Allianz Australia Insurance Limited v Crittenden

[2025] NSWPICMP 93

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v Crittenden [2025] NSWPICMP 93

CLAIMANT:

Scott Crittenden

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Terence Stern OAM

MEDICAL ASSESSOR:

Clive Kenna

MEDICAL ASSESSOR:

Mohammed Assem

DATE OF DECISION:

18 February 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant injured in a motor vehicle accident on 2 June 2018; on 19 March 2024 the Medical Assessor determined the injuries to the right shoulder, cervical spine, and lumbar spine suffered by the claimant in the accident were threshold injuries and the injury to the left knee was not a threshold injury; the Review Panel conducted its own examination; Held – the Review Panel confirmed the injuries to the right shoulder, cervical spine, and lumbar spine were caused by the accident and were threshold injuries; the injury to the left knee was not caused by the accident; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

1.     The Review Panel confirms the determination of Medical Assessor Hyde Page of 19 March 2024 that the following injuries caused by the accident were all threshold injuries for the purposes of the act: -

·        right shoulder – soft tissue injury;

·        cervical spine – soft tissue injury, and

·        lumbar spine – soft tissue injury.

2.     The Review Panel revokes the determination of Medical Assessor Hyde Page in respect of the left-knee and determines that the FLAP tear of the left medial meniscus was not caused by the accident and it therefore does not arise for the Panel to determine whether or not it was a threshold injury.

STATEMENT OF REASONS

INTRODUCTION

1. The claimant, Scott Crittenden (Mr Crittenden) was involved in a motor vehicle accident on 2 June 2018 in which he stated that he sustained injury to his cervical spine, his lumbar spine, his right hand, left shoulder, and to his left knee.

2. Mr Crittenden was at the time of the accident 42 years of age and is now 48.

3. A medical dispute has arisen about whether Mr Crittenden’s injuries were threshold injuries, and this dispute was referred to the Personal Injury Commission (the Commission) for assessment.

4. This dispute was assessed by Medical Assessor Murray Hyde Page on 7 March 2024. The Medical Assessor certified on 19 March 2024 that the injuries to the right shoulder, cervical spine and lumbar spine were soft tissue injuries and were a Threshold Injury for the purposes of the Motor Accident Injuries Act 2017 (the MAI Act) considered. Medical Assessor Hyde Page also certified that the injury to the left knee, a FLAP tear of the medial meniscus was not a threshold injury for the purposes of the Act.

5. Finally, Medical Assessor Hyde Page certified that the injury to the left knee nerve pain was not caused by the accident, and it was not necessary to determine whether or not it was threshold.

6. The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.

7. On 5 July 2024, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On 12 September 2024, the delegate convened this Review Panel (the Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

1. Mr Crittenden’s claim is governed by the provisions of the of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.

2. While almost all injured persons are entitled to some 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 and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages.

Threshold injury

1. A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI 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." (emphasis added)

Method of assessment

1. Part 5 of the Motor Accident Guidelines 9.2 (the Guidelines) contain the procedure for assessing whether an injury resulting from the motor accident is a "threshold injury" for the purposes of the MAI Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:

   "5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.

   5.4   Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.

   5.5   A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

   5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

   ·a comprehensive accurate history, including pre-accident history and pre-existing conditions

   ·a review of all relevant records available at the assessment

   ·a comprehensive description of the injured person's current symptoms

   ·a careful and thorough physical and/or psychological examination

   ·diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

2. Clause 5.4 suggests that the method of assessment set out above appears to be directed to the insurer and the medico-legal or other experts retained by the insurer.

3. There are no other provisions with respect to the assessment of threshold injuries by claimants, their medio-legal experts or Medical Assessors. The Panel is proceeding on the basis that the provisions in Part 5 apply in this Review.

Dispute resolution

1. If there is a dispute about whether an injured person's injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.

2. Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Home's, further medical assessments and the Review of medical assessments by this Panel.

3. Applications for review of a medical assessment under s 7.26 are made to the President of the Commission on grounds that the assessment "was incorrect in a material respect" (s7.26(1)). If the President, or his delegate is satisfied "there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect" then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).

4. The review is not necessarily confined to the issues raised in the application (or the reply) but is "a new assessment of all the matters with which the medical assessment is concerned" (s 7.26(3A)).

5. Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings, and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Hyde Page examined Mr Crittenden on 7 March 2024 and issued his certificate on 19 March 2024.

2. He confirms that he was asked to assess injuries to Mr Crittenden’s left knee, left leg, right shoulder, lumbar spine, and cervical spine.

3. Medical Assessor Hyde Page summarises the submissions made by Mr Crittenden at [3] and by the insurer at [4].

4. The Medical Assessor noted that he had considered the documents provided in the Application and Reply [5] and additional late documents [6] containing the insurer’s reply documents.

5. Medical Assessor Hyde Page then notes the history he took at [8] and in particular Mr Crittenden’s statement that prior to the accident he was a healthy man with no significant musculoskeletal complaints. He noted that Mr Crittenden told him that he had worked as a rubber liner doing moderate to heavy manual work for many years.

6. Medical Assessor Hyde Page then [9] sets out very briefly the history of the accident and at [10] the subsequent history of symptoms and treatment and in particular that when Mr Crittenden woke up the next morning, he had generalised pain and stiffness and was driven to the Emergency Department at John Hunter Hospital. The contents of the Emergency Department discharge summary were noted.

7. On X-ray of the right elbow, there were no fractures. He was given medication orally and told to rest and apply heat packs as well as topical ointments.

8. Medical Assessor Hyde Page referred to the notes of the general practitioner (GP), Dr Hussain.

9. Medical Assessor Hyde Page notes that Mr Crittenden was disappointed he was not investigated or treated and moved to a different GP in Karuah.

10. Medical Assessor Hyde Page performed a clinical examination [14]-[19] and the range of movement wherein the results of which are as noted.

11. Medical Assessor Hyde Page summarised the examination as [19] that Mr Crittenden had mild neck stiffness without any evidence of radiculopathy.

12. In the right shoulder, Mr Crittenden had discomfort with full elevation, but had full range of movement and there was no evidence of any muscle wasting or weakness or any evidence of any rotator cuff impingement or tendonitis.

13. In the lumbar spine, there was some stiffness and mild muscle guarding but there was no evidence of radiculopathy or radicular symptoms.

14. As to the left knee, on examination there was no suggestion of a meniscal tear.

15. Medical Assessor Hyde Page then at [21] and [22] reviewed the documentation and the diagnostic investigations.

16. At [23] under Diagnosis and reasons, Medical Assessor Hyde Page noted that the MRI scan of the left knee had shown a FLAP tear of the medial meniscus.

17. There was no evidence of left leg nerve pain.

18. Mr Crittenden had sustained soft tissue injuries to the right shoulder, an ultrasound in March 2019 having shown no tear of the rotator cuff.

19. Mr Crittenden had sustained a soft tissue injury to the lumbar spine. Mr Crittenden had already had an L4/5 disc protrusion, as noted on a CT scan in 2015.

20. In the cervical spine, Mr Crittenden had sustained a soft tissue injury and some aggravation of pre-existent degenerative changes.

MEDICAL EXAMINATION BY THE REVIEW PANEL

Medical Assessor Clive Kenna 12 December 2024

1. Medical Assessor Clive Kenna examined Mr Crittenden for the Panel on 12 December 2024 in which Mr Crittenden attended unaccompanied.

2. Findings on clinical examination including specific measurements of Range of Movement (ROM) (where applicable) of each of the injuries assessed.

3. Mr Crittenden presented as probably underweight for age and height, wearing a floral shirt, loose shorts, thongs and a Kel Nagle hat.

4. He was wearing a wrist brace on his right wrist. Medical Assessor Clive Kenna asked Mr Crittenden about the brace, and he said that he was wearing it because he had smashed his fist against a wall in an episode of anger.

5. Clinical examination was reasonably co-operative but had to be emphasised with regards to effort. He was 174cm in height and 66kg in weight.

Pre-accident medical history and relevant personal details

1. Mr Crittenden was a 48-year-old male, single, who lived in Forster. He was currently not working and had not worked for the last six years. He stated he was on Centrelink or at least a carer's pension for the last two years, but then indicated he was also on Newstart.

2. He stated he had not been involved in a motor vehicle accident previously, i.e. date of motor vehicle accident in question 2 June 2018, a period now of over six years ago, nor had he been involved in any motor vehicle accidents since.

3. With respect to his personal relationship status, he stated he was with Tracy for 10 years and they broke up this year in 2024.

4. With regards to previous employment, he acknowledged that he did a very arduous job for at least 10.5-11 years as a rubber liner. This was a physical job in which he was constantly kneeling and squatting, but denied he had any knee problems previously, prior to the motor vehicle accident.

5. Yet, he had previously had an MRI of the right knee on 4 December 2015 which had shown a medial meniscal tear.

6. Mr Crittenden confirmed that prior to the motor vehicle accident, he had no significant musculoskeletal complaints but worked as a rubber liner which he acknowledged was an arduous activity which he did for about 10-11 years. This involved working for coal mines on their machinery and coating the mining equipment. He denied that he sustained any injuries in relation to that type of employment.

7. He acknowledged he developed an abdominal hernia in 2008 for which he had surgery but denies any previous problems in relation to the right shoulder, lower back, cervical spine, left leg or left knee.

8. When asked about the nerve pain in the left leg, he stated that was related to bruising which had since fully resolved.

9. Post motor vehicle accident he had no operations or procedures, and he considered that his back was potentially the most problematic.

10. From the medical records, there was extensive history of depression (29 January 2018) and schizophrenia (15 March 2018), i.e. three months before the motor vehicle accident. There was evidence also of numerous psychiatric issues dating from 2014 up until just prior to the motor vehicle accident.

History of the motor accident: 2 August 2018

1. Mr Crittenden stated that he was the driver of a car in Newcastle in Raymond Terrace, when an oncoming car attempted to turn right across his line of travel and T-boned his vehicle on the driver's side. As a result, his vehicle was pushed sideways. He was wearing a seatbelt at the time. Airbags did not deploy. Police and ambulance attended but at the time he went home. He was picked up by a friend and the car was subsequently written off.

History of symptoms and treatment following the motor accident

1. Mr Crittenden woke up the next day and was very sore and then went to John Hunter Hospital Emergency Department. Noted complaints pertaining to the neck, back, right shoulder and right elbow. When asked about such, however, he stated he was sore from top to bottom.

2. There was an X-ray taken of the right elbow. This indicated no fractures.

3. He was prescribed oral medications and was discharged into the care of his GP, Dr Nael Hussain.

4. That initial assessment was on 4 June, some two days post motor vehicle accident.

5. In GP notes, it was commented upon that there was a complaint of low back pain from the motor vehicle accident and on a further review, there was also complaint as well pertaining to the right shoulder.

6. A diagnosis was made of whiplash injury to the cervical spine, and soft tissue injuries to the right shoulder, lower back and right elbow.

7. At that point in time, he did not undergo any further investigations, and no treatment was specifically given.

8. Much later he then attended another clinic in Karuah, Dr Dewamitta, in 2021. This was years after the motor vehicle accident per se. There he underwent a range of investigations but again had no active further treatment.

9. When he was seen by Medical Assessor Hyde Page in 2024, some six years accident, his complaints were:

   -      neck pain with stiffness and associated headaches, but no radiation away from the neck;

   -      ongoing right shoulder symptoms but he had been able to maintain a good range of movement, and

   -      lower back pain, there was a complaint of stiffness but no symptoms into either leg.

10. With regards to his left knee, he stated that he twisted the left knee at the time of the motor vehicle accident when his foot was on the clutch and the knee swelled up initially. This was also associated with also anterior left knee pain but there appears to be no early recording of left knee symptomatology.

Cervical spine (cervicothoracic)

1. No muscle guarding or muscle spasm present, full range of motion and no asymmetry present. No neurological deficit evident in either upper limb.

2. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

3. On formal examination of range of movement there was full range of movement as follows:

MOVEMENTS	RANGE EXHIBITED
Flexion	100% full
Extension	100% full
Rotation to the right	100% full
Rotation to the left	100% full
Lateral bending to the right	100% full
Lateral bending to the left	100% full

NEUROLOGICAL TESTS

Reflexes

REFLEX	LEFT	RIGHT
TRICEPS JERK	Normal	Normal
BICEPS JERK	Normal	Normal
BRACHIORADIALIS	Normal	Normal

Sensation: normal.

1. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.

Muscle wasting

LEFT (cm)	RIGHT (cm)
UPPER ARM	28	28
FOREARM	26	26

Muscle power

LEVEL	MOTOR POWER	LEFT	RIGHT
C4	5/5	NORMAL	NORMAL
C5	5/5	NORMAL	NORMAL
C6	5/5	NORMAL	NORMAL
C7	5/5	NORMAL	NORMAL
CB	5/5	NORMAL	NORMAL
T1	5/5	NORMAL	NORMAL

5 is active movement against gravity with full resistance;

4 is active movement against gravity with some resistance, and

3 is active movement against gravity only, without resistance.

Dural tension tests

TEST	RIGHT	LEFT
PASSIVE NECK FLEXION	Normal	Normal
BRACHIAL PLEXUS STRETCH	Normal	Normal

Lumbar spine (lumbosacral)

1. No muscle guarding or spasm present symmetrically reduced uniform range of motion (stiffness) but no asymmetry present.

2. No neurological deficit was founds in either lower limb.

3. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

MOVEMENTS	RANGE EXHIBITED
Flexion	10% restriction
Extension	10% restriction
Rotation to the right	10% restriction
Rotation to the left	10% restriction
Lateral bending to the right	10% restriction
Lateral bending to the left	10% restriction

NEUROLOGICAL TESTS

Reflexes

REFLEX	LEFT	RIGHT
KNEE JERK	Normal	Normal
ANKLE JERK	Normal	Normal

Dural tethering/irritability signs

LEFT	RIGHT
Sciatic nerve stretch (straight leg raise)	Negative	Negative
Femoral nerve stretch (prone knee bending)	Negative	Negative

Sensation: normal.

1. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.

Muscle wasting

LEFT (cm)	RIGHT (cm)
THIGH (measured 10cm above the superior pole of the patella)	39	39
CALF	34	34

Muscle power

LEVEL	MOTOR POWER	LEFT	RIGHT
L3	5/5	NORMAL	NORMAL
L4	5/5	NORMAL	NORMAL
L5	5/5	NORMAL	NORMAL
S1	5/5	NORMAL	NORMAL

5 is active movement against gravity with full resistance;

4 is active movement against gravity with some resistance, and

3 is active movement against gravity only, without resistance.

Muscle atrophy

THIGH	LEFT = RIGHT
CALF	LEFT = RIGHT

Dural tension tests

TEST	RIGHT	LEFT
PRONE KNEE BEND	Normal	Normal
STRAIGHT LEG RAISE	Normal	Normal
SLUMP	Normal	Normal

Upper extremity

Right shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	180°	Figure 38 (43)	180°	0
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	180°	Figure 41 (44)	180°	0
Internal Rotation	90°	Figure 44 (45)	90°	0
External Rotation	90°	Figure 44 (45)	90°	0
Total	0

Goniometer measured.

1. Inspection of the right shoulder was normal. Arc, resisted motions, and passive motions were pain free on the right. There was no abnormal tenderness. Impingement tests were negative.

Left shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	180°	Figure 38 (43)	180°	0
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	180°	Figure 41 (44)	180°	0
Internal Rotation	90°	Figure 44 (45)	90°	0
External Rotation	90°	Figure 44 (45)	90°	0
Total	0

Goniometer measured.

1. Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.

Lower extremity

1. On careful examination of the left knee, there was no alteration of gait. Mr Crittenden was able to walk on toes and heels. There was no effusion or swelling. Examination of the knee was as follows. Importantly, there was no evidence now of meniscal pathology and he acknowledged with regards to such, i.e. no muscle wasting, full range of movement, no instability, that there had been substantial improvement over time in relation to the left knee.

2. There was symmetry between right and left legs above and below the knee. Normal gait.

3. There was no use of a cane or brace and no redness, warmth, swelling, effusion or deformity. Measurement of the involved calf and thigh are symmetrical with the contralateral side.

4. Ligamentous and meniscal stress tests are normal and painless. The knee range is from Oto 125°.

5. Manual muscle testing shows normal strength in the extremity. Note that the knees have normal alignment.

6. No crepitus was found.

Left/Right Knee
Extension 0°	0
↓	↓
Flexion 135°	135°

Normal motion

Scars  Nil

Quadriceps Wasting  Nil

Swelling  Nil

Collateral Ligaments  Intact

Cruciate Ligaments  Intact

McMurray's Test  Normal

Patella-femoral joint  Normal

Lateral patellar tilt  Nil

Lateral drift (with quadriceps contraction)     Nil

Gait  Normal

Short leg  Nil

Atrophy  Negative

Weakness  Negative

Range of movement  Normal

Osteoarthritis  Nil

Amputation  Nil

Neurological deficit  Nil

Reflex sympathetic dystrophy  Nil

Vascular  Normal

Review of documentation by the review panel

1. Medical Assessor Clive Kenna noted Medical Assessor Murray Hyde Page's report of 19 March 2024. In relation to the left knee, it was recorded on page 6 that there was discomfort in the front of the knee, below the patella, but no patellofemoral crepitus or discomfort, no joint line tenderness and no medial joint tenderness. There was a negative McMurray's sign suggesting no underlying medical meniscal tear.

2. The range of movement was 0-130° equal to the right. There was strong quadriceps muscle power, and the circumference of the left thigh was equal to the right. Overall, the left knee was normal. Medical Assessor Kenna had similar findings to that of Medical Assessor Hyde Page in this regard.

3. Highlighted also was that over the next few years there was no complaint pertaining to the left knee, although there was ongoing documentation with regards to the neck, back and right shoulder, but once again no investigations were organised and no active treatment.

4. It was only in August 2020 that Mr Crittenden underwent an MRI of the left knee, which is over two years post motor vehicle accident.

5. Importantly in the background to this, he had previously had an MRI of the right knee on 4 December 2015 which had shown a medial meniscal tear. He had a plain film of the right knee on 28 March 2018 which was normal.

6. The MRI recorded of the left knee on 27 August 2020 showed a large FLAP tear of the medial meniscus. No other abnormality is reported.

7. When asked about such, i.e. causation pertaining to the left knee, he stated that in actual fact he had mentioned the injury to his treating GP, but it was not recorded in the notes and acknowledged such.

8. Medical Assessor Kenna noted the late documents from Sparke Helmore of 7 January 2023.

9. From the point of view of physical injuries, it appeared that:

   -      Mr Crittenden had neck and back problems for some years, certainly dating back to pre-motor vehicle accident in January 2018, five months before the accident when his GP reported neck symptoms;

   -      CT of the cervical spine in November 2015 revealed left C5/6 and bilateral C6/7 foraminal narrowing with potential right Cl nerve root irritation, and

   -      back pain in 2017, and pre-accident medical imaging consisted of a CT of the lumbar spine in November 2015 which showed a left paracentral posterior protrusion at L4/5.

10. Plain film of the right knee on 28 August 2015 revealed moderate effusion.

11. An MRI of the right knee on 4 December 2014 revealed a Baker's cyst and tear of the medial meniscus of the right knee.

12. When asked about causation, Mr Crittenden stated that it could have been related to golf or through employment.

13. With regards to the left knee, it was noted Mr Crittenden did not report a left knee injury in the Claim Form, nor was there any mention of left knee injury in the ambulance or the hospital discharge notes.

14. The first mention of any knee pain occurred eight months after the accident in February 2019, when treating records noted pain to the shoulder and knee for a long time. This entry presumably related to the right knee as stated, given the pre-existent right knee pain, and the subsequent referral for an X-ray of the right knee. It was only then that an X-ray of the left knee occurred on 22 June 2020, which revealed no abnormalities.

15. Mr Crittenden then came to an MRI on 27 August 2020, which revealed a medial meniscal tear.

Review Panel’s comments on the clinical findings

1. Any injuries to the cervical, lumbar spine, left thigh, right shoulder are threshold injuries for the purpose of the MAI Act.

2. Mr Crittenden described twisting his left knee during the motor vehicle accident when his foot was on the clutch, reportedly leading to initial swelling and anterior knee pain. While a twisting mechanism can plausibly cause a meniscal tear, such an injury typically presents with immediate medial joint line pain, rather than anterior knee pain, as described. Furthermore, significant meniscal pathology, such as a FLAP tear, is commonly associated with mechanical symptoms including clicking, locking, or catching, which were not reported at the time.

3. Mr Crittenden returned to his physically demanding pre-accident role as a rubber liner within weeks of the accident. This occupation involved repetitive bending, kneeling, and squatting, activities that would likely exacerbate or render evident a significant meniscal injury. The ability to perform such duties shortly after the accident strongly suggests that no substantial knee injury, such as a meniscal tear, was present at that time.

4. In addition, there is no contemporaneous documentation of a left knee injury immediately following the motor vehicle accident on 2 June 2018. Left knee symptoms were first recorded in GP notes on 11 February 2019, when Mr Crittenden vaguely reported pain to the “shoulder and knee for a long time”. This delayed documentation – eight months post-accident – weakens the plausibility of a causal relationship between the left knee pathology and the motor vehicle accident.

5. Given the absence of contemporaneous symptoms or signs of a meniscal tear, Mr Crittenden’s ability to return to physically demanding work post-accident, and the delayed documentation of knee complaints, there is insufficient evidence to establish a causal relationship between the left knee pathology and the motor vehicle accident.

SUBMISSIONS

Insurer’s submissions

1. The insurer submits that Medical Assessor Hyde Page’s assessment was incorrect in a material aspect pursuant to s 7.26(2) of the MAI Act.

2. The insurer submits that there was no evidence before Medical Assessor Hyde Page to support that the FLAP tear found on MRI imaging relates to the motor vehicle accident and shows a significant gap in complaints at the left knee which was not considered by the Medical Assessor.

3. The insurer submits that Medical Assessor Hyde Page failed to acknowledge conflicting medical evidence and failed to provide an analysis on causation.

4. The insurer submits that Assessor Hyde Page failed to address the conclusions reached by orthopaedic surgeon, Dr Dewar, that the meniscal tear was caused by unrelated degeneration rather than trauma.

5. The insurer submits that Medical Assessor Hyde Page did not comply with his statutory duty to give adequate reasons for finding in the manner that he did as the findings were internally inconsistent and did not align with his clinical assessment.

6. The insurer submits that Medical Assessor Hyde Page simply did not satisfy his obligation to provide coherent reasoning.

Claimant’s submissions

1. Mr Crittenden submits that the medical imaging proves that he suffered a FLAP tear of medial meniscus in his left knee and that the definition of threshold injury in s 1.6(2) of the MAI Act would exclude a tear of the medial meniscus meaning it is a non-threshold injury.

2. Mr Crittenden submits that there was a definite history of injury and ongoing symptoms, noting several complaints to his treatment providers.

3. Mr Crittenden concedes no complaint was recorded until 11 February 2019 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.

4. Mr Crittenden refers to the decisions of Bugat v Fox [2014] NSWSC 888 and Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548 in which it was confirmed that the presence or absence of contemporaneous evidence of injury is relevant but not determinative when considering the causation of an injury and causation may exist without a documented contemporaneous complaint.

Panel’s consideration of the claimant’s submissions

1. The Panel acknowledge what the Supreme Court of NSW decided in Bugat v Fox and notes that the absence of contemporaneous medical records relevant to causation is not determinative.

2. Mr Crittenden described testing his left knee during the motor vehicle accident when his foot was on the clutch, reportedly leading to initial swelling and anterior knee pain.

3. The Panel considers that while a twisting mechanism can plausibly cause a meniscal tear, such an injury typically presents with immediate medial joint line pain, rather than anterior knee pain as described.

4. Furthermore, significant meniscal pathology such as a FLAP tear is commonly associated with mechanical symptoms including clicking, locking, or catching.

5. These symptoms were not reported at the time.

6. The Panel considers that while a FLAP tear could have been caused in the accident, on the balance of probabilities, it is unlikely.

7. The Panel further takes into consideration that Mr Crittenden returned to his physically demanding pre-accident role as a rubber liner within weeks of the accident. This occupation involved repetitive bending, kneeling and squatting, all activities which would likely exacerbate or render evident a significant meniscal injury.

8. The ability of Mr Crittenden to perform such duties shortly after the accident strongly suggests that no substantial knee injury, such as a meniscal tear, was caused by or present at the time of the accident.

9. The Panel further notes that there is no contemporaneous documentation of a left-knee injury immediately following the motor vehicle accident on 2 June 2018.

10. Left-knee symptoms were first recorded in general practitioner notes on 11 February 2019 when Mr Crittenden said he had “pain in his shoulder and knee for a long time.”

11. This delayed report of pain in his knee for 8 months post-accident further reduces the plausibility of the causal relationship between the left-knee pathology and the accident.

12. Given the absence of contemporaneous symptoms or signs of the meniscal tear, Mr Crittenden’s ability to return to physically demanding work post-accident and the delayed documentation of knee complaints, the Panel considers that there is insufficient evidence to establish a causal connection between the left-knee pathology and the motor vehicle accident.

13. The Panel further notes that in addition to the fact that there was no history or recording of any left-knee injury at the time of the accident, Mr Crittenden returned to his pre-accident work duties within a week of the accident. These duties involved repetitive bending, kneeling, and squatting. He only ceased work when he was terminated due to alleged behavioural issues not related to any physical incapacity.

14. The Panel notes that Mr Crittenden’s work activities, to which he returned shortly after the accident, would not have been possible with a large meniscal tear assuming that it had occurred at the time of the accident, and this also leads to the conclusion that his left-knee pathology occurred after the accident, and most likely after he left his employment given that diagnosis did not take place until August 2020.

DETERMINATION

1. The Panel confirms the determination of Medical Assessor Hyde Page of 19 March 2024 that the following injuries caused by the accident were all threshold injuries for the purposes of the MAI Act:

   ·     right shoulder – soft tissue injury;

   ·     cervical spine – soft tissue injury, and

   ·     lumbar spine – soft tissue injury .

2. The Panel sets aside the determination of Medical Assessor Hyde Page in respect of the left-knee and determines that the FLAP tear of the left medial meniscus was not caused by the accident and it therefore does not arise for the Panel to determine whether or not it was a threshold injury.