AAI Ltd t as AAMI v Ahmed
[2023] NSWPICMP 126
•4 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as AAMI v Ahmed [2023] NSWPICMP 126 |
| CLAIMANT: | Ahmad Subhi Ahmed |
INSURER: | AAI Limited trading as AAMI |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| MEDICAL ASSESSOR: | Dr Thomas Rosenthal |
| DATE OF DECISION: | 4 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 17 June 2021; Medical Assessor (MA) Berry found the following injuries were threshold injuries; lumbar spine, soft tissue injury; right foot, soft tissue injury; left foot, soft tissue injury; certified injury to the right knee, radial tear or medial meniscus was a non-threshold injury; dispute as to causation of the right knee injury; Held – applying test of causation as per Briggs v IAG Limited, claimant struck knee on dashboard as claimed with slight twist or rotatory force causing radial tear of the medial meniscus; if causation satisfied insurer agreed injury to the knee would be a non-threshold injury; injury to right knee was a non-threshold injury; soft tissue injury to lumbar spine and to both feet were threshold injuries; Medical Assessment Certificate of MA Berry affirmed. |
| DETERMINATIONS MADE: | Review Panel Assessment of Threshold Injury The Review Panel affirms the certificate of Medical Assessor Berry dated 6 July 2022. |
REASONS
BACKGROUND
On 17 June 2021 Mr Ahmad Ahmed (the claimant) was a driver of a car stationary in traffic when his car was hit from behind. The airbags did not deploy. Mr Ahmed states he was thrown forwards striking his knees on the dashboard.
Mr Ahmed asserts he sustained the following injuries in the accident:
(a) injury to the back;
(b) injury to both feet, and
(c) injury to the right knee.
AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to make statutory payments to, for, or on behalf of Mr Ahmed under the Motor Accident Injuries Act 2017 (the MAI Act).
On 24 June 2021 Mr Ahmed lodged an Application for Personal Injury Benefits in which he alleged back pain and foot pain.
On 1 October 2021 the insurer issued a “Liability Notice- benefits after 26 weeks” in which the insurer determined the injury sustained by Mr Ahmed was minor and that his entitlement to medical and care related expenses would cease 26 weeks after the date of accident.[1]
[1] AD4 p 15.
On 29 October 2021 Mr Ahmed sought an Internal Review of that decision and on
15 November 2021 the insurer affirmed the earlier decision that all the injuries suffered by Mr Ahmed in the accident fell within the definition of minor injury.[2][2] AD4 p 23.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the threshold injury dispute between the parties.
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.[3]
[3] Section 7.20 of the MAI Act.
The threshold injury dispute was referred to Medical Assessor Neil Berry.
MINOR INJURY- STATUTORY PROVISIONS
Threshold injury
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 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”. 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 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 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.”
Clause 5.7 of the Guidelines states that 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. Clauses 5.8 and 5.9 are in the following terms:
“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.”
In Briggs v IAG Limited trading as NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] 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.”
CERTIFICATE OF MEDICAL ASSESSOR NEIL BERRY
The dispute was referred to Medical Assessor Berry who assessed the claimant on
4 July 2022 and issued a certificate dated 6 July 2022.[5][5] AD2 p 10.
The injuries referred for assessment were as follows:
· “whether the injury to the lumbar spine disc bulge at L5/S1 level, soft tissue injury with radiculopathy was caused by the motor accident and whether the injury is a minor injury for the purposes of the Act.
· whether the injury to the right foot soft tissue injury/tendon injury was caused by the motor accident and whether the injury is a minor injury for the purposes of the Act.
· whether the injury to the left foot soft tissue injury/tendon injury was caused by the motor accident and whether the injury is a minor injury for the purposes of the Act.
· whether the injury to the right knee radial tear of the medial meniscus was caused by the motor accident and whether the injury is a minor injury for the purposes of the Act.”
Medical Assessor Berry reported Mr Ahmed had continuing back pain and right knee pain, his other injuries having apparently resolved. As to causation he stated:
“Mr Ahmed has a history of his vehicle being rear-ended and suffered an impact injury to the right knee and was thrown forward and backwards sustaining a soft tissue injury to the lumbar spine. There is no evidence of radiculopathy and there is evidence of a radial tear in the medial meniscus of the right knee which could have been caused by a twisting impact.”
Medical Assessor Berry found the following injuries were caused by the accident:
· lumbar spine – soft tissue injury;
· right knee - radial tear of the medial meniscus;
· right foot – soft tissue injury (resolved), and
· left foot – soft tissue injury (resolved).
Medical Assessor Neil Berry found the injury to the lumbar spine was a soft tissue injury with no evidence of radiculopathy. He found that there was evidence of a radial tear in the medial meniscus of the right knee which could have been caused by a twisting impact.
Medical Assessor Berry certified the following as minor injuries:
· lumbar spine;
· left foot, and
· right foot.
He certified the following was not a minor injury:
· right knee – radial tear of the medial meniscus.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Berry was lodged by the insurer on 2 August 2022 within 28 days of the date on which the certificate of Medical Assessor Berry was made available to the parties.[6]
[6] Section 7.26(10) of the MAI Act.
On 12 October 2022, 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).[7]
[7] AD2 p 4.
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.[8] Accordingly, the President’s Delegate referred the matter to this Panel to assess.
[8] 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.[9]
[9] 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.[10]
[10] 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 a Review Panel Report and Directions dated 24 January 2023. Adopting the numbering used in that report the Panel stated:
“2. There does not seem to be any dispute that the injury to the lumbar spine was a soft tissue injury with no evidence of radiculopathy.
3. It is not clear there was any injury sustained to either foot, as the only evidence is the reference in the Application for personal injury benefits. However, there does not seem to be any dispute that injury to either foot, if sustained, was a soft tissue injury and has resolved.
4. The Panel considers a re-examination of the claimant is not required because in determining the question of threshold injury the dispute between the parties is whether the radial tear of the medial meniscus shown on the MRI scan was caused by the accident.
5. The claimant has provided a description of how the accident occurred in the Application for personal injury benefits and in his statement dated
7 September 2022. The Panel has had an opportunity to review the medical evidence and does not consider a medical examination would assist.6. In order to facilitate the just, quick and cost-effective resolution of the real issues in the Review, the parties on or before 2 February 2022 the parties are directed to advise the Commission in writing that they have received this Preliminary Review report and to confirm that they agree to the Panel proceeding to determining the issues in dispute without re-examination as set out above.”
On 7 February 2023 the insurer replied:
“The report has been received by the insurer.
The insurer agrees with the matter proceeding to the Panel.”
On 20 March 2023 the claimant consented to the dispute being determined on the papers.
With the consent of the parties the Panel proposes to determine the dispute on the papers.
EVIDENCE BEFORE THE REVIEW PANEL
In response to a Direction dated 28 November 2022 the insurer uploaded to the portal an indexed bundle of documents paginated from page 1 to 31 and marked AD2.
The claimant uploaded to the portal an indexed bundle of documents paginated from page 1 to 480 and marked AD4.
Application for personal injury benefits
The Application for personal injury benefits was received by the insurer on
24 June 2021. The claimant stated he had sustained back pain and foot pain in the accident.[11][11] AD4 p 36.
Photographs of the vehicles
Photographs of the vehicles involved in the collision were included in the Certificate of Determination – Internal Review issued by the insurer on 15 November 2022.[12]
[12] AD4 pp 26 and 27.
The photographs of the claimant’s Toyota vehicle shows the boot of the car has been stowed in and a dented bumper bar.[13]
[13] AD4 pp 26 and 60.
The photographs of the Volkswagen vehicle driven by the insured driver shows very little damage to the front of that vehicle.
Statement of claimant
Mr Ahmed provided a statement dated 7 September 2022 utilising the services of an Arabic interpreter.[14] Adopting the numbering used by Mr Ahmed the Panel notes the following relevant paragraphs:
“6. As my vehicle was stationary at the set of lights, a vehicle behind me …, failed to stop and rear ended my vehicle. I was wearing my seatbelt at the time of the accident, however, the impact of the collision caused my body to thrust forward. The impact caused my head to hit the front window, my upper body slammed onto the steering wheel, and my right knee hit the dashboard.
7. I immediately began experiencing pain throughout my body, especially in the region of my neck and back. I felt pain in my right leg/knee, but I was mainly concerned about my neck and back.
11. A couple of days after consulting Dr Bumanglag, I noticed that I had pain in my right leg/knee. Very quickly this pain became extremely intense and unbearable.
17. Prior to the subject accident I was in good health. I would describe myself as being fit and healthy. I did not suffer from any pre-existing and/or medical conditions. I did not suffer from any injury, and/or pain to my right knee before the subject accident.”
Fairfield Chase Medical & Dental Centre
[14] AD4 p 479.
On 17 June 2021 Mr Ahmed attended his general practitioner (GP) Dr Bumanglag who recorded:
“patient driver and stopped suddenly at a traffic light
He was then rearended
He now complains of neck pain and low back pain
His also complains of right ear ringing.”[15]
[15] AD4 p 152.
On 23 June 2021 Dr Bumanglag recorded:
“1. Results of xray on the cervical spine and lumbar spine discussed
2. patient stated he felt pain on the right knee in the past 2 days
Nil trauma post MVA
? pain due to MVA
For Xray of right knee.”[16]
[16] AD4 p 152.
Dr Bumanglag provided a certificate dated 1 July 2021 with the following diagnosis:
“motor vehicular accident sustaining lower back pain and right knee pain – for investigation.”[17]
[17] AD4 p 172.
On 10 July 2021 Dr Allan Gregor referred Mr Ahmed to Dr Dave for management of his knee injuries. The referral records the following history:
“10 July 2021 CT lumbar spine L5/S1 disc bulge
10 July 2021 MRI right knee radial tear medial meniscus/chondropathy.”[18]
Anthony Lau, physiotherapist
[18] AD4 p 177.
Mr Lau provided a report dated 6 September 2021.[19] He initially assessed Mr Ahmed on 4 September 2021. He reported complaints of right knee pain and lumbar spine pain. His examination findings included the following:
“Range of Movement: Active right knee range of motion was within normal limits, however, there was pain at end of range flexion and extension and the pain was described to be sharp and inside the knee. Active lumbar range of motion was slightly limited with flexion being 40 degrees, extension being full range, side flexion being fingertips to superior border of the patella and rotation was full range. The most painful movement was flexion and he noted that he could easily touch to floor when bending over prior to the accident. McMurry's was positive for the right knee. Squatting range was limited to 100 degrees knee flexion and required hand support to stand back up.
Muscle Power: Isometric testing revealed pain and decreased strength in both flexion and extension with pain in flexion past 90 degrees flexion and pain was described to be inside the knee. In extension the pain was at end of range and the pain was at the quadricep tendon.
Palpation: There was significant tenderness at the right quadricep tendon, lumbar spine erector spinae, quadratus lumborum and piriformis muscles. Palpation at the right side of the lumbar spine erector spinae and quadratus lumborum muscles resulted in referred pain into the right gluteal region.”
[19] AD4 p 99.
Investigations
X-ray cervical spine dated 18 June 2021 reported no fracture or dislocation. Loss of the cervical lordosis. This might be related to muscle spasm. No evidence of cervical rib. Odontoid outlines normally. No evidence of foraminal stenosis.[20]
[20] AD4 p 156.
X-ray lumbar spine dated 18 June 2021 reported mild scoliosis convex to the right. Loss of the lumbar lordosis. This might be related to muscle spasm. There is no fracture or dislocation. Spina bifida occulta of S1 segment. SI joints outline normally.[21]
[21] AD4 p 156.
X-ray right knee dated 25 June 2021 reported alignment is normal. There is no fracture or dislocation. Patella is intact. There is suggestion of minor effusion in the suprapatellar bursa.[22]
[22] AD4 p 156.
CT lumbar spine dated 2 July 2021 reported no evidence of fracture. At L5-S1 level, broad-based disc bulge with left lateral protrusion slightly compressing the exiting left L5 nerve in the exit foramen.[23]
[23] AD4 p 157.
MRI right knee dated 2 July 2021 reads
“Alignment is normal. No evidence of fracture. Small effusion is present in the suprapatellar bursa with mild reactive synovitis. Minor oedema in the Hoffa’s fat pai. Anterior cruciate and posterior cruciate ligaments are intact.
Medial compartment
Free edge blunting of the anterior horn/body junction of the mid portion of the medial meniscus with 8.8 mm separation measured on the coronal study …This is also seen on the sagittal study … and the corresponding axial study … This is consistent with a radial tear.
Lateral compartment
Lateral meniscus is intact.
Posterolateral corner supporting structures including biceps femoris, fibular collateral ligament and popliteus tendons are intact.
Osteochondral effaces of the tibiofemoral joint is preserved.
Patellofemoral joint
Localised high-grade chondropathy of the trochlea is seen centrally with irregularity of the articular cartilage without associated minimal bone marrow oedema. There is corresponding high-grade chondromalacia patellae of the lateral facet with full-thickness irregularity, minimal fissuring and subchondral oedema.
Mild reactive chronic tendinopathy of the quadriceps and patellar tendon.
Associated minor increased signal at the patellar tendon insertion to the patella suggestive of minor acute injury.
Popliteal fossa
Calf muscles intact, there is no Baker’s cyst, pes anserine tendons are normal.
IMPRESSION
Small effusion in the suprapatellar bursa and mild reactive synovitis.
Radial tear of the medial meniscus no evidence of acute cruciate ligament or collateral ligament injury. At the anterior/body junction
High grade focal chondropathy of the trochlea and corresponding high-grade chondromalacia patellae of the lateral facet.”[24]
Report of Dr James Powell, orthopaedic surgeon
[24] AD4 p 158.
Dr Powell assessed Mr Ahmed at the request of the insurer and provided a report dated 7 April 2022.[25]
[25] AD2 p 19.
He reported Mr Ahmed had whole body pain at the time and the following day he had pain throughout his back from his upper thoracic to the lumbosacral junction and in the right knee. Mr Ahmed consulted his GP and was given analgesics. He attended physiotherapy on one occasion only.
Dr Powell reported Mr Ahmed had constant stiffness in the back from the thoracic to the lumbar region and lumbar back pain. He also reported the pain radiated to the right lower limb every month or so. He also reported persisting pain in the right knee which can be accompanied by a clicking.
Dr Powell reported Mr Ahmed worked as a cement renderer but had not returned to work since the accident.
On examination Dr Powell found no limitation in lumbar movement, no abdominal signs and no distal neurological signs. He noted retropatellar crepitus in both knees without limitation in motion and without asymmetric soft tissue changes.
Dr Powell concluded Mr Ahmed had not sustained any musculoskeletal injury arising out of the accident. He concluded it was difficult to accept that Mr Ahmed had struck his knee on the dashboard as any forward progression would have been halted by the seat belt. Whilst imaging identified changes about the right knee involving the extensor mechanism, he concluded they were longstanding and indicate a degenerate aetiology.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 18 January 2022.[26] The insurer notes Police did not attend the accident and nor did the claimant present to hospital. The insurer relies upon photographs of the rear of the claimant’s vehicle and submits the accident was minor.
[26] AD2 p 7.
In the absence of any signs of radiculopathy the insurer submits the injury to the lumbar spine is a minor injury.
The insurer submits there has been no further mention of complaint pertaining to the feet other than the reference in the Application for personal injury benefits.
In relation to the right knee the insurer notes it was not referred to in the Application for personal injury benefits. The insurer concedes the MRI showed a radial tear of the medial meniscus which would be a non-minor injury but submits the tear was not caused by the accident because of:
(a) the delay in reporting the symptoms;
(b) the force of the accident, and
(c) the mechanism of the injury where the accident involved a rear end collision, a forward mechanism rather than the twisting mechanism required to cause a radial tear.
The insurer provided further submissions dated 29 July 2022 in support of the application for review.[27] The insurer noted the accident occurred on 17 June 2021. The claimant attended his GP that day but did not report right knee pain although he did so on 23 June 2021.
[27] AD2 p 1.
In the Application for personal injury benefits dated 24 June the claimant only referred to back pain and foot pain.
Eight days after completing the Application for personal injury benefits the claimant was referred for an MRI of the right knee. The MRI showed a radial tear of the medial meniscus. The insurer accepts if the radial tear of the medial meniscus is causally related to the accident that injury would not be considered a minor injury.
The insurer submits the accident was not significant, noting the police did not attend, the claimant did not attend hospital and photographs of the claimant’s vehicle show it was a minor accident.
Furthermore, the insurer submits the force of the accident was insufficient to cause a radial tear of the medial meniscus. The accident was a simple rear end collision, the mechanism being forward and backward, not the twisting mechanism required to cause a radial tear.
Claimant’s submissions
The claimant provided submissions dated 29 August 2022.[28]
[28] AD4 p 239.
In relation to the insurer’s submission that there was a delay in reporting right knee pain following the accident the claimant notes a complaint was made on 23 June 2021, six days after the accident to Dr Bumanglag.
The claimant concedes no complaint was recorded on 17 June 2021 but submits it was not unusual for the initial complaint to be in respect of the neck and back injuries only where those injuries were causing the most pain at that time.
The claimant refers to the decision of Bugat v Fox [2014] NSWSC 888, in which the Supreme Court confirmed that the presence or absence of contemporaneous evidence of injury is relevant but not determinative when considering the causation of an injury. An absence of contemporaneous evidence will not automatically remove the link of causation, and the medical examiner should be considering all the available evidence, including any further investigations the claimant undergoes. The claimant submits this principle was explored further in Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548 where the court states it is possible that causation may exist without a documented contemporaneous complaint.
As to the insurer’s submissions as to whether the mechanism of the accident could have caused the injury to the right knee the claimant submits:
· the insurer has produced no evidence that the accident was not significant;
· the attendance of police at the scene of the accident is irrelevant to the circumstances of the accident, or mechanism of injury;
· the claimant did seek medical attention on the day of the accident consulting his treating GP;
· the insurer is not qualified to conclude that the accident was minor, and that the force of the accident was insufficient to cause a radial tear of the medial meniscus, and
· the insurer’s reliance on photographs to determine injury is expressly forbidden as per the authority of El-Mohamad V Celenk [2017] NSWCA 242 at [16]. The claimant submits the photographs are no more than a factor to be taken into account, they are not determinative of the forces involved in the accident nor are they determinative of the extent of any injuries sustained.
The claimant provided submissions dated 13 December 2021 in respect of the minor injury dispute.[29] The claimant submitted that the medical imaging proves the claimant suffered a medial meniscus tear in his right knee and that the definition of minor injury in s 1.6(2) of the MAI Act would exclude a tear of the medial meniscus meaning it is a non-minor injury.
PANEL FINDINGS
[29] AD4 p 11.
Mr Ahmed was 38 years of age at the time of the accident, and he worked as a cement renderer.
The claimant was stationary in his vehicle on 17 June 2021 when it was rear-ended. He described a significant impact causing his body to thrust forward, his head to hit the front window, his upper body slamming into the steering wheel and his right knee hitting the dashboard.
The Panel does not consider the failure of police to attend the scene of the accident indicative of the mechanism of the accident or of injury sustained. Whilst the Panel notes caution is required to be exercised when relying on photographs in accordance with El-Mohamad V Celenk [2017] NSWCA 242 the Panel also notes the photographs show the boot of the claimant’s vehicle stowed in, albeit there was very little damage to the front of the insured’s vehicle.
The Panel accepts the evidence of the claimant as to the significant impact caused by the rear end collision.
Injury to the right knee
There is a dispute as to causation of the right knee injury.
Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in part 6 of the Guidelines.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[30] His Honour stated at [70] – [72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 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].”
[30] Briggs [2022] NSWSC 372.
Dr Powell suggests in an acceleration type impact without rapid deceleration
Mr Ahmed’s torso would be pushed back into the seat by inertia with his position and alignment supported by the seat design. He suggests if there was any forward motion of the torso it would be in response to compression of the padding of the seat with the forward progression halted by the seat belt. Dr Powell is sceptical of the claimant’s contention that the impact forward caused him to strike his right knee on the dashboard and suggests the claimant had longstanding degenerative changes in the right knee as demonstrated on imaging.However, the claimant has consistently described an impact between his right knee and the dashboard.
The Panel finds, it is probable that on impact, Mr Ahmed jammed his foot harder on the brake and at the same time as impacting his knee on the dashboard, there would have been a slight twist or rotatory force impact onto the knee, causing a small radial tear, on the balance of probabilities, of the medial meniscus.
The Panel does not agree there was any delay in reporting symptoms relating to the right knee. Whilst the GP did not reference any complaints pertaining to the right knee when he assessed the claimant following the accident, he did report right knee pain on 23 June 2021, some six days after the accident. The claimant underwent an X-ray of the right knee on 25 June 2021 and an MRI on 2 July 2021 when the radial tear of the medial meniscus was demonstrated.
It is accepted that the claimant did have pre-existing significant chondral changes between the trochlear and the lateral patella facet, which whilst asymptomatic before the accident, were aggravated by the accident impact noting both Medical Assessor Berry and Dr James Powell confirmed retropatellar crepitus. This has been exacerbated and/or aggravated by the accident due to the direct blow to the right knee when it hit the dashboard.
Where a causal connection is possible, but scientific certainty is not required, the Panel is satisfied, on the balance of probabilities, that the accident did cause or contribute to the internal derangement of the knee, namely, the radial tear of the medial meniscus.
Having determined the injury to the right knee was causally related to the accident the parties agree that the radial tear of the medial meniscus is not a threshold injury.
Injury to the right foot and injury to the left foot
It is not clear whether Mr Ahmed sustained any injury to either foot, where the only available evidence is the reference to foot pain in the Application for personal injury benefits. No mention is made in the notes of the GP in respect of either foot and neither Dr Powell nor Medical Assessor Berry obtained a history of injury to either foot caused by the accident.
However, if it is accepted based on the claimant’s self-report in the Application for personal injury benefits that Mr Ahmed did sustain foot pain caused by the accident there does not seem to be any dispute that injury to either foot, if sustained, was a soft tissue injury and has resolved. A soft tissue injury would be a threshold injury.
Injury to the lumbar spine
The Panel finds the claimant sustained an injury to the lumbar spine caused by the accident having regard to the evidence contained in the Application for personal injury benefits, his statement dated 7 September 2022, his complaints to Dr Bumanglag on 17 June 2021 and 23 June 2021 and the report of Mr Lau, physiotherapist. Whilst
Dr Powell concluded no physical injury had been identified or any structural musculoskeletal injury sustained, he reported following the accident Mr Ahmed developed thoracolumbar back pain with radiation to the right lower limb which had persisted.Dr Powell and Medical Assessor Berry agreed the claimant had sustained a soft tissue injury to the lumbar spine caused by the accident with no evidence of radiculopathy. In the absence of two or more signs of radiculopathy an injury to the spine is considered a soft tissue injury and, by definition, a threshold injury in accordance with s 1.6 of the MAI Act.
CONCLUSION
The Panel finds the following injuries were caused by the accident:
· injury to left foot – soft tissue injury (now resolved);
· injury to right foot – soft tissue injury (now resolved);
· injury to the lumbar spine – soft tissue injury, and
· injury to the right knee – radial tear of the medial meniscus.
The Panel finds the following are threshold injuries:
· injury to left foot – soft tissue injury (now resolved);
· injury to right foot – soft tissue injury (now resolved), and
· injury to the lumbar spine – soft tissue injury.
The following injury is not a threshold injury:
· injury to the right knee – radial tear of the medial meniscus.
The Panel affirms the certificate of Medical Assessor Berry dated 6 July 2022.
4
7
0