Insurance Australia Limited t/as NRMA Insurance v Jacquot
[2024] NSWPICMP 694
•4 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Jacquot [2024] NSWPICMP 694 |
CLAIMANT: | Philippe Jacquot |
INSURER: | IAG Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Tai-Tak Wan |
DATE OF DECISION: | 4 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Berry dated 30 November 2023 for assessment of whole person impairment (WPI); claimant involved in accident on 29 September 2020 when riding his motorbike which collided with the insured car crossing in front of his path; claimant injured right shoulder, right leg and knee with fractures, left knee, left hip and buttocks; insurer submitted that the claimant had a pre-existing condition of osteoarthritis and his injuries following the accident were a temporary aggravation; the claimant clearly stated on medical examination that he was asymptomatic at the time of the accident from any pre-existing condition for which he might have been previously treated; Medical Review Panel (Panel) satisfied following examination that the claimant had severe cruciate laxity and patellofemoral crepitus which was concordant with the opinions of Dr Assem, Dr Dixon, and Dr Wernecke as well as MA Berry and contrary to the opinion of Dr Allen for the insurer whose findings were not followed by the Panel; MA Berry assessed WPI of the claimant at 19% however WPI was assessed by the Panel at 13%; Held – Panel revoked the certificate of MA Berry and finding WPI of the claimants right knee at 10% together with crepitus at 2% and 1% for the right shoulder total 13% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Berry dated 30 November 2023. 2. The Panel finds the following injuries caused by the accident give rise to a permanent impairment of 13%: (a) right knee-fracture and ligament injury. 3. The Panel finds that the following injuries caused by the accident have resolved and give rise to no assessable permanent impairment: (a) right shoulder-soft tissue injury; (b) left hip and buttock-soft tissue injury, and (c) left knee. |
STATEMENT OF REASONS
Introduction
This is an application by the insurer for review of a certificate of Medical Assessor Berry (the Medical Assessor) dated 30 November 2023.
There is a dispute between the claimant and the insurer about:
(a) the degree of permanent impairment under Schedule 2, s 2(a) of the Motor Accident Injuries Act 2017 (the Act).
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) right shoulder – soft tissue injury;
(b) right leg – fractured right tibia, full thickness tear of the posterior cruciate ligament (PLC);
(c) right knee – severe cruciate ligament injury to right knee, retro patellar crepitus to the right knee following direct blow to right knee;
(d) left knee – retropatellar crepitus of the left knee while favouring the left knee;
(e) left hip – soft tissue injury, and
(f) buttocks – left gluteal soft tissue injury.
The Medical Assessor found the following injuries caused by the accident gave rise to a permanent impairment of 19%;
(a) right knee – direct impact to the knee, crepitus and complete tear of the right posterior cruciate ligament, and
(b) left hip – soft tissue injury.
The Medical Assessor found the following injuries caused by the accident had resolved and gave rise to no assessable permanent impairment:
(a) right shoulder – soft tissue injury, and
(b) buttocks – left gluteal soft tissue injury.
The Medical Assessor said that an assessment of degree of permanent impairment of these injuries was therefore not required.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel is to come to its own conclusion and to take its own history.
The accident
The accident occurred on 29 September 2020.
The claimant was riding a Yamaha R1 motorcycle along Old Pacific Highway, Brooklyn in a southerly direction. He was wearing full leather protective gear, a helmet and a spine protector. He was travelling approximately 80kmph when a vehicle suddenly performed a U-turn in his path. He attempted to brake and skidded before colliding into the vehicle whilst still travelling at 30-40kmph.
He was unaware that he had an injured knee and moved his bike from the path of oncoming traffic.
Later that evening, he began to experience severe pain involving his right knee and leg. He also had pain in his neck, right shoulder and left hip. Early the next morning, he attended the Emergency Department at Canterbury Hospital where he was assessed, and imaging was performed. His right shoulder X-ray showed an old ununited mid-clavicular fracture. A CT of the knee revealed a fracture of the medial tibial eminence. He was subsequently discharged with a Zimmer splint.
He was asked to have an MRI as an outpatient. He had the MRI scan performed five days later and this showed that there was a complete rupture of the right posterior cruciate ligament. The claimant also had pain in the front of the right knee because of the direct impact and he also complained of pain in the left hip. His right shoulder symptoms subsequently subsided.
Insurer’s submissions
The insurer submits that the Medical Assessor’s Certificate is affected by material errors and should be referred to a Review Panel for review pursuant to s 7.26 of the Act on the following grounds:
(a) the Medical Assessor failed to respond to the insurer's clearly articulated arguments relating to causation, namely, the effect of the claimant's degenerative conditions in his right knee and the impact on his alleged accident symptoms;
(b) the Medical Assessor failed to provide a clear path of reasoning as to how he reached his conclusion of 'nil' subsequent/pre-existing impairment and 10% impairment for the posterior cruciate ligament in the right knee;
(c) the Medical Assessor has incorrectly calculated whole person impairment (WPI) in respect of the left hip, and
(d) the Medical Assessor failed to consider and discuss the impact of degenerative conditions in his assessment of WPI for the left hip where there was objective evidence of these conditions before him, at the time of assessment.
Ground one - the Medical Assessor failed to respond to the insurer's clearly articulated arguments relating to causation
The insurer says that in its original submissions dated 14 March 2022, it made the following arguments which it says are relevant to the issue of causation and to the assessment of WPI:
“35 – The insurer relies on the report of consultant orthopaedic surgeon, Dr Charles Allen, dated 7 February 2020. Dr Allen's opinion was that the Claimant had evidence of pre-existing degenerative osteoarthritis in his right knee which predated his accident in September 2020 which was documented in an MRI study taken shortly thereafter. Dr Allen noted a strain to his posterior cruciate ligament, which in his view, has now settled as there was no residual posterior cruciate ligament laxity. Further, that the osteoarthritis in his right knee had continued to progress in line with its natural history such that his current symptoms were attributable, in Dr Allen's view, to the pre-existing osteoarthritis.”
The insurer says that whilst the Medical Assessor notes, in paragraph 4 of his certificate, the parties' respective submissions, he makes no attempt to engage with the substance of the insurer's submissions set out in the above paragraph. Further, the insurer says that the above argument raised by it, appears to have been overlooked or disregarded entirely by the Medical Assessor given the lack of any reference, in paragraph 20 of the Medical Assessors certificate, to Dr Allen's report, which formed the basis of the insurer's submissions.
The insurer says that in paragraph 10 of his certificate, the Medical Assessor takes the following history: 'He had the MRI scan performed some five days later and this showed that there was a complete rupture of posterior cruciate ligament'. The insurer submits however, that the Medical Assessor's summary of the MRI scan is confined to the presence of the ruptured posterior cruciate ligament only and does not include discussion of or reference to the 'meniscal degenerative change' referred to in the same report, namely the MRI right knee report dated 9 October 2020. The insurer says that this is despite the issue of causation being brought to the Medical Assessor's attention, through the insurer's submissions, prior to his assessment of the claimant.
The insurer says that furthermore, in paragraph 21 of the certificate, the Medical Assessor notes the following: 'MRI right knee dated 31 December 2020 reported a thickened posterior cruciate ligament consistent with intrasubstance tearing. There is no other pathology, apart from degenerative changes in the three compartments.' Despite this, the insurer submits that the Medical Assessor makes no further reference to the degenerative conditions in the right knee throughout his certificate. The insurer submits that the Medical Assessor did not discuss these degenerative conditions with the claimant at the examination and did not engage with the insurer's submissions on causation despite referring, in paragraph 21 of his certificate, to objective evidence that supports the insurer's position.
The insurer submits the arguments raised in its original submissions are matters which relate substantially to the issue of causation. The insurer says that as a matter of procedural fairness, the Medical Assessor ought to have raised with the claimant the degenerative conditions in the right knee referred to in the MRI reports dated 9 October 2020 and
31 December 2020 and engaged with the insurer’s submissions with the claimant during the course of the assessment. The insurer submits that it is readily apparent that this did not occur.Therefore, the insurer submits that as the Medical Assessor did not deal with clearly articulated arguments by the insurer relating to causation, a material error exists.
Ground two - failure to provide a clear path of reasoning
The insurer submits that the Medical Assessor failed to provide a clear path of reasoning in relation to his assessment of impairment in the right knee.
Medical Assessor Berry's finding of 'nil pre-existing/subsequent' impairment
The insurer refers to cl 6.34 of the Motor Accident Guidelines (the Guidelines):
“The evaluation of permanent impairment may be calculated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
The insurer says that on page 12, paragraph 29 of his certificate, the Medical Assessor writes there was 'nil' pre-existing/subsequent impairment.
However, the insurer says that in the paragraph 29, the Medical Assessor does not provide any path of reasoning to demonstrate how he reached this conclusion, in circumstances where:
(a) he was plainly aware, from the insurer's submissions and objective evidence before him (the MRI right knee reports dated 9 October 2020 and
31 December 2020), of possible unrelated impairment in the right knee arising from the claimant's degenerative conditions, and(b) he failed to specifically discuss any of the degenerative conditions in the right knee raised by the insurer in its submissions.
The insurer submits that as the Medical Assessor did not provide any reasoning in paragraph 29, he cannot be assumed to have properly calculated WPI as the basis for this conclusion is left wholly unexplained. The insurer therefore submits that as the Medical Assessor did not provide any reasons to support his finding of 'nil pre-existing/subsequent impairment' to the right knee, a material error exists.
Assessment of 10% impairment for posterior cruciate ligament in right knee
The insurer says that on page 10, paragraph 28 of his certificate, the Medical Assessor writes “the claimant's right knee is assessed using the AMA 4th Edition of the Guides to the Evaluation of Permanent Impairment and I refer you to Table 64 on page 85 and he is assessed as a 10% WPI as a result of his complete ruptured posterior cruciate ligament.”
The insurer says that table 64 of the American Medical Association Guidelines to the Evaluation of Permanent Impairment, fourth edition, (AMA4 Guides) refers to three applicable impairment categories for a cruciate or collateral ligament laxity: mild (3%), moderate (7%) or severe (10%). The insurer confirms that the Medical Assessor's finding of 10% impairment falls within the severe range. The insurer says however, that the Medical Assessor does not provide any reasons to explain why he placed the claimant's right knee in the severe impairment range as opposed to the mild or moderate ranges.
Further, the insurer noted that the Medical Assessor observed, in paragraph 18 of his certificate 'normal range of movement' in the right knee, which the insurer submits is inconsistent with his finding of 10% severe impairment.
The insurer submits that in this regard, a material error exists as the Medical Assessor failed to provide any clear path of reasoning to demonstrate how he reached his finding of 10% severe impairment for the posterior cruciate ligament when the claimant demonstrated normal range of movement in the right knee.
Ground three: incorrect calculation of whole person impairment – left hip
The insurer refers to page 11, paragraph 28 of the Medical Assessor’s certificate, and says that he writes “the left hip is assessed according to Table 40 on page 78. He has internal rotation at 10 degrees which is a 2% whole person impairment. External rotation at 20 degrees which is a 2% whole person impairment, abduction is at 20 degrees which a 2% and adduction is 10 degrees which is 2%. These assessments are added and the claimant has a whole person impairment of 8%.”
The insurer referred to Table 40 of the AMA4 Guides and says that this table refers to three applicable impairment categories for assessing hip motion impairments: mild (2%), moderate (4%) or severe (8%).
The insurer says that cl 6.85 of the Guidelines stipulates:
“Tables 40 to 45 (page 78, AMA4 Guides) are used to assess range of motion in the lower extremities. Where there is loss of motion in more than one direction/axis of the same joint, only the most severe deficit is rated – the ratings for each motion deficit are not added or combined. However, motion deficits arising from separate tables can be combined.”
The insurer submits that the Medical Assessor incorrectly assessed the left hip by separating each assessment of WPI based on each individual external rotation, abduction and adduction and then adding/combining the assessments together. The insurer says that by adopting table 40 of AMA4, cl 6.85 of the Guidelines and the degrees of motion in the left hip set out by the Medical Assessor on page 11, the claimant would satisfy either 2% (mild) or 4% (moderate) WPI and not 8%, as originally assessed.
The insurer therefore submits, as the Medical Assessor incorrectly applied table 40 in calculating WPI for the left hip, a material error exists.
Ground four: Failure to consider objective evidence of degenerative conditions in left hip
The insurer says that in paragraph 21 of his certificate, the Medical Assessor refers to an MRI left hip report dated 9 October 2020 as reporting only a 'grade 1 injury involving the gluteus medial muscle.' However, the insurer says that again, the Medical Assessor has confined his summary of this report to the gluteus medial muscle only. The insurer says that through this confinement, the Medical Assessor completely disregards the presence of a number of degenerative conditions also referred to in the report including osteoarthritis, degenerative labral fraying, sacroiliac joint degenerative changes and degenerative wear.
Additionally, the insurer says that on page 9, paragraph 22 of his certificate, the Medical Assessor diagnoses the claimant with a 'soft tissue injury to the left hip which is reflected by limitation of movement.' However, the insurer submits that the Medical Assessor does not discuss or refer to the degenerative conditions in the left hip in coming to this diagnosis and in his assessment of WPI in paragraph 28.
The insurer submits the various degenerative conditions outlined in the MRI left hip report dated 9 October 2020 is objective evidence of possible unrelated impairment in the left hip which the Medical Assessor should have considered, under cl 6.34 of the Guidelines, in his assessment of WPI. The insurer submits that as the Medical Assessor did not do so, a material error exists.
The insurer submits in conclusion that the Medical Assessor failed to:
(a) respond to the insurer's clearly articulated arguments on causation, namely the effect of the degenerative conditions in the claimant's right knee on his ongoing symptoms;
(b) provide a clear path of reasoning in his conclusion relating to pre-existing/subsequent impairment;
(c) correctly calculate WPI for the left hip in accordance with table 40 of the AMA4 Guides, and
(d) consider objective evidence of degenerative conditions in the claimant's left hip in his diagnosis and assessment of WPI.
The insurer submits that the claimant’s injuries do not give rise to a WPI sufficient to claim non-economic loss.
Claimant’s submissions
The claimant’s submissions respond to those made by the insurer.
Alleged failure to deal with the insurer’s argument
The claimant says that by the insurer’s application, it argues that the Medical Assessor failed to engage with the insurer’s argument that the claimant’s impairment in the right knee is due to pre-existing degenerative changes. The claimant says that according to the insurer and
Dr Allen, this had apparently continued to progress in line with its natural history such that the claimant’s current symptoms are attributable to degenerative changes in the right knee.The claimant submits that although the insurer does not specifically dispute causation of the rupture of the posterior cruciate ligament or any direct force trauma to the knee, the insurer’s argument is, the claimant says, tantamount to suggesting that degenerative changes are somehow responsible for the complete rupture (no intact fibres) of the posterior cruciate ligament. The claimant submits that this is a clinically flawed position.
The claimant submits that the Medical Assessor did not fail to engage with the insurer’s argument that there were degenerative changes in the right knee. However, the claimant submits that this is of no significance to the question of whether or not the claimant suffered a complete rupture nor a patella injury due to the direct impact of the road (the assessable impairment). The claimant submits that in that way, the insurer’s alleged ground of error lacks any material significance to the assessment of permanent impairment of the knee.
The claimant says that it is evident that the Medical Assessor acknowledged that in the right knee, there were “degenerative changes in the three compartments”. The claimant submits that the Medical Assessor confirmed that he considered the report of Dr Allen dated
7 July 2023. The claimant says that the Medical Assessor clearly acknowledged the substance of the insurer’s argument, being the presence of degenerative changes in the knee together with the opinion of Dr Allen. The claimant says that notwithstanding this, the Medical Assessor accepted causation of complete ruptured posterior cruciate ligament and a direct impact to the right patella.The claimant says that critically, neither Dr Allen nor the insurer dispute that the claimant suffered a rupture/strain to his posterior cruciate ligament or some direct trauma to the right knee. The claimant says that Dr Allen otherwise disputed that the crepitus was not related to the accident.
The claimant submits that the insurer’s argument conflates the accident caused complete rupture of the posterior cruciate ligament that was identified in the MRI scan taken five days post-accident with ‘meniscal degenerative change’ as being the same impairment. The claimant says that this argument is misguided as it has no material significance on the outcome of the assessment.
Ground 2 – failure to provide clear path of reasoning with respect to the right knee
The claimant refers to the insurer’s argument that the degenerative changes in the claimant’s right knee that were identified post-accident warrant a reduction in the assessment WPI for pre-existing permanent impairment. The claimant says that the insurer otherwise provides no explanation as to how degenerative changes in the knee would result in a pre-existing impairment.
The claimant submits that the insurer’s argument is misguided and fails to comprehend the reality that the mere presence of degenerative changes in radiology post-accident does not automatically result in any pre-existing permanent impairment. In the claimant’s submission, the Medical Assessor provided a clear path of reasoning that was medically justified after undertaking the assessment in accordance with the Act and in compliance with the Guidelines.
Alleged pre-existing impairment in the right knee
The claimant relies on cl 6.31 of the Guidelines where he says a deduction for pre-existing impairment only applies:
“If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”
In the claimant’s submission, there is no evidence in all of the treating or contemporaneous records of any pre-existing complaints or issues with respect to the claimant’s right knee. The claimant says the insurer has failed to identify any examples of any symptomatic complaints or issues with respect to the right knee that pre-dated the accident. The claimant says that he therefore had no evidence of any pre-accident symptoms or issues in relation to his knee. He was asymptomatic.
The claimant refers to the insurer’s argument which he says suggests that because degenerative findings were identified in post-accident radiology, then the Medical Assessor ought to have made a deduction for pre-existing impairment. The claimant submits that this is a clinically flawed argument which attempts to erroneously conflate natural degeneration with permanent impairment which is at odds with cl 6.31 of the Guidelines. It is submitted by the claimant that had the Medical Assessor made any deduction for pre-existing impairment, then the assessment would undoubtedly have fallen into material error.
The claimant says that reading the certificate as a whole, it is obvious that the Medical Assessor acknowledged the claimant had “degenerative changes in the three compartments” which was otherwise irrelevant to the assessment of permanent impairment. As such, the claimant says the Medical Assessor was under no obligation to expressly elaborate or explain an opinion he did not form, even if that was shown by other material before him.
Assessment of 10% impairment for posterior cruciate ligament in right knee
The claimant refers to the insurer taking issue with the Medical Assessor’s determination that the complete rupture of the posterior crucial ligament resulted in a ‘severe’ (10% WPI) finding in the right knee.
The claimant takes issue with the insurer arguing that the Medical Assessor ought to have explained why a severe finding was appropriate for the category of ‘cruciate or collateral ligament laxity’ when the claimant had a full range of motion in the knee. The claimant submits that again, the insurer has failed to comprehend that the claimant’s range of motion in the knee has nothing to do with the three applicable impairment categories for a cruciate or collateral ligament laxity: mild (3%), moderate (7%) or severe (10%). The claimant says that this is a specific assessment exclusively for the posterior cruciate ligament.
The claimant notes that the Medical Assessor highlighted that the claimant has a “complete ruptured posterior cruciate ligament” which is confirmed by the MRI scan of the right knee, dated 9 October 2020 that revealed:
“Complete full thickness tear/rupture of the PCL, no intact fibres. The remaining ligaments are intact.
Meniscal degenerative change without tear.
Grade 2/3 chondral wear through the knee as described, no unstable osteochondral
component. Small amount of joint fluid with minor synovitis…”
The claimant says that given the claimant’s complete rupture of the posterior cruciate ligament with “no intact fibres”, it is submitted that the only appropriate assessment was a ‘severe’ impairment. The claimant says that this finding did not warrant any extensive discussion as it is obvious that a severe category. impairment is the only category that would apply in circumstances where the PCL is completely ruptured.
Alleged incorrect calculation of whole person impairment
The claimant addresses the insurer’s argument that cl 6.85 of the Guidelines precluded the Medical Assessor from adding the assessable impairments with respect to the hip. The claimant referred to cl 6.85 of the Guidelines which outlines:
“Tables 40 to 45 (page 78, AMA4 Guides) are used to assess range of motion in the lower extremities. Where there is loss of motion in more than one direction/axis of the same joint, only the most severe deficit is rated - the ratings for each motion deficit are not added or combined. However, motion deficits arising from separate tables can be combined.”
In the claimant’s submission, it was open for the Medical Assessor to add the respective impairments in the hip to arrive at the 8% WPI in the left hip.
In the alternative, the claimant submits that the left hip assessment would give rise to a minimum assessment of 2% WPI which, when combined with the complete rupture of the posterior cruciate ligament (10% WPI) and the patella impairment (2% WPI) still amounts to an overall permanent impairment of 14% WPI. To that end, the claimant submits that it cannot be reasonably argued by the insurer that this is in any way, a material error as required by the Act.
Alleged failure to consider degenerative conditions in the left hip
Like the previous grounds of error, the claimant says that the insurer argues that because the claimant’s later post accident radiology identified some degenerative conditions in the left hip, then the Medical Assessor was obliged to apply cl 6.34 of the Guidelines in determining that a pre-existing impairment existed and that there should have been a deduction for this.
However again, the claimant says that the insurer does not explain how this deduction would have been applied to the current assessment. In the claimant’s submission, this is because there was no avenue for the Medical Assessor to make any deduction for pre-existing impairment that is in keeping with his obligations to the Act and the Guidelines.
The claimant again highlights cl 6.31 of the Guidelines that outlines the procedure for deducting for pre-existing impairment, that only applies:
“If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”
In the claimant’s submission, there is no evidence in all of the treating or contemporaneous records of any pre-existing complaints or issues with respect to the hip. The claimant submits that the insurer has failed to identify any examples of any symptomatic complaints or issues with respect to the hip. Rather, the claimant says that the insurer’s argument is tantamount to suggesting that because degenerative findings were present in the hip, then the Medical Assessor ought to have made a deduction for pre-existing impairment. The claimant submits that this is a clinically nonsensical position that fails to understand that impairment does not automatically exist if there is degenerative change in a joint and is at odds with cl 6.31 of the Guidelines.
It is submitted by the claimant that had the Medical Assessor made any deduction for pre-existing impairment, the assessment would have fallen into material error.
The claimant submits that the Medical Assessor adequately considered the claimant’s radiology that revealed degenerative features and in addition to the grade 1 injury involving the gluteus medius muscle (MRI scan of the hip taken five days post accident). The claimant says that when read as a whole, it is obvious that the Medical Assessor considered the degenerative findings in the hip, in particular the reported “moderate diffuse cartilage wear of the left hip joint” and “moderate joint space narrowing”.
The claimant says that ultimately, it is submitted that upon reading the certificate as a whole, there can be no suggestion that the Medical Assessor had not considered the degenerative findings in the hip, in particular the reported “moderate diffuse cartilage wear of the left hip joint” and “moderate joint space narrowing”.
The claimant obtained a report of Dr Dixon dated 11 October 2021. The claimant submits the report provides an in-depth assessment of the claimant’s accident-related physical injuries. Dr Dixon reported that as a result of the subject accident, the claimant has sustained:
(a) post-traumatic pain and stiffness of his right knee with stiffness, effusion, patellofemoral crepitus, medial patellofemoral pain and chondral injury to the medial compartment with a complete tear of the posterior cruciate ligament with instability, particularly when using stairs or when pivoting, and
(b) retropatellar crepitus of the left knee, while favouring the left knee.
Based on the above diagnoses, Dr Dixon arrived at his assessment of 12% WPI as follows:
(a) severe cruciate ligament injury to right knee – 10% WPI, and
(b) retro patellar crepitus to the right knee following direct blow to right knee - 2% WPI.
The claimant says that in his report, Dr Dixon demonstrated the severe characterisation of the claimant’s injuries. The claimant submits that Dr Dixon observed that the claimant continued to experience “recurrent swelling of the knee” and limited range of motion in the right knee.
The claimant submits that Dr Dixon noted that the claimant continued to suffer from ongoing pain and instability in his left knee. Further, he explained that as a result of his accident-related injuries, the claimant continued to experience pain in his daily life when performing self-care tasks or domestic duties. He has difficulty doing yard work and heavy household cleaning and he struggles with donning and doffing shoes and socks, tying his laces and putting on jeans. Furthermore, he struggles to get in and out of the car due to right knee pain. At the gym, he is unable to use the rowing machine or heavy weights, as this aggravates his knee pain, and he cannot run, jog or cross-country ski as he did prior to the accident. Relying on this medical assessment, the claimant submits that the findings of Dr Dixon are indicative of a WPI rating exceeding the 10% threshold.
Medical evidence
The Medical Assessor concluded that as a result of a motorcycle accident, the claimant had a direct impact on the right knee with a complete tear of the posterior cruciate ligament. In addition to that, he had a soft tissue injury around the left hip which is reflected by limitation of movement in the hip.
The claimant’s right knee was assessed using Table 64 on page 85 of the AMA 4 Guides and was assessed as 10% WPI as a result of his complete ruptured posterior cruciate ligament.
The claimant was also said to have sustained a direct impact to the right patella and using Table 62 on page 83 of the AMA4 Guides, he was assessed as having a 2% WPI.
The left hip was assessed according to Table 40 on page 78. He had internal rotation at 10° degrees which is a 2% WPI. External rotation at 20 degrees which is a 2% WPI, abduction is at 20 degrees which is 2% and adduction is 10° which is 2% WPI. The Medical Assessor said that these assessments are added and the claimant had a WPI of 8%.
The Medical Assessor provided a table of assessment as follows;
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| AMA 4th Edition | ||||||
| Right Knee | Chapter 3 Page 85 | Yes | 10% | 0% | 10% | |
| Table 64 (PLC) | ||||||
| 1 | ||||||
| Page 83 | ||||||
| Table 62 | ||||||
| (patella crepitus) | 2% | 0% | 2% | |||
| 2 | Left Hip | AMA 4th Edition Chapter 3 Page 78 Table 40 | Yes | 8% | 0% | 8% |
There was no comment by the Medical Assessor about the impact of any pre-existing conditions.
The Medical Assessor had reviewed scans seen by Dr Dixon and updated scans and reported;
(a) X-ray right shoulder dated 30 September 2020 reported an old ununited midclavicular fracture with pseudarthrosis is identified. No acute fracture seen. Glenohumeral alignment is within normal limits and the acromioclavicular joint is intact;
(b) CT right knee dated 30 September 2020 reported a non-displaced fracture of the medial tibial plateau;
(c) MRI right knee dated 9 October 2020 reported a full thickness rupture of the posterior cruciate ligament;
(d) MRI left hip dated 9 October 2020 reported a grade 1 injury involving the gluteus medius muscle;
(e) MRI right knee dated 31 December 2020 reported a thickened posterior cruciate ligament consistent with intrasubstance tearing. There is no other pathology, apart from degenerative changes in the three compartments;
(f) X-ray left hip dated 18 November 2022 reported moderate joint space narrowing at the left hip joint but no acute injury, and
(g) MRI left hip dated 18 November 2022 reported moderate diffuse cartilage wear of the left hip joint. There is a vertical tear of the anterior superior labrum. The gluteus minimus and medius tendons are intact. There is mild trochanteric bursal thickening.
Dr Dixon provided a report of 11 October 2021 to the claimant’s lawyers.
Dr Dixon reported on post accident scans as follows:
(a) a CT scan of the right knee on 30 September 2020 showed a non-displaced fracture of the medial tibial eminence extending into the intercondylar notch with a suprapatellar effusion and marginal osteophytes, consistent with osteoarthritis, particularly in the proximal tibiofibular and patellofemoral joints;
(b) an MRI of the right knee on 9 October 2020 showed a full thickness rupture of the posterior cruciate ligament (PCL) with the remaining ligaments intact and meniscal degenerative change without tear and grade 2/3 chondral wear throughout the knee and some synovitis joint fluid. There was chondral wear involving both medial and lateral compartments;
(c) left hip MRI on 9 October 2020 showed a grade 1 injury to the gluteus medius muscle and a focal grade 2 musculo tendinosis junction injury centrally and a less marked grade 1 injury involving the gluteus minimus. There was no tear with the attachment to the greater trochanter. There was mild greater trochanteric bursitis. The claimant was noted to have indicated this area had settled.
In the left hip there was degenerative osteoarthritis with areas of chondral loss and marginal osteophytes. There were degenerative changes in the SI joints and advanced L5/S1 degenerative changes of long standing;
(d) X-ray of the right shoulder done at the time of the subject motorbike accident on 30 September 2020 showed an old un-united mid clavicular fracture with pseudoarthrosis. There was no acute fracture seen. The glenohumeral alignment was normal and the acromio clavicular joint was intact. This right shoulder injury was noted to have settled, and
(e) an MRI of the right knee on 31 December 2020 showed the genu of the PCL was thickened and hyper intense with healing across the tear. There was meniscal degenerative change without tear. Extensive chondral wear was noted throughout the knee most severe at the patellofemoral joint. A small amount of joint fluid with minor synovitis was seen.
Dr Dixon said that there was asymptomatic osteochondral change in his right knee prior to the subject accident which had been substantially aggravated and that aggravation was ongoing.
Dr Assem provided a report of 5 March 2023 to the claimant.
He reported that with regard to the injuries involving his cervical spine, right shoulder and lumbar spine, the prognosis was good as his symptoms had improved. With regard to his left hip, he had evolving moderate to severe osteoarthritic changes with a labral tear that would rapidly progress causing increasing pain and stiffness.
He also had grade 4 osteoarthritic changes to the patellofemoral compartment of his right knee associated with a complete rupture to the posterior cruciate ligament that will leave his knee continuing to cause pain, stiffness, weakness and instability. Dr Assem said that the claimant may eventually require a right total knee replacement.
Dr Assem said his condition was consistent with the injury sustained in the accident. Although there was a previous soft tissue injury to his right knee, there were only mild degenerative changes at that time, his symptoms completely resolved. He now has advanced degenerative changes in the patellofemoral compartment, complete rupture of the PCL and a fracture involving the medial tibial eminence.
Dr Assem said his left hip symptoms will progressively worsen. He has evolving post-traumatic arthritis changes that will rapidly progress. He may require CT-guided cortisone injections for temporary relief. He may eventually require a left total hip replacement.
Dr Assem said that the claimant’s right knee symptoms can be managed with the use of non-steroidal anti-inflammatory medication, viscosupplementation and therapeutic exercises. He said that the claimant has advanced degenerative changes in the patellofemoral compartment that will rapidly progress. He will eventually require a right total knee replacement, but it should be delayed as long as possible.
Dr Assem assessed total WPI at 20% (right knee) + 5% (cervical spine) + 4% (left hip) = 27% WPI.
Dr Allen provided a report to the insurer of 7 February 2022.
Dr Allen noted that the claimant reported that he has not previously had any pathology in the knee. However, Dr Allen said that imaging of the knee demonstrated that the claimant already had established degenerative change in the knee at the time of his accident. He said that an MRI scan of the knee performed on 20 December 2020, clearly demonstrated the already established degenerative changes in his knee which predated the accident.
Dr Allen concluded that the claimant had evidence of pre-existing degenerative osteoarthritis in his right knee which predated his accident in September 2020 and was documented on the MRI scan shortly thereafter. He said that the claimant sustained a strain to his posterior cruciate ligament which appeared to have settled and there was no residual posterior cruciate ligament laxity. Dr Allen said that the osteoarthritis in his right knee had continued to progress in line with its natural history and his current symptoms were attributable to his pre-existing osteoarthritis. Dr Allen said that the accident resulted in a strain of the posterior cruciate ligament which had settled and the claimant’s ongoing symptoms related to the underlying osteoarthritis at the time of examination. The condition sustained in the accident had been superseded by the underlying osteoarthritis in the knee.
Dr Allen assessed 0% WPI.
Dr Allen provided an amended report on 23 March 2022. This was to provide details of his WPI assessment worksheets, going to his assessment of 0% WPI.
Following the accident, the claimant was treated by Dr Wernecke, orthopaedic surgeon, who has provided a number of update treatment reports. Dr Wernecke confirmed that the claimant suffered a full-thickness PCL tear following review of an MRI scan. Dr Wernecke said that there was grade 4 chondral damage on the patella with associated subchondral cysts. There was also so minor signal change in the medial compartment.
Dr Wernecke said that with the accident and the PCL injury, together with the claimant’s very active lifestyle, this had led to bicompartmental cartilage loss.
Medical examination
The claimant was examined on behalf of the Panel by Medical Assessor Couch on
2 July 2024. His report follows:Mr Jacquot attended the PIC rooms alone. Medical re-examination took 85 minutes. The Assessor commenced by explaining the purpose of the re-examination, which Mr Jacquot understood.
Relevant Educational, Occupational and Social History
Mr Jacquot said that he grew up in Western Sydney. He described a difficult childhood – he said that his parents had an unhappy marriage and he had difficulties at school, with a formal diagnosis of ADHD not being made until he was in his 20’s. He attended a Catholic school and completed Year 11 but did not finish Year 12. He described having a major fight with his father when he was 14 or 15 and running away from home and living with friends for some time. At one stage he was expelled from his school.
After the diagnosis of ADHD as an adult, he was treated with the stimulant dexamphetamine, but later came to abuse this. He progressed to intravenous heroin use.
When he was 22 he met his now ex-wife, who was never a drug user. He described struggling with his addiction for many years and was on methadone for 13 years. His wife died from breast cancer in her 20’s. Mr Jacquot has a 23-year-old son who lives with him-he said that he is doing well, having almost finished a four-year apprenticeship as a carpenter. His 25-year-old daughter lives independently and works in community services (after the death of his wife, her parents helped him a lot with bringing up the two children).
Mr Jacquot worked for a while as an Assistant in Nursing and subsequently qualified as an Enrolled Nurse – he said that at that time he was having difficulty holding down jobs (presumably because of his drug abuse). At the age of 35 he had completed a nursing degree at UTS and said he had come to “realise that I’ve got a powerful mind”. He had worked as a Registered Nurse, first at Royal North Shore Hospital and then at Concord Hospital, for several years.
Mr Jacquot said that he had been free of any illicit drugs or alcohol for 12 years. He still attends five Narcotics Anonymous (NA) meetings per week and emphasised how important these and the 12-step program were for him. He sponsors seven others through this program.
After working as a registered nurse, Mr Jacquot had completed a degree in physical education. At the time of the subject accident, he had been working for St Vincent de Paul for a few years as a support officer in their homeless services. He described working about 20 hours a week for them and continues to do this. At the time of this medical reassessment, he was also working part-time towards a research PhD through the Faculty of Medicine at Sydney University.
He explained that he was working on the use of exercise in Parkinson's disease. He said that he was self-funded, rather than being on a scholarship, and that this allowed him to pace himself, with less academic pressure. In addition to his work with St Vincent de Paul, he does teaching for the university, facilitating clinical placements for a total of about 15 hours per week.
Relevant Past Medical History
As noted above, Mr Jacquot had been free of illicit drugs and alcohol for some eight years at the time of the subject accident. He explained carefully how important physical exercise had been as part of his rehabilitation (in addition to the support from Narcotics Anonymous). He had been doing CrossFit for about six years, both in a gym and using home equipment.
Typically he exercised 60 to 80 minutes per day at least five days a week, including aerobic work, bodyweight exercises and some use of weights. He described himself as very physically fit and muscular, and said that prior to the accident he was much fitter than average for his age and that “I looked like a 25-year-old”. On questioning he denied any musculoskeletal or other physical symptoms or restrictions. As a keen motorbike rider, he said he had had some minor low speed accidents, but never any significant injuries.
History of Accident and Subsequent Treatment and Progress
Mr Jacquot said that on 29 September 2020 he was on a motorbike ride heading south on the Old Pacific Highway near Brooklyn, with four friends. He was riding his 2010 Yamaha 1000 motorcycle and wearing full protective gear including helmet, leathers, gloves and back protector and boots. They had just crossed the Hawkesbury River by the old bridge and were heading up the hill. He was in the lead. On a long left hand bend he saw the offending car ahead (he said that the female driver who lived nearby had turned around on a helipad by the side of the road and was attempting to cross both carriageways of the highway, despite a No Right Turn sign being in place).
He realised that he would hit her – Mr Jacquot explained that in fact if the driver had not stopped in the middle of the road, he might have managed to avoid her. He estimated his speed as 80 km/hr prior to braking. He said that recently he had been practising emergency braking for just such an event, and had managed to slow down to an estimated 30-40 km/hr without his brakes locking, prior to hitting the driver’s side of the car at a slight angle. He recalled his right knee and shoulder hitting the car and he ended up on the road in between the car and his own motorbike.
Mr Jacquot’s helmet was damaged and his bike severely damaged and subsequently written off. However he remained conscious throughout. He stated that “I didn’t know, even though I was injured, until six hours later – I was more worried about the bike and dragged the bike away from the middle of the road.”
Back at home in Sydney that night, he was woken by bad pain, particularly in his right knee, but also his right shoulder and left buttock and hip region. He recalled driving his car with some difficulty to Canterbury Hospital Emergency Department. Interestingly, he recalled that when a doctor asked him what he thought he had done to his knee, he replied that he had torn a cruciate ligament – he said that he was very aware of knee biomechanics from his physical education studies. The Canterbury Hospital discharge referral states:
“Thanks for reviewing Philippe who presented today with right knee pain following a motorbike accident yesterday. He got his right knee stuck in between a car and his motorbike. He is able to weight bear but in pain. X-ray and CT knee revealed a fracture of the medial tibial eminences. His case was discussed with the orthopaedic registrar and the advice given is:- Zimmer splint – weight bear as tolerated. Follow up with
Dr Wernecke.”During this attendance, a CT of the knee was reported:
“There is a non-displaced fracture of the medial tibial eminence, extending into the intercondylar notch. No other fracture is identified. There is a suprapatellar joint effusion. Marginal osteophytes noted consistent with OA, particularly prox tib-fib and PF joints.”
The right shoulder was also X-rayed and the report noted an old, ununited, mid-clavicular fracture with pseudoarthrosis, but no acute fracture and normal alignment of the glenohumeral joint.
Three letters have been seen from Dr Gregory Wernecke, Orthopaedic and Specialist Knee Surgeon. At first examination on 28 October 2020 (four weeks after the accident), Dr Wernecke noted a slightly antalgic gait, posterior displacement of the tibia on the medial femoral condyle with the knee flexed at 90 degrees, with a soft end point to posterior draw. MRI showed a full thickness PCL (posterior cruciate ligament) tear. There was also Grade 4 chondral damage on the patella with associated subchondral cysts and minor signal change in the medial compartment of the knee.
Dr Wernecke recommended physical rehabilitation including focus on quads control, abductor strengthening and gait retraining and said that he would present his case to the Sydney Knee Specialist Group clinical meeting, if after this he was unable to return to his previous high level of CrossFit activity.
On 30 November 2020, Dr Wernecke stated that Mr Jacquot had been working hard with his physiotherapist on physical rehabilitation. He described a firm end point on posterior drawer test and stated that he had discussed the case with both his partners, who agreed that non-operative treatment was best for Mr Jacquot.
The most recent letter seen was dated 12 May 2021, when Mr Jacquot returned because of ongoing discomfort in the right knee. Dr Wernecke noted that he had had to modify a lot of his activities because of knee pain and was working hard at his physical rehabilitation. On examination, he found Grade 2 PCL with a firm end point and marked patellofemoral crepitus. He commented:
“The recent MRI shows no change in the status of his previous PCL injury. There is degenerative signal change in his medial meniscus as well as cartilage damage with bone bruising of the medial femoral condyle. Furthermore, there is complete cartilage loss in the proximal two-thirds of his patella as well as trochlear cartilage changes. The lateral compartment is relatively spared.
I think that Philippe’s accident and PCL injury, coupled with his very active lifestyle, has led to bicompartmental cartilage loss. I spent time speaking with Philippe, showing him MRI scans so he understands the status of his knee. I’ve given him a referral for an ultrasound-guided corticosteroid injection as well as a script for Celebrex that should be taken in conjunction with Panadol Osteo. He should be reviewed by his physiotherapist for non-impact muscle strengthening and maintenance of knee motion. It is likely he will require a total knee replacement in the future. I will see him back in several months’ time to see how he is progressing.”
On further questioning, Mr Jacquot confirmed working for some months with the physiotherapist in addition to his own exercises. He commented:
“I’ve been rehabbing it with exercise ever since then – but I can’t do anything dynamic – I can’t even run across the road.”
He did recall an episode about three months after the motorbike accident when he tripped on part of a low gate he had installed at home to contain his two dogs – he stumbled but did not fall and noticed some increased pain in the knee the next day.
When asked about his right shoulder, Mr Jacquot said that it had only really been painful for a few weeks and it had improved. When asked his left hip and buttock region, he said that the pain in this area had improved for a while, but about one year after the accident he began getting pain again (he pointed to an area just posterior to the left greater trochanter). This had become worse. In addition, Mr Jacquot described a gradual onset of pain in the left knee, without any definite precipitating incident.
Mr Jacquot said that he had put on weight from about 98 kg when he was very fit prior to the accident, to a current 104 kg. He said that he had in fact lost considerable muscle and put on fat – particularly abdominal fat – he put this down to not being able to do much aerobic exercise. He commented:
“It’s quite devastating not to be able to exercise – six months after the accident I got quite depressed.”
In addition to attending Dr Wernecke and subsequent exercise, Mr Jacquot said that he had attended the well-respected Royal North Shore Pain Clinic during 2023 (ADAPT program). He had attended on a few occasions. He said that after seeing a physiotherapist, he realised he probably knew more about the relevant exercises for him than they did. He did say that he had found a few sessions with a psychologist there very good.
Current Symptoms
Mr Jacquot said his right knee is definitely his worst problem. He described current symptoms in more detail as follows:
1. Right Knee
He described mainly on weightbearing, with a background soreness. He described pain, pointing medial to the patella, where he gets “popping and clicking”. It is particularly painful to negotiate rough ground. He finds descending stairs more painful than ascending and sometimes copes by going sideways. The knee feels unstable but it does not completely give way. It swells at times. When asked about locking, he said that it did lock at times initially, but this had ceased.
2. Right Shoulder
Mr Jacquot denied significant pain in the right shoulder (although as can be seen below, examination did show some abnormalities).
3. Left Hip/Buttock Region
In this area Mr Jacquot described a background discomfort. At times it can become actually painful – for example if his large Ridgeback dog pulls hard on the leash. He described pain, pointing to the anterior part of the left buttock, just posterior to the greater trochanter.
Present Activities
As described above, Mr Jacquot said that he continues to work about 20 hours a week on a casual basis as a support officer for St Vincent de Paul homeless services – he said that he takes variable hours, depending on the demands of his PhD work. He is continuing to study part-time towards his PhD, and does teaching work with students on clinical placement.
Current Treatment
Exercise is described above. Because of his past history, Mr Jacquot completely avoids opiate analgesics. He takes anti-inflammatory drugs (NSAID) daily – mostly Voltaren or Nurofen. He had previously used Celebrex as well (he denied gastrointestinal side-effects from these medications). He also takes Paracetamol. Previously he had tried Lyrica (Pregabalin) – he stopped this because of severe side-effects after about two days. He also briefly tried Amitriptyline but stopped because of side-effects.
Lifestyle Factors
As noted above, Mr Jacquot had avoided all opiates and also alcohol for the past 12 years. He is a non-smoker (he said that he had never drunk alcohol heavily). He again emphasised:
“Exercise is like medicine to me – I never exercised until I got clean.”
Physical Examination
Mr Jacquot attended promptly and alone. He presented as a big, very tall man with short greying hair. He looked generally healthy but had moderately increased abdominal fat. His upper limb musculature was noted to be better developed than his lower limbs. Height was 186 cm and weight 105 kg, giving a BMI of 30 (at the lower end of the obese range). He said that he had weighed 98 kg when much more physically active prior to the accident, with more muscle and less fat. Chest girth was 114 cm, waist 104 and hips 104.
He presented as intelligent, well-educated and a good observer of his own symptoms. He had a normal affect and was appropriate throughout, but was quite talkative and tended to talk rather fast. However there was no suggestion of exaggeration or dramatization of his symptoms. During examination he made excellent effort, with no suggestion of abnormal pain behaviours, self-limitation or inconsistency. He gave the overall impression of being someone with a fairly high pain tolerance.
Posture and gait were within normal limits. He was able to undress down to shorts for examination. He was able to sit during the interview, and climb on and off the examination couch, and to lie both prone and supine.
Head/Neck
This was not formally examined but posture and mobility were normal.
Back/Spine
This area did not need to be formally examined but Mr Jacquot showed a full normal range of active movement – although he complained of some tightness in the hamstrings during lumbar flexion.
Upper extremities
There were moderate callouses over the metacarpal heads in both palms – consistent with the current upper body exercise which Mr Jacquot described doing. He explained that they had been very heavily calloused in the past from extensive use of weights, pulling up on bars, etc. Old scars on both antecubital fossae were noted from his previous iv drug use.
Both upper arms measured equally in girth at 38 cm, the right forearm 34 cm and the left 32. Both upper limbs were neurologically normal, with intact and symmetrical biceps, triceps and brachioradialis reflexes. Power and sensation were normal bilaterally.
The shoulders were normal to inspection with no detectable muscle wasting. There was no tenderness to palpation over either glenohumeral joint. Active range of movement (AROM) was carefully measured with repetition with a goniometer, as tabulated.
Right
Left
Flexion
170°
170°
Extension
30°
30°
Abduction
180°
180°
Adduction
20°
50°
External rotation
100°
100°
Internal rotation
50°
60°
Mr Jacquot described some tightness in the right shoulder at the limits of adduction and internal rotation. There was slight palpable glenohumeral crepitus on movement of the right shoulder, but none on the left.
Lower extremities
As noted above, lower limb musculature appeared to be less well developed than that in the upper limbs. 10 cm proximal to the patella, the right thigh measured 50 cm, while the left measured 51. In contrast, the right calf measured 41 cm as against 40.5 on the left. (Mr Jacquot said that he writes with his right hand but tends to throw with his left hand and kick with his left leg.) Knee jerks and ankle jerks were normal and symmetrical. Straight-leg-raising in the supine position was 60 degrees bilaterally, with some hamstring tightness reported.
The right knee measured 42.5 cm in girth and the left 42. There was slight varus alignment (<5 degrees) in both knees – this appeared to be slightly more marked on the right than the left. The left knee was entirely normal to examination. There was no tenderness to palpation, collateral and cruciate ligaments were intact, and there was a full AROM from 0 to 130 degrees without pain.
In the right knee there was slight tenderness to palpation over the medial joint line and just medial to the proximal patella. AROM, while within normal limits, was slightly less than the left at 0-125 degrees ,with definite patellofemoral crepitus palpable. Medial and lateral collateral ligaments were clinically intact but there was severe anteroposterior laxity on posterior drawer test (Mr Jacquot, with his previous study of biomechanics, could see and feel this abnormal movement when I tested the knee).
The right hip was clinically normal. Around the left hip, Mr Jacquot described slight tenderness to palpation posterior to the left greater trochanter, but there was no actual tenderness over the greater trochanteric bursa (GTB).
AROM of the hips was measured as tabulated.
Right
Left
Flexion
110°
100°
Extension
10°
0°
Abduction
50°
40°
(Painful)
Adduction
30°
20°
Internal rotation
10°
10°
External rotation
60°
40°
A few functional activities were observed: Mr Jacquot could take a few steps with weight on his forefeet and heels off the floor, and then with weight on his heels and forefeet off the floor. He was only able to squat halfway to the floor (without using hand support) and was noted to flex his left knee less than the right. The Assessor went on to demonstrate a squat walk (duck walk) to him – Mr Jacquot said that he would not want to try that because of anticipated right knee pain. Balance as tested by Romberg’s test (standing to attention with eyes closed) was normal, but he was slightly unsteady on tandem walk (walking in a straight line, heel to toe).
Summary and Assessment
Mr Jacquot presented as a now 54-year-old man who described a difficult childhood and somewhat unusual life path. He had eventually become qualified as a registered nurse and worked at this for some time. He later completed a degree in physical education and was working towards a PhD in the use of exercise in Parkinson's disease at the time of this reassessment. He reported having been drug and alcohol free for some 12 years. He presented as very genuine, intelligent, well-educated and a good observer of his own symptoms.
1. Some four years prior to this re-examination, he was involved in a significant motorbike accident when a car did an illegal turn in front of him and he was unable to avoid collision. His helmet was damaged, his bike was written-off, and he sustained a well-documented injury to his right knee with full thickness PCL tear, an undisplaced fracture of the medial tibial eminence extending into the intercondylar notch, and probable injury to the patellofemoral joint. These injuries also aggravated previously asymptomatic degenerative changes (seen on early imaging following the accident). Acute injuries to his right knee were clearly documented the next day at Canterbury Hospital, and soon afterwards by his GP and Dr Wernecke (Knee Surgeon)
2. Mr Jacquot also sustained more minor soft tissue injuries to the right shoulder and in the region of the left hip/buttock.
3. After considerable deliberation by Dr Wernecke, his treating knee surgeon, the knee injuries were treated conservatively. Mr Jacquot convincingly describes working hard at his physical rehabilitation, but the right knee continues to be quite symptomatic. Examination shows severe cruciate laxity and patellofemoral crepitus.
4. He recalls that initial pain in the right shoulder had resolved, although he has very minor restriction of AROM and crepitus in the glenohumeral joint on examination.
5. He still has symptoms of some tenderness posterior to the left greater trochanter and minor restriction of AROM in the left hip (noting that there is also slight restriction of AROM in the uninjured rirgt hip).
6. The left knee was referred to Assessor Berry (apparently as an alleged consequential injury). At this re-examination, he did not complain about the left knee. Examination was normal. There is no assessable impairment.
7. Impairment Assessment
· Right knee – from Table 64 on Page 85 of AMA4, severe cruciate laxity gives 10% WPI (25% LEI). The Panel notes that it’s re-examination findings are similar to those of Assessor Berry, Dr Wernecke (treating surgeon), Dr Assem, and Dr Dixon (as far as the latter could examine by Zoom). The Panel considers the findings of Dr Allen in his report of 7 February 2022 to be an “outlier” from this consensus. From the same table, undisplaced intercondylar fracture gives 2% WPI or 5% LEI. In addition, with a history of direct trauma to the patellofemoral joint and the presence of patellofemoral pain and crepitus on examination, there is 2% WPI (5% LEI) from Table 62.
The Motor Accident Guidelines table of permissible combinations of lower extremity assessment methods indicates that “arthritis” and “diagnosis based estimates” may be combined. The above figures are combined to give 33% LEI, which converts to 13% WPI. The Panel notes that the MAG specifies that the assessment method or methods most specific to the injuries concerned should be used, also saying that, when one equally specific method or combination of methods is available, that providing the highest rating should be chosen.
The Insurer has made much of Dr Allen’s comments about pre-existing impairment. These seem to be based solely on imaging performed soon after the accident. However, there is nothing in the detailed history obtained from Mr Jacquot by the Panel, Assessor Berry, or Dr’s Wernecke and Dixon to suggest a pre-existing symptomatic condition of the right knee before the accident. Dr Assem in March 2023 did mention his right knee and aggravation at skiing, with early degenerative changes on X-ray in 2018. Dr Assem noted full recovery and return to his previous sporting activities after this. The clinical notes from his GP’s (Dr Seeley and Dr Lindall) mention this in 2018, however, there is no further mention of the knee at 5 unrelated later attendances before the motorcycle accident.
The MAG clearly states that “If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored”. The Panel also points out that its impairment assessment is not based on degenerative change. The 25% and 5% LEI from Table 64 result from the PCL damage (with subsequent laxity) and tibial eminence fracture diagnosed soon after the accident. The 5% from the footnote to Table 62 follows direct trauma, and is also unrelated to any possible pre-existing degenerative change.
· Right shoulder – slight relative restriction of adduction and internal rotation compared with the left gives a total of 5% UEI for the right shoulder, compared with 4% for the left. There is therefore 1% net UEI which converts to 1% WPI.
The Panel considered that it would be open to it to attribute this to the injury sustained in the accident. However, Dr Assem found a full range of movement in March 2023, and Mr Jacquot told Assessor Couch that shoulder symptoms had resolved. The Panel considered that the right shoulder injury probably resolved, leading to nil permanent impairment
Left hip – with the left hip, no definite diagnosis has been made. There was some tenderness and very slight relative restriction of AROM compared with the right. However applying the tabulated AROM for the left hip to Table 40 of AMA4, the only assessable impairment would be “mild” (2% WPI or 5% LEI) for internal rotation of 10 degrees in both hips. As this is bilateral, it is probably constitutional and there is no net impairment of the left hip. The Panel considers that any initial injury to the left hip or buttock has resolved, leading to no assessable impairment.
The Panel adopts the report and findings of Medical Assessor Couch.
Causation
The Motor Accident Guidelines
The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”
The authorities
In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
99.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation";[4] and
"scope of liability".[5]
[4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[6]
[6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”.
In the accident involving the claimant, in which he was the rider of the motorbike who was confronted by a car cutting across his oncoming motorbike, he would have had little time to react and avoid the collision. It was sudden and with any motorbike rider colliding with a car at any speed, his body was exposed to a risk of injury.
Campbell J in Owen v Motor Accidents Authority (NSW),[7] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[8]
[7] [2012] 61 MVR 245; [2012] NSWSC 650.
[8] At [27].
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said;
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
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 judgment” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
On the balance of probabilities, can it be said that the injuries suffered by the claimant were caused by the accident? The Panel is satisfied that this is the case. The claimant, at the time of the accident, was 50 years of age. He had been involved in a bike versus car accident at a speed of approximately 50kmph coming to an abrupt stop and being thrown onto the road.
Would the impairment have occurred, if not for the accident? The Panel notes the claimant’s pre-existing condition of degenerative changes in the right knee which was previously asymptomatic, and only seen on imaging done after the accident. The claimant possibly had a predisposition to this however, the Panel is satisfied that the accident in September 2020 was the precipitating factor in the claimant’s current condition.
The Panel is satisfied that the accident and impact has had a more than negligible effect on the injuries and subsequent condition suffered by the claimant.
The Panel is satisfied that on the balance of probabilities the motor vehicle accident was a contributing cause which is more than negligible in the claimant’s current condition and that the natural progression of his pre-existing degenerative condition would not have led to his current condition.
CONCLUSION
There is a dispute between the claimant and the insurer about:
(a) the degree of permanent impairment under Schedule 2, s 2(a) of the Act.
The claimant has a WPI of 13%.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Berry dated 30 November 2023.
The Panel finds the following injuries caused by the accident give rise to a permanent impairment of 13%;
(a) right knee-fracture and ligament injury.
The Panel finds that the following injuries caused by the accident have resolved and give rise to no assessable permanent impairment;
(a) right shoulder-soft tissue injury;
(b) left hip and buttock-soft tissue injury, and
(c) left knee.
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