Eid v AAI Limited t/as AAMI
[2024] NSWPICMP 367
•6 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Eid v AAI Limited t/as AAMI [2024] NSWPICMP 367 |
| CLAIMANT: | Simone Eid |
| INSURER: | AAMI |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 6 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Personal Injury Commission Rules 2021; review of medical assessment for treatment and care; causation; Certificate under section 2.3; whether bilateral knee surgery is reasonable and necessary; path of reasoning; circumstances of accident; pre-existing medical conditions; injury arising out of the motor accident; diagnostic imaging; bilateral knee surgery; valgus osteoarthritis; secondary meniscal degeneration; Held – bilateral knee surgery does not relate to the injury caused by the motor accident; bilateral knee surgery is not reasonable and necessary in the circumstances. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The following treatment and care: (a) whether bilateral knee surgery relates to an injury caused by the motor accident DO NOT RELATE TO THE INJURY caused by the motor accident. 2. The following treatment and care: (a) whether bilateral knee surgery is reasonable and necessary in the circumstances IS NOT REASONABLE AND NECESSARY in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Simone Eid (the claimant) is a 55-year-old woman who was injured in a motor vehicle accident which occurred on 5 June 2021. She was the passenger, wearing a seat belt in a vehicle which was struck on the right-hand side by the insured’s vehicle. On 31 August 2021 the insurer advised the claimant that the claimant’s injuries for outside the definition of a minor injury (now referred to as a threshold injury) primarily as a consequence of the rib fractures she suffered in the accident.
Following this the claimant has undergone a significant amount of treatment including physiotherapy treatment. The claimant requested that the insurer meet the cost of bilateral knee surgery. The insurer has declined to pay for this treatment. Following a review the insurer affirmed this decision and accordingly the assessment of treatment and care – causation and assessment of treatment and care – reasonable and necessary, dispute was referred to the Personal Injury Commission (Commission).
The claimant was examined by Medical Assessor David McGrath on 27 November 2023, who, in a certificate dated 10 December 2023 determined that the bilateral knee surgery does not relate to the injury caused by the accident and accordingly, is not reasonable and necessary in the circumstances.
The claimant sought a review of this determination and, in a certificate dated 8 February 2024 the President’s delegate, Jeremy Lum, determined that there was a reasonable cause to suspect that the causation decision in the medical assessment was incorrect in a material respect and accordingly the matter was referred to this Review Panel.
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 the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The Review Panel met by Teams on 2 April 2023 and thereafter directed that the claimant be examined on 17 April 2024 by Medical Assessor Geoffrey Stubbs.
The claimant attended with her husband. She is presently 55 they have two sons aged 23 and 20 who live independently. Mr Eid suffered an injury in 2006 as a forklift driver and consequently had surgery to his back 2019 the form of the spinal fusion. He has been out of the workforce and in 2015. Mrs Eid went on a carers benefit. She says that prior to the motor vehicle accident she was looking for part-time work as she no longer received a parenting allowance. She has a school certificate and some experience in low-level administration with GIO prior to leaving in 1995 to start a family. Mrs Eid lives in a New South Wales housing commission ground floor unit which has 10 steps at the front.
The motor vehicle accident occurred on 5 June 2021 in the early afternoon. Mrs Eid was a front seat passenger in a 2004 Toyota Corolla driven by her son. The point of impact was on the passenger front side of the car. Her son assisted her out of the vehicle and the ambulance took her to Westmead Hospital where was she was assessed overnight but discharged home. There were no airbags deployed and passenger airbags may not have been fitted in any case. She reports being jolted forwards in the accident and believes she hit her knees on the dashboard.
She convalescent home and subsequent investigations revealed that she had suffered a seat belt injury including bruising across the groin and injuries to the ribs on CT scanning. The Toyota was towed away and not repaired. She saw her family practitioner Dr Golder who prescribed a variety of medications for anxiety depression and panic attacks including Endone and later Targin (both opiate analgesics). She is less active since the accident and says she has put on 10kg weight and lost her enthusiasm to do any housework or socialise. The knees remained troublesome and she is presently on the waiting list for bilateral arthroscopic assessment of both knees. Scans of the knees show abnormalities. Prior to the accident she stated that she had no problems with either knee. She has had heat and massage from the physiotherapist without benefit. The knees remain painful.
The seat belt injury across the chest as resolved without long-term problems.
She felt herself physically well prior to the motor vehicle accident did not report any restrictions in her activities.
Physical examination Ms Eid is 159cm tall and weighs 80kg. She has a hesitant manner and is very concerned about her injuries.
She can tip toe and heel toe walk but cannot hop and is unsteady in single leg stance. She is notably knock kneed with an inter malleolus distance of 15cm. The knock knee deformity is apparently lifelong. Squatting is limited to 60° and she required some assistance to get on and off the examination couch.
Cervical spine she has 4/5 flexion and extension and 4/5 rotation right equals left. Side bending to the right pain is not painful at 4/5 range but side bending to the left is. There is tenderness to light pressure over the right sided para scapular musculature but no guarding or spasm. On examination the upper limbs shows an otherwise full range of movement, brisk symmetrical reflexes (she is very anxious). Grip strength is only 4/5. Brachial stretch test, the Valsalva manoeuvre and compression testing is normal. She is diagnosis-related estimate (DRE) grade 1.
Lumbar Spine – she complaints of central low back pain with hypersensitivity to light touch but no guarding or spasm. Voluntary range of movement is poor. She is anxious about further injury. Forward flexion is fingertips to the lower pole of the patella but side bending restricted the proximal pole of the patella right equals left. She fears extending the spine will increase her pain and refuses to do this. Rotation of the lumbar and thoracic spine is half normal range, right equals left without apparent difficulty and voluntarily restricted. The knees can fully extend when sitting but straight leg raising is 60° right equals left with a negative traction sign. The reflexes are brisk and symmetrical when tested with the same comment about anxiety. There is no anatomical sensory disturbance but there are complaints of burning and numbness without any known provoking factors. She is DRE grade 1.
Lower limbs. Full range of hip, ankle, and feet movement. Valgus deformity is noted at the knees but both knees have full extension and flexed beyond 130°. The knees showed varus-valgus instability suggesting that the valgus deformity may actually be increasing. There is no anteroposterior draw to testing, no crepitus and no effusion, McMurray sign is negative.
Apart from the valgus deformity and mild bony tenderness in the lateral compartment the knees are unremarkable. Clinical diagnosis – mild constitutional lateral compartment osteoarthritis.
MRI cervical spine 27 May 2023 – normal study. There is some modest age changes at multiple levels consistent with her age. There is no sign of canal stenosis, foraminal entrapment or any recent injury. The reporting radiologist makes the same interpretation.
CT chest and abdomen and pelvis 19 July 2021 – this is six weeks after the motor vehicle accident. There are healing fractures of ribs 3,4 and 5 laterally and a little basal atelectasis (mucus retention but otherwise the study is unremarkable – radiologist makes the same interpretation).
MRI lumbosacral spine 22 September 2021 – normal age-related changes but no evidence of recent injury – radiologist makes the same interpretation.
Plain X-rays including weight-bearing films right and left knees to November 2022 – mild valgus osteoarthritis with lateral compartment’s reduction in joint space of about 50%. Small marginal osteophytes. Both patella is track laterally especially on the left side with articular cartilage damage and some marginal osteophytes. MRI of the right knee shows great 2-3 chondral damage in the lateral compartment with a degenerative horizontal tear of the lateral meniscus and marked degenerative lateral extrusion. There is a large cartilage interosseous tumour in the proximal tibia well separated from the joint surface representing a benign fibrochondroma (a lifelong developmental anomaly) with a much smaller fibrochondroma in the distal femur. There is a mild effusion. Conclusion early medial compartment osteoarthritis and meniscal degeneration is no traumatic features – the radiologist reaches the same conclusion.
MRI left knee 29 July 2021 – a benign fibrochondroma is seen in the proximal tibia but is much smaller than in the right knee. There is no fibrohondroma in the femur, a degenerative horizontal cleavage tear in the lateral meniscus and some extrusion. Otherwise, the left knee is a mirror image of the right. Osteoarthritis
Knee studies show constitutional valgus osteoarthritis of moderate nature with associated chondral damage and degenerative tears in the lateral menisci. There is no evidence of trauma. The radiologist reaches the same conclusion.
Impairment assessment could be carried out using Table 62 arthritis is assessed on joint space narrowing but the images are provided are not full-scale (probably about half actual size). The measured joint space in the medial compartment is 2mm on the joint space measured in the lateral compartment was 1mm.
Mrs Eadie Eid is a very anxious lady. She has constitutional valgus osteoarthritis and secondary meniscal degeneration in both knees to an equal degree. There is no evidence of trauma. There is no reason to think these changes are the consequence of the motor vehicle accident. There is no causal relationship. The bilateral knee arthroscopy will not help her. The lateral meniscal tears are the consequences of degenerative change and surgical removal of the meniscus will accelerate the development of the osteoarthritis. Further physical therapy in the form of heat and massage is palliative the best. She would benefit from remedial exercises in both knees.
The Review Panel is not satisfied that the material supports any contention that the motor vehicle accident caused any injury to her knees. The material does not support any contention that there was a traumatic injury to either knee in the accident. History taken by the claimant does not support any contention of a traumatic injury to her knees in the motor vehicle accident. The diagnostic investigations confirm bilateral arthritis to both knees and degenerative changes reflected in damage to the lateral meniscus of both knees. There is nothing in the material nor did the claimant give a history to the Review Panel of developing knee pain secondary to the rehabilitation she underwent following the motor vehicle accident.
Accordingly, as the Review Panel is not satisfied that the claimant suffered any knee injury in the accident, nor in the recovering from it, it follows that any surgical treatment to the knee, which is not recommended by the Review Panel, could not reasonably be considered to be an injury arising out of motor vehicle accident and accordingly bilateral knee surgery cannot be considered to be reasonable and necessary in the circumstances. The Review Panel is not satisfied that this is an injury which was either caused by the accident or developed consequent on any accident-related impairment.
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