Al-Abbasi v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Al-Abbasi v AAI Limited t/as GIO [2023] NSWPICMP 127
CLAIMANT:	Salma Al-Abbasi
INSURER:	AAI Limited trading as GIO
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	4 April 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act2017; the claimant suffered injury in July 2019 when insured vehicle failed to give way on roundabout; the dispute related to whether the injury was a threshold injury; claimant suffered a fractured toe in March 2020 said to have been caused by the motor accident; directions issued to parties to clarify issues and whether matter could be assessed on the papers; motor accident was of low impact; no immediate complaint of left knee symptoms; examination of left knee two weeks after motor accident showed good range of motion and a clinically stable knee; no pathology caused by motor accident; no medical reasons; claimant’s assertion of why toe fractured inconsistent with contemporaneous hospital note which indicated that the claimant struck her toe against concrete; other injuries suffered in the motor accident held to be threshold injuries; Held – claimant suffered threshold injuries; original Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act *2017* The Review Panel confirms the certificate dated 4 September 2022 and certifies that the injuries caused by the motor accident are threshold injuries for the purposes of the Motor Accident Injuries Act 2017.

REASONS

BACKGROUND

Ms Salma Al-Abbasi (the claimant) suffered injury in a motor accident on 11 July 2019 when the insured’s vehicle failed to give way to the claimant’s vehicle on a roundabout striking the front left hand side door (the motor accident). In the claim form. Ms Al-Abbasi alleges that the motor accident caused injuries to the neck, lower back, both shoulders, chest, ribs, left hip and left knee.[1]
[1] Claimant’s bundle, p 9.
The claimant sustained a fractured toe in March 2020. An issue for determination is whether that injury resulted from the motor accident.
The insurer is liable to pay to Ms Al-Abbasi any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether Ms Al-Abbasi’s physical injury is classified as a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 4 September 2022. Medical Assessor Cameron concluded that Ms Al-Abbasi sustained soft tissue injuries to the cervical spine, thoracic spine and both shoulders which are minor injuries for the purposes of the MAI Act.[3] He otherwise concluded that the injuries to the knees, head and subsequent injury to the left foot were not caused by the motor accident.
[3] When the original Medical Assessment was issued, a threshold injury was known as a minor injury.
Whether a person has only suffered threshold injuries caused by a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks[4] if “the person’s only injuries resulting from the motor accident were threshold injuries”[5]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[6]
[4] 52 weeks if the motor accident occurred on or after 1 April 2023.
[5] Sections 3.11 and 3.28 of the MAI Act.
[6] Section 4.4 of the MAI Act.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by Ms Al-Abbasi within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[7]
[7] Section 7.26(5) of the MAI Act.
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 review provisions provide[8] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[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 of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[11]
[11] Section 7.26(6) of the MAI Act.
The parties filed comprehensive bundles of documents for the Panel’s consideration.
The Panel issued a further Direction dated 10 March 2023 in the following terms:
“The Panel advises that it has the following materials in relation to the application to review pf the Medical Certificate dated 4 September 2022:
A.   Claimant’s bundle – 2048 pages;
B.   Insurer’s bundle – 244 pages;
C.   Insurer’s further bundle – 954 pages.
Given the extensive documentation before it and the absence of submissions referring to specific documents, the Panel advises that it does not intend to go searching for references within documents where the submissions do not specifically address the materials. In this respect the parties are referred to the observations of the High Court in Gamestar Pty Ltd v Lockhart[12]where it was observed that a Court is not required to ‘search for supportive evidence’ in support of a claim or a defence.
We also note that the recent comments by Bellew J in Bevan v Bingham [2023] NSWSC 19 concerning the obligation of legal practitioners to place only the necessary evidence before the decision maker.
The Panel has read the parties’ submissions which refer to a limited number of documents.
Despite the insurer purporting to reserve its right to file further material, given the voluminous material before it, the insurer is on notice that it is not to file any further material unless express leave is granted. In that respect, any application to file further material will be decided at a telephone conference listed before the Principal Member.
In terms of limiting the issues before the Panel, we note the claimant’s submissions on review are limited to whether the fracture of the fifth metatarsal is alleged to be caused by any left knee injury sustained in the motor accident.
In respect of this issue, the Panel refers the parties to the history recorded at hospital on 9 March 2021 (claimant’s bundle, p 1040):
[12] [1993] HCA 79; (1993) 112 ALR 623 (Gamestar).
‘PC: Lt foot pain since Friday post trauma
HPC:
Tripped accidentally on Friday and hit Lt foot against a concrete >> sustained pain and swelling to outer Lt foot”
We also note the material recently filed in relation to the 1 April 2022 motor accident which includes:
-Claim form completed by claimant stating that the only prior injury was the left knee condition (Insurer’s further bundle, p 1071); and
-Statement recorded by Johan Watson, occupational therapist, in July 2022 that the left knee condition for the 2019 motor accident had ceased after 12 physiotherapy sessions (Insurer’s further bundle, p 1083).

The Panel issues the following directions:
1.The claimant is to particularise what injuries are alleged to be non-minor injuries by close of business, 22 March 2023. The claimant has leave to make any further submissions on any of the matters raised above including any evidential statement by the claimant addressing these matters.
2.If the claimant restricts the non-minor injury to the fracture of the left fifth metatarsal, the Panel is of the view that the issue of causation can be determined on the papers subject to the claimant being heard on the matters raised by the Panel as set out above.
3.The insurer has leave to respond by close of business, 29 March 2023.
4.The Panel will then determine whether any medical examination is necessary.
5.The parties have liberty to list the matter for telephone conference before myself in respect of any matter arising from this report and directions.”

The claimant responded to this direction in the following terms:
“The Claimant submits and refers the PIC to the submissions included in the claimant’s application. In particular, we refer you to paragraph 9 and 10 which details the basis of our application, stating ‘fracture to the left 5th metatarsal’. This is also recanvassed in paragraphs 30 and 31 under heading Summary of the submissions.”
Upon receiving the claimant’s submission, the Panel advised the insurer that we required no submission in response.

STATUTORY PROVISIONS

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.”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[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 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)” and an acute stress disorder and an adjustment disorder.
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 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 minor 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 minor 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.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“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.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[13]
[13] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[14]
[14] See s 3B(2) of the Civil Liability Act 2002.

Amendment to legislation

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 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.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.

SUBMISSIONS

Claimant’s submissions dated 4 September 2020[15]

[15] Claimant’s bundle, p 1.

The claimant submitted that she sustained upper limb weakness and referred pain from the neck into the arms which was two signs of radiculopathy within the meaning of cl 5.8 of the Guidelines.

Claimant’s submissions dated 24 October 2022[16]

[16] Claimant’s bundle, p 4.

These submissions were filed seeking leave to review the certificate. The claimant submitted that the left knee injury from the motor accident caused instability leading to a fall and a fracture of the fifth metatarsal.
The claimant referred to the clinical notes of Dr Reitz dated 15 November 2019 and
25 July 2022 which refer to the left knee injury arising “following the accident”. Further,
Dr Dryson in a report dated 31 July 2022, refers to the MRI scan dated 25 July 2019 which showed fluid in the posterolateral corner suggesting tendon sprain. The doctor opined that the claimant fell due to left knee impairment and dizziness caused by the motor accident.

Insurer’s submissions dated 2 February 2021[17]

[17] Insurer’s bundle, p 1.

The insurer referred to the ambulance report noting that the claimant was alert and orientated and scored 15/15 on the Glasgow Coma Scale. Hospital notes recorded headaches with normal neurological signs. CT scan of the brain was unremarkable.
The ambulance report noted neck tenderness. At hospital there was no neurological signs, and the CT scan showed no fractures. A bone scan and whole spine MRI scan showed degenerative changes. A further MRI scan of the cervical spine showed degenerative changes. Dr Anthony Smith opined that upper limb weakness was manufactured.
There was no complaint of lumbar pain recorded at hospital. Subsequent MRI scan showed degenerative changes. Dr Smith diagnosed possible aggravation of pre-existing arthritis and did not recommend further treatment.
The thoracic spine was not the subject of diagnosis by the general practitioner, or the physiotherapist and the MRI scan of the thoracic spine was unremarkable.
Further, the general practitioner, physiotherapist and neurosurgeon did not identify two signs of radiculopathy.
The claimant mentioned the left shoulder at hospital and an X-ray at that time showed no pathology. The general practitioner diagnosed bilateral shoulder strain. The physiotherapist did not diagnose or provide treatment for a shoulder injury.
The insurer submitted that the low-speed nature of the motor accident did not cause any aggravation of pre-existing shoulder pathology.
With respect to the knees, the insurer submitted that the knees were not mentioned to the ambulance officer or at hospital. The general practitioner diagnosed an aggravation of a right knee injury and subsequently referred the claimant for MRI scans of both knees.
Dr Smith diagnosed that the pathology shown in the scans were pre-existing and diagnosed that the motor accident caused an aggravation of pre-existing osteoarthritis which resolved within a short period.
The insurer submitted that the fracture of the fifth metatarsal occurred in March 2020 and was unrelated to the injury. It probably gave way due to longstanding degenerative changes unrelated to the motor accident.

Insurer’s submissions undated[18]

[18] Insurer’s bundle, p 6.

These submissions opposed the application to review the medical assessment.
The insurer referred to records in July 2013 (general practitioner’s consultation and bone scan noting various physical symptoms including to the left knee). It submitted that the left knee was not mentioned at hospital nor in Dr Elhafi’s clinical records although other documents prepared by Dr Elhafi referred to it.
The insurer noted the left knee was mentioned to Dr Reitz on 25 July 2019 where a good range of movement and stability was noted.
Dr Smith opined that the pathology in the MRI scans predated the motor accident and any aggravation caused by the motor accident resolved within a short period. It submitted that the left knee giving way was unrelated to the motor accident and due to longstanding degenerative changes.

Insurer’s further submissions undated[19]

[19] Insurer’s bundle, p 11.

These submissions noted numerous documents which had been received since the insurer had filed its reply to the review application.

The insurer noted that the claimant suffered injuries in a subsequent motor accident on
1 April 2022 which was described as a T-bone collision (the subsequent motor accident). The claimant then alleged injuries to numerous parts of the body including a fracture of right fibular.
The insurer referenced the history recorded by Mr Watson, occupational therapist, that the claimant was involved in a previous motor accident in 2019 causing left knee injury where “Ms Al-Abbasi reported that she recovered after approximately 12 physiotherapy sessions and returned to pre-MVA functional levels at the completion of treatment”.
The insurer noted that the subsequent motor accident was not referenced in the certificate issued by Medical Assessor Cameron.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

In July 2017 the general practitioner noted lower back pain radiating to both lower limbs.[20] In May 2019 the doctor noted sciatica with gluteal pain and radiation to the thigh.[21]
[20] Claimant’s bundle, p 444.
[21] Claimant’s bundle, p 473.
On 3 June 2019 the general practitioner noted the claimant was limping with diffuse tenderness and limited range of motion in the right knee.[22]
[22] Claimant’s bundle, p 474.
The claimant attended on Dr Christopher Reitz, orthopaedic surgeon, on the day of and immediately prior to the motor accident for right knee pain.[23] The doctor noted excellent range of motion, small effusion, tenderness over the medial joint line and medial meniscal test was positive. The doctor diagnosed osteoarthritis in the right knee with possible underlying meniscal tear and referred the claimant for an MRI scan.
[23] Claimant’s bundle, p 341.

Contemporaneous evidence

The ambulance record for the motor accident is in the following terms:[24]
“2 car mva, low speed, minimal impact to exterior and interior of car. Nil airbag deployed… O/A pt sitting in car. Solo driver in car on driver’s seat with NSWPF & FBNSW. Pt states she hit head head?, unable to recall event. ? LOC. Pt c/o generalised L) sided pain … C spine pain.”
[24] Insurer’s bundle, p 83.
The ambulance noted a Glasgow Coma Score of 15/15 and nil neurological deficit.
The hospital emergency discharge report dated 11 July 2019 noted minimal car damage with complaints of headache, neck pain, left shoulder and hip pain.[25] X-rays of the left shoulder, chest, sternum, left hip were reported as normal. CT scan of the skull and cervical spine did not show any acute intracranial haemorrhage or fracture.[26]
[25] Insurer’s bundle, p 122.
[26] Insurer’s bundle, p 124, claimant’s bundle, p 1772.
A CT scan of the brain dated 16 July 2019 showed mild age appropriate atrophic changes.[27]
[27] Claimant’s bundle, p 139.
An MRI scan of the right knee dated 12 July 2019 showed a tear of the posterior horn extending to the body of the medial meniscus and a tear of the anterior horn of the lateral meniscus. There was also mild osteoarthritic change with partial thickness cartilage loss.[28]
[28] Claimant’s bundle, p 138.
On 16 July 2019 the general practitioner referred to the motor accident and noted symptoms of headache, neck pain, left shoulder and hip pain, lower back pain and aggravation of right knee pain.[29] The symptoms were confirmed in further attendances on 17 July 2019 and 20 July 2019.[30]
[29] Claimant’s bundle, p 479.
[30] Claimant’s bundle, p 480, p 481.
The whole-body scan dated 18 July 2019 showed no recent fracture. Mild bursitis is shown in the right trochanteric region, degenerative disease in the cervical spine and mild arthritis in the right knee.[31]
[31] Claimant’s bundle, p 146.
The certificate of capacity dated 20 July 2019 referred to injuries to the neck, shoulders, ribs, head, aggravation of right knee injury and anxiety.[32]
[32] Claimant’s bundle, p 14.
On 25 July 2019 Dr Christopher Reitz noted increasing pain in both knees since the motor accident with left knee pain since the motor accident.[33] The left knee had good range of motion with no effusion and was clinically stable.[34] The doctor also noted the claimant developed neck and back pain following the motor accident. On examination there was good power in all myotomes with normal reflexes and sensation.
[33] Claimant’s bundle, p 339.
[34] Claimant’s bundle, p 339.
In September 2019 the doctor opined that the medial meniscal tear in the left knee originates from the motor accident.[35]
[35] Claimant’s bundle, p 336.
An MRI scan of the left knee dated 25 July 2019 showed:[36]
·complex tear of the posterior horn of the medial meniscus;
·narrow marrow oedema suggesting degenerative changes, and
·small amount of free fluid posterior inferior to the posterolateral corner structures.
[36] Claimant’s bundle, p 132.
An MRI scan dated 25 July 2019 showed multi-level degenerative changes in the cervical and lumbar spine[37] with no evidence of ligamentous injury.
[37] Claimant’s bundle, p 136.
The certificate of capacity dated 9 September 2019 refers to injuries to the head, neck, left shoulder, low back, left hip, aggravation of right knee injury and aggravation of psychiatric symptoms.[38] A certificiate of capacity dated 10 December 2019 referred to bilateral shoulder strain, knees strain and neck and back strain.[39] The diagnosis is repeated in subsequent certificates.[40]
[38] Claimant’s bundle, p 17.
[39] Insurer’s bundle, p 37.
[40] Insurer’s bundle, p 40.
An Allied health recovery request dated 26 September 2019 diagnosed Grade III cervical and lumbar whiplash.[41] The further request dated 28 October 2019 referred to bilateral knee pain.[42]
[41] Insurer’s bundle, p 14.
[42] Insurer’s bundle, p 27.
In a short report dated 28 February 2020 the general practitioner recommended pain management, physiotherapy and multidisciplinary team assessment.[43]
[43] Insurer’s bundle, p 64.

Medical evidence

Dr Darweesh Al-Khawaja, neurosurgeon, provided a report dated 1 November 2019.[44] The doctor noted severe limitation of neck and lumbar spine movements without “typical radiculopathy”. The doctor referred the claimant for scans to ascertain whether there was any neurosurgical pathology.
[44] Claimant’s bundle, p 116.
In a further report dated 9 December 2019, Dr Al-Khawaja noted that micro injuries will not be seen on MRI scans but still cause agonising pain.[45]
[45] Claimant’s bundle, p 114.
In December 2019, Dr Faiz Noore, pain specialist, noted the claimant presented with widespread chronic pain, displayed many pain related yellow flags and presented with high levels of functional impairment.[46]
[46] Claimant’s bundle, p 148.
Left knee arthroscopy was performed on 2 January 2021.

Statements

The claimant provided a statement to an investigator dated 4 November 2019.[47] The claimant said she was driving slowly on the roundabout wearing a seatbelt when the “impact occurred all of a sudden from nowhere”. Ms Al-Abbasi described the effect of the impact from the motor accident as follows:
“I felt my body get thrown around in the car. My head and right shoulder hit the right side door pillar area of my car. I felt big whiplash in my neck which caused pain between both shoulders and my back when the car slammed back down. I felt my lumbar spine and my hips get jolted and injured. I felt my knees hitting on both sides of the car.”
[47] Claimant’s bundle, p 69.
The claimant stated that her general health before the accident was good with some “mild pain in my right knee”.
The claimant provided a statement dated 11 March 2021 which described the accident consistent with the account provided in the claim form.[48] The claimant asserted that she suffered a variety of injuries in the motor accident including a brain injury, disc bulging in the cervical and thoracic spine, right shoulder tear, left shoulder pathology, right and left knee tears, various soft tissue injuries and a fracture of the fifth metatarsal.
[48] Claimant’s bundle, p 57.
The claimant described the radiology and treatment in some detail. In relation to the fall causing the fracture of the fifth metatarsal, the claimant stated:[49]
“Following the subject accident, my left knee would often lock, with sharp pain, and cause me to fall over. On 5 March 2020 my knee locked, and I fell over. I attended upon Dr Reitz on 20 March 2020 for this injury and was referred to an MRI of my left ankle. From this, it was identified that I had a fracture in my 5th metatarsal on my left foot. I was referred for an open reduction internal fixation for this fracture.”
[49] Claimant’s bundle, p 62.
The claimant stated that she attended Dr Reitz prior to the motor accident for right knee pain and was referred for an MRI scan. The claimant stated that her right knee pain has substantially increased since the motor accident.

Claim form

The claim form completed by the claimant noted prior conditions to the back and right shoulder.[50]
[50] Claimant’s bundle, p 11.

Qualified doctors

Dr Evan Dryson, physician was qualified by the claimant and provided a report dated
[51] Claimant’s bundle, p 89.
30 June 2021.[51] The doctor diagnosed aggravation of cervical and lumbar spondylosis, soft tissue injury to the thoracic spine, aggravation of osteoarthrosis in both knees, bilateral aggravation of rotator cuff pathology and a fracture of the fifth metatarsal.
The doctor opined that the shoulder symptoms were due to prolonged use of crutches. The fracture of the fifth metatarsal was due to the left knee impairment and “dizziness associated with the head injury”.
Dr Dryson opined that there was pre-existing osteoarthrosis in both knees, pre-existing cervical and lumbar spondylosis, and pre-existing rotator cuff pathology.
In a further report, Dr Dryson opined that the only non-minor injury was the fracture to the fifth metatarsal. All other pathologies were pre-existing including the posterior horn of the medical meniscus which was “degenerative in nature”.[52]
[52] Claimant’s bundle, p 101.
Dr Anthony Smith, orthopaedic surgeon was qualified by the insurer and provided a report dated 21 November 2019.[53] The doctor noted the claimant complaining of ongoing neck, low back, bilateral shoulder and bilateral knee pain.
[53] Insurer’s bundle, p 32.
The doctor opined that any aggravation to the body parts, all of which had pre-existing degenerative changes, would have been of short duration.

Fall in March 2020

The emergency department hospital notes on 9 March 2020 recorded the fall in the following terms:[54]
“PC: Lt foot pain since Friday post trauma
HPC:
Tripped accidentally on Friday and hit Lt foot against a concrete >> sustained pain and swelling to outer Lt foot”
[54] Claimant’s bundle, p 1040.
The clinical note of the general practitioner dated 12 March 2020 recorded that the claimant had suffered from previous falls at home and the “L knee gave way last week fell down”.[55]
[55] Claimant’s bundle, p 519.
In a report dated 20 March 2020, Dr Reitz recorded the following history:[56]
“She twisted her left ankle 11 days ago and suffered a 5^th metatarsal base fracture after a fall. Her left knee was hurting at the time and she felt sudden pain, lost her balance and subsequently twisted her left ankle.”
[56] Claimant’s bundle, p 222.
A CT scan of the left foot dated 15 April 2020 showed a fracture at the base of the left fifth metatarsal.[57] An MRI scan confirmed the fracture.[58]
[57] Claimant’s bundle, p 128.
[58] Claimant’s bundle, p 134.
A certificate of capacity dated 10 June 2020 referred to the fifth metatarsal fracture as caused by the motor accident.[59]
[59] Claimant’s bundle, p 23.
There was non-union of the fracture resulting in operative fixation and bone graft in
[60] Claimant’s bundle, p 358.
July 2020.[60]

Motor accident – 1 April 2022

The claim form referred to T-bone accident on 1 April 2022 when the claimant suffered a number of injuries including a fracture of the right fibular, temporary loss of consciousness, neck, right shoulder and right hip pain.[61]
[61] Insurer’s further bundle, p 1071.
A report from Associate Professor Schwartz dated 20 July 2022[62] diagnosed post-traumatic headache syndrome in the context of significant motor vehicle accident on 1 April 2022. The claimant was then walking with a frame and an antalgic gait. The only pre-existing injury noted was a “left knee meniscus tear requiring surgery”.[63]
[62] Insurer’s bundle, p 113.
[63] Insurer’s further bundle, p 1073.
A report from Johan Watson, occupational therapist, dated 18 July 2022[64] recorded that there was:
“Previous MVA in 2019 causing left knee injury. Ms Al Abbasi reported that she recovered after approximately 12 physiotherapy sessions and returned to pre-MVA functional levels at completion of treatment.”
[64] Insurer’s further bundle, p 1083.
The report otherwise noted that Ms Al-Abbasi “reported that she was completing all domestic ADLs pre MVA including vacuuming, mopping, dusting, wiping services, laundry activities, bed making and general cleaning of home”.[65] The reference in this passage is to the situation prior to the 2022 motor accident.

FINDINGS
[65] Insurer’s further bundle, p 1099.

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor (now threshold or not threshold) as defined under the MAI Act.
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[66] and Insurance Australia Ltd v Marsh.[67]
[66] [2021] NSWCA 287 at [40], [41] and [45].
[67] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[68] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[68] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[69] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[69] [2022] NSWPICMP 6 at [44]-[62].
The Panel determined that Ms Al-Abbasi did not need to be re-examined. The matter was raised with the parties. The claimant’s response to our direction is set out earlier in these Reasons.
The claimant’s submissions, as does her medical evidence, shows that the only injury that could be classified as non-minor (now non-threshold) is the fractured fifth metatarsal. That determination can be made on the papers as it is essentially a matter of causation. Matters of history relevant to that issue were raised with the claimant in the recent direction and we invited a response.
We agree with the claimant’s submission that a fracture is not a threshold injury if it was caused by the motor accident. However, for the following reasons we are not satisfied that the motor accident caused a left knee injury which caused it to collapse resulting in a fractured toe.
We agree with the insurer’s submission that the motor accident was low impact. Our conclusion is based on the ambulance note and hospital note. It is difficult to understand and otherwise implausible to accept the claimant’s version that she was thrown around the car whilst restrained by a seatbelt in a minor impact. It is otherwise difficult to understand and medically implausible how there was any significant left knee injury from a low impact motor accident.
There is an absence of complaint of left knee injury recorded by the ambulance personnel or at hospital. The absence of record is relevant but not determinative of the question of causation: AAI Ltd v McGiffen.[70] It is relevant to our conclusion that, whilst there may have been a mild impact on the left knee during the accident, there was no adverse pathology to the joint caused by the impact.
[70] [2016] NSWCA 229 at [64]-[66].
That conclusion is consistent with the clinical examination by the knee specialist two weeks after the motor accident. Dr Reitz noted left knee pain but otherwise found a good range of motion with no effusion and the left knee was clinically stable. Whilst the claimant may have suffered some pain from a mild impact to the left knee, any adverse pathology is inconsistent with this normal clinical examination by a treating knee specialist at that time.
The pathology shown on the scans is suggestive of pre-existing pathology. Further, the claimant referenced the scan which showed fluid on the knee and submitted that this was caused by the motor accident. The presence of fluid shown in the scans does not necessarily suggest recent trauma and is also explicable based on longstanding degenerative changes.
The Panel, using its medical expertise, does not accept that a mild impact in the motor accident would cause the left knee to collapse in March 2020.
Independently, we have difficulty accepting the claimant’s version that the knee collapsed causing the toe fracture in March 2020. This conclusion is based on the contemporaneous note at hospital and the claimant’s version to Mr Watson that there was a recovery of the left knee after 12 physiotherapy sessions.
These matters were brought to the claimant’s attention in our recent direction. There was no proper response or explanation by the claimant to these inconsistencies.
The insurer referenced the history recorded by Mr Watson. That history was that the claimant was involved in a previous motor accident in 2019 causing left knee injury where “Ms Al-Abbasi reported that she recovered after approximately 12 physiotherapy sessions and returned to pre-MVA functional levels at the completion of treatment”.
If the history is correct, then there is no possibility of any causal link between the motor accident and the fall.
No submission was made that the history is wrongly recorded. Assuming there was error in recording, the contemporaneous hospital notes taken immediately after the fracture does not support the claimant’s case on causation. That history, set out earlier in these reasons,[71] explains the fracture was caused by the foot striking concrete. That note explaining the mechanism of the injury is entirely consistent with a fractured toe.
[71] See [88] herein.
Given that this history is inconsistent with the version provided by claimant in subsequent histories such as her statement, the relevance and importance of a contemporaneous account has more weight. The fallibility of human recollection and the importance of contemporaneous records are referenced in numerous cases including Coote v Kelly,[72] Onassis v Vergottis,[73] Gestmin SGPS S.A. v Credit Suisse (UK) Limited,[74] Campbell v Campbell[75] and Watson v Foxman.[76]
[72] [2016] NSWSC 1447.
[73] [1968] 2 Li Rep 403 at 431.
[74] [2013] EWHC 3560 (Comm) at [15]-[22].
[75] [2015] NSWSC 784 at [73]-[76].
[76] (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq.
We otherwise note that Dr Dryson referred to dizziness as a cause for the fall. This explanation is not mentioned by the claimant in her statement, or the version recorded by the general practitioner. We do not accept that dizziness is related to the motor accident or an explanation for why the claimant fractured her toe.
For these reasons we are not satisfied that the fractured toe was caused by the motor accident.

Cervical spine and back injury

The claimant did not appear to suggest that the other injuries were non threshold injuries. For completeness, noting the absence of medical evidence suggesting they were, we provide some brief reasons.
We agree with the insurer’s submissions that there is an absence of evidence establishing that there was any non-threshold injury to the back or neck.
We agree with the reasons of the Medical Assessor were minor (threshold) injuries.
There is otherwise no evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage caused by the motor accident
There is no evidence of radiculopathy as defined in cl 5.8 in either the clinical notes or on the examination recorded by the original Medical Assessor. Referred pain into the arm is not a sign of radiculopathy within the meaning of cl 5.8. The claimant otherwise referred to general references of weakness and/or sensory loss. None of the clinical notes related these symptoms to a specific dermatome from the cervical and/or lumbar spine.

Shoulders

There may have been a minor soft tissue strain to the shoulders caused by the motor accident. The mechanism of injury to the shoulders is unclear from the nature of a low-speed impact.
The general practitioner diagnosed bilateral shoulder strain. The physiotherapist did not diagnose or provide treatment for a shoulder injury.
We agree with the insurer’s submission that the low-speed nature impact did not cause any aggravation of pre-existing shoulder pathology. That conclusion is consistent with the medical evidence in the matter which does not suggest otherwise.
For these reasons we accept that any bilateral shoulder injury fell within the meaning of a threshold injury.

HEAD INJURY

There is no basis to conclude that the claimant suffered a head injury in the motor accident. The ambulance report noted that Ms Al-Abbasi was alert and orientated and scored 15/15 on the Glasgow Coma Scale. Hospital notes recorded headaches with normal neurological signs. CT scan of the brain was unremarkable.
The nature of a minor accident otherwise does not explain any basis for an impact into the head. The fact that Ms Al-Abbasi complained of headaches following the collision is probably due to stress following the event and/or due to the neck pain from a whiplash injury.

CONCLUSION

For these reasons the Panel concludes that the certificate issued by Medical Assessor Cameron is confirmed. A new certificate is attached at the commencement of these Reasons which is slightly amended by using the term threshold injury as opposed to minor injury.

[2023] NSWPICMP 127

4 April 2023