back of Mr Sen’s vehicle. The air bags in her vehicle did not deploy and neither did the airbags in Mr Sen’s vehicle.
[19] Insurer’s documents at page 1,537 at [54].
Ms Watson stated that, following the collision, she noticed a parked car in the left lane and speculated that the red P plater had raced to “beat it and then jumped ahead of us”.[20] She recalled that the parked car was that of a real estate agent who got into the car and left.
[20] Insurer’s documents at page 1,537 at [53].
Ms Watson stated that both she and Mr Sen got out of their vehicles and walked to the back of the latter’s vehicle. Mr Sen looked at the back of his vehicle and said, “What the hell”[21] and she apologised to him. She could not see any damage to the rear of Mr Sen’s vehicle. She was upset and called her parents who lived nearby. She asked Mr Sen if he had been injured and he responded, “You hit my car. I am fine. My work car”.[22]
[21] Insurer’s documents at page 1,538 at [62].
[22] Insurer’s documents at page 1,538 at [64].
Ms Watson stated that she and Mr Sen stood around at the scene for about 30 to 40 minutes exchanging details. He also chatted to her parents and she heard her parents ask if he was alright to which he responded that he was fine. Mr Sen seemed fine throughout the period they were standing around and chatting.
Ms Watson stated that neither police nor ambulance attended the accident scene. Both she and Mr Sen were able to drive their vehicles from the accident scene once they had exchanged particulars.
Ms Watson stated that she had seen Mr Sen a few times since the accident outside his home gardening and mowing the lawn. She never had any reason to believe that he had been injured.
Dr Andrew McIntosh: 21 September 2021
In evidence, there is a collision and biomechanics report by Dr Andrew McIntosh dated 21 September 2021 which was commissioned by the insurer.[23]
[23] Insurer’s documents at pages 59-141.
Dr McIntosh’s stated expertise is in the fields of biomechanics and ergonomics/human factors. He has completed formal traffic crash reconstruction training and formal training on event data recorder use in traffic crash reconstruction. He stated that he has applied this expertise in the study of injury causation, the study of safety systems and devices, crash and accident investigation, human gait, sporting skills and injury. His highest university qualification is a Doctor of Philosophy (PhD). The Panel noted that he is not medically qualified.
Dr McIntosh stated that he has researched, studied and/or examined:
(a) motor vehicle crashes, occupant injury and crash severity, including low speed crashes;
(b) the biomechanics of occupants in motor vehicle crashes, occupant kinematics, occupant injury and injury biomechanics;
(c) the biomechanics of impact injuries;
(d) spinal injury, including whiplash-associated disorders, and
(e) loads experienced by the body during normal activities.
Dr McIntosh listed the documents he had been briefed with[24] and provided a summary of the motor accident details based on those documents.[25] He also provided summaries of the contents of the documents he had been briefed with.
[24] Insurer’s documents at pages 61-62.
[25] Insurer’s documents at page 64.
Dr McIntosh described Ms Watson’s vehicle as being a Ford Territory seven-seater with no current registration information or other details. In the absence of such details, he referred to a 2008 Ford Territory SR ST all-wheel drive and a 2012 Ford Territory TS SZ as exemplars. The former had a reported tare mass of 2,207kg and the latter had a reported tare mass of 2,015kg. He noted that he had not been provided with an itemised repair estimate or damage assessment in respect of Ms Watson’s vehicle, nor had he been provided with photographs of it or the damage to it. He had not inspected the accident location, nor had he inspected either vehicle.
Dr McIntosh described Mr Sen’s vehicle as being a 2014 Holden Captiva LT station wagon with the tare mass of 1,675kg. He noted that the accident repair management quotation totalled $5,104 inclusive of GST. The repairs included the replacement of the tailgate, tailgate mould, rear bumper cover, rear bar lower valence, rear bar reinforcement, outer beaver panel, clips and bar retainers. There were also repairs to the boot floor and offside rear chassis rail. Dr McIntosh reviewed photographs of the damage to Mr Sen’s vehicle and commented on the damage.
Dr McIntosh conceded that there were no witness marks, such as skid marks, with which to estimate the pre-collision speeds of either motor vehicle. That is, there was no available objective information that could assist in determining the road speeds of both vehicles at the time of the collision. He opined that, in this case, the applicable measure of crash severity was the change in velocity.
Dr McIntosh stated:
“In my opinion, based on the observed and described vehicle damage, the closing speed was most likely less than approximately 20 km/h with a change in velocity of the Claimant’s vehicle less than approximately 16 km/h. This accounts for the damage to vehicle 2 [Mr Sen’s vehicle], vehicle driveability and airbag non-deployment. With a closing speed greater than 25 km/h, there is an increasing likelihood of airbag deployment in vehicle 1 [Ms Watson’s vehicle]. My opinion is based on my training and experience, including experience in studying and examining rear end collisions, reviewing rear end crash cases and vehicle damage, comparing vehicle damage to vehicle recorded crash data, participating in vehicle crash testing (components and full tests), and reviewing rear end crash test data.”[26]
[26] Insurer's documents at page 83 at [45].
However, Dr McIntosh noted that no vehicle crash event data was available in respect of either motor vehicle. Further, he conceded that his opinion was qualified by the absence of property damage information on Ms Watson’s vehicle and the absence of the full details of her vehicle.
Dr McIntosh then dealt with the question as to whether Mr Sen’s alleged injuries were consistent with the forces involved in the motor accident. Dr McIntosh was instructed to express an opinion in respect of a claimed injury to the cervical spine. However, any claimed injury in respect of the cervical spine was not included in the Review.
In respect of the claimed injury to the lumbar spine, Dr McIntosh opined:
“The thoraco-lumbar spine would have been very well supported by the seat in the collision. Loads applied to the thoraco-lumbar spine collision would have been low magnitude and unlikely to cause injury. Lumbar spine intervertebral disc injury is very unlikely. The likely change in velocity of the Claimant’s vehicle is less than recognised and well documented thresholds for the onset of thoraco-lumbar spine injury in rear end motor vehicle collisions.”[27]
and
“In my opinion, a symptomatic exacerbation of a pre-existing lumbar spine condition is unlikely, based on the biomechanical loads applied to lumbar spine. I have not seen the medical records for the pre-Incident period referred to in Dr Shatwell’s report. If there is clear pre-Incident evidence that demonstrates an association between the Claimant performing simple activities of daily living and exacerbation of the Claimant’s low back pain condition, it is plausible that the Incident might also have caused a symptomatic exacerbation with symptoms of a closed period of short duration. However, the Claimant’s low back pain symptoms in 2019, 2020 and 2021 are not consistent with this opinion.”[28]
[27] Insurer's documents at page 106 at [104].
[28] Insurer's documents at page 107 at [108].
In respect of the claimed injuries to the bilateral knees, Dr McIntosh opined:
“It is very unlikely that a right knee injury occurred in the Incident. There is no mechanism for knee injury in the Incident. It is very unlikely that either knee was exposed to blunt force loading directly or indirectly. It is very unlikely that either knee was moved through a large or abnormal range of motion during the Incident.
It is very unlikely that either left or right knee collided forcefully with the dashboard or vehicle interior in the Incident.”[29]
[29] Insurer's documents at page 107 at [109]-[110].
Dr McIntosh further opined:
“Importantly, the seatbelt controls and manages the momentum and kinetic energy of the trunk in the ‘rebound’ phase of a rear end collision. Therefore, if a knee impact occurs in a rear end collision, the momentum, energy and force involved in the impact are low because of the low speed and small proportion of body mass involved. This is also demonstrated in appendix B and the 14 km/h change in velocity test.
Therefore, in my opinion, a knee impact that either caused or exacerbated a left knee patella, patellar tendon condition and/or other knee condition is very unlikely.
Knee loads in walking, stair ascent and descent, kneeling, squatting and many weight bearing activities would be, in my opinion, considerably greater than those experienced in the Incident. In addition to the body weight forces acting through the knee, muscle forces increase the knee loads.”[30]
[30] Insurer's documents at page 108 act [112]-[114].
Dr McIntosh concluded that Mr Sen would have been exposed to external forces, for example, seat and seatbelt; internal forces applied through muscles, ligaments and joints between body segments; low magnitude forces; and no forceful direct head impact. He opined that the alleged injuries sustained by Mr Sen to his knees were not consistent with the forces involved in the motor accident.
Photographs depicting Mr Sen seated in a motor vehicle
In evidence, there are six colour photographs which are stated to be photographs of Mr Sen sitting in the driver’s seat of a vehicle (presumably the vehicle he was driving at the time of the motor accident).[31]
[31] Claimant's documents at pages 24-29.
There was no evidence by way of an evidentiary statement or otherwise to confirm that the vehicle depicted in the photographs was the vehicle Mr Sen was driving at the time of the motor accident.
There was no evidence by way of an evidentiary statement or otherwise as to when the photographs were taken.
There was no evidence by way of an evidentiary statement or otherwise as to whether the driver’s seat depicted was in the same position at the time of the motor accident.
There was no reference to the photographs in the parties’ written submissions.
In such circumstances, the Panel found the photographs unhelpful.
Relevant pre-accident medical history
On 13 October 1997, Mr Sen’s then general practitioner, Dr Ramesh Dhanji, referred him to Dr Rami Sorial, orthopaedic surgeon.[32]
[32] Insurer’s documents at page 1,603.
On 30 October 1997, Dr Sorial reported to Dr Dhanji that Mr Sen provided a history that he had fallen off a truck in Fiji two years earlier and apparently, sustained a fracture of his left patella. He underwent an open reduction and tension band wiring of the patella with two wires. The fracture had gone on to unite but he now complained of pain and discomfort from the wires that were currently subcutaneous. He was experiencing difficulty with his occupation as a carpenter and wanted to have the wires removed. On examination, Dr Sorial observed a complete rupture of the left patella tendon; a high riding patella; and an extensor lag of about 40°. The rest of the left knee joint demonstrated no abnormalities. The collateral and cruciate ligaments were normal. Dr Sorial advised that the removal of the wires would resolve the pain in the subcutaneous region of the wires but would not improve his strength, nor would it resolve the extensor lag. Dr Sorial recommended a reconstruction of the patella tendon but Mr Sen did not wish to undergo a reconstruction at that stage.[33]
[33] Insurer’s documents at page 1,602.
On 11 March 1998, Mr Sen consulted Dr Sorial who provided a report to Dr Dhanji. Dr Sorial reported that he discussed the need for the removal of the wires and the need for a reconstruction of the patella tendon with Mr Sen. He noted that Mr Sen’s Medicare card had been cancelled and requested him to make contact once he was covered by Medicare again.[34]
[34] Insurer’s documents at page 1,601.
The Panel notes that a left chronic patellar tendon rupture had been diagnosed by Dr Sorial since 30 October 1997.
On 21 November 2005, Mr Sen underwent a right knee X-ray by Dr Andrew Li, radiologist, on the referral of Dr Selim. Dr Li concluded that no abnormality was detected.[35]
[35] Castlereagh's documents at page 20.
On 5 June 2010, Mr Sen consulted Dr Maged Selim, general practitioner, of Sydney Street Medical Practice complaining of mild low back pain since the previous day. Left and right flexion was painful. Dr Selim diagnosed mechanical low back pain.[36]
[36] Insurer’s documents at page 184.
On 26 August 2011, Mr Sen consulted Dr Stephen Lagaida, general practitioner, advising that, on the previous day, he had been hit by a forklift and had fallen to the ground. On examination, Dr Lagaida observed tenderness in the neck, left scapula and sacral area. He prescribed Celebrex 200mg capsules.[37]
[37] Insurer's documents at page 818.
On 29 August 2011, Mr Sen consulted Dr Lagaida who noted that he was very tender in the neck, had upper back and lumbar pain, a throbbing headache and tender bilateral elbows. Dr Lagaida also noted tenderness in both knees, a bruise on the right knee and tenderness in both hips. He prescribed Celebrex 200mg capsules and Codalgin Forte 500mg/30mg tablets.[38]
[38] Insurer's documents at page 818.
On 29 August 2011, Mr Sen underwent X-rays of his cervical spine, thoracic spine and lumbar spine by Dr Colin Franklin, radiologist, on the referral of Dr Lagaida. The clinical history noted that Mr Sen had been hit by a forklift at work. In respect of the lumbar spine, Dr Franklin concluded that the vertebral bodies were normal without crush fracturing; the discs were normal; the facet joints and pars interarticularis were normal; and the sacroiliac joints were within normal limits.[39]
[39] Castlereagh’s documents at page 16.
On 31 August 2011, Mr Sen consulted Dr Selim complaining of headache, neck and low back pain after being struck by a forklift at work six days previously. In the clinical records, Dr Selim noted abdominal tenderness and that Mr Sen may require a CT scan of his abdomen and chest.[40] When questioned about the incident by Medical Assessor Gray on 24 October 2024, Mr Sen could not recall this incident at work.
[40] Insurer’s documents at pages 181-182.
On 6 September 2011, Mr Sen consulted Dr Lagaida advising that his pain was better and that he wished to return to work the following day.[41]
[41] Insurer's documents at pages 818-819.
On 13 September 2011, Mr Sen consulted Dr Lagaida complaining of ongoing back pain but being able to work light duties. He complained of ongoing headache and back pain by the end of the day. Dr Lagaida prescribed Celebrex 200mg capsules.[42]
[42] Insurer's documents at page 819.
On 22 September 2012, Mr Sen consulted Dr Selim complaining of recurrent low back pain following an accident the year before (presumably, the forklift incident). Dr Selim diagnosed mechanical low back pain and prescribed Voltaren 50mg tablets. Further, he recommended that Mr Sen apply heat packs.[43]
[43] Insurer’s documents at pages 179-180.
On 22 October 2012, Mr Sen consulted Dr Selim complaining of recurrent chronic low back pain since the forklift accident one year previously. There was no sciatica. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren 50mg tablets.[44]
[44] Insurer’s documents at page 179.
On 19 April 2013, Mr Sen consulted Dr Selim complaining of recurrent chronic low back pain. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren 50mg tablets.[45]
[45] Insurer’s documents at page 178.
On 8 February 2014, Mr Sen consulted Dr Selim complaining of recurrent left knee pain following an injury in Fiji 10 years earlier that resulted in left patella surgery. Dr Selim referred him for blood tests and a left knee X-ray. Mr Sen requested Dr Selim to refer him to Dr Simon Coffey, orthopaedic surgeon.[46]
[46] Insurer’s documents at pages 177-178.
On 22 February 2014, Mr Sen underwent a left knee X-ray by Dr Anthony Leung, radiologist, on the referral of Dr Selim. Dr Leung noted the history of previous left patella fracture and surgery involving internal fixation with tension wires. Dr Leung reported that the tension wires securing the previous united fracture at the patella were fractured/broken at five sites and there was a suggestion of the presence of loosening. He also observed mild narrowing of the medial compartment of the knee joint.[47] The Panel notes that there was evidence of established degenerative change medial compartment left knee.
[47] Insurer's documents at page 269.
On 15 March 2014, Dr Selim, referred Mr Sen back to Dr Sorial.[48]
[48] Insurer’s documents at page 1,599.
On 19 April 2014, Mr Sen consulted Dr Lagaida complaining of back pain in the same location as after the forklift incident. Dr Lagaida advised that if the back pain worsened, he should undergo an X-ray of the lumbar spine.[49]
[49] Insurer's documents at pages 820-821.
On 12 September 2014, Mr Sen consulted Dr Sorial who provided a report to Dr Selim. Dr Sorial repeated the history Mr Sen had provided him in 1998. Dr Sorial noted that Mr Sen did not attend for follow-up after 1998, having returned to Fiji until about 2009. He was now back in Sydney, working in a factory as a machine operator. Dr Sorial noted that he was struggling with intermittent sharp pains that he localised to the area of the wires; daily instability with the knee giving way once or twice a day; and an inability to negotiate stairs properly. Dr Sorial noted that X-rays confirmed broken tension band wiring, a united patella and a high-riding patella due to the patellar tendon rupture confirmed clinically with an extensor lag still at 40° to 50°. Removal of metal with or without reconstruction was discussed. Once again, Mr Sen did not want a reconstruction and he was placed on the waiting list at Nepean Hospital for removal of wires only.[50]
[50] Insurer's documents at page 1,598.
On 20 September 2014, Mr Sen underwent a left knee MRI scan by Dr Kevin Tay, radiologist, on the referral of Dr Sorial. Dr Tay noted the history as chronic patellar tendon rupture. He noted that there was evidence of previous surgery with susceptibility artefact at the upper pole of the patella in keeping with quadriceps tendon repair. There was a small knee joint effusion and a small popliteal cyst. The collateral ligaments were intact, as were the posterolateral corner structures. The lateral meniscus was intact, as was the lateral compartment articular cartilage. The medial meniscus was intact, as was the medial compartment articular cartilage. There was full-thickness chondral wear centred on the median eminence of the patella measuring about 1.5cm x 1.8cm. Dr Tay concluded that Mr Sen had patella alta and observed that, aside from the inferior most portion of the patella tendon, there was only thin irregular low signal tissue along the expected course of the patella tendon.[51] The Panel notes that Dr Sorial advised of a prior injury to the left knee many years earlier, with a fracture of the patella being tension band wired. However, clinically, there was a complete rupture of the patellar tendon with a high riding patella. Mr Sen did not request reconstruction at that stage. The Panel further notes that, despite significant longstanding mechanical disruption of the extensor mechanism having been documented, Mr Sen insisted that left knee function had returned to “normal”.
[51] Insurer's documents at pages 1,596-1,597.
On 29 November 2014, Mr Sen consulted Dr Selim complaining of having injured his mid-low back after moving a heavy drum at work a week earlier. Dr Selim noted no sciatica. On examination, Dr Selim observed that there was no tenderness of the lumbar spine and that there was a full range of all movements with moderate pain. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50mg tablets.[52]
[52] Insurer's documents at page 175.
On 6 March 2015, Mr Sen consulted Dr Selim complaining of recurrent low back pain over the past day. On examination, Dr Selim observed that all movements of the lumbar spine were moderately restricted. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50mg tablets.[53]
[53] Insurer's documents at page 175.
On 1 April 2015, Mr Sen underwent the removal of the broken tension band wires in his left knee by Dr Amaranth, surgeon, at Nepean Hospital.[54]
[54] Insurer's documents at page 1,594.
On 2 April 2015, Mr Sen consulted Dr Selim reporting that he had undergone the surgical removal of the left patella tension band wire on the previous day. Dr Selim noted that his blood pressure was high and that Dr Sorial was to review him in two weeks.[55]
[55] Insurer's documents at page 174.
On 4 April 2015, Mr Sen consulted Dr Selim complaining of severe left knee pain that was not relieved by Panadeine Forte. Dr Selim prescribed Endone 5mg tablets.[56]
[56] Insurer's documents at page 174.
On 15 April 2015, Dr Sorial reported to Dr Selim that he had reviewed Mr Sen following the removal of the broken tension band wires. The wounds had healed and the sutures were removed. Mr Sen was advised to continue with a home exercise program.[57]
[57] Insurer's documents at page 1,593
On 15 May 2015, Mr Sen consulted Dr Selim reporting minimal pain following left knee surgery six weeks earlier. On examination of the left knee, Dr Selim observed no swelling and mild restrictions in flexion/extension. Mr Sen was issued with a certificate certifying him fit to return to work on 18 May 2015.[58]
[58] Insurer's documents at page 174.
On 30 October 2015, Mr Sen consulted Dr Selim complaining of low back pain without sciatica for the past two days. On examination of the lumbar spine, Dr Selim observed mild restrictions in flexion. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50mg tablets.[59]
[59] Insurer's documents at pages 172-173.
On 19 January 2016, Mr Sen consulted Dr Selim complaining of low back pain without sciatica for the past day. Dr Selim noted it as a recurrent problem. On examination of the lumbar spine, all movements were severely restricted. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50mg tablets.[60]
[60] Insurer's documents at page 172.
On 31 October 2016, Mr Sen consulted Dr Selim complaining of low back pain without sciatica after standing for long periods at work. On examination of the lumbar spine, flexion was limited to 60°. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50 mg tablets.[61]
[61] Insurer's documents at page 171.
On 21 January 2017, Mr Sen consulted Dr Lagaida complaining of back pain. On examination, Dr Lagaida observed tender vertebrae, diagnosed a sprain and prescribed Celebrex 200mg capsules.[62]
[62] Insurer's documents at pages 821-822.
On 24 February 2017, Mr Sen consulted Dr Selim complaining of, amongst other things, recurrent low back pain. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren 50mg tablets.[63]
[63] Insurer's documents at page 169.
On 16 July 2018, Mr Sen consulted Dr Selim complaining of left shin and lower leg pain that had persisted daily for two months. On examination, Dr Selim observed no tenderness in the left lower leg and a full range of movement in the left knee. Dr Selim diagnosed muscle strain, prescribed Voltaren Rapid 50mg tablets and referred Mr Sen for an X-ray.[64]
[64] Insurer's documents at page 165.
On 16 July 2018, Mr Sen underwent a left tibia and left fibula X-ray by Dr Mansoor Parker, radiologist. Dr Parker concluded that there was no acute fracture or dislocation; the tibia and fibula had an unremarkable appearance; and there was a moderate to large calcaneal spur.[65]
[65] Insurer’s documents at page 265.
On 27 July 2018, Mr Sen consulted Dr Lagaida complaining of left knee pain that had been present for one month or more. McMurray’s test was negative. On examination, there was left knee crepitus. Dr Lagaida prescribed Celebrex 200mg capsules and referred him for a left knee X-ray.[66]
[66] Insurer's documents at pages 823-824.
On 8 August 2018, Mr Sen consulted Dr Lagaida advising that he had no more pain and therefore, had not undergone the recommended left knee X-ray.[67]
[67] Insurer's documents at page 824.
Relevant post-accident medical history
On 12 October 2018, Mr Sen consulted Dr Selim advising that he had been involved in a motor accident one hour earlier whilst the driver of a car that was struck from behind by a four-wheel-drive. On examination of the lumbar spine, Dr Selim observed tenderness in the right paraspinal region of the L4/L5; restricted extension; mild pain on right and left flexion; and a full range of movement on flexion. On examination of the cervical spine, Dr Selim observed mild tenderness on the left side of the C2/3 and mild pain on extension. No complaint of symptoms in the knees was recorded. Dr Selim suggested a review in one week and prescribed Voltaren Rapid 50mg tablets.[68]
[68] Insurer's documents at pages 163-164.
On 15 October 2018, Mr Sen consulted Dr Selim complaining of left knee pain and swelling. Low back and neck pain had improved. On examination, Dr Selim observed left knee swelling and painful flexion. Mr Sen was referred for a left knee X-ray.[69] No complaint of right knee symptoms was recorded.
[69] Insurer's documents at page 163.
On 15 October 2018, Mr Sen underwent a left knee X-ray by Dr Tinku Kooner, radiologist. Dr Kooner concluded that there were no acute fracture lines visualised; there was a small osteophyte arising from the medial aspect of the patella; the patellofemoral joint space was otherwise intact; there was a patella alta; no evidence of significant joint effusion; and otherwise normal alignment. Dr Kooner noted the history of trauma and that if patella ligament injury was clinically suspected, the next step would be a left knee ultrasound.[70]
[70] Insurer's documents at page 264.
On 23 October 2018, Mr Sen consulted Dr Selim and they discussed the outcome of the left knee X-ray. Mr Sen reported that his left knee pain was improving slightly. He was working with pain. Towards the end of the day, the pain was severe. He also continued to experience left-sided low back pain. Dr Selim prescribed Voltaren Rapid 50mg tablets.[71] No complaint of right knee symptoms was recorded.
[71] Insurer's documents at page 163.
On 30 October 2018, Mr Sen consulted Dr Selim complaining of moderate to severe neck and low back pain without significant improvement.[72] No complaints of bilateral knee symptoms were recorded.
[72] Insurer's documents at pages 162-163.
On 14 November 2018, Mr Sen consulted Dr Selim complaining of persistent left knee pain, being unable to fully weight bear, mild neck pain and low back pain. Dr Selim referred him for physiotherapy.[73] No complaint of right knee symptoms was recorded.
[73] Insurer's documents at page 162.
On 17 November 2018, Mr Sen consulted Dr Selim complaining that his left knee pain was not improving and that he was limping. He was only getting partial relief from the Voltaren tablets. Dr Selim prescribed Voltaren Rapid 50mg tablets.[74] No complaints of neck, low back or right knee symptoms were recorded.
[74] Insurer's documents at page 162.
On 20 November 2018, Mr Sen consulted Dr Selim advising that there was no improvement in his left knee or low back pain. Dr Selim referred him for physiotherapy.[75] No complaints of neck or right knee symptoms were recorded.
[75] Insurer's documents at page 162.
On 15 December 2018, Mr Sen consulted Dr Selim complaining of ongoing low back and left leg pain, no improvement in left knee swelling and walking with a limp. On examination of the left knee, Dr Selim observed swelling and moderate restrictions on extension and flexion. On examination of the lumbar spine, all movements were mildly restricted. Dr Selim recommended a left knee MRI scan and orthopaedic review, noting that Mr Sen continued to work full-time as a machine operator but was struggling.[76] No complaints of neck or right knee symptoms were recorded.
[76] Insurer's documents at page 161.
On 18 December 2018, Mr Sen consulted Dr Selim advising that there had been no improvement in his left knee pain (the entry in the clinical records incorrectly referred to the right knee). A prescription of Voltaren Rapid 50mg tablets was provided.[77] Dr Selim referred him to Dr Simon Coffey, orthopaedic surgeon[78] and for a left knee MRI scan.
[77] Insurer's documents at page 161.
[78] Insurer’s documents at pages 1,087-1,088.
On 9 February 2019, Mr Sen underwent a left knee MRI scan by Dr Georges Hazan, radiologist. The clinical details provided to Dr Hazan were of swelling and restriction of movement in the left knee. Dr Hazan found that there had been a complete rupture of the patellar tendon and that the patella sat in an elevated position. There was paramagnetic effect suggestive of prior anterior knee surgery and possible prior reattachment surgery. Dr Hazan concluded that there were features of a possible chronic patella tendon tear with fibrosis seen anteriorly at the knee. Close clinical correlation was important since there had been a recent injury and the possibility of acute on chronic injury to that region should be considered. There were degenerative anterior cruciate ligament changes and a leaking popliteal fossa cyst.[79]
[79] Insurer's documents at page 1,093.
Mr Sen was unable to recall any upcoming surgery, apart from having a possible MRI in the future to check the low back.
Mr Sen said that, at present, he has general pain about the left knee and stiffness in both knees, the left more than the right. He has some instability and swelling in both knees. He said the right knee was “sensitive” because of the recent arthroscopy. He has been noticing knee stiffness at night and that, on mobilising to urinate, he had fallen on several occasions. He said both knees are affected by night pain that recurrently awakens him.
Mr Sen re-emphasised that, after the original left knee injury in Fiji, his left knee was completely “fixed up” and he was able to work subsequently with no treatment.
Details of any relevant incidents since the motor accident
Mr Sen said he had not previously been involved in any motor accidents. However, there had been a subsequent motor accident where he was the driver on a main road, hit on the left hand side of his vehicle by a car pulling out from the left. He recalled a dent in the left side door of his car but he was able to drive home.
Mr Sen said that he attended his general practitioner and was given the “all clear.” He required an X-ray of his head, having hit his head against his car window. Mr Sen said his general practitioner advised him that all the X-ray reports were satisfactory.
Mr Sen said that the subsequent motor accident caused no injury to his knees or elsewhere, except that he did hit the side of his head in that collision. The Panel notes that Mr Sen’s latter statement was inconsistent with the documents produced by NRMA.[143] Those documents revealed that Mr Sen made an application for personal injury benefits for chest wall pain, neck pain, headaches, blurred vision and exacerbation of low back pain in respect of the subsequent motor accident on 22 July 2019.
Clinical examination
[143] Insurer’s documents at pages 1,272-1,513.
General presentation
Mr Sen was cooperative, but a considerably vague historian, with his description of injury and symptoms varying at different stages of the consultation, particularly regarding pre and
post-accident details of the left knee. His history was checked intermittently via the interpreter.
Mr Sen weighed 83kg and was 164cm in height.
Mr Sen walked using a stick in the right hand with a mild limp. On the left side he kicked forward the left foot/lower leg on the swing phase, to engage early locking of the left knee to allow secure weight bearing on the left leg.
Lumbar spine
There was no deformity in the lumbar spine. There was over-reaction to light palpation generally about the lumbar spine. Lumbar movements were generally restricted but without dysmetria. There was no local tenderness and no guarding. Tilt on the right and left was equal and half range; flexion and extension were equal and half range. Peripherally, there was no limitation of straight leg raising on the right, while straight leg raising on the left was limited by complaint of low back discomfort, with no radicular complaints.
In the lower limbs, there was no sensory loss except that expected lateral to the longitudinal surgical scar about the left knee. Lower limb reflexes were symmetrical but reduced. Peripherally, there was no objective muscle weakness and no obvious sensory deficit. The circumference of the right thigh measured 50cm and on the left 47cm (10cm above each suprapatellar border). Maximal circumference of the right calf was 37cm and the left calf 35cm.
The Panel concludes that the left leg sensory deficit was consistent with the effects of the surgical scarring. The muscle bulk deficit on the left was consistent with the documented
pre-existing long standing complete patellar tendon rupture of the left knee causing extensor deficiency, as referred to in Dr Sorial’s reports.
Left knee
There was a longstanding longitudinal surgical scar measuring 21cm, which was widened but with only a minor colour mismatch, no local tenderness, no significant contour defect, no tenderness, no tethering and requiring no treatment.
Range of movement of the left knee ranged from +30° to 100° with a 30° extensor lag. There was marked patellofemoral irritability. There was no obvious cruciate or collateral laxity.
Right knee
There was a degree of varus mal-alignment and the knee was stable. The range of movement was 00 to 120°. There was mild patellofemoral irritability and evidence of two arthroscopic portals.
DIAGNOSIS, CAUSATION AND REASONS
The Panel concluded that Mr Sen is a poor historian as reported in Medical Assessor Gray’s re-examination referred to above and also noted in Medical Assessor McGrath’s certificate dated 20 January 2024. The assessment of Mr Sen proved difficult because of his variable responses to similar questioning and conflict between some of his responses and the medical records before the Panel. Although, on repeat direct questioning, Mr Sen denied any problem at all with his low back, or any material problem with his left knee, in particular, before the motor accident, there was ample medical evidence of both chronic low back pain and significant physical impairment of the left knee from extensor disruption, a longstanding patellar tendon rupture with a significant extensor lag, along with the development of marked degenerative changes on MRI.
The Panel finds that an acute material left chronic patella tendon rupture caused by the motor accident is not supported for the following reasons:
(a) Dr Sorial’s findings on 30 October 1997 that there was evidence of a left patella fracture with wiring, a complete rupture of the left patellar tendon, a high riding patella and an extensor lag of 40°;
(b) Dr Sorial’s findings on 12 September 2014 again confirming that there was evidence of a united left patella fracture with broken wiring, a complete rupture of the left patellar tendon, a high riding patella and an extensor lag of 40° to 50°;
(c) Mr Sen’s ability to mobilise his left knee asymptomatically immediately following the motor accident, with no documentation of left knee symptoms at his first consultation with Dr Selim post-accident, was inconsistent with the submission by Mr Sen that there had been a further partial rupture of the remaining fibres of the left patellar tendon as a result of the motor accident;
(d) Dr Coffey recorded a history that Mr Sen sustained a ruptured left patellar tendon repair 30 years earlier in Fiji and that, thereafter, he had returned to normal activity, which was inconsistent with the medical evidence;
(e) when Dr Coffey provided his opinion that the completion of the tear was caused by the motor accident, it was apparent that he was unaware that Mr Sen already had a pre-existing chronic complete patellar tendon tear prior to the motor accident that had not yet undergone surgical repair;
(f) Dr Coffey’s observations on 2 May 2019 that Mr Sen’s gait was remarkably good despite the loss of extensor mechanism, consistent with the current gait findings, implying a longstanding gait compensation for the chronic patellar tendon rupture on the left, and
(g) Mr Sen’s acceptance that he was asymptomatic in both knees early post-accident with no documentation of knee symptoms or injury on immediate post-accident general practitioner review.
The Panel finds that a left medial meniscus tear caused by the motor accident is not supported because the possible mechanism to cause an acute meniscal tear, such as a specific twisting injury, was not described in the motor accident. A degenerative meniscal tear would typically be present on MRI in any case, as part of general intra-articular degeneration from long standing left knee pathology.
However, considering the mechanism of the motor accident, the Panel finds that Mr Sen could have and did suffer a mild soft tissue contusion to the left knee caused by the motor accident, resulting in a threshold injury within the meaning of the MAI Act. Three days after the motor accident (15 October 2018), Dr Selim’s clinical records noted Mr Sen complaining of left knee pain and swelling. There were no injuries to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage caused by the motor accident. A complete chronic left patellar tendon rupture was well documented by Dr Sorial over many years. There was no evidence of an acute meniscal tear for the reasons already stated in [294] above.
The Panel finds that the motor accident could have and did cause a soft tissue injury to Mr Sen’s lumbar spine resulting in a threshold injury within the meaning of the MAI Act. There were no radicular symptoms or signs, no dysmetria and no guarding. There were no injuries to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage caused by the motor accident. There was medical evidence of pre-existing lower back symptoms and a second motor vehicle accident in July 2019, after which he complained to Dr Selim of an exacerbation of his low back pain.
The Panel finds no evidence of injury to Mr Sen’s right knee in the motor accident or injury resulting as a consequence of favouring his left knee condition. On 12 March 2019, Mr Sen consulted Dr Selim complaining of progressive right knee and right hip pain due to overload. This was the first recorded complaint of right knee symptoms in Dr Selim’s clinical records since the motor accident. There were references in the medical records of pre-accident right knee symptoms (see [100] and [103] above). Established degenerative osteoarthritic changes in the right knee had been documented on MRI and at arthroscopy, reflecting the natural increase in constitutional degenerative arthritic changes with time, more probably than not, caused by longstanding (greater than 25 years) gait derangement from his pre-existing and significant left knee condition. A degenerative meniscal tear would typically be present on MRI in any case as part of general intra-articular degeneration from long standing left knee pathology.
The Panel notes that Dr McIntosh’s collision and biomechanical report was prepared in the absence of available objective information that could assist in determining the road speeds of both vehicles at the time of the collision. Dr McIntosh noted that he had not been provided with an itemised repair estimate or damage assessment in respect of Ms Watson’s vehicle, nor had he been provided with photographs of it or the damage to it. He had not inspected the accident location, nor had he inspected either vehicle. Dr McIntosh conceded that there were no witness marks, such as skid marks, with which to estimate the pre-collision speeds of either motor vehicle. That is, there was no available objective information that could assist in determining the road speeds of both vehicles at the time of the collision. He noted that no vehicle crash event data was available in respect of either motor vehicle. Further, he conceded that his opinion was qualified by the absence of property damage information on Ms Watson’s vehicle and the absence of the full details of her vehicle. Accordingly, the Panel has considered Dr McIntosh’s evidence with caution.
The preponderance of the medical evidence supported that Mr Sen could have and probably did suffer, at least, minor injuries to his left knee and lumbar spine.
FINDINGS
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[144] and Insurance Australia Ltd v Marsh.[145]
[144] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[145] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Gray based on his examination and specific findings pertaining to diagnosis, causation and assessment as to whether the injuries were threshold injuries.
The Panel determines that Mr Sen suffered a threshold injury to the left knee, being a soft tissue injury caused by the motor accident.
The Panel determines that Mr Sen suffered a threshold injury to the lumbar spine, being a soft tissue injury caused by the motor accident.
The Panel determines that Mr Sen’s right knee condition was not caused by the motor accident.
Accordingly, the certificate of Medical Assessor McGrath dated 20 January 2024 is revoked.
CONCLUSION
The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.
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