Allianz Australia Insurance Limited v Lin
[2022] NSWPICMP 226
•19 May 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Lin [2022] NSWPICMP 226 |
| CLAIMANT: | Richard Lin |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL: | Member Susan McTegg Dr Geoffrey Stubbs Dr David McGrath |
| DATE OF DECISION: | 19 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accident Compensation Act 1999; treatment reasonable and necessary; treatment related to injury caused by the accident; knee surgery; pre-existing knee pathology; accident material contribution to need for surgery. The claimant had significant existing knee pathology; pre-accident the claimant’s knee condition treated conservatively and did well until the accident; the claimant asserts he hit his knees on the dashboard in a rear end collision; following accident the claimant underwent right anterior cruciate ligament reconstruction and a left knee arthroscopy and partial lateral meniscectomy and excision of a ganglion cyst; question whether surgery reasonable and necessary, question whether surgery related to injury caused by accident; Held: the Panel found the claimant hit his knees on the dashboard in the accident; accident changed a potentially unstable anterior cruciate ligament/meniscal injury to a clinically unstable anterior/cruciate/meniscal injury; accident materially contributed to the injury; accident was material contribution to the need for surgery; surgery would not have arisen but for the occurrence of the accident; surgery reasonable and necessary and related to injury caused by the accident. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate of Medical Assessor Woo dated 11 May 2021. The Review Panel issues a new certificate certifying that surgery, namely right knee anterior cruciate ligament (ACL) reconstruction and partial lateral meniscectomy combined with a left knee arthroscopy and partial lateral meniscectomy and excision of ganglion cyst was reasonable and necessary in the circumstances and did relate to the injury caused by the motor accident. |
STATEMENT OF REASONS
INTRODUCTION
On 25 May 2015 Mr Richard Lin (the claimant) was driving a taxi in traffic when his vehicle was rear ended by a vehicle which in turn had been rear ended by another vehicle (the accident). Mr Lin’s vehicle was repaired at a cost of some $20,000. He was taken by ambulance to St George Hospital. After undergoing X-rays and a period of observation he was discharged home to the care of his general practitioner (GP).
The claimant submitted a Personal Injury Claim form in which he alleged injury to the neck, low back, both knees, the right hand, arm and elbow, injury to the jaw and psychological injury.
CIC Allianz Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Lin under the Motor Accident Compensation Act, 1999 (the MAC Act).
ISSUES IN DISPUTE
In dispute is the surgery undergone by Mr Lin on 23 January 2020, namely right knee arthroscopic ACL reconstruction, partial lateral meniscectomy; and left knee arthroscopy, partial lateral meniscectomy and excision of ganglion cyst.
Section 53 of the MAC Act provides treatment expenses are not payable to the extent that the treatment concerned was not reasonable and necessary in the circumstances to reach a standard of good medical care existing at the time or did not relate to the injury caused by the accident.
Section 58 states that the medical assessment procedures set out in Part 3.4 of the MAC Act, including review of a medical assessment by a review panel, applies to a disagreement between a claimant and an insurer about, inter alia, the following matters:
(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, and
(b) whether any such treatment relates to the injury caused by the motor accident.
The issues to be determined in this review are:
(a) whether the surgery was related to injury caused by the accident, and
(b) whether the surgery was reasonable and necessary treatment.
BACKGROUND
The claimant is also known as Than Tun and Maung Than Tun. He is now 46 years of age. He came to Australia from Myanmar in 1995 and completed a Bachelor of Computing before working as a network administrator for some years.At the time of the accident Mr Lin worked as a taxi driver.
Mr Lin had suffered injury to both knees prior to the accident. In his certificate dated 11 May 2021[1] Medical Assessor Woo provided the following history of the claimant’s earlier injuries, his recovery from earlier surgery and his pre-accident coping:
[1] AD2 p 53 and AD1 p 24 (the reference AD relates to the numbering of the document in the portal).
“Left knee injury in 1998
He was a factory worker when he injured his left knee on 29/05/1998.
He underwent left knee arthroscopy, medial partial meniscectomy and ACL reconstruction. He returned to light duties two months after the operation and his employment was terminated.
He underwent subsequent surgery which involved removal of a titanium staple, which was part of the distal fixation on the ACL graft. He also retore his medial meniscus and underwent a partial medial meniscectomy on 4/07/2001.
He had been treated intermittently for patellofemoral dysfunction.
Left knee injury – Motor vehicle accident in May 2005
He was in a car which was struck from behind causing such damage that the car was written off. Both knees impacted on the dashboard and his left knee was immediately painful.
On 20/09/2006, he underwent a two-stage MACI reconstruction for a large chondral defect in the weight bearing surface of the lateral femoral condyle, performed by Dr Ivan Popoff.[2]
[2] AD1 p 251.
Dr Popoff reviewed him on 15/10/2007 and reported that MRI revealed good incorporation of the defect with the MACI chondrocyte graft with reasonable fill of 50-75%.
Dr Popoff reviewed him on 18/10/2007 and reported that he was regaining quadriceps muscle bulk.
He returned to taxi driving.
He claimed that he had 90% recovery of his left knee function.
Right knee injury in 2009
He was assaulted while driving a taxi in May 2009.He was beaten quite badly in the attack and injured his right knee. The knee swelled immediately and was very painful for a few weeks.
He consulted with Dr Popoff on 16/09/2009.Dr Popoff noted ACL deficiency. He was referred for MRI scan which revealed an ACL tear and medial and lateral meniscal tears.
Dr Popoff scheduled him for a right ACL reconstruction plus partial medial and lateral meniscectomies.
Mr Lin did not proceed with the surgery and instead treated his knee non-operatively and did appear to be managing very well. His feeling of instability resolved as did the pain and he got back to high level of recreational activity, in fact went back to playing competitive soccer without difficulty.
He told me that prior to the subject accident on 25/05/2015, he had no problem with his work, recreations and activities of daily living including looking after his disabled daughter who requires frequent medical treatment.”
Mr Lin asserts he hit both knees on the dashboard at the time of the accident resulting in immediate pain. His GP referred him back to Dr Popoff who he saw on 5 June 2015 with complaints of bilateral knee pain. Following an MRI Dr Popoff recommended surgery.
On 28 July 2015 the insurer declined to approve surgery, namely a right knee arthroscopic ACL reconstruction and partial medical meniscectomy and a left knee partial medical meniscectomy.
On 2 December 2019 the claimant referred the dispute to the Assessment Service for assessment in accordance with Part 3.4 of the MAC Act. The dispute was referred to Medical Assessor Alexander Woo.
On 11 May 2021, Assessor Woo certified that the future right knee arthroscopic ACL reconstruction, partial medial and lateral meniscectomy combined with left knee arthroscopy partial lateral meniscectomy and excision of ganglion cyst surgery as proposed by Dr Ivan Popoff on 23 January 2019, relates to the injury caused by the accident; is reasonable and necessary in the circumstances; and will improve recovery of the injured person.[3]
[3] AD2 p 53 and AD1 p 24.
REVIEW PROCEDURE
The insurer applied for a review of the medical assessment certificate of Assessor Woo dated 11 May 2021 pursuant to s 63 the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under clause 14A(1)(a)(vii) schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review.
The new review provisions provide that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission.[4]
[4] Section 63(3) of the MAC Act.
Clause 16.3.1 of the Medical Assessment Guidelines requires an application for review of an assessment by a single Medical Assessor in a treatment dispute to be lodged within 30 days after the date on which the certificate was sent to the parties. The certificate was issued to the parties on 10 August 2021.
The application for review of the medical assessment of Assessor Woo was lodged on 2 September 2021 within the 30-day timeframe.
On 27 October 2021, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[5]
[5] Section 63(2B) of the MAC Act and AD2 p 60.
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 is by way of a new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties on 13 December 2021 (the first Direction) which required each party to file an indexed, paginated bundle of documents. In response to this direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 424 labelled AD1. The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 62 labelled AD2.
At the request of the Panel the claimant uploaded to the portal the clinical records of Wentworthville Medical and Dental Centre labelled AD4.
On 29 March 2022 the Panel agreed an examination was required. The Panel issued a Review Panel Report and Directions dated 30 March 2022 in which the Panel made inter alia the following direction:
“2. In the course of the review the Panel proposes to review the following medical literature:
(a)Andruszkow, ‘Knee Injuries in severe trauma patients: a trauma registry study in 3.458 patients’ (2012) Journal of Trauma Management & Outcomes, at 1 (attached)
(b)Cheung, ‘Osteoarthritis and ACL Reconstruction – Myths and Risks’ (2020) Current Reviews in Musculoskeletal Medicine at 115 (attached)
(c)Ruano, ‘Prevalence of Radiographic Knee Osteoarthritis After Anterior Cruciate Ligament Reconstruction, With or Without Meniscectomy: An Evidence-Based Practice Article (2017) 52 (6) Journal of Athletic Training at 606 (attached).”
3. On or before 27 April 2022 the parties are to upload to the portal any submissions sought to be relied upon in relation to the attached medical literature and the Panel’s intention to review this literature in the course of the review.
The claimant uploaded to the portal submissions in response to the Review Panel Report. Those submissions are marked AD3 and relevantly state as follows:
“Compliance with second direction
6. The panel has sought the parties’ submissions in respect of the medical literature the panel proposes to review.
7. The claimant notes that the relevant medical literature has not been referred to by the treating specialist or experts qualified by either party.
8. While the review panel is to conduct a de novo assessment of the disputes between the parties, it is the material relied upon by the parties which sets the boundaries of the relevant dispute.
9. The claimant raises a concern that the review panel may fall into jurisdictional error if it considers an issue which the parties have not themselves raised and have not had the opportunity to have their own experts consider.
10. The review panel is comprised of two medical professionals. The claimant is not a medical professional. Nor are his legal representatives.
11. It is inappropriate for the claimant to make submissions about the medical literature without having their own qualified experts review it. The claimant does not have the requisite level of medical knowledge to raise informed concerns about the medical literature.
12. For example, what is the medical relevance of the journal articles referred to by the panel to the dispute between the parties? Are there other relevant journal articles which are equally relevant or more relevant to the dispute between the parties? Are the articles peer-reviewed? Have the conclusions raised in the journal articles been refuted in previous or subsequent articles?
13. The claimant objects to the review panel considering the medical literature.
14. If the review panel intends to rely on the relevant medical literature, the claimant seeks much greater clarity on what conclusions it intends to draw from the relevant articles. The claimant then proposes to seek medico-legal evidence addressing the literature, its relevance to the review application and the conclusions that the panel intends to draw from it.
15. In the absence of medico-legal evidence pertaining to the nature and content of the literature to be reviewed, the claimant is uninformed as to whether the literature is relevant to the review application, and consequently, whether the decision-makers may or may not be led into factual or other error, in reliance upon the literature.
The claimant’s position
16. The claimant therefore:
·objects to the review panel’s reliance on the medical literature listed in their interim directions dated 30 March 2022;
·seeks further clarity from the review panel as to what conclusions the review panel intends to draw from the relevant literature;
·if necessary, will obtain supplementary medical evidence dealing with the literature;
·If necessary, will seek consent from the review panel and the insurer to obtain medico-legal evidence in respect of the medical literature and to lodge that material with the Commission”.
The Panel noted the submissions of the claimant and agreed to determine the dispute without reference to the literature referred to in paragraph 2 above.
MATERIAL BEFORE THE REVIEW PANEL
Whilst the panel has reviewed the documents contained in the bundles produced respectively by the parties, the panel proposes to address specifically those documents which address the claimant’s bilateral knee condition both pre- and post-accident. The Panel has also had regard to the report of Dr Popoff dated 6 October 2020.
Medical assessment under review
The assessment under review is the assessment of Medical Assessor Woo who issued a certificate dated 11 May 2021.
Assessor Woo reported both knees hit the dashboard in the accident and were immediately painful. Mr Lin reported his right knee became unstable. Dr John Wong, GP referred Mr Lin back to Dr Popoff who reviewed him on 5 June 2015.
Assessor Woo reported an MRI scan of the left knee revealed the ACL graft was intact, but there was a new tear of the posterior horn of the medial meniscus. The MRI of the right knee disclosed an ACL tear and a medial meniscal tear.
Assessor Woo reported Mr Lin underwent the following operations performed by Dr Popoff on 23 January 2020:
· right knee arthroscopic ACL reconstruction, partial lateral meniscectomy, and
· left knee arthroscopy, partial lateral meniscectomy, excision of ganglion cyst.
He reported post operatively Mr Lin developed an infection in the right knee and underwent a further procedure including debridement and washout of the right knee wound and removal of the delta screw.
At the time of his assessment Assessor Woo reported Mr Lin had no more pain in both knees although he had occasional swelling in both knees about every three weeks.
Assessor Woo did not comment on the opinions of Drs Barrett, Gibson or Shnier.
Assessor Woo concluded the injuries to both knees were caused by the accident because:
· Mr Lin did not have any problem with either knee prior to the accident;
· Mr Lin had been able to manage the ACL deficiency in his right knee with non-operative treatment;
· Dr Popoff had noted Mr Lin had regained quadriceps muscle strength in his legs:
· Mr Lin had worked full time and participated in his usual recreational and daily activities prior to the accident;
· as a result of the accident Mr Lin lost the stability of the right knee and had muscle wasting;
· following the accident Mr Lin had ongoing bilateral knee pain and swelling, and
· Mr Lin had a good recovery of both knees from the surgery performed on 23 January 2020.
MRI left knee 7 November 2005
On 7 November 2005 Mr Lin underwent an MRI of the left knee.[8]Dr Read reported a history of previous ACL reconstruction with ongoing problems and concluded:
· “Intact ACL graft showing diffuse degenerative thickening, associated ganglionic change, and anterior notch impingement. Anterior tibial drawer noted.
· Small meniscal tag at the intercondylar margin of medical meniscus posterior horn remnant.
· Unstable in-situ chondral flap with associated subchondral marrow oedema at the weight-bearing aspect of lateral femoral condyle.
· Small loose chondral body within the posterior superior recess of knee joint adjacent to medial femoral condyle.
· Baker’s cyst”.
MRI right knee 22 September 2009
[8] AD4 p 136.
Following the 2009 injury Dr Shnier reported on an MRI of the right knee of 22 September 2009[9].
[9] AD1 p 111.
“The anterior cruciate ligament is torn. It appears subacute. The posterior cruciate ligament is intact.
There is a tear of the posterior horn of the medical meniscus with vertical and oblique components particularly in the periphery. Minor cartilage thickness in the medical compartment is preserved.
There is a fairly extensive oblique tear of the lateral meniscus which involved the anterior and posterior horns of the body and has horizontal cleavage components to it. The osteochondral surfaces laterally outline normally.
There is good cartilage preservation in the patellofemoral joint.
The medial and fibular collateral ligaments appear normal.
Conclusion:
1. ACL tear.
2. Medial and lateral meniscal tears.”
Clinical records of Wentworthville Medical & Dental Centre
On 23 May 2006 Dr Myint Tun reports the history of earlier knee injuries including the May 2005 motor vehicle accident and notes Mr Lin still had ongoing left knee pain.[10] Dr Tun viewed laparoscopic arthroscopy wounds of the left knee under a transparent dressing and observed swelling. He reported Mr Lin walked with a limp.
[10] AD4 p 39.
On 8 July 2006 Mr Lin discussed with Dr Tun his ongoing knee pain and the pros and cons of future operations.
On 21 October 2006 Dr Tun recorded “implant on 21.9.2006” and on examination observed swelling of the left knee with minor oedema.[11] He noted Mr Lin walked with two crutches. On 28 October 2006 Dr Tun reported Mr Lin walked with a crutch.
[11] AD4 p 37.
Dr Tun reported left knee pain on 22 November 2006 and again on 4 June 2007.
On 12 February 2009 Dr Tun reported right knee pain for a week since twisted at home. He reported “normal gait, normal rom, warm over infrapatellar bursa, McMurray, apprehension and drawer’s all negative”.[12]
[12] AD4 p 30.
On 18 June 2009 Dr Tun reported:
“Was assaulted on 12.4.2009 resulting right knee, jaw and head injuries, police involved.
Injuries: head injury, right knee injury, jaw injury
Worsening right knee pain; limping on right side, tender bilateral rt knee jt lines, McMurray positive, Drawer and Apprehension tests positive, reduced flexion and extension due to pain, mild muscle wasting right quadriceps, normal reflexed and sensation, CR<2 sec.”
On 20 August 2009 Dr Tun recorded Mr Lin still had bilateral knee pain and referred him to Dr Popov. On 27 August 2009 Dr Tun reported Mr Lin presented with worsening bilateral knee pain since he was attacked.
On 17 September 2009 and again on 27 December 2009 Dr Tun reported worsening right knee pain and noted Mr Lin was limping on the right side.
There is no further mention of right knee pain until 2 September 2011 when Dr Tun records recurrent right knee pain.[13] He prescribed Mobic, Panadeine Forte and Panadol Osteo. He also noted:
“Normal gait, no localised tenderness, normal rom all directions both knees, power normal, reflexes normal, sensation intact, CR<2 sec, McMurray negative, Drawer negative, Apprehension test negative”.
[13] AD4 p 16.
On 20 February 2012 and again on 6 November 2012 Dr Tun notes recurrent LL pain both sides from chronic OA symptoms from knees.[14]
[14] AD4 pp 14 and 11.
There is no further mention of either knee until 6 April 2016 when Dr Tun records a history of the accident and notes, inter alia, damage to the knees. In a detailed entry dated 4 June 2016 Dr Tun records “deteriorating knee pain for few weeks”.
St George Hospital
Following the accident on 25 May 2015 Mr Lin was conveyed by ambulance to St George Hospital.[15] The discharge referral reported Mr Lin was jolted forward and on presentation complained of pain everywhere, although he did mention right elbow pain and bilateral knee pain. On examination, his knees were unremarkable on examination.
[15] AD1 p 152.
Dr Wong
On 29 May 2015 Dr Wong noted that “after accident knee locked under dash bilateral – still pain both knees”.[16] However, on examination Dr Wong recorded “Bilateral knee. Not swollen. Non tender. No restriction.” In his report dated 4 June 2015 Dr Wong provided a diagnosis of soft tissue injury to both knees.[17]
Dr Popoff
[16] AD 1 p 177.
[17] AD1 p 182.
On 23 September 2009 Dr Popoff reported the MRI scan revealed an ACL tear plus medical and lateral meniscus tears.[18] He stated he proposed to proceed with a right knee arthroscopic ACL reconstructions plus partial and lateral meniscectomies.
[18] AD4 p 152.
Mr Lin was reviewed by Dr Popoff on 5 June 2015. He reported complaints of bilateral knee pain. In relation to the right knee, he reported “there is mild effusion, the knee is stable to varus valgus stress, but he has a positive Lachman and pivot shift test. He has exquisite medial joint line tenderness and a positive McMurray’s test.” Dr Popov reported the left knee was non tender, appeared to be ligamentously stable but was difficult to examine due to protective muscle spasm.
Bilateral MRI scans of 29 June 2015
Mr Lin underwent MRI of the knees bilaterally on 29 June 2015.[19] Dr Dimmick provided the following conclusion in respect of the left knee:
· “Status post ACL reconstruction. Intact graft.
· Extensive ganglionic change noted throughout the tibial tunnel.
· Adjacent intraosseous ganglionic change adjacent to the posterior margin f the tibial tunnel, measuring 5 x 4 x 11mm.
· Partial medial meniscectomy is noted with marked truncation of the posterior horn and mid to posterior body.
· Residual posterior horn contains a vertical cleft and the peripheral portion of this residual posterior horn is degenerative.
· Mild proliferative new bone formation arising from the subchondral bone of the posterior weightbearing surface of the lateral femoral condyle, with overlying moderate grade chondral loss (measures 10 x 10mm in AP and transverse dimensions.
· Moderate grade chondral loss within the posterior weight bearing surface of the lateral tibial plateau, measuring 8 x 4mm.
· Subchondral oedema within the posterior weight bearing surface of the medial tibial plateau with overlying chondral softening and mild grade chondral loss.”
[19] AD1 p 120.
Dr Dimmick provided the following conclusion in respect of the right knee:
· “Non-acute rupture of the ACL is noted.
· Marked degeneration of the central posterior horn of the medial meniscus which contains a vertical tear at the junction of the central and peripheral meniscus.
· Truncation of the posterior body of the medial meniscus may be post-surgical in nature or reflects a free edge tear.
· Marked attenuation of the posterior root ligament of the lateral meniscus.
· Diffuse mild grade chondral thinning within the weight bearing surfaces of the lateral femoral condyle.
· Heterogeneity of articular cartilage and moderate grade chondral loss within the posterior weightbearing surface of the lateral femoral condyle, measuring 18 x 7mm.
· Moderate grade chondral loss within the posterior weight bearing surface of the lateral tibial plateau.
· Mild diffuse chondral thinning within the medial comportment of the tibiofemoral joint.
· Mild intramuscular oedema within the distal muscle bulk of biceps femoris and mild tendinosis of the distal biceps femoris tendon.”
In a report addressed to the insurer dated 9 August 2015 Dr Popoff pointed out that the claimant’s knee was totally asymptomatic prior to the accident and became symptomatic with symptoms consistent with a right medial meniscal tear only after the accident.[20] He stated the force required to tear a medial meniscus is “actually quite minimal” and the accident described by the claimant would, in his opinion, be sufficient to cause such an injury. Dr Popoff expressed the view that the ACL injury was acute rather than chronic.
Bilateral MRI scans of 3 January 2019
[20] AD1 p 126.
Mr Lin underwent MRI of the knees bilaterally on 3 January 2019.[21] Dr Rashid provided the following comment in respect of the right knee MRI:
“1. Chronic complete full thickness rupture of the ACL associated with resorption of most of the ligament and some supportive evidence for static deficiency/dysfunction.
2. Features favoured to represent an old ramp tear of the medial meniscus.
3. Lateral meniscus tear as detailed.
4. Likely old OCD at the posterior weightbearing surface of the LFC.
5. Small joint effusion and Baker’s cyst.
6. Semimembraneous tendinosis and possible bursal fluid”.
[21] AD2 p 46.
Dr Rashid provided the following comment in respect of the left knee MRI:
“1. Status post previous hamstrings neo ACL with largely effective mature ligamentisation.
2. Tibial tunnel ganglion with features favoured to reflect extra-osseous decompression to the deep midline anterior intercondylar notch.
3. Features suggesting a prior medial meniscectomy with superimposed degenerative signal.
4. Lateral meniscal tear as detailed.
5. Probable OCD at the posterior weightbearing surface of the LFC.
6. Femorotibial compartment OA as detailed.
7. Small Baker’s cyst”.
On 23 January 2019 Dr Popoff reviewed the MRI scans. On examination he reported Mr Lin had a stable left knee, positive McMurray’s test and a good range of motion. In respect of the right knee Dr Popoff reported Mr Lin had a positive Lachman anterior drawer and pivot shift and a positive McMurray’s test. He reported whilst Mr Lin had continuing problems with both knees, the left knee was unstable with everyday activities. He recommended surgery.
Operation report
Mr Lin underwent right knee arthroscopic ACL reconstruction, partial lateral meniscectomy, left knee arthroscopy, partial lateral meniscectomy and excision of ganglion cyst at Waratah Private Hospital on 23 January 2020.
Dr Popoff report, 6 October 2020
Dr Popoff provided a report dated 6 October 2020 in which he summarised his treatment of the claimant. He first reviewed Mr Lin on 15 February 2006 when he complained of left knee pain following his involvement in a motor vehicle accident in May 2005.
Dr Popoff reported earlier problems with the left knee, noting an initial injury at age 23 and a further injury at work on 29 May 1998. He states Mr Lin was diagnosed as having a bucket handle tear of the medial meniscus and an ACL deficient knee. He noted the claimant had undergone both a partial medial meniscectomy and an ACL reconstruction. Subsequent surgery involved the removal of a titanium staple.
Dr Popoff reported Mr Lin re-tore his medial meniscus and underwent a partial medial meniscectomy on 4 July 2001. He also reported he had been treated intermittently for patellofemoral dysfunction. Dr Popoff reported Mr Lin informed him he had recovered well until sustaining injury in 2005.
Dr Popoff reported an MRI scan confirmed Mr Lin had sustained a re-tear of the medial meniscus. There was also a loose body in the joint and a loose chondral flap on the lateral femoral condyle. He reported the ACL graft appeared intact.
On 18 May 2006 Dr Popoff performed a left knee arthroscopy and a cartilage biopsy for autologous chondrocyte transplantation was performed. He reported the medial meniscus was essentially intact except for a small tag. Mr Lin underwent the second stage of autologous chondrocyte transplantation on 20 September 2006.
Dr Popoff reviewed Mr Lin on 18 October 2007 when he reported he was doing well and was regaining quadriceps muscled bulk and had good function in his knee. He recommended a gym-based rehabilitation programme.
Dr Popoff reviewed Mr Lin on 16 September 2009, four months after he had been assaulted driving his taxi. He injured his right knee in the attack. His knee swelled immediately and was painful for a few weeks. His knee locked intermittently and had become unstable tending to give way during normal activities.
An MRI scan demonstrated an ACL tear and medial lateral and meniscal tears. Dr Popoff recommended a right ACL reconstruction plus partial medial and lateral meniscectomies. However, Mr Lin chose to treat his right knee non-operatively. Dr Popoff reported the feelings of instability resolved, as did the pain and Mr Lin got back to a high level of recreational activity, including playing competitive soccer.
Dr Popoff reported both knees hit the dashboard and were immediately painful when the claimant was involved in the accident. He stated an MRI of the right knee revealed the pre-existing ACL tear, a tear of the posterior and medial meniscus, a tear of the meniscus and in the left knee an intact graft, some degenerative changes and a tear of the posterior horn in the medial meniscus.
Dr Popoff concluded that the previously documented ACL tear of the right knee had decompensated in the accident and become clinically unstable. He concluded the claimant had developed a new meniscal tear in the left knee from the accident.
Dr Popoff performed a right knee ACL reconstruction and partial lateral meniscectomy combined with a left knee arthroscopy and partial lateral meniscectomy and excision of ganglion cyst on 23 January 2020. Subsequently the swelling subsided but then ruptured.
On 6 August 2020 Mr Lin underwent further surgery, namely, right knee excision of sinus, drainage of abscess; debridement and washout right knee wound and removal of delta screw at Waratah Private Hospital.
As at the date of his report Dr Popoff stated both knees were functioning well.
In respect of causation of the bilateral knee conditions Dr Popoff stated:
“In summary, the incident of 25 May 2015 aggravated and exacerbated a pre-existing ACL tear in the right knee and resulted in a tear in the lateral meniscus in the left knee.”
Medico-legal assessments and medical assessments
Dr Drew Dixon
Mr Lin was assessed by Dr Drew Dixon on 1 February 2016 who provided a report dated 3 February 2016.[22] Dr Dixon did not obtain a full history of the claimant’s pre-accident knee injuries. He reported injury to both knees in a motor vehicle accident in 2005 followed by a MACI (bone grafting) procedure in 2006. He also reported a left anterior cruciate ligament reconstruction followed by a return to work. He also reported a fall from a ladder at work 15 years earlier resulting in an arthroscopic review of the left knee. He was apparently not aware that Dr Popoff had recommended a right ACL reconstruction plus partial medial and lateral meniscectomies following the assault in May 2009.
[22] AD2 p 34.
At the time of the accident Dr Dixon reported Mr Lin experienced intermittent ache in both knees but was able to play social soccer.
Dr Dixon reported Mr Lin had ongoing pain and limp with both knees. He had difficulty kneeling and squatting and difficulty going up and down stairs. He reported intermittent swelling.
Dr Dixon recorded the following on examination of both knees:
“He walked with a limp on the left and toe walking was difficult and heel walking was very difficult due to pain in his knees more marked on the left and his squat test was decreased by one half on the left and one third on the right due to knee pain. There was audible retropatellar crepitus on squatting.
He was unable to reproduce recurvatum on his left knee where there was a 10-degree flexion contracture while standing and he was able to reproduce recurvatum on the right. There was popliteal fullness at the left knee. There was tenderness of his left knee at the anteromedial joint line with mild medial collateral ligament laxity of the knee in flexion. His anterior drawer sign was very mildly positive. There was retropatellar crepitus and weakness in the peri-patellar region medially and laterally and pain on patella compression. The pivot shift test was equivocal. The McMurray’s test was positive at the medial joint line.
The range of motion of his right knee was 0 degrees through to 140 degrees. There was a mild medial collateral ligament laxity of the knee in flexion and a positive anterior drawer sign. The pivot shift test for rotatory instability was equivocal. There was tenderness at the medial joint line with a positive McMurray’s test and there was retropatellar crepitus with mild pain on compression. There was no gross effusion of the right knee today.”
Dr Dixon’s opinion as to causation of the claimant’s bilateral knee condition is of little assistance where he did not have access to the pre-accident treating records and was not aware of the claimant’s full pre-accident history.
Dr Ian Barrett
The claimant was assessed by Dr Ian Barrett, orthopaedic surgeon at the request of the insurer. He provided a report dated 3 December 2015.[23] Dr Barrett concluded:
“He acknowledged prior injuries to his knees. It is possible that his knees jolted against either the console or the dashboard at the time of the motor vehicle accident, however in my opinion an injury of this nature would not have resulted in injuries to the anterior cruciate ligament or the menisci. His knee symptoms are considered to be the result of pre-existing injuries and not a result of the subject motor vehicle accident.”
[23] AD1 p 36.
As to whether the surgery proposed was reasonable and necessary Dr Barrett stated:
“I have studied the reports prepared by Dr Popoff dated 05/06/2015, 06/07/2015 and 09/08/2015. I agreed with the opinion of specialist radiologist, Dr S Dimmick, that the changes in the claimant’s right knee are attributable to a non-acute rupture of the ACL rather than any injuries sustained in subject motor vehicle accident. The meniscal changes in his left knee are not considered to be causally related to the subject motor vehicle accident. The surgery to the knees requested by Dr Popoff is not considered to be reasonable or necessary as regards to the subject motor vehicle accident.”
Dr Barrett provided a further report dated 20 July 2016.[24] He concluded Mr Lin had sustained tri-compartmental osteoarthritis of the left knee and chronic rupture of the right anterior cruciate ligament with generalised degenerative changes not related to the accident.
[24] AD1 p 61.
Dr Barrett concluded the accident had caused soft tissue injury to the left knee aggravating the pre-existing degenerative changes and soft tissue injury to the right knee.
Dr Margaret Gibson
The claimant was assessed by Dr Margaret Gibson, occupational physician who provided a report dated 10 May 2016.[25]
[25] AD1 P 46.
Dr Gibson stated:
“I would regard it as possible that there may have been some minor trauma to one or both knees, however, in the absence of any significant swelling or other external signs, there would have been no internal derangement of either knee and no ongoing subject accident related condition of the knees.”
Dr Ron Shnier
Dr Ron Shnier, radiologist reviewed MRIs of both knees performed on 29 June 2015. He provided a report dated 19 September 2019.[26] He was also provided with the claimant’s medical records and reports relating to earlier imaging.
[26] AD1 p 71.
He noted the scans were conducted within a month of the accident and concluded:
“1. As pertains to the right knee, the ACL tear and the meniscal tears were present in 2009 and unrelated to the MVA. Similarly, the degree of osteoarthritis in medial and lateral compartments is unrelated to the MVA.
2. As pertains to the left knee, the graft is intact. Changes of osteoarthritis in the medial and lateral compartments are unrelated to the MVA”.
Dr Shnier concluded the changes depicted in the MRIs of 29 June 2015 were longstanding, were the expected progressions of the pre-accident injuries and were unrelated to the accident.
Medical Assessor Home
Medical Assessor Home issued a certificate dated 1 March 2017 in respect of permanent impairment.[27] He concluded, inter alia, the following injuries were caused by the accident:
· “Left knee – contusion – exacerbating symptoms related to underlying osteoarthritis. Symptomatic left knee with mild left quadriceps wasting.
· Right knee – contusion to the right knee with development of symptoms related to underlying pathology, including a pre-existing right ACL tear and a pre-existing meniscus tear”.
[27] AD1 p 74.
Assessor Home reported that following the assault in September 2009 the claimant’s knee improved. Mr Lin continued to suffer occasional cold related sensitivity in the left knee and intermittent ache. He was able to play social soccer and was careful to avoid excessive loading of his knees.
Assessor Home was satisfied the claimant sustained a contusion to the left knee in the accident, leading to an increase in symptoms from the pathology. However, he was not satisfied there was additional pathology when comparing the post-accident and the pre-accident scans.
Similarly, Assessor Home concluded Mr Lin sustained a contusion to the right knee in the accident, but he was not satisfied that the post-accident scans identified any additional pathology.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 22 January 2020[28] in respect of the dispute before Medical Assessor Woo and submissions in support of the application for review dated 2 September 2021.[29]
[28] AD1 p 4.
[29] AD1 p 8.
Whilst the claimant alleged, inter alia, injuries to both knees due to the accident on 25 May 2015 the insurer noted he had prior injuries to both knees.
In 1998 he underwent a left knee arthroscopy, partial medial meniscectomy and ACL reconstruction. He also underwent subsequent surgery for the removal of a titanium staple.
The claimant re-tore his left medial meniscus and underwent a partial medial meniscectomy on 4 July 2001.
In May 2005 the claimant sustained injury to both knees in a motor vehicle accident. The insurer asserts he brought a claim in the name of Than M Tun. On 18 May 2006 the claimant underwent a left knee arthroscopy and a cartilage biopsy for autologous chondrocyte transplantation followed by the second stage of autologous chondrocyte transplantation on 20 September 2006.
He was assaulted in May 2009 and suffered injuries to his right knee. He came under the care of orthopaedic surgeon Dr Ivan Popoff, who recommended right ACL reconstruction and meniscectomy. The claimant did not proceed with these surgeries.
On 13 July 2015, Dr Popoff recommended that the claimant undergo right knee arthroscopic ACL reconstruction and partial medial meniscectomy, and a left knee partial medial meniscectomy. The insurer declined funding on the basis the surgery was not reasonable and necessary as a result of the accident.
On 23 January 2019 Dr Popoff recommended that the claimant proceed “with a right knee arthroscopic ACL reconstruction, partial medial and lateral meniscectomies combined with the left knee arthroscopy left full meniscectomy and excision of ganglion cyst”. The insurer indicated it required further evidence to assess the request.
The insurer relies upon the opinion of Dr Barrett who conceded it was possible the claimant jolted his knees against the console or the dashboard at the time of the accident but did not believe an injury of that nature would have resulted in injuries to the anterior cruciate ligament or the menisci. Dr Barrett opined that the changes in the claimant’s right knee were attributable to a non-acute rupture of the ACL rather than the accident. He also concluded the meniscal changes in the left knee were not causally related to the accident. Dr Barrett did not consider the surgery to the knees to be reasonable and necessary as regards the accident.
The insurer also relied upon the opinion of Dr Gibson who conceded the possibility of minor trauma to one or both knees but concluded in the absence of any significant swelling or other external signs, there would have been no internal derangement of either knee. She did not consider any further treatment was required in relation to the accident-related injuries.
The insurer relies upon the opinion of Dr Shnier who reviewed the MRIs of both knees performed on 29 June 2015. He concluded the changes depicted in the MRI’s were longstanding and not affected by the accident. The changes were expected progressions relating to the injuries sustained prior to the accident.
Claimant’s submissions
The claimant provided submissions dated 23 September 2021 addressing whether the assessment of Assessor Woo was incorrect in a material respect.[30] The claimant submits Assessor Woo comprehensively reviewed the clinical records of Dr Popoff, undertook a thorough examination of the claimant and exercised his discretion in issuing his certificate.
[30] AD2 p 50.
RELEVANT LEGAL AUTHORITY
In AAI Limited v Phillips[31] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in section 58(1) of the MAC Act.
[31] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
In Wingfoot Australia Partners Pty Ltd v Kocak Harrison AsJ at [57] confirmed that a Review Panel has “an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error. [32]
[32] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.
THE EXAMINATION
On Mr Lin was examined by Medical Assessors McGrath and Stubbs at the rooms of Dr McGrath on 4 May 2022.
Background
Mr Lin is now 47 years old. He came to Australia as a teenager from Myanmar and studied information technology at UTS.
He is married with four children of school age. The youngest was born in 2015 with a congenital neuromuscular disorder and requires full-time care. His wife who was formerly a nurse is now a full-time carer. The family are about to move back to their single-story home on a suburban block in Croydon. That house was run without outside assistance but was struck by a runaway motorcar 2020 and extensively damaged. The family has been in rental accommodation but expects to move back into their own home later this year.
Mr Lin presently works as a taxi driver. This gives much more flexibility than working in IT and is important in caring for the youngest child.
He suffered prior injuries to both knees.
The left knee was injured in a fall from a ladder when doing part-time work as a student in 1998. He suffered a rupture of the left anterior cruciate ligament and came under the care of Dr Craig Waller an orthopaedic surgeon requiring cruciate ligament reconstruction together with arthroscopies in 2000. The left knee was satisfactory following surgery 2001. There was no injury to the right knee at this time.
There were injuries to both knees in a motor vehicle accident in 2005 which, like the present accident Mr Lin thought was due to striking the dashboard with his knees.
The left knee became troublesome again. An MRI study showed the cruciate ligament reconstruction was intact but there were further meniscal injuries and evidence of articular cartilage loss in the knee joint. He came under the care of Dr Popoff and an autogenous chondral transplant was performed as a staged procedure during 2006/2007.
Mr Lin thought that the chondral transplant was needed due to the 2 May 2005 motor vehicle accident. A claim for damages was pursued, and he was seen by Dr Bruce Trevitt in September 2007 who believe there was a soft tissue injury only to the left knee. Dr John Davies assessed the claimant in March 2007 and thought the chondral surgery of 2006 was due to the 2005 motor vehicle accident. Dr James Bodel saw the claimant in 2006 but did not think he had fully recovered at that stage. It is Mr Lin’s understanding that there was no chondral damage from the 1998 accident. He was advised by Dr Popoff that the damage was due to the 2005 motor vehicle accident.
The left knee was satisfactory. Mr Lin was questioned about the records of the Wentworthville Medical and Dental Centre which disclosed he was taking a combination of nonsteroidal anti-inflammatory agents and simple analgesics to manage symptoms ascribed to knee arthritis. Mr Lin replied this was for the left knee only though he later noted the right knee became painful during the prolonged period he was on crutches associated with the chondral transplant and the 2009 injury.
Mr Lin suffered a physical assault in May 2009 whilst working as a taxi driver. He again saw Dr Popoff on 16 September 2009. An MRI study of 23 September 2009 showed a left ruptured ACL and medial and lateral meniscal tear. Dr Popoff discussed surgical reconstruction of the ACL. Dr Popoff recommended a right arthroscopic anterior cruciate ligament reconstruction plus meniscectomy be undertaken at the Hurstville Community Private Hospital. Mr Lin found he was not covered by workers compensation insurance for the injury and elected to treat the injury conservatively.
The right knee was satisfactory at this time.
The accident
Mr Lin recalled the accident. He was driving a 2010 or 2011 Toyota Tarago van. He was stationary when hit from behind by a large transport truck. He recalls broken glass from the rear door of the van being flung forward into the cabin and believes he struck his knees on the dashboard and jarred his back. Despite the damage and the age and mileage of the vehicle it was repaired.
He self-extracted from the vehicle, was taken to the St George hospital by ambulance, with his principal concern being the immediate onset of severe neck pain. He was assessed in the Accident and Emergency Department and sent home. He reported his neck was so stiff and sore the following morning, he could not lift his head from the pillow and needed assistance from his wife to get up.
After the accident the claimant’s right knee became prone to giving way, particularly if he was playing with his son. Surgical reconstruction of the anterior cruciate ligament was advised by Dr Popoff but refused by the insurer. Eventually Mr Lin saw Dr Popoff again. Dr Popoff wrote to Dr Tun at Wentworthville on 23 January 2019 noting Mr Lin now had positive Lachman and draw signs in the right knee.
On 23 January 2020 right knee arthroscopic ACL reconstruction and partial lateral meniscectomy was performed at the Waratah Private Hospital. Mr Lin self-funded the surgery. The operation report notes a grade 2 to 3 chondral damage in the medial lateral articular compartments, and lateral meniscal tear. The torn ACL was reconstructed with a hamstring tendon graft. At the same time, the left knee was arthroscoped where similar chondral damage was seen in the medial compartments, with articular cartilage cleavage in the tibial plateau and a complex tear of the lateral meniscus. The original anterior cruciate ligament graft was intact.
The right knee anterior cruciate ligament reconstruction was complicated by the development of a granuloma in the tibial tunnel of the hamstring graft some months later. Mr Lin saw Dr Popoff who drained the granuloma in his rooms. It recurred and he attended the Auburn Hospital who transferred him to Westmead Hospital. Surgery was advised but he was concerned by the youthfulness of the doctor he saw at Westmead and rang Dr Popoff. He was transferred to Waratah Private Hospital and the granuloma was drained and curetted. It healed satisfactorily but Mr Lin had to fund the ancillary medical, pathology and hospital fees himself. Dr Popoff waved his own fees. The right knee is now much more stable and secure. He is pleased with the outcome.
Current symptoms
Both knees feel stable and secure. Both will become painful, and swollen at times, but he still only requires nonsteroidal anti-inflammatory agents and simple analgesics during these episodes. He does not have to take medication continuously. His neck will get painful and stiff and at times his low back will ache with prolonged sitting. As a result, he has reduced his hours of driving from 10 hours a day before the accident to about seven hours a day now. Neither knee is showing any deterioration.
Clinical examination
Mr Lin attended the examination alone and travelled by public transport. He was carrying a walking stick but moved around the examination room freely without the use of the stick. He had a solid stocky muscular build; he stands 169 cm tall and weighs 84 kg. There are surgical scars in both knees consistent with the known surgery.
On examination he could tiptoe, heel toe walk and hop on either leg although not freely.
The range of movement of the hips and ankles was normal on both sides.
In respect of the knees note is made of previous reports where a difference was apparent in the thigh circumference between right and left legs. That is not the case now. Both lower limbs were equally used in activities of daily living (ADL). The knees showed a range of motion of 0 to 130° on the right side and -5 to 130° on the left side. Neither knee hyper extends but that would be the expected outcome following cruciate ligament reconstruction. Mild soft crepitus was heard in both knees when doing a full squat. Neither knee showed any heat, swelling or bony prominences. The girth of the knees was equal and there was no patellofemoral crepitus on either side on formal testing. The right knee shows a two+ anterior draw sign and a one plus Lachman test. This is an acceptable result for an anterior cruciate ligament reconstruction. The left knee shows a one plus anterior draw sign without a positive Lachman’s test. Again, this is a very acceptable result for an ACL reconstruction. The scars are well healed and of normal skin coloration. Significantly, neither knee shows any evidence of active osteoarthritis.
PANEL FINDINGS
There are no inconsistencies. The Panel found Mr Lin very straightforward in his history and fully cooperative in the clinical examination. The walking stick was a precautionary measure because he was concerned with being jostled in crowds whilst travelling on public transport. He does not normally need a walking stick.
The results of the anterior cruciate ligament reconstruction and partial lateral meniscectomy are very satisfactory in both knees.
Mr Lin believes there has been an exacerbation of his pre-existing knee injuries because his knees struck the dashboard in the accident. This is consistent with the contemporaneous medical records. Following the accident St George Hospital reported bilateral knee pain and four days after the accident Dr Wong reported “after accident knee locked under dash bilateral – still pain both knees”. On 5 June 2015 Dr Popoff reported complaints of bilateral knee pain, describing Mr Lin’s knees as asymptomatic prior to the accident.
Mr Lin subsequently underwent right anterior cruciate ligament reconstruction and a left knee arthroscopy and partial lateral meniscectomy and excision of a ganglion cyst on 23 January 2020. The insurer denied liability on several grounds including that the claimant had sustained earlier injuries to both knees and that the need for surgery was due to the pre-existing condition. The insurer also relied upon the opinion of Dr Barrett who conceded it was possible Mr Lin jolted his knees against the console or the dashboard but did not consider an injury of that nature would have resulted in injuries to the anterior cruciate ligament or the menisci. The insurer reasonably bases this on the known biomechanics of the injury with the Panel noting knee injuries are uncommon in rear impacts, the reported rate is only 2%. From a practical standpoint, in the Panel’s experience, these injuries resolve spontaneously and recover fully in normal knees without specific treatment.
However, Mr Lin does not have normal knees. He is known to have pre-existing right anterior cruciate ligament rupture and meniscal injury from 2009. He was treated conservatively for these injuries and did well until the accident. At most he required only intermittent anti-inflammatory and analgesic medications for either knee, he was able to work full time, was unimpaired in his activities of daily living and could kick a soccer ball around with his son.
After the accident he suffered increasingly common episodes of locking/giving way. He complained of ongoing bilateral knee pain and swelling. Effectively, he crossed the border between a potentially unstable anterior cruciate ligament/meniscal injury to a clinically unstable anterior cruciate/meniscal injury. Once instability developed it would tend to occur more frequently.
The Panel finds the accident materially contributed to the injury. Whilst the accident was not the sole cause of the injury the Panel finds it was a contributing cause which was more than negligible. The Panel accepts Mr Lin struck his knees on the dashboard in the accident and developed symptomatic instability after the accident precipitated by what would otherwise be an inconsequential injury. The Panel note that Mr Lin’s knees were unusually vulnerable to further injury at the time of the accident and what would otherwise be a minor injury has produced major effects. But for the accident it is likely that Mr Lin would have retained his satisfactory function in each knee.
The panel also observed a failure of conservative interventions (physiotherapy and exercise physiology) to restore him to pre-accident functionality. The Panel finds the surgery was reasonable and necessary in the circumstances and notes Mr Lin has achieved a very satisfactory outcome from the surgery. The Panel finds the accident was a material contribution to the need for treatment and the surgery would not have arisen but for the occurrence of the accident.
The Panel found the surgery to Mr Lin’s knees was reasonable and necessary in the circumstances and that the surgery relates to the injury caused by the accident.
Whilst the Panel has reached the same conclusion as Medical Assessor Woo the Panel proposes to revoke the certificate of Assessor Woo and issues a new certificate to reflect the fact that Mr Lin underwent the surgery proposed by Dr Ivan Popoff on 23 January 2020.
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