Imer v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 24
•10 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Imer v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 24 |
CLAIMANT: | Gaetana Imer |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Ian Cameron |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 10 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; causation; femur fracture; fracture left and right knee; the claimant suffered injury in a motor vehicle accident on 1 April 2022; following accident claimant able to mobilise including attending general practitioner (GP) and police station the following day; no complaint re left thigh to GP; no complaint to adult child following accident; at 11pm on 2 April 2022 claimant fell in hallway of her home; unable to stand; sustained left femur fracture; dispute as to whether fracture of femur caused by accident; Medical Assessor (MA) Home certified injuries to the cervical spine and both shoulders caused by the accident were soft tissue injuries and therefore threshold injuries; he certified the injury to the right knee, the left knee and the left thigh were not caused by the accident; application for review by claimant; Held – findings of MA Home agreed in respect of injuries to cervical spine and both shoulders; no contemporaneous complaint of injury to left thigh; not plausible for claimant to walk on displaced fracture of femoral shaft; implausible for GP to fail to identify fracture of femur; no evidence accident caused injury to claimant’s leg which caused it to give way resulting in fall and fractured femur; no evidence injury in accident which would lead claimant to sustain osteoporotic fracture; evidence of engineer not conclusive but persuasive where panel finds insufficient forces applied to lower limbs to cause fracture of femur; fracture of left femur not caused by accident; long-standing history of left and right knee pain; X-ray did not disclose fracture of either knee; claimant did not sustain fracture of either knee caused by the accident; certificate of MA Home affirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Panel affirms the certificate of Medical Assessor Alan Home dated 17 February 2023. |
STATEMENT OF REASONS
INTRODUCTION
On 1 April 2022 Ms Gaetana Imer (the claimant) was driving her vehicle when it was involved in a collision causing her to sustain injury (the accident).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay statutory benefits to Ms Imer under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
Ms Imer submitted an Application for personal injury benefits dated 18 April 2022.
On 15 July 2022 the insurer determined that Ms Imer had sustained a threshold injury and denied liability for statutory benefits beyond 26 weeks after the accident.
Ms Imer sought an Internal Review of the threshold injury decision and on 12 August 2022 the insurer affirmed the determination that the claimant’s injuries met the definition of a threshold injury.[2]
[2] Claimant’s bundle p 20.
Ms Imer filed an application in the Personal Injury Commission (Commission) in respect of the minor (threshold) injury dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold injury for the purposes of the Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
[3] Section 7.20 of the MAI Act.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Review Panel issued a Direction to the parties on 3 October 2024 requiring each party to file an indexed, paginated bundle of documents. On 15 October 2024 the claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 202 (claimant’s documents). On 6 November 2024 the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 141 (insurer’s documents).
THRESHOLD INJURY – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
ASSESSMENT UNDER REVIEW
The injuries referred for assessment to Medical Assessor Home in respect of the dispute as to threshold injury were the following:[4]
· cervical spine soft tissue injury;
· right shoulder injury;
· left shoulder injury;
· right knee fracture;
· left knee fracture, and
· left thigh femur fracture.
[4] Insurer’s bundle p 7.
Medical Assessor Home recorded the following pre-accident history:
· right total knee replacement in 2012;
· right knee pain leading up to the accident;
· history of chronic osteoarthrosis in the left knee, diagnosed in 2014;
· left knee pain leading up to the accident;
· in the period leading up to the accident a walking tolerance of 5 minutes;
· the use of a 4-wheel walker when walking away from home and on occasion at home;
· necessity to use a handrail and mobilise in an asymmetrical fashion on stairs;
· inability to perform deep crouching or kneeling;
· she did not experience frequent giving way, and
· past history of chronic neck and bilateral shoulder pain leading her to cease work in September 2020.
Medical Assessor Home reported the accident occurred on 1 April 2022 when a vehicle travelling in the opposite direction made a right hand turn. The impact was at the level of her rear wheel. The other driver absconded. She telephoned police but they did not attend. Within a few hours she developed neck and right shoulder pain.
The following day she continued to experience neck and shoulder pain. She attended
Dr Milinkic, general practitioner (GP) and was advised to take analgesics. That same evening, on 2 April 2022 at 11.00pm she was walking towards her bedroom along a carpeted floor when she suddenly fell. Whilst her left leg was mid-air she felt a crack in her lower thigh. She was admitted to Westmead Hospital on 3 April 2022. Imaging demonstrated a comminuted fracture of the distal left femur. She underwent open reduction internal fixation on 4 April 2022. A scan of the right thigh on 19 April 2022 demonstrated a fracture of the distal right femur which was treated conservatively. During her admission she was diagnosed with osteoporosis and hypercalcaemia. She underwent surgery to her para-thyroid gland. After eight weeks at Westmead Hospital Ms Imer was transferred to Westmead Private Rehabilitation Hospital where she remained for a further four weeks.Ms Imer was under the care of Dr Lorentzos and had been told she will require removal of the hardware before undergoing a left total knee replacement.
Medical Assessor Home concluded the mechanism of the accident was consistent with a whiplash injury to the cervical spine and soft tissue injury to the right shoulder due to seat belt impact against a background of pre-existing neck and right shoulder pain. He also concluded it was plausible that her pre-accident complaints of left shoulder pain were exacerbated by the mechanism of the accident.
He found there was no evidence of injury to the lower extremities in the accident. Ms Imer recalled exiting her car and walking without additional symptoms. Medical Assessor Home found there was insufficient evidence linking the fall at home on 2 April 2022 with the accident. He noted that a close temporal relationship between the accident and the fall was insufficient to determine causation in her favour. Whilst noting there was no medical evidence that the accident caused injury to either knee the Biomechanical Report concluded the mechanism of the accident could not have caused a femoral fracture on either side.
On examination Medical Assessor Home found the claimant had sustained a soft tissue injury to the cervical spine where he found no evidence of radiculopathy and no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage. Whilst he found there was reduced sensibility in the left hand middle digits, the other clinical findings for a diagnosis of radiculopathy in accordance with cl 5.8 of the Guidelines were not met.
In relation to the shoulders, he found they were soft tissue injuries where there was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
In a certificate dated 17 February 2023 Medical Assessor Home certified the following injuries were caused by the accident and were minor (threshold) injuries:
· cervical spine – aggravation of pre-existing cervical spondylosis;
· right shoulder – aggravation of pre-existing right shoulder osteoarthritis, and
· left shoulder – soft tissue injury; aggravation of pre-existing left shoulder osteoarthritis.
Medical Assessor Home certified the following injuries were not caused by the accident:
· right knee;
· left knee, and
· left thigh.
REVIEW PROCEDURE
The claimant lodged an application for review of the assessment of Medical Assessor Home on 20 March 2023 within 28 days of the date on which the certificate of Medical Assessor Home was made available to the parties.
On 7 July 2023 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 First Review Panel comprising Principal Member Bamber, Medical Assessor Yu and Medical Assessor Cameron.[5]
[5] AD2 p 9.
On 3 October 2024 a new review panel was convened comprising Member McTegg, Senior Medical Assessor Cameron and Medical Assessor Gibson (the Panel).
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. However, in Directions dated 3 October 2024 the Panel stated:
The First Review Panel comprising Principal Member Josephine Bamber, Medical Assessor Ian Cameron and Medical Assessor Peter Yu has been revoked and a new Review Panel (the Panel) has been constituted by the President of the Personal Injury Commission (the Commission) to conduct the Review of Medical Assessor Home’s assessment dated 17 February 2023 (the Review).
Pursuant to rule 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel ‘is to conduct and determine the proceedings in accordance with procedures determined by the panel’.
In order to facilitate the just, quick and cost-effective resolution of the real issues in the Review, the Panel advises:
1. The Panel refers to the Direction dated 19 October 2023 issued by the First Review Panel. Relevantly, paragraphs 9, 10 and 11 of that Direction stated:
‘9.Since neither party has challenged the assessment of the cervical spine, right shoulder and left shoulder, the Panel seeks the parties’ agreement that the Panel does not need to assess those body parts and can rely upon Medical Assessor Home’s findings in relation to those body parts.
10.The Panel advises that, as the central issue in dispute is whether Ms Imer’s alleged injuries to her left and right knees and left thigh where caused by the motor accident, it proposes that its assessment on the review be conducted with Ms Imer attending by audio-visual link with the Medical Assessors of the Panel. The Panel considers it is not necessary to perform a physical examination of Ms Imer’s knees or left thigh to determine the matter.
11. Accordingly, the Panel makes the following directions:
a.on or before 27 October 2023 the claimant is to file and serve a letter to confirm that she agrees to the Panel’s proposed approach set out above at [9] and [10].
b.on or before 31 October 2023 the insurer is to file and serve a letter in response.’
2. On 19 October 2023 the claimant referred to the Review Panel’s Directions dated 19 October 2023 and indicated she was agreeable to the Panel’s proposed approach as set out in paragraph 9 and 10 of the Directions.
3. On 22 December 2023 Mr Erfan Gill for the insurer stated the insurer did not oppose confining the issues to the causation of the lower limb injuries.
4. The Panel proposes to follow the approach set out in paragraphs 9 and 10 of the earlier Direction. However, if either party has any objection to this course of action please notify the Panel by submitting a message through the portal by close of business 18 October 2024.”
No objection was received from either party. Accordingly, the Panel proposes to rely upon Medical Assessor Home’s findings in relation to the assessment of the cervical spine, the right shoulder and the left shoulder.
The Panel finds the central issue in dispute is whether the alleged injuries to Ms Imer’s left and right knees and left thigh were caused by the accident and proposes to arrange for the medical assessment to be conducted with Ms Imer by audio-visual link.
EVIDENCE BEFORE THE PANEL
Police report
The police report shows the accident was reported on 2 April 2022 at 11.25.[7] The scene was not visited but the accident reportedly occurred on 1 April 2022 between 4.20 and 4.40 pm. It is noted that the at fault vehicle (Veh 1) turned collided with the rear offside of the claimant’s vehicle (Veh 2) before failing to stop and exchange details.
[7] Claimant’s documents p 43.
Photographs
The claimant has provided four photographs showing damage to the driver’s side rear panel of the claimant’s vehicle.
Application for personal injury benefits
In the Application for personal injury benefits dated 18 April 2022 the claimant listed the following injuries:
“Shock, whiplash neck pain, right shoulder pain, broken femur left leg, serious
bruising of right knee fracture, hospitalised for broken femur and surgery (Westmead Hospital 2 April 2022/3 April 2022).”[8]
[8] Claimant’s documents p 29.
Statement of claimant
The insurer purports to rely upon a statement furnished by the claimant to an investigator dated 14 June 2022.[9] However, the Panel notes the statement is not signed and there is no suggestion the contents of that statement have been adopted by the claimant. The Panel does not propose to rely upon the contents of that statement where it is not consistent with the version of events provided by Ms Imer when she was assessed.
[9] Insurer’s documents p 27.
In that statement the claimant stated the impact of the accident was a 6 or 7 out of 10 and it caused her head and body to move sideways. She stated, “I might have hit my left leg but I was able to walk away from the accident”. The Panel notes Ms Imer now asserts she hit her left leg on the centre console at the time of the accident.
Further at paragraph 33, and consistent with the history provided to Medical Assessors Cameron and Gibson, the claimant purportedly stated:
“Later that same evening, and approximately 30 hours after the accident, at 11pm at night, I was walking down my hallway and my femur gave out and I collapsed. I needed ambulance to take me to hospital.”
Statement of Catherine Imer
The claimant’s adult child Catherine Imer was a passenger in the claimant’s vehicle. She provided a statement to an investigator by telephone on 12 August 2022.[10] Ms Imer has signed her statement. Relevantly she stated:
‘30. It was a quick jolt type of impact. None of our airbags activated. I did not feel anything on my body at the time but I did have some neck pain 15 minutes or so later and I had a mild headache that evening.
35. I am not sure if mum complained of any immediate injury but she has a lot of pain and she probably said something I will be feeling this later tonight. I think she mentioned something about being in some discomfort when she dropped me off.
38. None of our airbags activated as a result of the impact.
39. I saw that there was some damage to the rear driver’s side of our vehicle near the bumper bar. It was not major and the car was still driveable.”
Report of Andrew McIntosh, biomechanical engineer
[10] Insurer’s documents p 40.
The insurer relies upon a report of Dr Andrew McIntosh dated 23 August 2022.[11] He concluded it was highly unlikely that the claimant suffered any injury to either femur during the accident because:
· the magnitude of the forces experienced by the claimant would have been low;
· there is no evidence of intrusion into the claimant’s seated area;
· there is no contemporaneous evidence of superficial injuries;
· the claimant’s overall movement relative to the vehicle interior would have been minor where the claimant was restrained by a three-point seatbelt, and
· there was no mechanism for femoral fractures where the forces applied to the lower limbs would not have exceeded human tolerance limits; femur fractures usually occur in frontal collisions where there is intrusion into the occupant compartment, or the person is unrestrained. In a side impact with intrusion into the vehicle the femur can be impacted by the intruding door, but this mechanism was not present in this incident.
Treating medical records
[11] Insurer’s documents p 46.
Triple 333 Medical Centre
On 4 February 2022 Dr Michael Neuhauser recorded:
“Recent fall at home.
Bilateral foot pains
Bilateral knee pains
Right shoulder pains
3 weeks pains duration
Nil progressive improvements.”[12]
[12] Claimant’s documents p 157.
On 2 April 2022 at 10.58am the claimant consulted Dr Milinkic at Triple 333 Medical Centre. She reported:
“01/04/2022 4.26pm MVA driver with a seat belt she was driving 60km/hr hit on the side driver side near boot she had R shoulder pain used heat pack, today she has neck pain, shoulders pain, right elbow, wrist and hand pain, upper back, lower back, knees pain, headache and dizziness.”[13]
Ambulance report of attendance on 2 April 2022
[13] Claimant’s documents p 157.
The Ambulance Report in relation to an attendance on 2 April 2022 records:
“…pt who was sitting upright on floor leaning against a wall alert, speaking in sentences, anxious +, c/o pain in knees + left leg. Pt stated 2300 this PM she tripped and fell onto carpet on both knees where she was able to move herself enough to be in an upright sitting position however was in too much pain to be able to move any further…”[14]
Westmead Hospital
[14] Claimant’s documents p 45.
The discharge summary of Westmead Hospital dated 27 May 2022 recorded the claimant:
“… presented to Westmead Hospital on Sunday 3rd Aril 2022 with left femur fracture following a fall. She has subsequently had an open reduction and internal fixation (ORIF) of her left femur on 4th April 2022. During her admission, she was also found to have a right sided femur fracture which has been managed conservatively. In addition to her orthopaedic injures, Gaetana was found to have a parathyroid adenoma causing hypercalcaemia. She has subsequently had a right parathyroidectomy…”[15]
Monica North, Occupational therapist report[16]
[15] Claimant’s documents p 57.
[16] Insurer’s documents p 120.
In a report dated 13 July 2022 Ms North reported the following history:
· Ms Imer reported that she was driving at the time of the accident which occurred on 1 April 2022;
· she confirmed that no emergency services were called and advised that she did not experience any leg pain immediately after the accident;
· Ms Imer reported she was able to self-extricate from the car and subsequently attend the local police station to file a report;
· she advised that she consulted with a GP the following day with neck and shoulder pain as a precaution, however this was not her usual practitioner;
· 30 hours after the accident, on 3 April 2022, Ms Imer reported that as she was walking down the hallway at home, she heard a loud cracking sound in her left leg, followed by severe pain causing her to fall and land on her bottom, and
· she advised that she was able to wriggle over to her mobile phone and call her sister and an ambulance.
Dr Peter Lorentzos, orthopaedic surgeon[17]
[17] Insurer’s documents p 140.
In a report to the treating GP, Dr Lorentzos, treating orthopaedic surgeon reported as follows:
“Gaetana claims she was a pedestrian hit by a car in a hit and run on the 1st April 2022. Although she suffered significant pain in her left thigh she was able to leave the scene. Just over 24 hours later as she was walking with pain along her corridor she heard a crack coming from her thigh and then she collapsed on to both knees. This resulted in a displaced, highly comminuted intra-articular left distal femur fracture and a supracondylar periprosthetic femur fracture of her right knee. …”
The Panel notes the history reported by Dr Lorentzos that Ms Imer sustained injury as a pedestrian is clearly incorrect.
Dr Lorentzos reported Ms Imer had significant arthritis in her left knee predominantly in the medial compartment which was likely to be one of the causes of her knee pain.
Dr Lorentzos concluded Ms Imer had a very significant injury, and her left knee will have significant disability for a very long period of time. He considered she will require total left knee replacement.
Imaging/investigations
X-ray right shoulder, left knee and left foot, 25 February 2022[18]
[18] Claimant’s documents p 51.
The findings in respect of the left knee were as follows:
“Severe loss of medial tibiofemoral compartment joint space with subchondral sclerosis and subchondral geodes in the medial femoral condyle and tibial plateau. Mild to moderate loss of lateral tibiofemoral and moderate loss of patellofemoral compartment joint spaces. Moderate tricompartmental marginal osteophyte.
No fracture.
No sizeable joint effusion.
Background osteopenia.”
The findings in respect of the left foot were as follows:
“Background osteopaenia.
Moderate degenerative changes of the interphalangeal joints of the toes most marked in the 2nd and 3rd PIP joints. Mild to moderate 1st and 2nd MTP joints and hallux metatarsosesamoid joint degenerative changes. No fracture.
Calcific enthesopathy of the Achilles tendon insertion. Small calcaneal spur. Vascular calcifications noted.”
X-ray pelvis and left femur, both knees and right foot, 3 April 2022[19]
[19] Claimant’s documents p 68.
The findings as to the pelvis, left femur and both knees read:
“Pelvis and left femur
No femoral neck fracture seen. Femoral heads are enlocated. Comminuted distal femoral fracture which is displaced. It appears angulated. Soft tissue swelling is shown.
Both knees
The left knee is osteoarthritic. The comminuted distal femoral fracture is noted with displacement and angulation. Patella is not fractured but the patellofemoral joint is arthritic. X-rays of the right knee demonstrate a total knee replacement. Patella has been resurfaced. There is a bony fragment adjacent to the lateral femoral condyle which is potentially an acute fracture.”
CT scan right knee, 19 April 2022 [20]
[20] Claimant’s documents p 69.
The findings are as follows:
“Left knee replacement.
Recent right considerable artefact.
No recent bone or joint injury identified. New and small joint effusion.
No lipohaemarthrosis.
Conclusion: No acute injury identified.”
X-ray left femur and bilateral knees dated 2 August 2022 [21]
[21] Claimant’s documents p 52.
The findings:
“ORIF hardware fixing the left distal femoral comminuted fracture are in expected position. There is evidence of partial healing of the fracture.
Severe left medial tibiofemoral and moderate left lateral tibiofemoral and moderate severe patellofemoral compartment osteoarthrosis in the left knee.
No acute fracture is evident.
Right knee total arthroplasty and patella resurfacing hardware is in position. Small joint effusion. No acute fracture is identified.”
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 29 September 2022 in support of the threshold injury dispute.
The claimant submitted the injuries sustained in the accident caused her instability in her lower limbs causing her to fall which landed her in hospital.
The claimant provided submissions dated 20 March 2023 in support of the application for review.[22]
[22] Claimant’s documents p 199.
The claimant submits Medical Assessor Home erred in applying the test for causation. The claimant submits the accident did cause or contribute to the worsening of the injuries to both knees and the injury to the left femur. The claimant submits the sequence of events and time lapse following the accident up to the admission to hospital was incredibly short.
The claimant also notes that she underwent an X-ray to the left knee less than two months prior to the accident which revealed no fractures. It is submitted that Medical Assessor Home failed to consider the absence of a pre-existing fracture or the condition of the left thigh.
Finally, the claimant submits Medical Assessor Home failed to provide adequate reasons to explain his conclusion that the mechanism of the accident could not have caused significant injury to the right or left knee or right or left thigh or a femoral fracture on either side.
Insurer’s submissions
The insurer provided submissions dated 26 October 2022 in respect of the threshold injury dispute.[23]
[23] Insurer’s bundle p 7.
The insurer notes the airbags did not deploy at the time of the collision and the claimant was able to alight from her vehicle. The insurer notes the claimant was ambulant at the scene. Emergency services were not called to the scene and the claimant’s vehicle was able to be driven with minor damage to the rear driver side bumper bar. The Panel notes there is damage to the driver’s side rear panel, not so much the bumper bar.
The insurer notes the Ambulance Records report the claimant had “tripped and fell onto the carpet on both knees”. The insurer noted the claimant had undergone right total knee replacement approximately 10 years earlier. The insurer also notes the claimant sustained a fall in February 2022 although X-rays cleared her of any acute injury.
The insurer referred to the report of Monica North of Benchmark who reported initially following the accident the claimant did not experience any leg pain; she was able to self-extricate the vehicle and subsequently attended the local police station to report the accident.
The insurer relies upon the report of Dr Andrew McIntosh dated 23 August 2022 who opines that the mechanics of the accident could not have led to the injuries alleged by the claimant.
The insurer submits the bilateral femur fractures were caused by the fall and notes the claimant has now been diagnosed with osteoporosis.
MEDICAL EXAMINATION
Ms Imer was re-assessed by Medical Assessor Gibson and Medical Assessor Cameron by videoconference on 6 January 2025.
The Review Panel procedures were explained. Ms Imer said that the previous assessment by the Commission’s Medical Assessor did not take into account that she had osteoporosis. She said that osteoporosis was diagnosed following the accident.
History of injury
On 1 April 2022 Ms Imer was driving on the Great Western Highway in Sydney. She had her adult child in the vehicle. At an intersection she saw a vehicle approaching that was likely to hit her vehicle. She accelerated.
Ms Imer said that the other vehicle's impact was to the rear of the driver's side of her vehicle. She said her vehicle "fishtailed" but she was able to bring the vehicle to a halt beyond the intersection. She said that she hit her left leg on the centre console of her vehicle in the accident.
Ms Imer said her adult child assisted in trying to obtain details of the other vehicle. She said she stayed in her vehicle. Ms Imer said the other vehicle "took off".
Ms Imer was able to drive her vehicle to her adult child’s home. She said she stayed in her vehicle for about an hour discussing the incident and settling herself emotionally.
Ms Imer then drove to her home. She said she exited the vehicle before walking up the steps into her house with some difficulty. She then stayed in the house until the next day.
On the morning of 2 April 2022 Ms Imer went to her GP's office. Her usual GP was not on duty, and she had an assessment by one of the other doctors. She said she had pain in many parts of her body including her knees. She said however she did not have left thigh pain. She said she might have used a walking stick to get to and from the vehicle for that consultation.
Later, the same day, that is 2 April 2022 Ms Imer visited Merrylands Police Station to report the accident. She drove herself. She took her wheeled walking frame from the garage and put it into the boot of her car, as she was worried she might be standing for a while at the police station. She made the report and then went home.
In the late evening of 2 April 2022 Ms Imer said she had got up and walked down the hallway of her house. She said she felt a “crack” and fell to the floor. She said she could not get up.
She called an ambulance but had to wait several hours. She was taken to hospital in the early hours of 3 April 2022. When asked Ms Imer said that the ambulance form was incorrect in saying that she "tripped".
Ms Imer described subsequent surgery to the left femur. She also said that a fracture adjacent to her right knee total knee replacement was found.
Ms Imer said that she attempted to obtain video records from a camera in a bus that was following her, but the video had been overwritten by the time she enquired about it.
Ms Imer said that her vehicle was a 2008 Toyota Corolla with automatic transmission.
Background
Ms Imer said that she worked as a clerk for New South Wales Police for two to three decades. She had a right total knee replacement in 2012. She said this was funded through Workers' Compensation. She retired in 2020 due to arthritis which was osteoarthritis and psoriatic arthritis. She said she was using a walking stick when coming to and from her office, as she couldn’t always park nearby.
Ms Imer agreed that she had a fall in January 2020. She said she had some left thigh pain after this. She said that X-rays in March 2020 did not show fractures. Ms Imer agreed she was taking analgesics prior to the accident.
Ms Imer said that she did not initially think that the accident could have caused the femoral fracture. She said that an intern at the hospital suggested that it was possible.
Further history
Ms Imer agreed with the GP's records taken the day after the accident recording multiple sites of pain. She said she had no left thigh pain but had knee pain at the time. Ms Imer said that she had no bruising or other marks on her left thigh at the time of the GP consultation.
Ms Imer said she was diagnosed with osteoporosis after the incident. She said the femoral fracture did not heal well and eventually she had it bone grafted in September 2023. She said she paid for this through her private health insurance.
Ms Imer said that she was waiting for a left knee replacement. Ms Imer said she takes multiple medications for pain. She takes Palexia immediate release 50 mg tablets six to eight per day (which is a high dose and is equivalent to 75mg to 100mg oral morphine per day), Panadol Osteo six tablets daily as well as a pain cream. She also takes other medications, and she is now treated for osteoporosis with a weekly tablet. She said that she had kidney problems diagnosed and there was oedema associated with that. She said she was a patient of the Westmead Hospital Pain Clinic, and they authorised her continuing use of opioid medications. She also said whilst she had seen a psychiatrist over a long period her psychological state was now worse than previously.
Multiple issues were clarified with Ms Imer. She asserted the ambulance record was incorrect and she did not trip at home. She also stated that she hit her left leg on the centre console even though it was not recorded in the clinical records.
CAUSATION AND DIAGNOSIS
Cervical spine, right shoulder and left shoulder
As agreed the Panel relies upon the findings of Medical Assessor Home in respect of injury to the cervical spine, the right shoulder and the left shoulder.
Left femoral fracture
In Briggs v IAG Limited trading as NRMA Insurance (Briggs No 2)[24] Wright J stated at [35]:
[24] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 (Briggs (No 2).
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In summary the test of causation is on the balance of probabilities and involves a medical decision and a non-medical informed judgment. The injury need only be a material contribution to the impairment. Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[2]
[2] Briggs [2022] NSWSC 372.
However, in assessing causation the Panel also notes that the absence of a contemporaneous record of complaint is relevant but is not determinative of the question of causation. In Norrington v QBE Insurance (Australia) Ltd[25] Brereton J stated at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[25] [2021] NSWSC 548, Norrington.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[26] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[26] [2016] NSWCA 229, McGiffen.
The claimant submits that she sustained injuries in the accident which caused instability in her lower limbs which caused her to fall. In support of that argument the claimant notes she underwent an X-ray of the left knee less than two months prior to the accident which failed to disclose any fracture.
The insurer submits the claimant was ambulant at the scene, although Ms Imer asserts she did not leave her vehicle, and was able to drive following the accident. The insurer not only relies upon the report of Mr Mcintosh but also the contemporaneous record of the Ambulance Service that the claimant “had tripped and fell onto the carpet on both knees”.
Whilst not conclusive the Panel finds the contemporaneous records do not support the claimant’s assertion that she sustained a fracture to her femur in the accident.
Whilst Ms Imer now states she hit her left leg on the centre console at the time of the accident, the Panel notes Ms Imer was able to drive home, including sitting in her vehicle outside her adult child’s home for about an hour, and climbing the steps to her home. The following day she was able to attend Dr Milinkic. He noted the recent fall at home and bilateral knee pain but made no mention of left thigh pain, of internal derangement of the left knee or of swelling or abrasion to either knee or thigh. There is no suggestion in the Ambulance report of 2 April 2022 of injury sustained in the accident to either leg and nor is there any record in the Westmead Hospital discharge summary of injury related to the accident. Indeed, both the Ambulance Report and the Discharge summary suggest Ms Imer presented with a left femur fracture following a fall. The Panel also notes that on 13 July 2022 Monica North, occupational therapist reported she was informed Ms Imer did not experience any leg pain immediately after the accident.
However, regardless of the lack of contemporaneous complaint the question is whether
Ms Imer could have sustained a fracture of the left femur in the accident.The Panel notes Ms Imer was able to mobilise from the time of the accident on or about 4.30 pm on 1 April 2022 and for most of the following day until about 11.00pm on 2 April 2022. Not only was she able to mobilise she was able to attend the office of her GP, to lift and place in the boot of her vehicle a walking frame and to attend the Police Station to report the incident before returning home where she undoubtedly was able to navigate her home until she either suffered a fractured femur and fell or fell and suffered a fractured femur. The Panel finds that being able to mobilise for well over 24 hours without significant left thigh or femoral pain is not consistent with the femoral fracture sustained by Ms Imer occurring at the time of the accident.
Indeed, the Panel finds it would not be plausible to conclude that Ms Imer was able to walk on a displaced fracture of the femoral shaft.
Furthermore, the Panel finds it implausible that the GP would have failed to identify a fracture of the left femur.
If the femoral fracture was not caused by the accident the Panel is required to consider whether the accident could have been a contributing force on the basis the accident had caused instability or derangement of the claimant’s lower limbs which resulted in the femoral fracture the following day.
However, the Panel finds there is no convincing evidence of soft tissue injury to the left or right thigh following the accident. Ms Imer’s adult child recalled no specific complaint made by Ms Imer of injury sustained in the accident and as already outlined Dr Milinkic failed to identify any complaint or observe any evidence of soft tissue injury such as pain or swelling to either thigh.
In the experience of the Medical Assessors, it is not plausible that there could have been an asymptomatic partial fracture of the femur caused by the accident which then spontaneously fractured. Major force is required to fracture a femoral shaft and that is normally sustained in a fall.
The Panel finds there is no evidence of any soft tissue injury to the claimant’s leg which caused it to give way after the accident. Whilst Ms Imer has osteoporosis it would not cause her leg to give way and whilst it may have made her susceptible to fracture, the fracture would not occur without a fall. There is no evidence of injury to either thigh caused by the accident which would cause Ms Imer to sustain an osteoporotic fracture in the absence of a fall.
The Panel has also considered the opinion of Dr McIntosh as to the mechanics of the accident. Whilst the opinion of Dr McIntosh is not conclusive the Panel accepts there were insufficient forces applied to the lower limbs meaning it is unlikely the claimant could have sustained a femoral fracture in the accident. In particular, the Panel notes the only damage to the claimant’s vehicle was to the rear driver’s side panel, there was no intrusion into the claimant’s seated area, no evidence of significant movement without the vehicle interior, and the claimant was restrained by her seatbelt.
The Panel finds the left femoral fracture was not caused by the accident.
Injury to both knees
The injuries referred to Medical Assessor Home included right knee fracture and left knee fracture.
The Panel notes a long standing history of left and right knee pain and osteoarthritis including complaint to Dr Neuhauser on 4 February 2022 of bilateral knee pains.
In addition to the statement by Ms Imer to the Medical Assessors that she hit her left leg on the centre console at the time of the accident the Panel notes that Dr Milinkic also identified knee pain. However, Ms Imer had a longstanding history of knee pain as evidenced by her attendance on Dr Neuhauser on 4 February 2022.
The Panel notes the X-ray of the right knee taken on 3 April 2022 suggested a possible acute fracture. However, a CT scan of the right knee dated 19 April 2022, and an X-ray of
2 August 2022 failed to identify any acute fracture.Accordingly, the Panel finds the claimant did not sustain a fracture of the right knee caused by the accident.
In relation to the left knee no other fracture other than the comminuted distal femoral fracture was identified. An X-ray of 3 April 2022 reported the patella was not fractured although the patellofemoral joint was arthritic.
Accordingly, the Panel finds the claimant did not sustain a fracture of the left knee caused by the accident.
The Panel has the same concerns about causation as have been expressed in respect of the left femur fracture. Whilst the injuries referred for assessment were identified as fractures; the Panel notes even if the claimant sustained a soft tissue aggravation of the underlying osteoarthritis of both knees these would be threshold injuries in accordance with the definition of threshold injury in s 1.6 of the MAI Act.
CONCLUSION
The Panel finds the following injuries were caused by the accident and were threshold injuries:
· cervical spine – aggravation of pre-existing cervical spondylosis;
· right shoulder – aggravation of pre-existing right shoulder osteoarthritis, and
· left shoulder – soft tissue injury; aggravation of pre-existing left shoulder osteoarthritis.
The Panel finds the following injuries were not caused by the accident:
· left thigh femur fracture;
· left knee fracture, and
· right knee fracture.
The Panel affirms the certificate of Medical Assessor Home dated 17 February 2023.
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