Harris v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Harris v AAI Limited t/as AAMI [2024] NSWPICMP 125
CLAIMANT:	Craig Harris
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	5 March 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor (MA) Herald’s decision that treatment (including knee replacement surgery) was not reasonable and necessary and not related to the injuries caused by the accident; claimant hit from the left and fell off his motor bike onto his right side on 16 May 2020; hospital notes and GP records did not record any specific right knee symptoms for 13 months after the accident; claimant had previous right knee injury and some symptoms a few years before the accident; claimant had advanced osteo-arthritis in the right knee and needed the surgery and related treatment which the Panel found reasonable and necessary in the circumstances however the Panel determined that the surgery (and related treatment) was not caused by the accident due to the claimant’s pre-accident history, the absence of specific knee complaints for six months after the accident and no record of knee complaints until 13 months after the accident; Held – Medical Assessor’s certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Affirms the certificate issued by Medical Assessor Herald dated 20 June 2023, and 2. Certifies that the treatment in dispute does not relate to the injury caused by the motor accident.

STATEMENT OF REASONS

INTRODUCTION

Craig Harris was involved in a motor accident on 16 May 2020. He was riding his motor bike when he was struck by another vehicle which was merging from the left into Mr Harris’ lane.
Mr Harris says he injured his right knee in the accident. He made a claim for statutory benefits against AAMI, the third-party insurer of the vehicle that Mr Harris says caused his accident. AAMI appears to accept it is the relevant insurer and has been paying Mr Harris his statutory benefits.
A medical dispute about certain treatment and care has arisen in connection with that claim and Mr Harris referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 20 June 2023, Medical Assessor Herald determined that none of the treatment in dispute was related to the accident.
The insurer then lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 26 October 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. On 31 October 2023 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Harris’ claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits are payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act and include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits for all under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Unlike the previous scheme, damages for treatment and care cannot be recovered by the claimant against the insurer. The only mechanism for the claimant to recover the cost of treatment and care for the injuries caused by the accident is through the statutory benefits claim.
Section 3.24(2) of the MAI Act provides as follows:
“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.”

Reasonable and necessary in the circumstances

In order for the insurer to be liable to pay for the treatment, the claimant must establish that the treatment is “reasonable and necessary in the circumstances”. This test is different to, and arguably stricter than the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”. As there are few cases in respect of motor accident treatment disputes, the workers compensation scheme cases are therefore of some assistance.
In Diab v NRMA Ltd[2014] NSWWCCPD 2 (Diab) at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a)    the appropriateness of the treatment in dispute;
(b)    the availability of alternative treatment;
(c)    the cost effectiveness of the treatment;
(d)    the actual or potential effectiveness of the treatment, and
(e)    the acceptance by medical experts of the appropriateness of the treatment.
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 in the proceedings before the Panel.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment (that is, causation). It may be reasonable and necessary for a claimant to have treatment to alleviate symptoms from an injury but if the injury was not caused by the accident, the treatment will not be allowed.

Related to the injury resulting from the motor accident

The insurer is not liable to pay statutory benefits if the treatment in dispute “did not relate to the injury resulting from the motor accident”. This clearly requires the Panel to determine the injuries caused by the accident before determining whether the treatment relates to those injuries.
In determining whether the treatment is related to the injury caused by the motor accident the Panel notes the decision of AAI Limited t/as AAMI v Phillips[2] (Phillips). In a matter where the claimant had three motor accidents, the Court formulated the following test of causation for surgical treatment:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery[3]. Further, 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.”
[2] [2018] NSWSC 1710.
[3] Emphasis added.
The Phillips case concerns a claim made under the Motor Accidents Compensation Act 1999 (the MAC Act), but as the wording of the second part of Schedule 2 cl 2(b) of the MAI Act is the same as s 58(1)(b) of the previous legislation, the Panel will apply it to this case.

Dispute resolution

Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (b):
“whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Herald’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.

ASSESSMENT UNDER REVIEW

Three proceedings were referred to Medical Assessor Herald as follows:
(a)    M10533362 (knee replacement surgery);
(b)    M10537402 (physiotherapy), and
(c)    M10537376 (referral to Dr Dave).
There is no suggestion on the file before the Panel that these three proceedings were ever consolidated. Medical Assessor Herald examined the claimant on 17 May 2023 and on 20 June 2023 issued a single document which referenced the three matter numbers and is made up of:
(a)    certification that the three types of treatment do not relate to the injury caused by the accident;
(b)    certification that the three types of treatment are not reasonable and necessary in the circumstances, and
(c)    a statement of reasons explaining the certifications.
Medical Assessor Herald confirmed he was asked to assess disputes about requests as follows:
(a)    a right total knee replacement requested on 29 July 2021;
(b)    physiotherapy requested on 31 August 2022, and
(c)    a referral to Dr Dave on 22 August 2022.
Medical Assessor Herald documented the submission of the parties and identified the significant issue of causation between them.
Medical Assessor records the following history:
(a)    the claimant was at the time 45 years of age;
(b)    in 2007, with a weight of 165kg, Mr Harris had gastric banding surgery and now weighs 100kg;
(c)    at the age of 16 he sustained a lateral tibial plateau fracture;
(d)    he saw Dr Dave in 2016 for treatment to his right knee as he was developing arthritis. He had physiotherapy and cortisone;
(e)    the accident occurred on 16 May 2020 when a car changed lanes and collided with him as he was riding his motor bike;
(f)    an ambulance attended, police came and at Campbelltown Hospital he was diagnosed with a fractured left thumb;
(g)    he had surgery on 3 July 2020 for the left thumb and further surgery on 27 October 2020;
(h)    the claimant’s right knee “was painful since the accident but worse over the subsequent year.”;
(i)    on 8 July 2021 he saw Dr Dave who advised he needed a knee replacement, and
(j)    he has right knee pain and swelling, the pain is extreme, and he has difficulty walking and uses a crutch. He limits his activities.
On examination the claimant weighted 98kg and was 180cm tall. His right knee had a significant 20 degree valgus deformity with pain and crepitus and there was a large effusion.
Dr Herald says, “he presents as having end-stage osteo arthritis of his right knee with fixed valgus and flexion deformity.” In terms of causation, Medical Assessor Herald noted the previous injury (at age 16) the development of osteoarthritis (in 2016), long term morbid obesity and when combined with an absence of documented symptoms for 13 months after the accident led him to the conclusion that the need for treatment in dispute was not caused by the accident.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant alleges a breach of procedural fairness and says that the decision was not made fairly because the Medical Assessor’s reasons are not transparent.
The claimant takes issue with the Medical Assessor’s finding that there is a 13-month period were there were no documented right knee symptoms.
The claimant says:
(a)    in an Allied Health Recovery Request form dated 11 June 2020 (which the Panel notes is four weeks after the accident) there is a reference to “right sided contusions”;
(b)    on 9 June 2021 (which the Panel notes is 13 months after the accident), the claimant’s general practitioner (GP) says the “R knee is [unclear] to swell and be painful and stiff when in the cold weather.” The Panel is of the view that the allegedly illegible word in that sentence is likely to be “beginning”;
(c)    on 2 July 2021 (which the Panel notes is 14 months after the accident), there is a reference to symptoms in the right knee in a vocational assessment report;
(d)    when the claimant was seen by Dr Dave on 8 July 2021 (which the Panel notes is 14 months after the accident) Dr Dave took a history of the claimant having a motor bike accident in May 2020 when he was knocked over and fell off at high speed onto his knee, and
(e)    in the certificate of capacity dated 31 August 2022 (which the Panel notes is 26 months after the accident) there is a reference to “right knee” as one of the injuries sustained in the accident.
The claimant says the Medical Assessor has not made a proper assessment of the claimant and the clinical records.

Insurer’s submissions

The insurer says the Medical Assessor did expose his reasoning noting the pre-accident fracture, the presence of osteoarthritis in his knee before the accident, the claimant’s obesity and that there were no documented symptoms in the right knee over a 13 month period.
The insurer says the 11 June 2021 recovery request refers to right sided contusions but not a right knee injury. The insurer also says that the records referring to knee pain in June and July 2021 were written 13 months after the accident and are not contemporaneous to the accident. Again, the insurer says there is no contemporaneous complaint of right knee pain.
The insurer submits that Dr Cordeiro’s reports and certificates should be ignored because that doctor says he has had no involvement in the treatment of the claimant’s injuries.

Procedural matters

The Panel first met on 6 February 2024 and reported to the parties on 7 February 2024. The Panel noted that the real issue in dispute between the parties was whether the claimant injured his right knee in the accident and if so the nature of the right knee injury caused by the accident.
The Panel advised the parties it considered a face-to-face re-examination of the claimant was not required because the Medical Assessors were of the view a physical examination would not assist in the determination of the causation issue, there being no issue as to the state of the claimant’s knee and his need for knee replacement surgery. However, the Panel said it would like to conduct an audio-visual “examination” and clarify with the claimant his pre- and post-accident history in order to make its decision.
The parties were invited to provide submissions in relation to anything in the report, but no further submissions were received from either party.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claimant completed the application for personal injury benefits on 30 May 2020.[5] In the space given to list the injuries the claimant has said:
“At the scene of the MVA I turned down transport to hospital by ambulance but I attended hospital the next day. It started with severe pain in my left thumb and bruising and soft tissue damage to the whole [right hand side] of my body. 2 weeks post MVA I have pins and needles in [left hand side] thumb and no movement. Surgeons think its UCL ligament and nerve damage.”
[5] Page 19 of the insurer’s bundle.
A number of certificates of capacity have been provided in support of the claim as follows:
(a)    22 May 2020 – this certificate provides no diagnosis, and the management plan includes a referral to an orthopaedic specialist for an inability to move the left thumb. The Panel notes there is no mention of knee;
(b)    7 December 2020 – this certificate notes in the diagnosis section “tendon transfer left hand thumb motorbike accident” and includes physiotherapy and time off in January as part of the management plan;
(c)    2 June 2021 – this certificate lists in the diagnosis question “motorbike accident / ligament repair and tendon transfer”. It notes the management plan as “muscle strengthening and maximising extension / flexion left thumb” and notes the very slow recovery;
(d)    12 July 2021 – this certificate lists in the diagnosis question “motorbike accident / ligament repair and tendon transfer and right knee cartilage injury / knee replacement”, and
(e)    31 August 2022 – this certificate notes a motorbike accident right knee, referred to Dr Dave who recommends total knee replacement.

Treating medical records and reports

Records from Campbelltown Hospital have been produced.[6] The admission summary notes the claimant “walked into the ED” reporting a car accident the evening before. The claimant said he “landed on [right] side.” He says the speed of the accident was about 60km. He complained of right lower rib pain and swelling and pain in his left thumb. He denied neck pain and had normal neck movement. He denied any abdominal or pelvic pain and had no other injuries to the upper or lower limbs.
[6] Page 48 of the insurer’s bundle.
Imaging studies were undertaken on 17 May 2020 at the hospital of the chest and right ribs and left thumb.
On 9 June 2021, Dr Sa-Cordeiro signed a questionnaire he completed at the request of Ms Thakur, the insurer’s rehabilitation consultant. In answer to a request for additional comments, the Panel is of the view the handwriting reads as follows:
(a) left hand – will have some residual [?] of recovery, and
(b) right knee is beginning to swell and be painful and stiff when in the cold weather.
The claimant was referred to Dr Kadir by Dr Dave. In his letter of 19 June 2020,[7] Dr Kadir refers to a left thumb injury in the accident. In a letter to Dr Cordeiro dated 13 October 2020,[8] Dr Kadir refers to pain in the left wrist and left thumb. On 13 July 2021, Dr Kadir wrote to Dr Sa-Cordeiro[9] advising that after the surgery there was incomplete recovery of thumb movement albeit without pain. There are many documents relating to the claimant’s thumb injury, his two surgeries and the physiotherapy. The Panel does not intend to summarise all of these in the light of the limited issues in the current review.
[7] Page 23 of the insurer’s bundle.
[8] Page 24 of the insurer’s bundle.
[9] Page 97 of the insurer’s bundle.
Dr Sa-Cordeiro referred the claimant to Dr Dave on 21 June 2021[10] saying “this man has advanced [osteoarthritis] [right] knee with a [right] tibial angulation of lower leg at knee.”
[10] Page 43 of the insurer’s bundle.
On 8 July 2021, Dr Dave wrote to Dr Sa-Cordeiro[11] noting that Mr Harris had “advanced lateral compartment osteoarthritis that is causing him severe difficulties.” The claimant was walking with a stiff gait, was unable to manage stairs, had difficulty getting up from a chair and that it was “much worse after the motorbike accident in May 2020.” Dr Dave has a history of a previous injury and advised a right knee replacement was necessary.
[11] Page 79 of the claimant’s bundle.

Insurance rehabilitation and related reports

An allied health recovery request (AHRR) was made to the insurer by the claimant’s hand therapist Maryanne Simpson dated 11 June 2020.[12] It refers to “right sided contusions” and left thumb issues. In the clinical assessment section, there is no mention of signs and symptoms in the knee.
[12] Page 33 of the claimant’s bundle.
A fourth AHRR made by Mr Small, a hand injury physiotherapist dated 14 December 2020[13] also refers to thumb issues but does not mention the right knee.
[13] Page 38 of the claimant’s bundle.
A rehabilitation services report requested by the insurer and completed by Ms Le dated 26 May 2021[14] concerns only the left-hand injury. There is no mention of any right knee symptoms. The claimant reported teaching Karate and going to the gym before the accident. In her functional status assessment, Ms Le records:
(a)    the claimant was observed mobilising throughout the home for 10 minutes with a normal gait;
(b)    he demonstrated a full squat without having to hold onto furniture or supports;
(c)    no balance concerns, and
(d)    observed full bilateral lower limb range of movement when transferring on and off the dining room chairs.
[14] Page 28 of the insurer’s bundle.

While she said there were impairments to his activities of daily living and ability to perform domestic and lawn or garden duties, these related only to his left hand and thumb injuries.
Ms Le emailed the insurer on 9 June 2021 and refers to the left hand and thumb issues and that the claimant:
“… reported experiencing increasing right knee swelling, ‘aching / throbbing’ pain symptoms and reduced range of motion which have become more apparent around the start of the year. Mr Harris reported he experienced a ‘naggling’ sensation at the right knee following the motor vehicle accident which has developed into swelling / pain symptoms after completing gardening tasks folowing the motor vehicle accident, which involved sustained kneeling.”
Ms Le sent a further email to the insurer on 14 July 2021 after a case conference with Mr Harris and Dr Sa-Cordeiro.[15] In relation to the right knee, Ms Le records:
(a)    a range of flexion motion between 45 and 90 degrees while seated and normal abduction;
(b)    Mr Harris says he has right knee “stiffness” and increased pain when standing or walking for up to 45 minutes and has been shifting weight to his left side;
(c)    he had minimal soreness in the right knee when seated;
(d)    there was moderate swelling of the right knee observed “through his thick motor cycle safety gear”;
(e)    he was observed to mobilise with a slight limp;
(f)    he ascended and descended stairs one step at a time due to right knee pain symptoms, and
(g)    the claimant’s GP asked Mr Harris if his right knee had been scanned at hospital and Mr Harris advised he thought so as he had told the hospital of pain over the entire right side of his body. The GP asked the claimant to contact the hospital and obtain the right knee scans.
[15] Page 39 of the insurer’s bundle.

Radiology

The hospital records do not include any indication that the right knee was radiographed at the time of the accident.
Dr Sa-Cordeiro requested a right knee X-ray for the claimant on 26 July 2016. This reports a deformity of the proximal tibial metadiaphysis and mild joint space narrowing in the patella-femoral compartment suggesting mild osteoarthritis and some osteophytic lipping of the patella with effusion present.
An X-ray of the claimant’s right knee was undertaken at the request of Dr Sa-Cordeiro on 10 June 2021[16] and reports, lateral joint space narrowing, osteophytosis, patella-femoral joint space narrowing and effusion with calcification. An MRI was advised.
[16] Page 111 of the insurer’s bundle.

General practitioner records

Dr Sa-Cordeiro’s records have been produced[17] and reveal:
[17] Page 96 of the insurer’s bundle.
(a)    the records commence in December 2014;
(b)    the claimant was a long-term user of opiates since 2009 as a result of chronic pain from Crohns disease as well as psychiatric issues;
(c)    on 29 June 2016 the claimant attended with a fractured little toe and painful right knee which was swollen;
(d)    on 27 July 2016 the claimant attended for his knee problems and on 1 August he had an intra articular injection;
(e)    on 17 August 2016, the knee was reported as 70% better and on 7 September 2016 it was reported as “better although plays up now and then”;
(f)    Mr Gomez physiotherapist wrote to Dr Sa-Cordeiro on 24 April 2017 noting he had provided five sessions of physiotherapy to the claimant’s right knee to address pain and swelling. There was ongoing fat pad irritation and a query about whether a second injection may be necessary;
(g)    the claimant attended on 3 May 2017 with right knee symptoms and was given another intra-articular injection;
(h)    on 31 May 2017 Mr Harris attended with “knee pain R worse than ever”;
(i)    there are no attendances in 2018 or 2019 where any knee symptoms are recorded;
(j)    the claimant first attended on 18 May 2020 for the purposes of an accident injury medical certificate. It is said, “seen at hospital nil injuries but has generalised myositis [muscle inflammation] and stiffness”, and
(k)    the claimant attended on 25 May 2020, 24 June, 15 July, 19 August, 14 September, 18 September, 16 October, 16 November, 7 December, 18 January 2021, 26 February, 12 March, 15 March,12 April, 12 May and 2 June 2021 for thumb issues or his pre-accident medical issues. The Panel notes there is no mention of right knee pain or symptoms in any of the notes concerning these consultations.
On 9 June 2021 Dr Sa-Cordeiro requested an X-ray of the claimant’s knee and records (in capitals), “Right knee is becoming a real issue with increasing reduction of resistance swelling and pain. Needs investigations.” On 21 June 2021 the claimant attended again with right knee symptoms, and he was referred to Dr Dave. On 14 July 2021 it is recorded that the claimant’s right knee is getting worse. On 1 September 2021 the claimant was certified unfit for work due to his right knee (but was fit for work in respect of his thumb injury).
There are no further specific mentions of right knee pain in the records until 22 August 2022 when there is a note of “worsening [osteoarthritis] and pain [right] knee. Insurance refuses to pay and I advised him to have [total knee replacement].” On 31 August 2022 Dr Sa-Cordeiro notes the claimant was unable to go to work and needs more time off work “because of the pain and disability with his collapsing damaged [right] knee. Damaged in his [motorcycle] accident on the 16/5/2020 but has been OK until about 12/18 months ago”. There are no further accident-related or injury related attendance after that and the records end on 26 October 2022.

Medico-legal reports

The claimant’s solicitors obtained a report from Dr Bodel dated 29 June 2022. He summarises the injuries as including an “injury to the right knee” as well as the injury to the left thumb, musculoligamentous injuries and scarring.
He has a history of an impact from the right and a fall onto the claimant’s left side. Dr Bodel has a history of the development of the left thumb problems and the claimant’s surgery and the claimant reported “increased right knee pain which was also aggravated by this accident.” Dr Bodel has a history of a previous right knee injury “made much worse by this injury.”
The claimant reports thumb issues and “difficulty kneeling and squatting and … climbing into the truck.”
The claimant was said to be uncomfortable, had a pronounced right sided limp and fixed flexion deformity in the right knee with about 20 degrees of valgus angulation which was longstanding. Flexion was 90 degrees compared to the left (130 degrees) with extension at –20 degrees compared to the left (0 degrees).
Dr Bodel diagnosed a musculoligamentous aggravation of a “longstanding serious knee injury to the right knee.”
Dr Bodel found a 3% impairment due to the range of motion lost and scarring of the left thumb but did not provide an impairment assessment of the knee.

RE-EXAMINATION FINDINGS

History taken by Medical Assessor Lahz

Mr Harris attended the video conference examination by MS Teams on 21 February 2014. The examination took approximately 45 minutes, and the internet connectivity was good throughout the examination.
Mr Harris is aged 46. He lives with his partner and four step-children near Campbelltown.
At the time of the motor accident, he was working as the manager of an auto parts business, responsible for staff supervision, rostering and dealing with customer complaints. He said he was “let go” in late 2020 due to the prolonged time taken from work whilst the left thumb injury from the subject motor accident was managed. He said the employer would not permit his return to work unless he had a “full” clearance.
For the last two years, Mr Harris has been working as a truck driver (vacuum trucks). He has an offsider so that no lifting, bending or heavy tasks are required. There are only two steps into the truck cabin, and he can easily grab the handrail to enter the cabin. He works casually as a driver depending on the prevailing condition of the right knee, between 10-40 hours per week.
Mr Harris is a shopfitter/joiner by trade and has spent much of his work life in foreman roles on construction sites. Twenty years ago, he obtained a HR truck licence, and 10 years ago, a semitrailer licence.
Mr Harris confirmed his involvement in the accident on 16 May 2020. He said he was on a motorbike and struck by a vehicle merging into his lane from the left. He came off the bike, the right side of the body bearing the brunt as he fell. He recalls there was bruising about the right hip/leg and right shoulder.
He was taken to hospital where he said “not much” was done. It was only afterwards that his GP detected the main injury from the motor accident, involving a ligament injury to the left thumb which he said caused him “agonising” pain. He went on to have two operations on the left thumb, the last in October 2020 and fortunately has had a good outcome with a functional thumb.
When asked about the (lack of) reporting of the right knee injury in the claim form, at the hospital and on the Certificates of Capacity for first 12 months post injury, he agreed that the right knee was not mentioned. He said that the left thumb had been the focus of his attention and that of the treatment providers. He did say that at the hospital, he felt generally sore all over the right side of his body, although he could not specifically say that the knee was worse than other areas.
By way of background, Mr Harris confirmed that he had sustained a right-sided tibial plateau fracture at age 16 during taekwondo. He explained that the fracture was managed non-operatively in a plaster cast (non-weight bearing) for 12 weeks and that his right knee eventually came “good”. He could play soccer, resume taekwondo and generally be very active.
He also confirmed that he had undergone successful bariatric surgery in 2006 and been able to lose approximately 40kg. He tips the scales currently around 98kg, having maintained the weight loss. His only other medical conditions are gastro-oesophageal reflux disorder (GORD) and irritable bowel syndrome.
He was asked when he began to experience specific right knee problems (after his initial tibial plateau fracture), Mr Harris initially replied “after the accident”. However, I then drew to his attention the entries in the GP records (the 2016-2017 period) indicating that he had sought medical advice regarding right knee pain. At the time, he agreed that he had undergone an X-ray, received a steroid injection and attended physiotherapy, which he said resolved the symptoms at the right knee. He said he could resume his usual activities such as soccer coaching and taekwondo. He again described himself as having been very active with his four stepchildren before the motor accident.
Mr Harris said that after 2016-2017, there were no more problems with the right knee until approximately six months after the subject motor accident at which stage, he noticed a gradual increase in generalised pain about the knee joint. He said that the pain fluctuated and there was also knee swelling, sometimes associated with his knee “giving way”. At this stage, he thought it best to purchase a set of forearm crutches. On good days, he walked without aides, on a medium day he would use one crutch and on a bad day, he used two crutches.
Over the next 12-18 months, he said there was an increasing L-shaped (valgus) deformity at the right knee which his partner actually noticed more than he did. He said too that as problems with the left thumb resolved, the right knee problem became more apparent.
On specific enquiry, he denied any further specific incidents causing right knee injury (aside from the motor accident).
Mr Harris agreed that he did not seek any treatment from his GP until June 2021 more than 12 months after the accident. He said that it had not occurred to him to do so. He had been consulting Dr Sa-Cordeiro (his sole GP) for many years until the latter mentioned doctor retired in December 2023.
In May 2021, Mr Harris recalled the home based (insurance commissioned) assessment with Ms Le. He said that he did then report the right knee pain to her and told her that he had been experiencing difficulty with moving from sitting to standing. He disagreed with the content of Ms Le’s report, saying that he could certainly not have done a full squat.
I mentioned to him that in her subsequent report in June 2021 Ms Le does note the right knee difficulties. He agreed that was the case and said that it was Ms Le who suggested that he get the doctor to issue a new certificate of capacity, citing this “new” injury, and it was at this stage he went to the doctor to discuss the right knee.
On specific enquiry, there was no appreciable change in the condition of the right knee between May and June 2021, but Mr Harris said there were no further injuries/traumatic incidents. He said the right knee basically became “worse and worse” after the accident, starting from approximately six months afterwards.
Mr Harris saw Dr Dave (orthopaedic surgeon) in mid-2021 regarding severe right knee pain and was informed that the knee required replacement due to severe degeneration, which Dr Dave reportedly told him had been aggravated by the motor accident. “You can’t be in a motor accident, fall onto your right side and not stir up the knee” he said that he was told.
Dr Dave sought approval for right total knee replacement which the Insurer declined. Mr Harris then self-funded a course of physiotherapy although it was unhelpful.
Mr Harris said he continues coping as best he can with variable levels of right knee pain (variously sharp, stabbing and pulling), swelling and deformity. He can only walk short distances, has to take care on steps (uses handrail) and is unable to either squat or kneel. As noted, he uses crutches (0,1 or 2) depending on prevailing knee symptoms. Some days, he explained that he is unable to put the right foot to the ground. The knee can also click and cause sleep disturbance, especially when rolling over. He takes Panadeine Forte 0-4 tablets daily, again, depending on the symptoms.
He has not seen Dr Dave since 2021 although there was a referral for orthopaedic review in 2022 with a view to the proposed right knee replacement surgery. Mr Harris is presently not on any public waiting list for the knee surgery.
Mr Harris is well supported at home by his partner and step-sons. He does indoor chores self-paced although he permits his step-sons to complete the outdoor work. He has given up bushwalking and recreational walking as well as soccer coaching and taekwondo.

ASSESSMENT

While three separate applications were lodged in respect of three different forms of treatment, the three treatment types are closely related as they all involve the claimant’s right knee. According to the claimant’s submissions in support of the original application[18] and the insurer’s replies,[19] the treatment in dispute is:
(a)    right total knee replacement proposed by Dr Dave on 29 July 2022;
(b)    physiotherapy to be provided by Macarthur Sports & Physiotherapy for ongoing right knee complaints as contained in a referral dated 31 August 2022, and
(c)    a further consultation with Dr Dave proposed by the claimant’s GP in a referral dated 1 September 2022.
[18] There are three separate submissions at pages 7, 10 and 14 of the claimant’s bundle.
[19] Pages 10, 12 and 15 of the insurer’s bundle.

Is the knee related treatment reasonable and necessary in the circumstances?

As explained in paragraphs 9-13 above, the test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment (that is, causation of the need for the treatment).
Therefore, in determining whether the treatment in dispute is reasonable and necessary in the circumstances, the Panel must consider:
(a) what is the claimant’s current right knee condition?
(b) Is the surgery, physiotherapy and consultation with Dr Dave reasonable and necessary in the circumstances in order to deal with that right knee condition?
Dr Dave has diagnosed “advanced lateral compartment osteoarthritis that is causing him severe difficulties.” This diagnosis is supported by the radiological findings. Medical Assessor Herald and Dr Bodel do not dispute this.
It is the clinical judgment of the medical members of the Panel that Mr Harris needs a right total knee replacement because of the “advanced lateral compartment osteoarthritis” present in his right knee. The consultation with Dr Dave and the knee related physiotherapy is also reasonable and necessary treatment for this condition.

Is the knee related treatment related to the injuries caused by the accident?

What is the cause of the claimant’s current knee condition?

The claimant’s “lateral compartment osteoarthritis” in the right knee is a pre-existing condition which the Medical Assessors note would have been caused by the claimant’s earlier right knee fracture and contributed to by the claimant’s long-standing obesity and the pressure that has placed on his knee joint over time. This underlying degenerative condition has progressed in time leading to the symptoms that developed in 2016 and 2017 which were investigated and treated.
The question remains whether the claimant sustained an injury to his right knee in the accident including an injury which has exacerbated (short term worsening of symptoms) or aggravated (made more severe) the underlying condition.
The test of causation for injury can be simply stated as requiring a finding that:
(a) the accident could have caused a right knee injury, and
(b) did in fact cause a right knee injury.
While the Panel has limited information it appears that the claimant was struck at 60kmph on the left side knocking him off his bike and caused him to fall onto his right side. The medical members of the Panel are of the view that in their experience this mechanism of injury could have caused an injury to Mr Harris’ right knee including an exacerbation or aggravation of his pre-existing condition.
The Panel notes:
(a)    no specific knee symptoms were mentioned at the first attendance at hospital and no radiology of the right knee was undertaken at that time;
(b)    it is not mentioned in the claim form signed by the claimant;
(c)    Mr Harris told Medical Assessor Lahz that his right knee symptoms began six months after the accident and got worse and worse thereafter;
(d)    the right knee is not mentioned in the any of the 15 consultations recorded in the GP notes and certificates of fitness in the first 12 months after the accident, and
(e)    the first documented and specific mention of right knee symptoms is on 9 June 2021. This was when Ms Le reported to the insurer that the claimant’s was experiencing increasing right knee symptoms. This was also the date the claimant attended Dr Sa-Cordeiro and his notes (and a questionnaire he completed) record complaints of knee pain and swelling.
The Panel does not accept that the claimant did injure his right knee in the accident including an exacerbation or aggravation injury of his pre-existing condition for the following reasons:
(a)    the absence of documented right knee complaints for 13 months after the accident. The claimant’s explanation for the absence of specific right knee complaints until 9 June 2021 is that he and his doctors were more concerned with his thumb. The Panel accepts that the thumb injury was the most severe injury immediately following the accident. The Panel does not accept that explanation. If the claimant was experiencing any knee symptoms or worsening knee symptoms at any stage after the accident, the Panel would expect there to be some mention of right lower limb symptoms in one of the 17 attendances with his GP and in the records of the other specialists and therapists who have provided treatment in this period. This also does not adequately explain the claimant’s failure to include a specific right knee injury or mention specific right knee symptoms in his claim form;
(b)    the onset of right knee complaints six months after the accident. Mr Harris told Medical Assessor Lahz that he first noticed specific knee symptoms six months after the accident with pain in the knee and he developed swelling and giving way. While there is no medical record to support this, that is not determinative of the matter. But if the claimant was experiencing swelling and giving way as well as pain from six months after the accident, the Panel would expect the claimant to mention it to his treatment providers and for them to have recorded it;
(c)    the Panel also considers the report of Ms Le dated 26 May 2021 of particular significance as this provides much detail about the claimant’s functional status including his ability on that day to mobilise with a normal gait, being able to squat with no balance concerns and a full range of lower limb movement. The claimant denied being able to do these things and said he told Ms Le of his problems. The Panel accepts that he did tell Ms Le of right knee issues but not until 9 June 2021 when she does report them and encouraged him to investigate them. Based on the history provided to Medical Assessor Lahz, he likely had intermittent knee symptoms, which were fluctuating, commencing from six months after the motor accident. The underlying degenerative condition was gradually worsening, and he finally reported it in June 2021 on a day during which the knee happened to have been significantly symptomatic.
(d)    the Panel accepts the claimant may have sustained some bruising or contusions to his right leg including the right knee as described in his history to Medical Assessor Lahz and as documented by his GP and first physiotherapist, but the Panel is not satisfied that any injury of that nature would have caused or contributed to an exacerbation or aggravation of the underlying condition. If it had, the Panel would have expected symptoms to have developed immediately after the accident (not six months later) with associated complaints documented in the records.

Both Dr Dave and Dr Bodel accept a causal connection between the accident and a knee injury, but neither have given significant reasons that engage with the issue, and in Dr Dave’s case he does not record the history given to Medical Assessor Lahz of symptoms commencing six months after the accident and he does not have the history of the 2016 and 2017 knee problems.
It is the clinical judgment of the medical members of the Panel that the claimant’s underlying degenerative condition has progressed after the motor accident which is in keeping with the natural history of such conditions. The Panel does not accept that the accident has contributed at all to the need for the treatment and that, but for this motor accident, the claimant would require the consultation with Dr Dave, the surgery proposed and the physiotherapy in any event. The progression of symptoms and radiological changes is not related to trauma from the motor accident.

CONCLUSION

Although the Panel has come to a different conclusion in respect of the reasonableness and necessity of the treatment, the Panel agrees with Medical Assessor Herald and is of the view that the treatment in dispute is not related to the injuries caused by the accident.
The Panel therefore affirms the certificate of Medical Assessor Herald.

[2024] NSWPICMP 125

5 March 2024