Insurance Australia Limited t/as NRMA Insurance v Hines
[2024] NSWPICMP 494
•22 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Hines [2024] NSWPICMP 494 |
CLAIMANT: | Helen Mary Hines |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Bridie Nolan |
MEDICAL ASSESSOR: | Sophia Lahz |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 22 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; Schedule 2, clause 2(b); medical dispute; treatment and care; reasonable and necessary; related to motor vehicle accident; total left knee replacement; pre-existing osteoarthritis bilaterally; treated conservatively pre-accident; post-accident unresolved symptomology and debilitating pain; Held – aggravation of pre-existing osteoarthritis caused by accident occasioning need for total knee replacement; treatment reasonable and necessary in the circumstances. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Farhan Shahzad dated |
STATEMENT OF REASONS
INTRODUCTION
Helen Mary Hines (the claimant) was involved in a motor vehicle accident on 13 May 2019, where the car she was driving when returning home from work was struck side-on by another vehicle coming out of a side street from the left-hand side. Ambulance attended, but the claimant did not attend hospital. She claims her knees hit the dashboard during the accident. She claims that as a result of the motor accident she sustained numerous injuries including, relevantly, an aggravation and acceleration of her bilateral knee symptoms, pain and disabilities.
Prior to the accident, she had a pre-existing osteoarthritis in both knees for which she had received treatment including a right knee arthroscopy in 2008. She claims that she had intermittent symptoms over the years including flare ups of symptoms after minor falls but had been relatively asymptomatic prior to the accident. With respect to her left knee, she had a flare up and some symptoms shortly prior to the accident which she claims were exacerbated by the accident.
On or about 22 January 2020, the claimant's treating orthopaedic surgeon, Associate Professor John Ireland sought approval from the insurer for a knee replacement arthroplasty of the left knee. Approval was denied on 3 April 2020. This denial is the subject of the medical dispute arising pursuant to Schedule 2, cl 2(b) of the Motor Accidents Injuries Act 2017 (the MAI Act) for the payment of treatment and care expenses, which are defined by s 1.4 of the MAI Act to include medical treatment such as the surgery contemplated.
BACKGROUND TO THE DISPUTE
The claimant has made a claim for statutory benefits under Part 3 of the MAI Act against NRMA Insurance, which is the relevant insurer for the purposes of the claim. NRMA Insurance has accepted the claim admitting it had a liability to pay the claimant benefits for the first 26 weeks after the accident.
On 23 August 2019, the insurer issued a Liability Notice-Benefits After 26 Weeks accepting liability for the payment of statutory benefits after 26 weeks from the date of accident delaying a final decision on whether the claimant’s injury was a threshold injury, as that term is understood under the MAI Act, whilst investigation was continuing.
On 18 October 2019, the insurer issued Further Liability Notice Benefits After 26 Weeks advising that the claimant was not at fault in the accident and that she sustained more than a minor injury.
On 30 April 2020 the insurer advised that it was unable to support the treatment request for left total knee replacement which had been received on 28 January 2020.
On 19 January 2021, the claimant served an application for damages under common law dated 2 November 2020.
On 16 March 2021, the insurer issued its Liability Notice-Claim for Damages accepting liability for the claim.
On 11 July 2022, the claimant requested an internal review in relation to the denied medical treatment
The insurer undertook an internal review affirming the original decision.
ASSESSMENT UNDER REVIEW
The claimant applied for the determination of a medical dispute to challenge the insurer’s determination which was determined by Medical Assessor Shahzad (the Medical Assessor) by a certificate and reasons dated 24 July 2023. The Medical Assessor determined that the request for payment of the total knee replacement arthroplasty to the left knee by Professor Ireland related to the injury caused by the motor accident and that the treatment was reasonable and necessary in the circumstances. The reason for this determination was that the Medical Assessor was satisfied that there was no pre-existing injury to the left knee. The Medical Assessor considered the left knee injury to be a new injury that should be compensated. A total knee replacement was considered reasonable and necessary in relation to the injury caused by the motor vehicle accident.
The Medical Assessor’s determination is the subject of this review.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor was lodged within 28 days of the date on which the certificate was made available to the parties.
On 15 September 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 Review Panel (the 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 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 provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission). Accordingly, the President’s delegate referred the matter to this Panel to assess.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
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.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued directions to the parties directing that it intended to re-examine the claimant. The claimant was re-examined. The report of that re-examination appears below.
EVIDENCE BEFORE THE PANEL
The Panel issued Directions to the parties on 16October 2023 requiring the parties to provide the Panel with a joint bundle of material upon which they relied on the review together with any submissions on the review. The parties complied with that direction providing a Combined Joint Bundle to which the Panel has had regard in considering the matter.
Clinical records for Camden Central Family Practice indicate that the claimant attended her general practitioner on 6 February 2008 complaining with the development of recurrent sore right knee, which was intermittently painful, better sitting, and worse standing with some swelling. The claimant complained that the pain started after pushing a lounge with her right knee. The general practitioner noted a fall years ago at work, which is also recorded in the general practitioner’s notes relevantly as a calf strain. Upon examination the claimant had a swollen right knee about the joint line slight restricted range of movement full flexion, mild synovitis and was medially very tender. The general practitioner questioned whether the claimant had internal derangement or a cartilage tear, which was causing the inflammation. The claimant was trialled with Nurofen and was to be reviewed in May with the potential need for an orthopaedic assessment.
On 15 February 2008, the claimant was reviewed following an X-ray of her right knee, which showed it was largely within normal limits. The inflammation markers were within normal limits. The general practitioner opined that it was probably a meniscal tear. The claimant was referred to Dr Arash Nabavi for his opinion.
On 11 March 2008, the claimant’s general practitioner notes that a letter from Dr Nabavi who agreed that the claimant had a medial meniscal tear in the right knee which he had arranged an arthroscopy for a meniscectomy.
On 23 March 2008, the claimant’s general practitioner records that the claimant was one week post the right knee arthroscopy for a meniscectomy. The knee joint was experiencing effusion. The claimant was starting on non-steroidal anti-inflammatory medication.
In a letter dated 15 April 2008, Dr Arash Navi wrote to the claimant’s general practitioner stating that the claimant’s knee was still irritable six weeks post the knee arthroscopy, chondroplasty and partial medial meniscectomy. He reported he had injected it with some steroids to settle down the inflammatory reaction. He said that the claimant should continue with physiotherapy including swimming and cycling and he would review her again in six weeks time.
On 30 April 2008, the claimant’s general practitioner notes a letter from Dr Nabavi that the claimant’s knee remains irritable post arthroscopy and was given a cortisone injection on 30 April 2008. The claimant was advised to continue cycling and physiotherapy.
On 19 November 2008, the claimant’s general practitioner notes a letter from Dr Nabavi who stated the X-ray showed almost complete loss of cartilage. The claimant was recommended to try a heel wedge to unload the medial compartment. The doctor noted that the claimant needed a unicompartmental replacement.
On 23 December 2008, the claimant’s general practitioner records that the claimant was unhappy with the advice regarding her right knee date. She sought a second opinion and was referred to Dr Michael Solomon. She was prescribed Mobic.
On 19 January 2009, the claimant’s general practitioner noted a letter from Dr Solomon who opined that the claimant had medial compartment osteoarthritis. He planned an MRI scan to ensure there was no osteonecrosis of the medial femoral condyle.
On 12 November 2013, the claimant’s general practitioner noted that the claimant had fallen at work having tripped on packaging in the warehouse and fell onto her right knee which was swollen after the fall. The accident happened two weeks prior to her visit to her general practitioner and was still sore medially. On examination the claimant had normal gait. The right knee was swollen at the medial joint line. It was tender but there was no instability in the ligaments. The doctor queried whether it was soft tissue damage or a medial meniscal tear. He planned a review to consider referring the claimant for a MRI.
On 23 February 2015, the claimant’s general practitioner records that the claimant fell that morning on a cracked footpath and fell heavily on the left side. She sustained injuries to her left knee, and left elbow. Upon examination there was bruising and swelling. The left knee was recorded as stable. There was no suggestion of meniscal or ligamentous damage. The doctor opined that the injury sustained was soft tissue in nature.
On 16 June 2016, the claimant’s general practitioner records that the claimant was reviewed regarding a recent X-ray of her right knee. The X-ray revealed some medial compartment osteoarthritic changes, which were described as “not too bad”. The general practitioner noted an arthroplasty was not indicated at this point but may be into the future. The claimant was to aim for weight loss and undertake exercise such as cycling over walking with a review, if necessary, or if the condition changes.
On 11 August 2016, the claimant’s general practitioner recorded that the claimant had tripped on uneven flooring in a store at Narellan Town Centre the day before and stubbed her right toe and also injured her right knee. The right knee appeared to have settled somewhat. On examination, the general practitioner only made comments with respect to the claimant’s right toe. He opined an X-ray may be necessary if pain were to persist.
On 14 March 2019, the claimant complained of left knee pain, which she appears to have stated she was aware to be caused by arthritis. There was no injury and no locking or giving way. On examination, there as tenderness along the joint line. Her movements were slightly limited, and she was walking “fine”. She agreed to an X-ray. The claimant was to attend a review for the results.
On 14 May 2019, the claimant reported that she had been involved in a motor accident while travelling from work. She reported that she felt achy all over generally. She had bruising over the seatbelt region and also a flareup of left knee pain which was tender around the joint line. Movements were slightly painful. The claimant’s general practitioner advised that she should undertake conservative measures and return for a review in one week or sooner if needed.
On 29 May 2019, the claimant’s general practitioner reported that the claimant felt a lot better, and her pain had improved. The bruising had improved on examination. Movement was considered “okay”. She was reported as walking “fine”.
In an MRI reported on 13 June 2019, in respect of the claimant’s left knee the radiologist reported a tear of the medial meniscal body segment with moderate thinning of articular cartilage in the medial compartment. There was minor thinning over the superficial band of the medial cruciate ligament, either reactive to medial compartment/minuscule pathology or due to a low-grade sprain if there has been trauma. There is chondral thinning in the femoral compartment extending down to bone along the patella apex and medial facet. Corresponding chondral wear was observed along the central/ medial trochlear notch. Apical radial tear was noted on the lateral meniscus. There was a lateral compartment chondrosis including a superficial chondral flap lateral femoral condyle. Observed was an inferiorly dissecting popliteal cyst. In respect of the right knee, the radiologist reported that there was a tear of the medial meniscus. There was medial compartment osteoarthritis present with moderate full thickness loss of articular cartilage. There was reactive synovitis. There was oedema overlaying the superficial band of the medial cruciate ligament with mild thickening proximately compatible with a low-grade strain injury. The lateral meniscus demonstrated fraying involving the free edge of the body segment, without surface tear. Focal chondral wear extended down to bone over the lateral femoral and tibial plateau. There was moderate full thickness control loss along the patella apex and medial facet.
On 20 June 2019, the claimant’s general practitioner referred the claimant to Dr Arash Nabavi for bilateral knee pain following the recent motor vehicle accident. The MRI showed arthritis/medial meniscal tear/sprain.
By letter dated 16 July 2019, from Dr Arash Nabavi to the claimant’s general practitioner, the surgeon noted that the claimant had been involved in a motor vehicle accident in May 2019, when her vehicle was T-boned and she struck her left knee against the dashboard of the motor vehicle. She complained that her knee had been painful since the motor accident particularly at night, when walking, when climbing and descending stairs. She was unable to kneel or squat. Pain was present and only partially relieved with Mobic. She noticed some swelling and crepitus but no stiffness blocking or instability.
By letter dated 17 September 2019, Dr Arash Nabavi reported that the claimant had seen him, and he had undertaken Platelet-Rich Plasma (PRP) injections in both knees which was tolerated without any complication. The surgeon planned to see the claimant again in six weeks time for a second injection.
By letter dated 22 October 2019, Dr Arash Nabavi reported that he had undertaken PRP injections in both the claimant’s knees which was tolerated without any complication. The surgeon planned to see the claimant again in six weeks time for a third and final injection.
By latter dated 10 December 2019, a radiologist reported of an X-ray of both the claimant’s knees finding that the medial compartment showed joint space narrowing on both sides more marked on the right side. Spurring of the tibial spines was seen bilaterally. Marginal osteophytes were seen in the medial compartments on both sides. Femoral joint showed marginal osteophytic change more on the right. There was not joint diffusion. Bones and surrounding areas appeared otherwise satisfactory.
By letter dated 10 December 2019, Dr Arash Navi reported that the claimant had seen him again for a PRP injection. He reported that the claimant had had a mild response to the injections. He had performed X-rays and they demonstrated moderate to severe loss of joint space in the medial compartment bilaterally. He had re-injected both knees with a syringe of PRP and was hoping that this would settle her symptoms further. If they were not successful, then the next stage would be a prosthetic knee replacement.
By letter dated 9 December 2019, the claimant’s general practitioner Dr Urlam had referred the claimant to Associate Professor Ireland. He described the presenting problems by bilateral knee pain with the left worst in the right. He recorded that the claimant had had three PRP injections with no benefit. She had a previous history of an arthroscopy to her right knee 11 years ago.
On 17 February 2020, the claimant’s general practitioner recorded that the claimant was experiencing ongoing knee pain for which she required analgesia.
On 27 February 2020, the claimant complained that her knee pain was getting worse, and she was unable to climb the stairs and sit for long periods.
In a report dated 23 April 2020, Associate Professor Ireland stated that the claimant had sustained a substantial aggravation of arthritis in both knees as a result of the motor accident, but the left knee as the principal issue at that point in time. The claimant had no pre-existing injuries to her knees but does have evidence suggestive of pre-existing arthritis. Examination revealed a pronounced various deformity of both knees, restricted range of motion and crepitus. He recorded that the claimant reported having some symptoms in the right knee related to her arthritis prior to the accident but as a result of the impact against the dashboard, in both knees, she has had an intense increase in pain, in particular to the previously asymptomatic left. The mechanism of injury is consistent with the motor vehicle accident and corresponds with her clinical symptomology. He opined that the claimant had sustained a substantial aggravation of her underlying arthritis which had not resolved since the motor vehicle accident. He opined that on the balance of probabilities she would not require a knee replacement at that point in time if not for the accident.
By letter dated 7 May 2020 to the insurer, regarding the insurer’s letter to him raising the claimant’s historic attendances upon her general practitioner for left knee issues, Associate Professor Ireland stated he was not aware that the claimant had complained of left knee pain and that she has symptoms in her knee prior to the motor vehicle accident. He said that he changed his approach to the extent which the knee was aggravated by the motor vehicle accident. The fact that the claimant was symptomatic prior to the accident and definitely had evidence of arthritic change prior to the accident. He suggested aggravation from the motor vehicle accident probably had resolved by now and the claimant’s ongoing symptoms related to the underlying arthritic change. He stated that the claimant had described symptoms previously in her right knee and not in her left and this would be an omission on her part acknowledging that the reference to the left by the general practitioner on 14 March 2019 was the correct side. It did not change his opinion regarding the requirement for the claimant to undergo a total knee replacement.
In his medical report dated 11 November 2021, Associate Professor Ireland noted that there had been progressive deterioration in the claimant’s knees since the time of her accident. He stated that the right is worse than the left and that the claimant had been forced to give up work due to being unable to manage ramps and stairs to get to her place of employment. She currently finds her knees wake her at night. She is unable to walk more than 15 minutes and needs a railing to get up and down a few stairs. She takes Celebrex, Panadol and trying to keep herself fit with swimming. On examination she had a prominent various deformity of 15° on the right and 5° on the left. Her range on the right is 10 through to 100° and on the left is 0 through to 120°. The X-ray showed severe arthritic change, more on the right than the left. The doctor opined that the claimant would benefit from total knee replacements. Although some of her arthritic change and symptoms predate the accident, there certainly has been a substantial deterioration since the motor vehicle accident in 2019.
MEDICO-LEGAL EVIDENCE
In a report dated 26 March 2019, Associate Professor Michael Shatwell further to taking a history, examining the medical records, and examining the claimant opined that the claimant experienced a minor contusion to her right knee as a result of the motor vehicle accident described. This was not sufficiently severe to prevent her from returning to work one week following the accident. In his opinion there was no aggravation of the underlying osteoarthritic change in the right knee. There was no report of left knee bruising either in the ambulance record or in the general practitioners’ notes. He did not consider that any future treatment would be necessary as the effects of the motor accident would have settle within a few weeks. He opined there was no medical treatment likely to improve knee function apart from weight loss and regular gentle low impact exercise such as more cycling swimming. He stated that in the long-term the claimant may require knee joint replacement surgery. Arthroscopic debridement was not considered likely to be of any benefit now or in the future.
In a report dated 5 January 2021, Dr Evan Dryson, following taking a history and an examination of the claimant, the doctor opined that the motor accident aggravated the claimant’s pre-existing osteoarthritis in both knees. He recorded that there as evidence of pre-existing tricompartmental osteoarthrosis of both knees. Reference was made to the claimant’s general practitioner’s case notes which indicated that the claimant had consulted him about her left knee just two months prior to the motor vehicle accident of 13 May 2019. On that occasion, an X-ray of the right knee had been ordered. This was reported by the claimant’s general practitioner on 7 May 2019 as having showed moderate tricompartmental osteoarthritis changes. He noted that there had also been previous references to the right knee in the general practitioner case notes, in 2016. He asked the claimant if she knew how she had developed arthritis in the knees. She stated that there has been no past history of injury, but that she had played a lot of netball when she was younger. The doctor opined that the bilateral osteoarthritis may have been caused by netball injuries, alternatively, it may represent wear and tear associated with the ageing process. He agreed with the need for a knee replacement.
In report dated 8 October 2021, Dr Tanya Rogers, following a medical examination consultation of the claimant via Zoom, consideration of the medical evidence and a history taken, the doctor opened that it was difficult for her to understand how the accident was a causal factor in the osteoarthritis which is an age related and degenerative condition. The doctor opined that post-traumatic osteoarthritis itself would take some years to develop after a specific traumatic event. There are also inconsistencies in terms of which knee was affected based on the general practitioners’ records, it is likely that the accident may have caused temporary exacerbation of pain in the left knee which was already symptomatic. However, she did not consider the subject accident was a contributing cause to the claimant’s condition which had been intermittently flaring with various activities including stairclimbing at work which is consistent with degenerative osteoarthritis. She considered that the motor accident may have temporarily exacerbated pain in the left knee which was already symptomatic but did not aggravate the osteoarthritic changes as such. She did not consider that the subject was a contributing cause to the claimant’s current pain, which had been intermittently flaring with various activities before and after the subject motor accident consistent with the generative osteoarthritis.
RE-EXAMINATION BY THE PANEL
The claimant was re-examined by Medical Assessor Lahz on 7 February 2024. The following is the Medical Assessor’s examination report.
“Mrs Hines attended punctually (in fact, arriving one hour early) for medical examination at the PIC Suites. The examination was in relation to a treatment dispute concerning left knee replacement and its relationship or otherwise, to the motor accident occurring on 13/5/19.
Mrs Hines is aged 68 and right-handed. She had travelled by train to the city from her home at Camden where she lives with her husband. Mrs Hines is now fully retired from an office-based accounting role. Mrs Hines is diabetic and a non-smoker who only occasionally consumes alcohol. Her medications are Celebrex (for pain), Metformin and Atorvastatin.
Mrs Hines expressed her surprise at having to attend for this assessment. She explained that the Insurer funded her left total knee replacement with Professor Ireland in October 2023. Further, she said that the 2019 motor accident claim had settled during December 2023 and her solicitor (she explained) is now simply awaiting payment of the settlement monies (which reportedly do not include any specific funds for the recently performed left TKR.)
She explained that her solicitor recently telephoned various staff at PIC to question the need for her attendance for medical assessment. However, in the finish she was still directed to attend.
Mrs Hines explained that she would also like a right knee replacement, this knee having always been much more symptomatic than the left. She reported that her solicitor has said that he will try to organise this as well through the CTP insurer. Although Mrs Hines presently has a very painful, swollen right knee, she is not minded for further prolonged legal wrangling. She is considering to self-fund the right total knee replacement even though she blames the subject accident for the current right knee symptoms.
I confirmed with Mrs Hines the history regarding the long-standing bilateral knee osteoarthritis. She agreed that for many years there had been intermittent right knee symptoms, which she believes, stemmed from sporting injuries occurring in youth. In 2008, she underwent a right knee arthroscopy with Dr Nabavi. Whilst the procedure initially helped, over the years, there were ongoing right knee symptoms of fluctuating intensity.
Mrs Hines acknowledged that the left knee had also occasionally been symptomatic for several years before the motor accident. However, symptoms mainly occurred, if there were an injudicious event such as (for example) bumping the knee directly on an object.
With reference to overall pain severity, Mrs Hines provided a rating of 6-7/10 for the right knee and 2-3/10 for the left knee BEFORE the 2019 motor accident. Right knee symptoms occurred much more often than left-sided symptoms and always more severe.
After the right knee arthroscopy in 2008, Dr Nabavi (orthopaedic surgeon) predicted that a right knee replacement would eventually become necessary. However, Mrs Hines said that he never discussed this with her, and at the time of the 2019 motor accident, she was unaware of being on a trajectory towards bilateral total knee replacements (TKRs).
Mrs Hines explained that the right knee was always significantly more symptomatic than the left knee, both before and since the 2019 motor accident. She explained in fact that she did not understand the reasons for the left knee replacement occurring before the right. She would have much preferred for the right knee to have been replaced first. She said that she took this up with her solicitor who also could not explain it. It was unclear from her response whether she had also taken this matter up with the treating orthopaedic surgeon.
Mrs Hines acknowledged that she had complained of left knee symptoms during March 2019 (two months before the motor accident); her doctor arranging an x-ray which was performed one week before the motor accident.
Prior to the 2019 motor accident, notwithstanding intermittent right knee pain and a few “twinges” in the left knee, she had been able to complete household chores and walk regularly up to 90 minutes daily.
Mrs Hines confirmed her involvement in the subject 2019 motor accident. At the time, she had been the restrained driver of a Toyota Corolla. A car suddenly pulled out, causing collision with the passenger side of her vehicle. She explained that her car was pushed off the road, whilst both her hands remained on the steering wheel and the knees went straight into the dashboard.
Mrs Hines’ vehicle was written off in the accident.
She sat in the car for 15 minutes afterwards until the ambulance arrived. They checked her blood sugar levels (given she is diabetic) as well as her blood pressure. Both knees were very painful and she recalled that it was difficult to walk, although she declined the offer of transfer to hospital.
Mrs Hines does not recall the presence of any bruising at either knee.
Mrs Hines saw her doctor the day after the motor accident, to complain of pain in both knees. I pointed out to Mrs Hines that the doctor’s records only refer to the left knee although she reiterated that BOTH knees were in fact very sore, the right more so.
Although Mrs Hines returned to work on or around 26/5/19, the knees remained painful (right knee 8-9/10 symptoms and left knee 4-5/10 intensity symptoms). Her GP then arranged MRI scans of both knees demonstrating marked bilateral degenerative change R>L.
At the time of the accident, Mrs Hines was an accounts worker (20 years in the same position). After the accident, she had two weeks off work and then resumed duties. However, the presence of three flights of stairs at the workplace made life difficult (due to persistent bilateral R>L knee pain).
In June 2019 (one month after the motor accident), Mrs Hines consulted Dr Nabavi regarding persistent bilateral knee pain. He arranged bilateral PRP (platelet rich plasma) injections x3 to each knee although unfortunately these were unhelpful.
Mrs Hines attended physiotherapy sessions for both knees for approximately three months after the motor accident.
After the unsuccessful 2019 knee PRP injections, Mrs Hines decided to persevere as best she could with bilateral R>L knee pain. Symptoms persisted, remaining significant so she consulted Professor Ireland in early 2020. His early correspondence notes L>R knee symptoms although by late 2021, Professor Ireland’s letters indicate that the right knee is the more symptomatic. Mrs Hines disagrees that the left knee was ever the more symptomatic- as noted, she strongly maintains that the right was always worse.
By late 2021, Mrs Hines reported that it was a struggle to walk just a few metres due to R>L knee pain. On this basis, she retired from her employment.
From 2021-2023, she reported that the condition of both knees continued to symptomatically worsen. Mrs Hines decided to ‘await’ developments in her CTP claim before finally proceeding with the left knee replacement in October 2023.
As discussed above, the reasons for the left knee replacement prior to the right knee replacement are unclear given the R>L knee symptoms. By time of the left TKR in late 2023, she reported presence of 10/10 symptoms at the right knee and 5/10 symptoms at the left knee.
Mrs Hines underwent the left TKR at Campbelltown Private Hospital, spending two weeks in hospital.
There has been a reasonably satisfactory outcome with the left knee replacement although she still experiences moderate activity-related anterior knee pain. The left knee generally feels stable and has a satisfactory range of motion. The surgeon at operation also corrected the varus alignment. Mrs Hines still attends physiotherapy for the left knee and feels that further improvements here are likely.
The right knee remains highly symptomatic with activity-related pain as well as pain at night causing sleep disturbance. There is limited right knee movement (both for flexion and extension) along with varus deformity and frequent knee swelling.
Mrs Hines has difficulties negotiating stairs and the right knee is also unstable with proneness for collapse. She relies on a hand rail when negotiating stairs and frequently wears a right knee guard for security and comfort. (She was wearing the latter when I saw her.)
Mrs Hines can walk without walking aids for up to 20 minutes on the level, representing a significant improvement compared with the pre-operative situation of just 15 metres. With a right TKR and further recovery from the left TKR, she anticipates further (substantial) improvements in general mobility and function.
Mrs Hines has resumed swimming for sake of general exercise. She does not have particular hobbies at the moment and been somewhat low in mood due to the lengthy history of bilateral debilitating knee pain since the 2019 motor accident.
Mrs Hines completes most chores such as cleaning, self-paced. She can cook, attend her shopping and complete the laundry.
For analgesia, Mrs Hines takes Palexia 50 mg nocte and Celebrex 50 mg daily, as well as Panadol Osteo.
On examination, I found Mrs Hines pleasant and straightforward.
She is of short stature (154 cm) with central adiposity and overweight body habitus (78.9 kg).
She walked unaided, albeit with an antalgic gait favouring the right leg.
The right knee was in several degrees of varus, as well as being swollen due to presence of moderately large joint effusion. The knee was warm on palpation and tender over the medial and lateral joint lines. The knee moved actively through
20-100 degrees, in the presence of a fixed flexion deformity. Stability testing at the right knee was difficult to perform due to substantial discomfort.There were 2 cm of right thigh wasting 10 cm above the superior patellar border relative to the left knee. (This is consistent with long-standing R>L knee osteoarthritis.)
The abovementioned right knee examination findings are consistent with end stage osteoarthritis.
At the left knee, there was a recent surgical scar consistent with TKR. The knee moved actively through 0-125 degrees. There was no effusion and the knee was stable in the mediolateral and anteroposterior planes. There was no quadriceps lag.
Mrs Hines brought along various x-rays which I reviewed:
Right knee (non-weight bearing views) performed 16/6/16- There were findings consistent with medial compartment osteoarthritis, with 2 mm of measured cartilage interval (my comment).
Bilateral Knees (weight bearing/Rosenberg views) performed on 10/12/19 – there was 1 mm of measured right knee medial joint space and 2 mm of measured left knee medial joint space. (My comment)
I noted post operative films of the left knee from both October and November 2023 showing presence of an apparently uncomplicated total knee replacement.”
PARTIES’ SUBMISSIONS
The claimant submits that her need for the surgery is clearly due to an aggravation of her osteoarthritis, pain, symptoms, and disabilities caused by the subject accident. She submits that pursuant to s 1.3 of the MAI Act, insurers must encourage appropriate treatment and care of injured persons to achieve optimum recovery and return to their normal activities of daily living. In light of the medical evidence, the claimant submits that total knee replacement arthroplasty of the left knee is reasonable and necessary and an appropriate treatment that will improve her recovery.
The insurer submits that for treatment to be considered as reasonable and necessary, the request must show that it is directly related to the injuries sustained in the accident, be aimed at helping the claimant get back to their usual activities, show benefit, be appropriate for the type of Injury and be provided by an appropriately qualified health professional and be cost effective. Based on the medical evidence and findings, it submits that the request for payment for total knee replacement arthroplasty of the left knee is not reasonable and necessary treatment in the circumstances and ought not be approved.
LEGISLATIVE FRAMEWORK
The claimant’s claim is governed by the provisions of 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. Statutory benefits payable by the “relevant insurer” in accordance with Part 3 of the MAI Act include treatment and care benefits under Division 3.4. Section 3.24 of the MAI Act provides that an injured person is entitled to statutory benefits for the reasonable cost of treatment and care expenses incurred in connection with providing treatment and care for the injured person. 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.
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 (Briggs No. 2) at [35], Wright J referred to Part 5 of the Guidelines and equated the provisions of clauses 6.5 to 6.7 in Part 6, dealing with a medical assessment matters as to the degree of permanent impairment, to the assessment of causation of the purposes of treatment disputes under Part 5.
Clauses 6.5 to 6.7 provide:
“Causation of injury
6.5 An 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.
6.6 Causation 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.
6.7 There 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 Briggs (No. 2),Wright J, at [75]-[77], said, relevantly:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710; 87 MVR 20, decided under the MAI Act’s predecessor legislation, the Motor Accidents Compensation Act 1999 (NSW), Davies J considered the issue of causation of surgery in the context of pre-existing degenerative change and confirmed that the test was one of whether the accident made at least a material contribution to the need for surgery. It requires a consideration of whether the proposed surgery would not have arisen but for the occurrence of the accident.
The similar expression “reasonably necessary” was considered in a different statutory context, under s 60 of the Workers Compensation Act 1987, in decision of the Court of Appeal in Clampett v WorkCover Authority of NSW [2003] NSWCA 52; 56 NSWLR 726, which accorded the expression “necessary” its ordinary meaning so as to denote something which had the quality of “indispensable, requisite, needful, that cannot be done without”. Under consideration in that case was whether modifications to an injured worker’s home were reasonably necessary. The contiguous expression “reasonably” was said to have the consequence of moderating any sense of the absolute, which might otherwise be conveyed by the word “necessary” if stood alone. Reasonableness is to be considered in all the circumstances.
PANEL’S CONCLUSIONS
The Panel notes that the claimant experienced long-standing symptomatic and radiological knee osteoarthritis bilaterally predating the 2019 motor accident. The general practitioner records preceding the 2019 motor accident confirm presence of intermittent right knee symptoms (2008, 2013, 2016) and very occasional left knee symptoms (2015, 2019 – three months before the motor accident). The claimant confirmed that the right knee was often symptomatic “on and off” whereas there were only occasional twinges at the left knee, mostly occurring after bumps, knocks or falls.
From the time of the 2019 motor accident, the general practitioner records indicate that the claimant made various symptomatic complaints regarding both knees resulting in referrals to orthopaedic surgeons Dr Nabavi in June 2019 and Professor Ireland in January 2020.
The Panel has concluded upon consideration of its re-examination of the claimant, and the clinical and other medical evidence that the underlying constitutional osteoarthritis in the claimant’s knees was aggravated by the subject motor accident, with resultant transition from preceding intermittent bilateral knee symptoms to occurrence of continual, unrelenting and debilitating knee symptoms post-accident. The claimant’s knee symptoms worsened during the period 2019 to 2023, and did not resolve, at which stage, she underwent the left knee replacement.
Prior to the 2023 left total knee replacement the claimant’s underlying knee arthritis had been treated conservatively. The claimant had maintained relative functionality through her knees, since the 2008 arthroplasty procedure, through exercise and conservative treatment. However, given that from the time of the motor accident, the claimant has complained of unrelenting symptoms in both knees resulting in diminished capacity and functionality, occasioning an orthopaedic referral to initially Dr Nabavi who arranged PRP injections to both knees and then a further referral to Professor Ireland by early 2020, conservative treatment options were no longer indicated.
The claimant may have required a total knee replacement bilaterally, irrespective of the 2019 motor accident. The conservative treatment options may have continued to be effective such that surgery may not need have been considered, or at least only arthroscopic surgery may have been needed. But the requirement for a left total knee replacement was made the absolute by reason of the injury sustained in the motor accident, being the aggravation of the claimant’s bilateral knee symptomology. This injury occasioned the cessation of the claimant’s ability to manage the symptoms of the osteoarthritis in her knees conservatively. That is, the motor accident constituted a material contribution to the claimant’s unrelenting bilateral knee symptomology, which rendered the ongoing continuation of conservative osteoarthritis treatment options she had thereto variously pursued, inappropriate and necessitated the left total knee replacement.
In these circumstances, the Panel considers that that the disputed treatment, the left total knee replacement, was reasonable and necessary because it will improve the claimant’s recovery and return to her usual activities.
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