Allianz Australia Insurance Limited v Ellul
[2023] NSWPICMP 338
•18 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Ellul [2023] NSWPICMP 338 |
| CLAIMANT: | Jake Ellul |
INSURER: | Allianz Australia Insurance Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Thomas Rosenthal |
DATE OF DECISION: | 18 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); injury on 21 January 2021 when claimant on bike became wedged between two vehicles and fell to ground; claimant re-examined; prior left knee reconstruction; claim for costs of surgical repair and determination that injuries were not threshold; original Medical Assessor found threshold injuries and made orders for insurer to pay costs of surgery; insurer filed review purportedly limited to treatment disputes; claimant submitted all issues open on review; discussion of review provisions in the MAI Act; reference to Meeuwissen v Boden and Wood v Insurance Australia Group Ltd; review included all matters in dispute; findings on causation of treatment connected with the pathology caused by the motor accident; findings made of nature of left knee injury; consideration of left knee condition prior to motor accident; findings made that accident caused tear of left knee ligament reconstruction; motor accident materially caused need for surgery; AAI Ltd v Phillips applied; discussion of factors why proposed surgery reasonable and necessary; Held – original assessment on treatment confirmed; finding made that claimant injuries were not threshold; threshold assessment revoked. |
DETERMINATIONS MADE: | Review Panel Assessment of Treatment and Care Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 1 November 2022. 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 revokes the certificate dated 1 November 2022 and certifies that the claimant suffered a left knee injury which is not a threshold injury. |
REASONS
BACKGROUND
Mr Jake Ellul (the claimant) sustained injury in a motor accident on 21 January 2021 whilst riding a motor bike which became wedged between two vehicles causing Mr Ellul to fall to the ground (the motor accident).[1] Mr Ellul alleged that he sustained various injuries including to the left knee which requires an anterior cruciate ligament reconstruction (the proposed surgery).
[1] This is only a brief and non-exhaustive summary of the motor accident.
The insurer is liable to pay to Mr Ellul any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The medical disputes concern whether the left 1st stage revision anterior cruciate ligament reconstruction is reasonable and necessary in the circumstances and whether the need for the treatment is caused by the motor accident. There was also a medical dispute before the original Medical Assessor whether the injury caused by the motor accident is a minor injury for the purposes of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, medical disputes about the treatment and care and whether the injury is a threshold injury are declared to be medical assessment matters.
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.
Medical Assessment
The medical disputes were referred to Medical Assessor Harrington who issued two Medical Assessment Certificates dated 1 November 2022. Medical Assessor Harrington found that the injuries to the left ribs, left hand and pelvis had resolved and that the left knee injury was a minor injury for the purposes of the MAI Act.
Medical Assessor Harrington also found that the proposed surgery was reasonable and necessary and caused by the motor accident.
In relation to the diagnosis of the injury and the proposed surgery, Medical Assessor Harrington stated:
“On the balance of probabilities, he has suffered a further injury to the left knee as a result of the accident described in January 2021. Whether or not he is a candidate for surgery might be up to Me Ellul and his mental health support person.
As for his pelvis, ribs and left hand, these are minor injuries and have resolved.
Although I would consider the injury to his left knee to be a minor injury in accordance with the Act, (based on the injury itself) he does require further treatment, at the very least an examination under anaesthetic to assess the stability of his knee without reactionary pain. Whether he has a revision ACL reconstruction, would really depend on whether his knee has significant laxity when assessed under light sedation.”
THE REVIEW
The application for referral to a review panel of the medical disputes in relation to the proposed treatment was made by the insurer within 28 days.
The President’s delegate referred those medical disputes 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.[3]
[3] 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[4] 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).
[4] 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.[5]
[5] 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.[6]
[6] 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.[7]
[7] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
On 20 February 2023 the insurer submitted:
“The Insurer has no further documents to serve in relation to the original assessment. The Insurer also highlights that the 330 pages filed by the Claimant are not visible to the Insurer on the PIC portal. We request a copy be made visible to the Insurer as well so we are able to view its contents.
In relation to the medical dispute referred to the Review Panel, the Insurer submits it has only referred the dispute concerning treatment in relation to the below: (a) Whether the left 1st stage revision anterior cruciate ligament reconstruction is reasonable and necessary in the circumstances (b) Whether the left 1st stage revision anterior cruciate ligament reconstruction is causally related to the injury arising from the subject motor vehicle accident.
The Respondent thereby submits the minor injury decision of Assessor Harrington remain undisturbed and has not referred that dispute for determination to the Review Panel.”
The claimant was directed to respond to this submission. There was no response to that direction.
On 12 April 2023 the Panel issued a further Direction which relevantly provided:
“The Panel notes the claimant’s submission dated 28 June 2021 (claimant’s bundle, p 3) referring to the report of Dr Bowden dated 22 June 2021. This report is not included in the filed bundles.
The parties are advised that the claimant’s submission is ignored unless the report is provided to the Panel.
The Panel requires access to the electronic/hard copy films of the MRI scans dated 6 September 2018 and 22 January 2021. These scans are to be provided to Medical Assessor Dixon at first instance (address below).
The Panel notes the insurer’s submission that the review is limited to the treatment dispute and does not include the medical assessment of minor injury. The Panel is awaiting a response from the claimant in relation to the scope of the review.The Panel requires responses to these directions as soon as possible. In that respect, the parties may consider and have liberty to list the matter before the Principal Member.”
The report of Dr Bowden dated 22 June 2021 was not provided to the Panel.
The claimant submitted through a portal message that all medical disputes were before the Panel.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (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.
The 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.
The assessment by the Medical Assessor and the parties’ submissions were made prior to
1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
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)”.
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 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.”
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.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[8]
[8] See s 3B(2) of the Civil Liability Act 2002.
Section 3.24 of the MAI Act provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
SUBMISSIONS
Claimant’s submissions dated 28 June 2021[9]
[9] Claimant’s bundle, p 1.
The claimant referred to the following evidence:
- Claim form dated 22 January 2021;
- Hospital discharge summary dated 26 January 2021;
- MRI scan dated 22 January 2021;
- Dr Hunter report dated 25 February 2021;
- Dr Hunter’s response to the insurer’s question;
- Amended MRI scan dated 10 April 2021;
- Dr Bowden, radiologist, report dated 22 June 2021, and
- Dr Kadavil dated 22 February 2021.
The claimant submitted that the true findings following the motor accident were:
- There is no clear anchorage of fibres to the femur, and
- There is intrasubstance tearing of the reconstructed ligaments.
The claimant submitted that he had made a full recovery from the ACL operation in 2016 and was not having any issues with his left knee prior to the motor accident. Reference was made to the histories contained in the following reports:
- Dr Howard – report dated 24 March 2021;
- Dr Beattie – report dated 25 March 2021, and
- Dr Pinczewski report dated 31 March 2021.
The claimant submitted that the changes shown in the amended MRI report demonstrated that he had sustained significant trauma in the motor accident.
The claimant submitted that the need for the revision surgery was caused by the motor accident.
Insurer’s internal review dated 19 May 2021[10]
[10] Claimant’s bundle, p 6.
The insurer referred to the inconsistent reporting and determined that the claimant had not established that he had sustained anything other than a soft tissue injury. The insurer also stated that based on the inconsistent reporting to date the request for surgery related to the accident and/or was not reasonable and necessary.[11]
Insurer’s submissions dated 22 July 2021[12]
[11] Claimant’s bundle, p 20.
[12] Insurer’s bundle, p 1.
The insurer disputed that the claimant suffered a non-minor injury referring to the initial ambulance and hospital notes that there was only a soft tissue injury. It also referred to the initial MRI scan post-accident which referred to a mild joint effusion and the anterior cruciate ligament showed no tear.
The insurer disputed that any structural damage had occurred relying on the past chronic changes (this evidence is repeated and summarised in subsequent submissions).
The insurer submitted the other injuries were soft tissue injuries of short duration.
It incorrectly submitted, confusing the two issues, that as the treatment was not caused by the motor accident that it was also not reasonable and necessary.[13]
Insurer’s submissions dated 29 November 2022[14]
[13] Insurer’s bundle, p 7.
[14] Insurer’s bundle, p 2.
These submissions were filed seeking leave to review the medical assessment.
The insurer submitted that the Medical Assessor determined a matter not referred for assessment, specifically that the claimant should undergo a left knee examination under anaesthetic to assess the stability of the knee.
The insurer submitted that the findings by the Medical Assessor on instability were unclear and he otherwise did not explain the correlation between the stability of the knee and the motor accident.
The insurer referred to the claimant’s “extensive pre-accident history of the left pain that was possibly symptomatic at the time of the accident”[15] (emphasis added). It noted that the claimant underwent revision ACL left knee reconstruction in 2016 and referred to:
- MRI scans in 2015 showing rupture of the anterior cruciate and subsequent repair;
- MRI scan in 2018 showing intact ACL graft with cystic changes;
- ongoing residual pain issues commented by Dr Russo in 2017;
- opinion of Dr Posel in May 2021 that there was no acute pathology following the motor accident, that the previous reconstruction provided only 75%-80% function and that lateral compartment wear was chronic rather than acute;
- there was no significant structural change to the left knee caused by the motor accident, and
- MRI scan dated 6 September 2018 suggested new meniscal tear.
[15] Insurer’s bundle, p 5.
The insurer submitted that when the reasons are read as a whole, the Medical Assessor found that the proposed surgery was “not the most appropriate treatment option” and therefore was not necessary.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The claimant ruptured the left anterior cruciate at work in April 2015.[16]
[16] Insurer’s bundle, p 199.
The MRI scan of the left knee dated 15 April 2015 showed a complete rupture of the anterior cruciate ligament.[17] The MRI dated 8 September 2015 post reconstruction noted persistent pain and lack of improvement of function. The anterior cruciate ligament was showed to be intact.[18]
[17] Insurer’s bundle, p 92.
[18] Insurer’s bundle, p 94.
In April 2016 the claimant underwent stage 1 of his revision of the anterior ligament construction.[19] Stage II revision surgery was performed by Associate Professor Pinczewski in November 2016.[20]
[19] Insurer’s bundle, p 244.
[20] Insurer’s bundle, p 278.
The clinical notes of the general practitioner noted prior left knee symptoms in 2016 and 2017.[21] In October 2017 the general practitioner expressed concerns about the claimant’s long term S8 prescription.[22]
[21] Claimant’s bundle, pp 54-61.
[22] Claimant’s bundle, p 63.
In November 2017, Dr Marc Russo noted significantly impaired chronic behavioural response to persistent pain in the presence of a comorbid anxiety and depression mood disorder.[23] Various pain clinic therapies were recommended including cessation of Oxynorm medication.
[23] Insurer’s bundle, p 325.
In January 2018 Associate Professor Pinczewski noted ongoing soreness of the left kneecap with full range of motion. The doctor recommended daily physiotherapy and quadriceps strengthening.[24]
[24] Insurer’s bundle, p 335.
In February 2018 Dr Hussain noted ongoing opiate intake with significant pain in the left knee.[25]
[25] Claimant’s bundle, p 73.
In April 2018 the GP noted the claimant showed an improved mental state and was working with exercise physiologist with some quad wasting.[26]
[26] Claimant’s bundle, p 66.
An MRI scan dated 6 September 2018 showed an intact ACL graft with a partial thickness tear of the lateral meniscus.[27] Cystic changes measuring 23 x 18mm were seen in the tibial tunnel component of the ACL.
[27] Claimant’s bundle, p 69.
Dr Beattie then referred the claimant to Dr Kadavil for assessment of chronic pain.[28]
[28] Claimant’s bundle, p 75.
In November 2018 Dr Prickett noted that the claimant presented as a difficult problem of ongoing pain issues. The doctor opined that the claimant had ongoing significant distress and disability as a consequence of his somatic experience.[29]
[29] Claimant’s bundle, p 193.
Post- accident medical records
The ambulance report provided:[30]
“CT male pt motorcycle wedged between two vehicles. OA pt sitting at bus shelter. One of the drivers on scene, other driver absconded. Pt states he was riding along road, when one of the vehicles changed into his lane, pushing him against another vehicle. Pt then fell over with bike at low speed. Pt pushed motorcycle over to side of road. OE pt alert, orientated, well perfused, sweating in hot bus shelter. Pt CO pain to left knee. Pt denies LOC, no obvious damage to helmet. Nil other pain or injuries detected. Pt states that he has already had multiple surgeries to left knee due to previous workplace injury. Pt very concerned he has injured the cartilage in his knee. Left knee slightly swollen, good range of movement, pt able to weight bare.”
[30] Claimant’s bundle, p 46.
The Hospital notes referred to pain in left groin, knee and chest. The X-rays of the chest, pelvis and left femur showed no abnormality.[31]
[31] Claimant’s bundle, p 84.
The Application for Personal Injury Benefits Claim Form dated 22 January 2021 lists the injuries caused by the motor accident as “Injury to my left knee, my groin, left hand, side ribs.”
The police report confirmed that the claimant was filtering through heavy traffic when he stopped between two vehicles at the front of a queue. When the lights changed, the vehicle on the left-hand side has turned slightly right pushing Mr Ellul to the right into the other vehicle.[32]
[32] Insurer’s bundle, p 31.
A statement by the driver on the right-hand side contain a version supportive of the police statement. It appears from this statement that the truck on the left-hand side, as it was turning, moved to the right impacting the claimant’s motor bike.[33]
[33] Insurer’s bundle, p 39.
The MRI dated 22 January 2021 reported:[34]
“There is evidence of previous ACL reconstruction seen. The reconstructed ligament appears normal. Few thin-wall fluid-filled cysts are seen near the tibial tunnel suggesting a ganglion cysts.
Posterior cruciate ligament is normal.
Medial and lateral collateral ligaments are normal.
Medial meniscus appear normal. Lateral meniscus posterior horn shows truncated appearance this appearance is unchanged since September 2018.
Mild joint effusion is seen.
The articular cartilage of lateral femoral condyle shows focal cartilage loss measuring up to 9 mm in its maximum diameter. Rest of the bones and articular cartilages appear normal. Para-articular soft tissues appear normal.”
[34] Claimant’s bundle, p 40.
The radiologist noted mild joint effusion and the reconstructed anterior cruciate ligament showed no tear.
The clinical note from NHS Australia Medical Centre on 22 January 2021 provides:[35]
“MVA
Pt was on motorbike travelling < 20kph, was trapped between 2 cars, injured left knee.
Same knee he previously had surgery
Went to ED but discharged after x ray did not show fracture
Discharged with 2 x oxycontin 15mg and 4 x panadeine forte.
Ot took both OxyContin this morning and 2 panadeine forte and has not helped with pain.
Previously took high dose opiates so now has very high tolerance”.
[35] Claimant’s bundle, p 67.
The claimant returned to hospital on 25 January 2021 and discharged on 26 January for ongoing knee pain noting “difficult pain control due to previous opioid use”.[36]
[36] Claimant’s bundle, p 91.
In a report dated 25 February 2021, Dr Michael Hunter, orthopaedic surgeon noted:[37]
“Jake has suffered a new anterior cruciate ligament tear of a previous reconstructed knee.
….
Examination reveals significant instability of the knee Grade II Lachman and Grade II anterior drawer and Grade I pivot.
….
He needs a new ACL reconstruction but to remedy this, needs grafting of his tibial cyst.”
[37] Claimant’s bundle, p 94.
The insurer wrote to Dr Hunter requesting a response to the above report.
Dr Hunter responded to the insurer’s request stating:[38]
“The reason behind the confusion is the MRI scan report is incorrect. He does have a ligament tear, this is evidenced not only by clinical findings but certainly myself and Dr Pinczewski agree that there is complete ruptures of fibres.
….
All the findings on MRI certainly appear to be acute, certainly consistent with the timing of the injury. The injury certainly sounds significant enough to cause these pathologies found.
The previous reconstruction was successful. Jake had a stable knee up to the time of the injury. The timing of the injury corresponds with his beginning of pain, swelling and instability.
If you would like me to I can get second opinion on the MRI or get the original radiologist to re-report, but certainly it is incorrect.”
[38] Claimant’s bundle, pp 96-97.
On 22 February 2021, Dr Hasher Kadavil, pain specialist noted a prior history of opioid addiction with success in weaning off the medication.[39] The doctor noted chronic left knee pain with functional limitation and psychological distress and prescribed Oxynorm.
[39] Claimant’s bundle, p 185.
In a subsequent consultation Dr Kadavil ceased prescribing opioids and recommended a ketamine injection.
In a report dated 25 March 2021 Dr Beattie confirmed a successful outcome from the previous ACL operation. The doctor stated:[40]
“I can confirm that Jake has not reported any knee symptoms relating to his previous ACL injury since 2018.
….
Prior to the injury in January, Jake had been doing really well in a new occupation as a truck driver. He has not reported any issues with his left knee which could have contributed to his current situation. He had not been prescribed any opiate medication since November 2017.”
[40] Claimant’s bundle, p 323.
Dr Pinczewski in a report dated 31 March 2021 noted the previous successful left knee operation. The doctor stated:[41]
“As you are aware, Jake had an excellent outcome following his left sided revision anterior cruciate ligament reconstruction of 24 November 2016. He had returned to full and unrestricted activities but on 21 January 2021 he was involved in a motor vehicle accident where his motorcycle was wedged between two cars. He re-injured the left knee and clinical examination today reveals a soft end point to the Lachman test and a positive pivot shift.”
[41] Claimant’s bundle, p 38.
Dr Pinczewski opined that the claimant required a two-stage revision given the cystic changes in the tibial plateau.
An amended MRI report was issued on 10 April 2021 by the original radiologist after receiving correspondence from Dr Hunter. The addendum report stated:[42]
“Using the September 2015 images as the baseline post repair status there has been considerable deterioration compared with those post-operative scans. Clearly intact and tunnelled fibres through the femoral intercondylar region now demonstrate no clear anchorage to the femur based on prior appearances.
Intrasubstance tearing of the reconstructed ligaments is evident and there is considerable disruption to the proximal tibial metaphysis around the reconstruction tunnel and is likely post-traumatic multiloculated ganglion infiltration.
Deterioration is also noted when compared with imaging from September 2020.
Overall I feel that the femoral component of the anterior cruciate reconstruction is no longer anchored to the femur. There is marked intrasubstance tearing of the reconstruction resulting in an infiltrative ganglion-like appearance causing expansile disruption to the proximal tibial metaphysis.”
[42] Claimant’s bundle, p 329.
Dr Daniel Posel, orthopaedic surgeon was qualified by the insurer and provided a report dated 31 May 2021.[43] The doctor recorded an extensive history of the pre-existing left knee condition noting that he ceased taking opiates (possibly in late 2018) and in 2019 began to return to his usual activities. Subjectively the claimant stated that he regained 75-80% function but could not run or long jump and reported discomfort when walking on soft sand. The claimant reported that current knee function was less than 50%.
[43] Insurer’s bundle, p 71.
Dr Posel reviewed the 2018 and 2021 MRI scans. The doctor stated:[44]
“I have reviewed this MRI scan online. There is a large cystic cavity around the tibial tunnel of this ACL reconstruction. This MRI scan is very similar to that of 2018 but now with more wear in the lateral compartment.
Once again, based on these updated MRI scan films, the AC reconstruction appears non-functional.
Besides the increased wear in the lateral compartment there is no essential difference between the MRI scan of 6/9/2018 and 22/1/2021.” (Emphasis in original.)
[44] Insurer’s bundle, p 77.
Dr Posel did not agree with Dr Hunter’s opinion that there was any acute pathology shown in the January 2021 MRI scan. The doctor noted that due to the size of the cystic cavity around the tibial attachment of the revision ACL reconstruction shown in the 2018 MRI scan that the “ACL was non-functional and the graft would have been ‘toggling’ in the tibial tunnel.”[45]
[45] Insurer’s bundle, p 81.
Dr Posel agreed with Dr Pinczewski that the MRI scan showed full thickness chondral loss over the lateral tibial condyle secondary to lateral joint compartment subluxation. The doctor opined that the full thickness cartilage loss was chronic rather than acute as there was no “underlying bone oedema in this region”.
MEDICAL EXAMINATION
The claimant was examined by Medical Assessor Dixon. The examination report is as follows:
“This 32-year-old claimant was injured in a motorbike accident on 21 January 2021 while riding his Harley Davidson motorcycle towards a roundabout at Ourimbah when a vehicle in the right hand lane moved left without warning and he became wedged between a four wheel drive and a Ute. He got dragged along before becoming untangled, fell over and his motorcycle fell across his left knee. He somehow got back on the bike and gave chase to the vehicle and then subsequently went home.
He had a swollen knee following the accident and presented to Wyong Hospital and then to Gosford Hospital.
He has a history of an ACL reconstruction on 24 November 2016 by Dr Dimitri Papadimitriou when he sustained an injury while working on a building site. There was some residual instability after this procedure and Dr Leo Pinczewski did a two-stage procedure with an allograft to reinforce the repair. He did require opiate analgesia and was unable to return to working in construction but obtained his HR truck driver’s licence. He was referred back to Dr Pinczewski who recommended a further examination under anaesthetic and review of his ACL reconstruction. He attended another surgeon, Dr Michael Hunter, for opinion and attended Dr John Prickett for pain management. There have been no further injuries since the subject accident.
On review today, he was 180cm tall and weighed 80kg.
His normal gait was satisfactory but he had a mild limp on toe walking and a marked limp and instability on heel walking and his squat test was associated with audible retropatellar crepitus and knee pain. On standing there was no mal alignment. His old surgical scars included a scar medially over the medial collateral ligament.
The range of motion of the left knee was 0 degrees through to 120 degrees and he was unable to reproduce recurvatum on his left knee. His right knee was 0 degrees through to 130 degrees. While his right knee appeared stable, his left knee showed medial collateral ligament laxity and tenderness of the medial joint line and a positive pivot shift test for rotatory instability. His anterior drawer sign was mildly positive as was his Lachman test and his posterior drawer sign was negative. There was effusion in the left knee. He had patellofemoral subluxation with a positive apprehension test and there was popliteal fullness of the knee.
The MRI of the left knee on 6 September 2018 showed a prior ACL reconstruction with intact ACL graft without graft tear. The medial meniscus was intact and there was truncation of the free articular surface of the body of the lateral meniscus which was thought to be unchanged since his previous MRI on 8 September 2015. The quadriceps and patella tendon were reported on as normal. There was scarring in Hoffa’s fat pad related to prior arthroscopy. The medial collateral ligaments appeared unremarkable without tear and the neurovascular structures appeared unremarkable and there was no popliteal cyst.
Dr Michael Hunter, in his report dated 25 February 2021, noted the claimant had suffered a new anterior cruciate ligament tear of a previously reconstructed knee and found there was significant instability, grade 2 Lachmann’s and grade 2 anterior drawer sign and grade 1 pivot shift test, which were my findings today. He suggested a new ACL reconstruction, with which I concur. He further added that the MRI scan report did not correlate with the clinical status and that clinically, he does have a ligamentous tear as reported by his attending orthopaedic surgeon, Dr Pinczewski, who wishes to examine the knee under an anaesthetic and perform arthroscopy plus or minus further revision ACL reconstruction.
The Medical Assessor, Dr Christopher Harrington, noted in his MAC of 1 November 2022, that there has been a change in pathology between September 2018 and January 2021 on comparison of the MRI scans and there are a lot of cystic changes in the tunnels, which could affect how good the other graft is and that there appeared to be more fluid and more changes on the lateral side of the latter films. He also noted the proximal part of the graft (femoral part) was not as good as what it was in 2018 and whether it has just given away or actually torn, it was hard to say but either way, he felt there was a change in the graft when comparing MRI scans.
When he examined the claimant, the claimant was in a lot of pain and he was unable to examine instability adequately and although he felt the knee, it was not unstable at the time of his examination on 25 October 2022. The claimant, with less pain today, was able to have his knee examined without undue pain and this did show positive anterior drawer sign and grade 1 pivot shift test, that was positive for rotatory instability.
This is the unintended consequence of the MRI not showing a further tear and therefore, being called a minor or threshold injury. This should not preclude the clinical evidence provided that the following treatment and care - first stage revision ACL reconstruction plus or minus EUA of left knee, is reasonable and necessary in the circumstances and does causally relate to the subject motorbike accident.
For this reason, the Panel confirms that the treatment under dispute is reasonable and necessary and causally related to the subject accident, as the clinical picture is one of an unstable knee, where the previous ACL graft has either attenuated and given way or actually torn within the bony tunnel and because the claimant's knee was relatively pain free today, it was much easier to obtain the examination for instability, as evidenced by others.
In the MRI that was done on 22 January 2021, there was an addendum made by the radiologist, Dr Brett Lyons, who noted there had been considerable deterioration compared with the post-operative scans of September 2015 and September 2018. He noted the clearly intact and tunnelled fibres through the femoral intercondylar region now demonstrate no clear anchorage to the femur, based on prior appearances. He reported intrasubstance tearing of the reconstructed ligament is evident and there is considerable disruption to the proximal tibial metaphysis around the reconstruction tunnel and likely post traumatic multiloculated ganglion infiltration. He concluded there was deterioration also when compared with imaging from September 2020 and his overall view was that the femoral component of the anterior cruciate reconstruction is no longer anchored to the femur.
This is consistent with the clinical presentation of the claimant today and revision arthroscopic surgery, as proposed, is reasonable and necessary and causally related to the subject motorbike accident on 21 January 2021.Please find attached the MRI of the left knee dated 22 January 2021 with the addendum dated 10 April 2021.” (emphasis added)
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The 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[46] and Insurance Australia Ltd v Marsh.[47]
[46] [2021] NSWCA 287 at [40], [41] and [45].
[47] [2022] NSWCA 31 at [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[48] 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.
[48] [2022] NSWPICMP 6 at [44]-[62].
We adopt the examination report of Medical Assessor Dixon supplemented by the following reasons.
Medical dispute before the Panel
There was a lack of assistance from the parties concerning whether the review was limited to treatment and care or whether it also included the minor (now threshold) dispute. No relevant authorities or legislation were referenced by the parties nor did either utilise the option provided in the latest direction of listing the matter before the Panel.
The following reasons of interpretation should be viewed in those circumstances.
Medical Assessor Harrington conducted a medical assessment on 25 October 2022. That medical assessment produced reasons which included certificates pertaining to “treatment and care” and “minor injury”.
The insurer filed submissions for a review which disputed the certificate issued for treatment and care. It did not allege error on the minor injury dispute as it was successful in respect of that medical dispute. Its submission was that the threshold dispute is not before the Panel. The claimant asserted otherwise.
The principles of statutory construction are well settled. As the plurality stated in Military Rehabilitation CommissionvMay,[49] the “question of construction is determined by reference to the text, context and purpose of the Act”, citing Project Blue Sky Inc v Australian Broadcasting Authority[50] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[51]
[49] [2016] HCA 19 at [10].
[50] [1998] HCA 28 at [69]-[71].
[51] [2009] HCA 41 (Alcan).
Section 7.17 of the MAI Act defines a medical assessment as “an assessment of a medical matter under this Division”. A “medical dispute” is defined as “an issue arising about a medical assessment matter”.
Section 7.23(1) of the MAI Act provides:
“The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.”
The certificate is conclusive evidence of the matter referred (s 7.23(2)) save as to degree of impairment of earning capacity where it is prima facie evidence.
The MAI Act provides that the medical assessor is to provide reasons in addition to what is certified in the certificate. Section 7.23(7) states that the certificate is to set out the reasons for any findings by the medical assessor as to the matters certified in the certificate.
The review provisions are contained in s 7.26 of the MAI Act.
Section 7.26(1) of the MAI provides that either party may apply to the President “to refer a medical assessment by a single medical assessor to a review panel for review”. Sub-sections (2), (3), (4) and (5) emphasise the basis and grounds for which the “medical assessment” is reviewed.
It is clear from these provisions that what is reviewed is the medical assessment.
There is only one medical assessment in the present matter even though there are two medical assessment matters. The medical assessment is referred to a review panel for review (s 7.26(1)) if the medical assessment was incorrect in a material respect (s 7.26(5)).
Section 7.26(6) provides:
“The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.”
The statutory wording and context of the review provisions of the MAI Act are the same as the Motor Accidents Compensation Act, 1999 (MAC Act).[52]
[52] Section 63(3) of the MAC Act is identical to s 7.26(6) of the MAI Act.
The similar provisions of the MAC Act were considered by the Court of Appeal in Meeuwissen v Boden[53] when it was noted what must be incorrect for the purposes of the sustaining a review “is ‘the medical assessment’ and not the certificate that results from the assessment”.[54] Basten JA relevantly stated:
“First, what must be incorrect in a material respect is ‘the medical assessment’ and not the certificate which results from the assessment. The subject matter of a medical assessment is a ‘medical dispute’: s 63(1). A ’medical dispute’ is defined to mean ’a disagreement or issue to which this Part applies’: s 57. The Part applies to a disagreement about one of the matters (referred to as ’medical assessment matters’) set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error.”
[53] [2010] NSWCA 253 (Meeuwissen).
[54] Meeuwissen at [19] per Basten JA (Beazley JA and Sackville AJA agreeing).
As to what was in dispute on review, Basten JA stated:[55]
“Finally, the role of the review panel is not limited to a review of ’that aspect of the assessment’ affected by possible error. Rather, the panel is to reconsider all of the matters in dispute: s 63(3A). This approach no doubt reflects the difficulty in some cases of dividing an assessment of permanent impairment into aliquot parts. More importantly, it may be seen to reflect an intention that a flawed process is to be cured, so that a proper assessment has been made of the whole of the matters in dispute.”
[55] Meeuwissen at [24].
The facts in Meeuwissen did not involve different medical assessment matters. The reasoning in Meeuwissen may be construed as meaning the whole of the issues in that medical assessment matter as opposed to all medical assessment matters.
However, the latter interpretation is consistent with the interpretation by Wright J in Wood v Insurance Australia Group Ltd[56] where his Honour stated:
“This approach is consistent with that adopted by the Court of Appeal in Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 (Meeuwissen) at [24] (Basten JA, Beazley JA and Sackville AJA agreeing) where the expression ’all the matters with which the medical assessment is concerned’ in s 63(3A) was construed as referring to ’all of the matters in dispute’ and “the whole of the matters in dispute”.
[56] [2022] NSWSC 1290 at [52].
Section 7.26(6) requires that that the review is by way of “a new assessment of all of the matters”. Consistent with the unanimous decision in Meeuwissen, “matters” should be given its wide meaning. In this case the issue of causation of treatment is fundamentally connected with the pathology caused by the motor accident. Our subsequent findings show that we have found causation of the need for surgery due to tearing of the ligaments. That finding would be grossly inconsistent with the part of the original Medical Assessor’s reasoning that the claimant only sustained a minor injury.
The wording in s 7.26(6) states that it is an unlimited review of “all the matters with which the medical assessment is concerned”. Our view is that the meaning of “matters” means all the medical assessment matters that were considered by the medical assessment.
The interpretation is consistent with the provisions of s 7.23. That section refers to “matters” in sub-s (1) as the “matters referred for assessment”.
This construction sits with the wording and context of s 7.23 and s. 7.26. Further, the authorities referred to above support the claimant’s contention that all the matters in dispute are the subject of a review.
In this case there are two medical assessments matters, first a threshold dispute (Schedule 2 cl 2(e)) and secondly, a treatment dispute which concerns two aspects, that is whether the treatment is “reasonable and necessary” and whether the treatment relates to the injury caused by the motor accident (Schedule 2 cl 2(b)).
As we noted, we were not provided with any submissions on what is an important issue which undoubtedly effects the efficiencies of reviews conducted by review panels within the motor accident scheme.
For these reasons, we consider that the review filed by the insurer means that the medical dispute on the threshold injury is before the Panel.
Knee injury
The Panel finds that the motor accident caused a tear of the claimant’s anterior cruciate ligament reconstruction for the following reasons.
It is clear from the contemporaneous accounts provided by the ambulance officers and the hospital records that the motor accident caused an exacerbation of the claimant’s left knee condition.
We accept the claimant’s evidence that prior to the motor accident the left knee was stable, and that he was in full-time employment. The claimant’s account is supported by contemporaneous histories recorded by various doctors including Dr Pinczewski, Dr Hunter, Dr Kadavil and Dr Beattie.
In a report dated 25 March 2021 Dr Beattie confirmed a successful outcome from the previous ACL operation. In our view this evidence, particularly the statement from the GP who treated the claimant before and after the motor accident, is compelling that the claimant suffered a significant knee injury in the motor accident. It is otherwise extremely unlikely that the claimant would have been able to perform his duties full-time if the knee was unstable prior to the motor accident as Dr Posel opined.
Subsequent medical examination by two treating specialists after the motor accident show an unstable left knee.
On 25 February 2021 Dr Hunter noted:
“Examination reveals significant instability of the knee Grade II Lachman and Grade II anterior drawer and Grade I pivot.”
On 31 March 2021 Dr Pinczewski noted:
“He re-injured the left knee and clinical examination today reveals a soft end point to the Lachman test and a positive pivot shift.”
We accept that it is medically plausible that when the claimant fell to the ground, he could have wrenched the ligament at the end of the ACL where it met the femur and further tore the attached fibres. The fact that the ligament had been reconstructed only made it vulnerable to further tearing from a fall. That reasoning is based on the medical expertise within the Panel and is consistent with several treating opinions.
Based on our acceptance of the claimnat’s history of a good recovery and the medical evidence of instability following the motor accident, we accept that the motor accident caused further intrasubstance tearing resulting in no clear anchorage of fibres to the femur.
Our conclusion is inconsistent with that expressed by Dr Posel. However, that opinion is otherwise inconsistent with the amended opinion of the radiologist provided in April 2021 that the recent scan showed intrasubstance tearing of the reconstructed ligaments and there was considerable disruption to the proximal tibial metaphysis around the reconstruction tunnel which is likely post-traumatic multiloculated ganglion infiltration. Dr Posel’s opinion otherwise does not acknowledge the medical opinions provided by various doctors that the claimant was doing well prior to the accident which then changed following the motor accident.
The motor accident caused further tearing of a reconstructed ligament. This is at least a partial if not complete rupture of a ligament and falls outside the definition of a soft tissue injury as defined in s 1.6(2) of the MAI Act. Accordingly, the injury to the left knee is not a threshold injury.
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[57] These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[57] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[58] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[58] [2018] NSWSC 1710 at [29] (Phillips).
These principles are consistent with Court of Appeal decision in McKenzie v Wood[59] where the Court noted that urgent medical intervention that would have been undertaken in due course established that the costs of surgery should be recovered.
[59] [2015] NSWCA 142 (McKenzie).
Our findings on injury are that the motor accident caused further intrasubstance tearing of the reconstructed ligament. The proposed surgery is required to repair the rupture ligament which has detached from the femur. Whilst the claimant had a pre-existing condition and was clearly susceptible to re-injury following the reconstruction, the motor accident was a material cause for the proposed surgery.
Reasonable and necessary in the circumstances
Mr Ellul is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[60], Grove J stated:[61]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ’reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[60] [2003] NSWCA 52 (Clampett).
[61] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[62]
[62] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[63] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[63] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
That the surgery is reasonable and necessary is based in part of the clinical findings of Medical Assessor Dixon which relevantly provided:
“The claimant, with less pain today, was able to have his knee examined without undue pain and this did show positive anterior drawer sign and grade 1 pivot shift test, that was positive for rotatory instability.”
The proposed surgery is required to repair the rotatory instability caused by the tear. It is a medically accepted treatment as both appropriate and likely to be effective. This conclusion is based on the medical expertise within the Panel and the view expressed by two treating specialists following the motor accident who recommended the treatment.
The cost of the proposed surgery is somewhat expensive although not prohibitive. There is no alternative treatment because the ruptured ligament requires repair. For these reasons the proposed surgery is reasonable and necessary in the circumstances.
CONCLUSION
Our reason differs from those provided by Medical Assessor Harrington. However, the conclusion by the Panel on the certificate for treatment is the same as that issued by Medical Assessor Harrington. That certificate is confirmed.
We have reached a different view on the minor (threshold) injury certificate. That certificate is revoked, and a new certificate is issued.
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