Insurance Australia Limited t/as NRMA Insurance v Stanoevski

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Stanoevski [2023] NSWPICMP 6
CLAIMANT:	Liljana Stanoevski
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Paul Curtin
MEDICAL ASSESSOR:	Geoffrey Stubbs
DATE OF DECISION:	10 January 2023
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 17 April 2017 when standing on the roadway next to her car; this was a medical dispute about whether the degree of impairment of the injury caused by the motor accident was greater than 10%; the insurer disputed that the claimant had been hit by a motor vehicle and contended, through its expert report, that the injuries were most likely caused by falling down steps at her premises; this submission was based on the absence of extensive injury in the hospital notes and the opinion provided by its expert; the doctors on the Panel have the expertise to comment on injuries caused by motor vehicle accidents, likely more so than the respective experts qualified by the parties; the claimant otherwise presented in a credible fashion during the medical examination; contrary to the insurer’s submission, the various accounts were not inconsistent; the symptoms presented at hospital were consistent with the claimant being struck by the side mirror of a car travelling at a much lesser speed than 50 kmph and falling to the ground; the presence of the haematuria at hospital tends to support the claimant’s contention of being struck; the claimant also presented with pain but no bruising to the back; the experts qualified by the parties accepted that impact at a speed near 20 kmph would not necessarily cause bruising; findings made that cervical and lumbar spine soft tissue injuries had resolved; the impact and/or fall from the motor accident unmasked the previously asymptomatic calcific Achilles tendinopathy, either by forceful contraction of the calf muscles to resist the fall or by forced movement of the right ankle beyond its normal range; the right knee condition and subsequent knee replacement was not causally related to the motor vehicle accident; the limping did not aggravate any degenerative changes in the right knee or rendered it symptomatic; the claimant was symptomatic in the right knee for a significant period in 2016 prior to the motor accident; given the extensive degenerative changes in the right knee shown in the 2016 scans, the osteoarthritis would progress of its own accord over time; Held – claimant assessed at 5% permanent impairment in respect of the right ankle.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF permanent impairment OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS: The Review Panel revokes the certificate of Medical Assessor Kumar dated 29 October 2021 and issues a new certificate that the following injuries caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%: · soft tissue injuries to the cervical spine and lumbar spine which resolved; · right leg abrasions – resolved, and · aggravation of right sided Achilles tendinopathy.

REASONS

BACKGROUND

Ms Liljana Stanoevski (the claimant) suffered injury in a motor accident on 17 April 2017 when an unidentified vehicle either struck the claimant or caused her to fall (the motor accident). The exact circumstances of the motor accident are in dispute. Indeed, the insurer asserts that the claimant has made “false and misleading statements in respect of her claim” and that the limited pattern of injuries “are inconsistent with being struck by a passing vehicle”.[1]
[1] Insurer’s undated submissions.
Insurance Australia Ltd (the insurer) is liable for the driver of the other motor vehicle for liability to pay to Ms Stanoevski any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Edward Kumar dated 29 October 2021.
Medical Assessor Kumar assessed the permanent impairment at 12%.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 29 March 2022, the delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission) .

CONDUCT OF THE REVIEW

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 Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the Act.
On 1 April 2022 the Panel issued a Direction specifying a timetable for the filing of bundles of documents which were provided by the parties. The direction otherwise provided
“Other than set out above, the parties are not to file and serve any further material with the Panel unless it is in the interests of justice and:
(a) Reasonable notice is provided to the other party that this step is being taken and the nature of the further evidence; and
(b) Explanation provided by that party that further material is being served during the deliberations by the RP and why that material was not previously served.”
No objection was taken by the insurer with respect to this direction. The insurer filed its bundle on or about 12 April 2022. The claimant filed its bundle on or about 26 April 2022.
The report of Mr Griffiths was sent by the insurer to the Commission on or about
11 May 2022. The following explanation was provided by the insurer concerning the late service of the report:
“On 11 May 2022, the Dispute Officer at the Personal Injury Commission directed the Insurer to re-supply the material lodged on 10 May 2022 using this form. The Insurer was also directed to provide an explanation dealing with whether the further information is supplied in the interest of justice.
The Insurer was directed by the Review Panel to file and serve an indexed bundle of documents relied upon by 11 April 2022. As the Insurer only received the report of Mr Michael Griffiths on 22 April 2022, the Insurer was not able to provide this document until after the due date. Further to this, the Insurer needed some time to consider this evidence and obtain instructions to provide a copy of same to the Claimant's solicitors and the Commission. The report was provided on 10 May 2022 to the Claimant's solicitor and the Commission.
The Insurer submits that this report is additional information that should be considered by the Review Panel to avoid a later referral to the Commission relying on Mr Griffiths' report. The Insurer refers to section 16.19.1 of the Motor Accidents Medical Assessment Guidelines effective from 12 February 2021 which states that "The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to consider afresh all aspects of the assessment under review. The Insurer notes that the Review Panel should consider 'afresh' all aspects of the assessment under review and that this would encompass the report of Mr Griffiths.
For the reasons outlined above, the Insurer submits that this document should be supplied in the interest of justice.”
The claimant objected to the report for the following reasons:
“The insurer seeks to rely upon an expert report from a biomechanical engineer dated 22 April 2022.
The insurer submits that the expert report should be made available to the review panel to ‘consider a fresh all aspects of the assessment under review’ including the report of Mr Griffiths.
We note that the insurer was initially served with the Claimant's claim form on 31 May 2017 following the subject motor vehicle accident on 17 April 2017.
The insurer has been in receipt of the claim since 31 May 2017 but chose to wait some 55 months before qualifying its expert biomechanical engineer.
It was not until after the Claimant had achieved a 10% whole person impairment assessment following the issuing of the certificate of Dr Kumar on 29 October 2021 that the insurer chose to qualify an expert engineer.
The Claimant objects to the expert report being provided to the review panel on the basis:
(a) The Insurer had ample time to arrange such assessment before this time.
(b) The Claimant would suffer undue prejudice if the report was provided to the review panel in the absence of a response from the Claimant.
(c) In the event the Claimant was to qualify a biomechanical engineer to prepare a report in response, such a report would take 3 to 4 months to obtain.
(d) The delay in obtaining an expert report in response would create undue prejudice to the Claimant and would further delay her claim unnecessarily in circumstances where such evidence should have been obtained well before this time.
The review panel can appropriately consider the merits of the review application based on the available medical evidence.”
The Panel then called for the further documents referred to by Mr Griffiths which were not served as part of the bundles originally provided by the parties.
These documents were produced as three further bundles.[9]
[9] Referred to as “AD 12” (hospital notes), “AD 13” (records of Dr Lam, Diligence Family Practice) and “AD 14” (Healthpac Medical Centre). These bundles are not paginated and page references within the footnotes to these Reasons are calculated by the computer software.
The Panel then provided the following direction to the parties dated 27 June 2022.
“The Panel refers to its previous directions and notes that it has received the following documents from the parties (noting the report of Mr Griffiths is rejected):
(a) Insurer’s bundle – 72 pages;
(b) Claimant’s bundle – 262 pages;
(c) AD 12 (250 pages), AD 13 (146 pages) and AD 14 (121 pages).
No submissions were filed by either party on the relevance of the further material (AD 12, AD 13 and AD 14).
The insurer has denied causation of all injuries in its initial submissions (Insurer’s bundle, page 13) but failed to make relevant submissions on injury/causation. The insurer’s submissions on error by the original medical assessor does not particular assist the Panel in making a new determination.
The parties are directed to make submissions on causation of all injuries including the likely circumstances of the motor accident. The insurer is to file submissions on injury with relevant page references by close of business, 11 July 2022.
The claimant is to file written submissions with relevant page references by close of business, 25 July 2022.
As a preliminary observation and without forming any concluded views, the Panel observes that it appears that the right knee is not mentioned:
1.    in the hospital notes (see AD 12; pages 62 - 80) although there is reference in the notes of injury to the right lower leg (page 65), right ankle (page 67), grazing (page 76) and back and neck pain (page 74);
2.    the motor accident claim form dated 31 May 2015 (sic) and the attached medical certificate dated 30 May 2017; and
3.    initial records of the general practitioner.
The insurer has previously referenced the August 2016 right knee x-ray.
The history recorded by Dr Endrey-Walder in his report dated 30 November 2017 (claimant’s bundle, page 74) is that right knee symptoms developed ‘about a month after the accident’. Dr Endrey-Walder opined that the right knee symptoms were ‘aggravated in a symptomatic sense by her abnormal ambulation’.
Subsequent medical reports appear to assume right knee symptoms were aggravated at the time of the motor accident (see for example report of Dr Lee dated 28 August 2020, claimant’s bundle, page 81).
The parties are directed to consider these preliminary observations in their submissions and the claimant is required to clarify the allegation of right knee injury.”
The parties provided substantial submissions in response to the further directions. The further submissions are set out subsequently in these Reasons.
The claimant failed to attend the examination with the Medical Assessors on 12 August 2022.
The medical examination was then delayed till December 2022. In those circumstances the Panel advised the parties that it would admit the report of Mr Griffiths and allow the claimant an opportunity to respond.
The claimant then filed a report from Mr Grant Johnson, Engineer dated 31 October 2022. The insurer filed a report in reply by Mr Griffiths.
The delay in the matter being determined is attributable to the parties’ conduct. First, the insurer filed fresh evidence on review without any warning which required evidence in reply from the claimant. Secondly, the claimant failed to attend the medical examination scheduled in August 2022 and the examination was delayed until further expert evidence was filed.

MEDICAL ASSESSMENT UNDER REVIEW

This review is from the assessment of Medical Assessor Kumar dated 29 October 2021 who determined that Ms Stanoevski suffered a 12% permanent impairment of the right knee, ankle and hindfoot. Medical Assessor Kumar stated:
“She was knocked by a car into an open door of her car. She was hit from the back. When she fell she stuck her right leg out and this was dragged by the offending car. She presented with abrasions and lacerations of the right calf, confirming the dragging of the right leg. In this accident she injured her right ankle. She claims she also injured her neck and lower back, but this neck has since resolved. She continues with problems with the lower back, but I understand that she fractured her T12 vertebra following a fall in Tasmania. She has a long history of knee problems, however, since the motor vehicle accident her right knee has become much worse. The range of movement of the right knee is worse than that of the left knee and I would consider the right knee injury to be a consequential injury to favouring her right foot because of impaired movements of the right ankle.”

SUBMISSIONS

The parties filed detailed submissions on injury and causation as requested by the Panel. Unfortunately, these submissions referred to multiple previous submissions which made the attempt at summarising parties’ respective positions more difficult.

Insurer’s submissions on causation (undated)[10]

[10] AD 16.

The insurer noted that these submissions are to be read with its previous submissions dated 12 August 2020, 30 November 2021, 24 February 2022 and 11 May 2022. No outline was made as to or what part of those submissions should be read with the updated submissions.
The insurer noted the injuries alleged in the claim form, MAS form and certificate of Medical Assessor Kumar. It submitted that the above injuries were not caused by the motor accident, and to the extent that the claimant suffered any injuries they “are best explained by non-accident related factors and/or pre-existing injuries”.[11]
[11] AD 15, [2].
The insurer submitted that the limited number and nature of the injuries is inconsistent with being struck by a motor vehicle. The only superficial injury seen at the hospital was a graze in the right Achilles area. The claimant had well established pathology in the lower back.
The insurer referred to the histories as to how the accident occurred at hospital, initially by her general practitioner, in the claim form, subsequent doctors and statements. The insurer submitted that the claimant detailed “different sequence of events” and that her statements as to the mechanism of the injury were “unreliable”.[12]
[12] AD 15 [3].
The insurer referred to prior right leg problems since October 2014 which included a right knee condition. The claimant had right foot problems since 2012 and lumbar spine problems since October 2015.
The insurer provided a detailed history of the medical treatment following the motor accident.[13]
[13] AD 15, [5].
The insurer conceded that the back was mentioned at hospital, not mentioned again until 4 May 2017 when there were investigations for a possible coccyx fracture. The insurer noted that the back was not mentioned in the notes of the general practitioner from 30 May 2017 to 26 April 2019.[14] At that time the claimant fell whilst on a holiday in Tasmania and sustained a fracture at T12.
[14] Insurer’s submissions, [6].
These submissions were made in the context that any back injury was of short-term duration and otherwise proved that the motor accident did not involve a collision at 50 kmph.

Insurer’s submissions dated 12 August 2020[15]

[15] Insurer’s bundle, page11.

The insurer submitted that the claim form did not disclose relevant prior conditions including right foot fracture in 2015 and several conditions listed by Dr Lydia Lam to Dr Peter Lam on 9 October 2017 including lumbar osteoarthritis in 2015 and right knee osteoarthritis in 2016.
The Insurer noted that the claimant presented to St George Hospital with soft tissue injuries only. It submitted that the various injuries alleged were not caused by the motor accident.

Insurer’s submissions dated 30 November 2021[16]

[16] Insurer’s bundle, page 61.

These submissions were filed seeking a review of the certificate of Medical Assessor Kumar.
The insurer noted that it appeared that the Medical Assessor did not receive the reports of Dr Smith or Dr Mitchell.
The insurer submitted that the Medical Assessor failed to consider relevant pre-existing conditions including back and right shoulder injuries some 40 years previously and right Achilles problems and fracture of the first metatarsal in 2015.

Insurer’s submissions dated 24 February 2022[17]
[17] Insurer’s bundle, page 66.

These submissions addressed the appropriate course of action that should be taken if a Medical Assessor has not considered relevant evidence. The insurer submitted that the appropriate course was to refer the matter to a Review Panel.

Claimant’s submissions on causation

The claimant provided submissions dated 1 August 2022 in reply to the insurer’s submissions. The submissions were directed to persuading the “Proper Officer” that there was no error in Medical Assessor Kumar’s certificate.
The error with this submission is that the President’s delegate had already referred the matter to a Review Panel. Further, on 27 June 2022 the Review Panel requested submissions from the parties on “causation of all injuries including the likely circumstances of the motor accident”.
The claimant described the motor accident as a “serious hit and run accident”. It submitted that the Insurer has “attempted to exaggerate the Claimant’s medical history prior to the accident in order to disrupt causation relating to the accident”. Reference was made to paragraphs 16 – 23 of its first submissions.
The claimant submitted that histories contained in the materials referred to by the insurer are “consistent with the other, and any small variation between the records would be the subject of cross-examination at hearing”.[18]

Claimant’s submissions dated 15 April 2020[19]

[18] Claimant’s submissions, [17].

[19] Claimant’s bundle, page 10.

These submissions note liability had been admitted and that the claimant sustained injuries to the lower back, right ankle and right heel. It was also asserted that there had been injury to the right knee by reason of the altered gait.

EVIDENCE

Pre-existing conditions

On 2 July 2012 the general practitioner requested diagnostic imaging of the right heel.[20] The submissions did not reference the results of any ultrasound. However, an ultrasound was performed of the left foot on 1 August 2012 which only showed swelling in the lateral aspect of the left foot.[21]
[20] AD 14, page 21.
[21] AD 14, page 23.
On 17 October 2014 Ms Stanoevski presented to St George Hospital with right lower limb cellulitis. She was discharged on 20 October 2014. Subsequent nursing notes describe that the claimant felt “much better” by 24 October 2014.[22]
[22] AD 12, page 225.
A right foot X-ray dated 19 October 2015 showed undisplaced fracture through the medial aspect of the first metatarsal, calcification at that joint, a huge Achilles tendon traction spur and moderate sized calcaneal spur.[23]
[23] AD 14, page 42.
An abdomen and pelvic CT scan dated 8 October 2015 noted a three-day history of right iliac pain. Advanced degenerative changes were observed in the lower lumbar facet joints.[24]
[24] AD 13, page 106.
On 18 August 2016 the general practitioner noted that the claimant fell suffering a painful right shoulder and swollen right knee.[25]
[25] AD 14, page 16.
Right knee X-ray and ultrasound dated 18 August 2016 showed significant loss in the joint space of the medial compartment with moderate degenerative changes in the knee.[26] A repeat X-ray on 15 December 2015 recorded a clinical history of persistent pain. The X-ray showed non-union of the first metatarsal head fragment and confirmed the spurs in the Achilles tendon and calcaneal.[27]
[26] AD 14, page 40.
[27] AD 14, page 36.
The scans results were discussed with the general practitioner on 25 August 2016 who made recommendations of weight loss, exercise and prescribed medication.[28]
[28] AD 14, page 16.
A letter from the general practitioner to Dr Peter Lam, orthopaedic surgeon, listed a number of pre-accident health conditions. Relevant to this dispute the doctor referred to lumbar osteoarthritis in 2015, Achilles and calcaneal spur in 2015 and right knee osteoarthritis in 2016.[29]

Versions of the motor accident

[29] Insurer’s bundle, page 27.

St George Hospital

Ms Stanoevski attended St George Hospital. The triage notes at 6.35 pm record the following history:[30]
“Self presents ped vs car. Pt trying to get into parallel parked car drivers side, hit by car driving approx. 50 km/hr, fell to ground, denies hitting head, nil LOC, c-spine pain on palpation, pain to right knee, abrasion to right achilles.”
[30] AD 12, page 192.
A progress note by a registered medical officer at around 8.30 pm 17 April 2017 included the following version of the accident:[31]
“Patient on driver side of the care [sic car] about to put key into door
Patient unclear but thinks she was run over by car, unclear what point of impact. Claim she heard a thud, twisted her R leg and feel [sic fell] onto chest.
Denies LOC
Patient mobilised to get into get stuff from the car and then presented to hospital.
[31] AD 12, page 196.
Complains of leg pain, lower back pain, abdominal pain.”
The discharge report from St George Hospital records the following:[32]
“Liljana was a pedestrian struck by a car at approximately 50 km/h, sustaining soft-tissue injury only. She has had ongoing microscopic haematuria during admission which will be followed up as an outpatient as per discharge plan below.”
[32] Claimant’s bundle, page 55.

Police report

The incident was reported to the police at 9 am on 20 April 2017. The police report relevantly provides:[33]
“About 6:00 pm on Monday the 17^th of April 2017, the 61-year-old female was standing next to the driver’s side door of her car, which was parked directly outside her house …. As she inserted her door key into the car door, she was stuck [sic struck] by a white sedan (unknown registration) causing her to fall onto the ground. The unit was travelling north easterly direction and continued driving without making an attempt to stop to render assistance to the pedestrian. The unit was last seen turning left onto King Georges Road.”
[33] Claimant’s bundle, page 52.

Healthpac Medical Centre

Ms Stanoevski presented to her general practitioner on 20 April 2017 who recorded the following history:[34]
“hit by car, fell on road, grazed (R) lower leg, twisted (R) ankle, swollen & attended ED, haematuria
….
[34] AD 14, page 15.
(R) post lower leg inflamed graze dressed”

Claim form

The claim form is dated 31 May 2015 which is obviously a mistake.[35] The form refers to injuries to the neck, low back, right foot and general bruising. The claimant’s version of the accident is as follows:
“I was standing outside my Suzuki sedan … parked outside my house. I had the key in driver’s door which was locked outside my house. I heard a thump. A fast travelling car hit my back pushing me onto driver’s door. I cried for help. … I saw the white unknown car speed towards King Georges Road and make a left hand turn. The unknown car that struck me did not stop. My left thigh was bleeding badly. I was in pain and shock. My daughter immediately drove me to St George Hospital Emergency. I believe the unknown vehicle was at fault – travelling fast and too close to my parked car.”
[35] Insurer’s bundle, p 14.

History to Dr Peter Lam – 27 October 2017[36]

[36] Claimant’s bundle, p 162.

The report was a treating report and the history of the accident was brief. The history recorded by Dr Lam was that the claimant “was a pedestrian hit by a car outside of her house”.

History to Dr Endrey-Walder – 30 November 2017[37]

[37] Claimant’s bundle, p 72.

The doctor recorded a history that she was standing by the driver’s door of her vehicle outside her home on the roadway “when she was struck by an oncoming car and knocked to the ground”. The claimant was reported as stating:
“I heard a loud sound, a thud, the car pushed me against the door, my right leg went under me and I fell onto the bitumen. I may have passed out, I am not sure.”

Claimant’s statement – 15 May 2018

The claimant stated:[38]
“As I was facing my car door, I went to put the key into the door. Next thing I heard a thump noise and felt an impact in my back which then pushed me forward onto the car door and the door key struck me in the chest. I was standing directly in front of the driver’s door when this happened.
The next thing I felt my right leg being dragged along the bitumen for a distance, but I cannot tell how far. I then fell onto the roadway, landing forward and on my side with my head in the direction of King Georges Road.”
[38] Insurer’s bundle, p 35.

Claimant’s statement – 15 April 2020

The claimant stated:[39]
“On 17 April 2017 at between about 5.45 pm and 6 pm I went to my car as I was going to drive my daughter to work. While I was unlocking my car I heard a thumping noise and felt an impact in my back which then pushed me forward onto the car door and the door key struck me on the chest. I felt my right foot being dragged along the bitumen. I fell onto the roadway, initially onto my back and my right leg went under my body and then I landed forward and only side, my head hit the ground.
[39] Claimant’s bundle, page 3.
I started crying and I saw my leg was bleeding. I screamed out to my daughter who came to help me. My daughter helped me to her car and drove me to hospital.”

Contemporaneous medical evidence

A CT scan of the cervical spine dated 17 April 2017 showed no acute fractures or traumatic alignment.[40] A CT scan of the chest, abdomen and pelvis did not show any mediastinal haematoma, effusion, pneumothorax, lung contusions or lacerations, rib fractures or sternal or thoracic fractures. The liver, spleen, gallbladder, adrenals and pancreas were within normal limits.[41] The lumbosacral spine and pelvis were described as “Intact” and the radiologist concluded that there was no acute intrathoracic or intra-abdominal injury.
[40] Claimant’s bundle, page 57.
[41] Claimant’s bundle, page 57.
A right foot X-ray dated 24 April 2017 showed mild loss of joint space at the first MTP joint, moderate sized calcaneal spurt and moderate sized Achilles tendon traction spur. With ossification at the distal Achilles tendon. The distal Achilles tendon was swollen. The right ankle ultrasound confirmed swelling at the Achilles tendon with calcification at the insertion.[42]
[42] Claimant’s bundle, page 148.
A lumbosacral spine X-ray dated 9 May 2017 noted persistent coccyx pain. The X-ray showed advanced degenerative pain in the lumbar facet joints and some sclerosis at the SI joints.[43]
[43] Claimant’s bundle, page 62.
The general practitioner issued a medical certificate dated 30 May 2017 when she stated that the injuries caused by the motor accident were “Right Achille/heel injury. synovitis, lower back/sacral injuries, renal contusion”.[44] The attached diagram indicates the pain in the low back/coccyx and right heel/foot.
[44] Insurer’s bundle, page 25.

Radiology

A right ankle ultrasound and CT scan dated 17 August 2017 showed a thickened Achilles tendon with partial tear and calcaneal bursitis and pain at the medial aspect of the heel. Soft tissue swelling was identified in the Achilles tendon.[45]
[45] Claimant’s bundle, page 58.
A right knee X-ray dated 11 September 2018 showed significant loss of joint space in the medial compartment and mild loss of joint space in the patellofemoral compartment with moderate sized osteophytes at the knee margins.[46] An ultrasound of the right knee at that time was reported as normal.[47]
[46] Claimant’s bundle, page 143.
[47] Claimant’s bundle, page 144.

Qualified evidence

Dr Endrey-Walder, surgeon, was qualified by the claimant and provided a report dated
[48] Claimant’s bundle, page 71.
30 November 2017.[48] The doctor noted a history of onset of right knee pain commencing one month after the accident whilst walking. The mid-lumbar region was identified as the “epicentre” of chronic backache.
Dr Endrey-Walder opined that Ms Stanoevski suffered injuries to the lower back, abrasion to the right calf and injury to the back of the right heel/tendo-Achilles. He also opined that the arthritic changes in the right knee had been aggravated by the abnormal ambulation.
Dr Yuk Kai-Lee, orthopaedic surgeon, was qualified by the claimant and provided a report dated 28 August 2020.[49] The doctor diagnosed Achilles tendinitis with fracture of the spur at the back of the heel, back injury and aggravation of the right knee as a result of the motor accident.
[49] Claimant’s bundle, page 78.
Dr Lee provided a further report dated 13 October 2021 when he noted a deterioration in the knee since the previous assessment.[50]
[50] Claimant’s bundle, page 85.
Dr Robin Mitchell, occupational physician, was qualified by the insurer and provided a report dated 23 March 2021.[51] The doctor recorded a history of injury to the neck, lower back, right knee and right foot in the motor accident.
[51] Insurer’s bundle, page 38.
Dr Mitchell diagnosed an aggravation of the right heel/ankle condition and apportioned half as pre-existing resulting in 2% impairment. The doctor also assessed an aggravation of degenerative changes in the right knee joint, all of which were pre-existing. Dr Mitchell noted that ongoing back pain was due to the T12 fracture sustained in 2019.
Dr Anthony Smith, orthopaedic surgeon was qualified by the insurer and provided a report dated 12 May 2021.[52] The doctor referred to the history and accepted that there were injuries to the lower limbs and may have aggravated degenerative disease in the neck and back. Prior right ankle and foot problems were noted with aggravation of Achilles tendonitis in the right heel. The doctor opined that any aggravation was in the order of three months.
[52] Insurer’s bundle, page 52.

Treating evidence

In a report dated 14 June 2018 Dr Bryant noted ongoing right insertional Achilles tendinopathy.[53]
[53] Claimant’s bundle, page 63.
In January 2020 Dr Bryant noted improvement in right Achilles tendinopathy since previously seen in December 2018. Symptoms at that time were left Achilles tendon pain and tenderness at the insertion of plantar fascia. There was no significant tenderness about the insertion of the right Achilles tendon.[54]
[54] Claimant’s bundle, page 174.
Dr Grace Bryant, physician provided a report dated 17 December 2021.[55] The doctor had been treating Ms Stanoevski since February 2018. Dr Bryant noted that the left insertional Achilles tendinopathy had settled by February 2020 and stated that the right insertional Achilles tendinopathy was present from 2017 to 2018. As of July 2021, Ms Stanoevski had persistent symptoms of right foot plantar fasciitis.
[55] Claimant’s bundle, page 66.
Dr Peter Lam, orthopaedic surgeon provided a report dated 27 October 2017.[56] The doctor noted examination showed tenderness and swelling at the posterior heel of the Achilles insertion into the posterior calcaneus.
[56] Claimant’s bundle, page 162.
Dr Lam opined that the insertional Achilles tendinopathy was due to degeneration of the Achilles tendon into the calcaneus. Initial treatment involved non-steroidal anti-inflammatory medication and small heel lifts to unload the Achilles tendon.

Expert reports on accident
Michael Griffiths

Mr Michael Griffiths, bio-medical and mechanical Engineer provided a report dated 22 April 2022.[57]
[57] Griffiths’ report.
We adopt Mr Griffiths summary of his conclusions in this report as articulated in his subsequent report:
“My summary conclusions were:-
- apart from the superficial injury of the grazing in the Achilles region of her right foot, all of her other abnormal pathology was found to be long term chronic pre-existing by those medical records supplied
- it appeared likely that not all medical records had been provided, because there were several reports of medical imaging, where there was no record provided of any prior visit to a treating medical practitioner to get the referral for the imaging. It is expected that the supply of complete medical history would further substantiate the longstanding pre-existing chronic nature of the claimant’s abnormal pathology.
My individual findings were:-
- the inconsistency of the claimant’s pattern of injuries with her version of events leads to the deduction that it is highly improbable, that the incident could have occurred in the manner claimed
- a detailed review of the injuries deduces that the only acute, that is, non pre-existing chronic, abnormal pathology detected by conventional medical objective means was the graze on her right foot in the Achilles area
- she does not have a pattern of injuries consistent with being struck by a vehicle, that is, the only objective available physical evidence is not consistent with any conjecture as to the possible involvement of a vehicle
- if the claimant had been struck by a vehicle whilst erect, then it would be expected there would be patterns of superficial bruising and grazing on her torso, consistent with impact from the left side or the left front corner region of a vehicle
- it would also be expected that the claimant would have had injuries on the prominent/ projecting parts of her anatomy following consequent impact with the roadway, where such anatomical regions included her knees, pelvis, shoulders, elbows etc. The hospital notes indicate that a detailed inspection, including a ‘log roll’.
- the claimant did receive grazing to the Achilles region of her right foot, however, that is not consistent with the involvement of a passing vehicle.
Assuming that the various photographs depicting the front yard of the claimant’s house represent its condition at the time of the incident, then a more likely source of injury to the claimant was the hazardous nature of the claimant’s pathway from the house to the roadway, which included a series of steep steps, and what appeared to be a hazardous collection of objects including old cars and building materials from the front door of her house to where her vehicle would have been parked.”
Mr Griffiths provided a report dated 22 November 2022 in response to Mr Johnston’s report. The insurer advised the Panel that the claimant agreed to the admission of the further report.
Mr Griffiths noted that the hospital notes referred to “log rolling” which is a procedure when the patient is rolled on the examination table to allow inspection of injury to the back, front and sides. He stated that there was “no superficial injury to the chest” and no bruising to the claimant’s front and back.
Mr Griffiths noted the suggestion by the claimant to some doctors that there was a dent in her car door caused by the “magnitude of energy imparted to the claimant”. He deduced that there was no forceful impact with the claimant’s car if it is “ultimately the evidence … that there was no dent to the door of the claimant’s car”.
Mr Griffiths noted that the right leg was not exposed to the passing vehicle unless the claimant was facing outward. Accordingly, the abrasion injury to the right ankle could not have resulted from direct impact.
Mr Griffiths observed that Mr Johnston’s reasoning process on injury and injury mechanism is briefly described in clauses 7.22 and 7.23 of his report and that the only example of a possible injury mechanism is that the “chest was forced forwards and down sufficiently quickly to engage with the key in the door of the vehicle”. Mr Griffiths opined that there was no chest injury and hence no aspect of the injuries consistent with the scenario described by the claimant’s experts.
Mr Griffiths observed that there was no renal contusion and that the large cyst shown on the CT scan was pre-existing.
Mr Griffiths noted that Mr Johnston suggested a speed in the order of 20 to 40 kmph. He accepted that if the speed was at the lower end of this range, then bruising to the back could have been avoided. He otherwise noted that there was “no allegation” that the claimant made contact with any mirror.
Mr Griffiths concluded that Mr Johnston was “most dependent upon the injury to the chest as being evidence of the consistency of the totality of the claimant’s patter of injuries” and that there was no mention in the clinical records or the claimant’s reporting of a chest injury.

Grant Johnston

Mr Grant Johnston, engineer, provided a report dated 31 October 2022. Mr Johnston stated that it was his understanding “that liability for the collision is admitted but the severity of the collision in this incident is disputed”.[58] Mr Johnston also noted that he was requested to have regard to the following assumptions[59] which included:
(a)     that the claimant felt an impact on her back which then pushed her forward onto the car door and the door key struck her on the chest;
(b)     the claimant’s right leg was dragged along the bitumen, she then fell on the ground, initially onto her back and her right leg went under her body, landing forward and striking her head on the ground, and
(c)     as a result of the motor accident the claimant’s right foot and heel, lower back and neck were injured.
[58] Johnston report, p 1.
[59] Johnston report, p 5.

Mr Johnston noted that the road measured approximately 9.88 m in width and there were no centreline markings or any form of road divide. The speed limit was 50 kmph.
Mr Johnston noted that the accident occurred after the claimant had manually inserted her key into the car lock but had not turned the key to unlock the door nor had she opened the door. He concluded[60] that the claimant was struck by the side mirror of the insured vehicle stating this was consistent with the fact that the claimant “struck the driver’s door with her chest such that she was injured by and bent the key in the door which had just been inserted”.[61] Mr Johnston stated:[62]
“There can then be a plethora of variations on this initial gross motion in particular relating to the interaction of the lower limbs with either vehicle or the way in which the body is rotated over the right ankle which can be loaded significantly where the bodies weight transfers onto this ankle and it remains in place while the body rotates most likely anterolaterally over this ankle joint.
[60] Johnston report, pp 21-22.
[61] Johnston report, p 22.
[62] Johnston report, p 22.
Figure 7.3 shows on example of the possible biomechanical response of a pedestrian to this type of impact. I am not suggesting this is a precise reconstruction of the Claimant’s incident as I simply do not have enough information to do that it is just meant to be demonstrative that the described behaviour of the Claimant’s body is consistent with the general expected occupant kinematics from this general type of incident.”
Mr Johnston stated that even without knowing the exact circumstances of the impact configuration, “the general nature of the injuries are entirely consistent with this type of incident”. In particular, he noted that the injury to the chest by the key inserted into the lock “narrows it down to quite a specific band of crash possibilities where the chest was forced forwards and down sufficiently quickly to engage with the key in the door to the vehicle”.
In relation to Mr Griffith’s report, Mr Johnston stated:[63]
“In my opinion Mr Griffiths has visualised a totally different type of incident where the pedestrian was struck by the front left corner of the vehicle in a more traditional fender vault type pedestrian impact which was probably at a higher speed (30 to 50 km/h) than in my opinion was likely in this incident which was probably only at a moderate speed (20 to 40 km/h).
In my opinion his comments may be mostly correct with respect to that type of impact but in my opinion, it is clear that is not what has occurred in this incident.
[63] Johnston report, pp 24-25.
I have therefore not commented in detail on Mr Griffiths analysis as in my opinion it relates to a different set of factual circumstances and therefore cannot be directly compared to the incident involving the Claimant.”
Mr Johnston referred to Mr Griffith’s conclusion as “mostly scientifically correct” but
Mr Griffiths was describing “a completely different sort of pedestrian impact which in my opinion did not occur in this instance”.

RE-EXAMINATION

Ms Stanoevski was examined by the Medical Assessors on 16 December 2022. The examination report is as follows:
“Liljana Stanoevski – interview and examination conducted by Assessors Stubbs and Curtin on 16 December 2022 at the Ashley Medical Centre Westmead. Ms Stanoevski attended alone and drove herself to the examination.
Background – Ms Stanoevski is 67. She was born in what is now northern Macedonia but then part of Yugoslavia and came to Australia as a four-year-old. She grew up here and graduated with a combined Arts Law degree from the University of Sydney. She has two grown daughters who live with her in the family home in Blakehurst. She separated from our husband some years ago though he continues to live in a granny flat at the property. At the time of the injury, she was semiretired but ran a produce stall at local markets. She considered herself well and healthy but was considerably overweight which she put down to comfort eating during the stress of the separation. She has since lost 20 kg.
The daughters were studying at university and working part-time. Ms Stanoevski has generally enjoyed good health although in the past she has had some problems with cholesterol and a rapid heartbeat. Both of these conditions have been treated successfully with medication. Her only ongoing medical problem being the need for thyroid hormone supplementation following partial thyroidectomy in 2005.
The accident – this occurred on Easter Monday, 17 April 2017. Ms Stanoevski said that she intended to drive her daughter to work and at around 6 to 6:30 PM she had descended the front steps of her house onto Philip Street where her small silver Suzuki car was parked facing King Georges Road. She walked around to the driver side of her car and started to unlock the driver’s door using her key. She was therefore facing the car with her left side towards traffic approaching on the same side of the road. Without warning, she felt and heard a thump in her back. Simultaneously she fell forward against the front door of the car. The key she had already inserted into the lock was subsequently found to have been bent. She said that she fell to her right side and felt that her right lower leg dragged along the road. She looked up towards King Georges Road, the direction she was facing after the fall, and saw what she identified as a white sedan making a left-hand turn into King Georges Road at traffic lights. This would be approximately 120 m from where her car was parked. She called out to her daughter who had been in the house and not seen the accident, but then came down from the house and assisted her to get up. The daughter then got her own car and drove Ms Stanoevski to the St George Hospital. There were no passers-by to provide assistance, and no one directly witnessed the accident. The Panel spent some time discussing the accident with her. Her account of the accident was broadly in agreement with her statement of the 15/04/2020. There was some discussion with Ms Stanoevski as to whether cars parked on both sides of the road may have been a factor contributing to the accident. She said that Philip Street is normally quite busy with cars parked on both sides of the road, but she was unable to recall whether this was a problem at the time. The consulting engineers report noted the street was 9.8 m wide and lacked centre line markings. Google Maps appears to confirm that there is just enough space to enable vehicles to travel carefully in opposite directions, even with cars parked on both sides of the street.
She was asked about the mechanical engineers reports of the accident and confirmed that she believed she was dragged some distance by the car that struck her. The point of impact was the middle of her back. She was surprised that the hospital reported no local bruising in the area, although there was a record of tenderness along her spine. She was sure that the car was travelling quickly. She confirmed that the description she had previously given of bleeding from the left thigh was incorrect.
Ms Stanoevski told the panel that she was in the St George Hospital for three days until her discharge. Hospital notes confirm she was discharged on the 19/04/2017. The hospital records report tenderness of the cervical spine and an abrasion to the Achilles area of her right lower leg together with complaints of pain in the right knee. On examination there was an erythematous mark in the right upper quadrant, and she was tender in that area and also in the epigastrium, right flank and right groin. A “log role” examination of her back reported some tenderness on palpation of the C-spine, thoracic and lumbar spine. A routine urinalysis detected frank blood and she was assessed by the St George Urology team who arranged for an outpatient assessment and cystoscopy one month later. No abnormality was subsequently found. Ms Stanoevski remembers that her right lower leg was painful and that the abrasions were on the front of the right shin and not the calf. These abrasions did not require sutures. She said that her right heel was swollen and painful and she had difficulty taking weight on her right foot. A CT of the chest, abdomen and pelvis found no abnormality apart from a simple cyst in the lower pole of the right kidney, a finding which was not related to trauma. A CT of the cervical spine was assessed as being within normal limits with no evidence of a traumatic injury.
The day following her discharge from hospital she attended her GP, Dr Lydia Lam whose notes record that she had a graze on her right lower leg and had twisted her right ankle which was swollen and tender. The wound on her leg was dressed and an ultrasound of her right foot was arranged. This was carried out on the 27/04/2017 and showed Achilles tendinitis and retro calcaneal bursitis. Ultrasound-guided cortisone injections were subsequently carried out in early May 17 and repeated on the 17 August 2017. Ms Stanoevski continued to attend Dr Lam and by the 04/05/2017 the wound on her leg was noted to have healed.
She was also referred for physiotherapy to her right ankle and heel, but after several visits she discontinued therapy as she said she did not like the therapist.
Her right heel however remained painful and in October 2017 she consulted Dr Peter Lam, Orthopaedic surgeon, who diagnosed a painful right Achilles tendinopathy and subsequently referred her to Dr Grace Bryant, Sport and Exercise Physician. Dr Bryant arranged for a course of local shockwave therapy, re-habilitative exercises and hydrotherapy. This treatment continued intermittently between 2018 and July 2021. During this time, Dr Bryant reported that she also developed symptoms of plantar fasciitis in the right foot and Achilles tendinopathy in the left foot. Ms Stanoevski was surprised about this and told the assessors that she had never had any problems with pain in her left heel.
Ms Stanoevski said that sometime after the accident, at least a month later, she gradually developed discomfort in her right knee. In September the following year an x-ray showed arthritic changes with significant loss of joint space, and her symptoms of discomfort were temporarily relieved by an injection of hyaluronic acid (Durolane).
Relevant past medical history. The medical records of St George Hospital together with the records Ms Stanoevski’s GP, Dr Lydia Lam, provided details of her past history which the assessors discussed with Ms Stanoevski. She was treated in hospital for falls sustained at home in 2014 and 2016. X-rays of the right knee taken on the 18/08/2016 showed evidence of moderate arthritic changes. X-rays of the lumbar spine (09/05/2017) also showed arthritic changes. In October 2015 the right foot was x-rayed because of a fractured great toe, and an incidental finding was the presence of calcification in the right Achilles tendon insertion together with a calcaneal spur in the plantar fascia. There was also a history of hospital admission in 2016 for urinary tract infection with associated haematuria.
Relevant injuries or conditions sustained since the motor accident. In April 2019 she fell in a bathroom with resulting back pain. Imaging at St George Hospital revealed a compression fracture at T12, and her symptoms gradually resolved with physiotherapy. Subsequent bone density scans however revealed no evidence of osteoporosis. The symptoms of discomfort in her right knee gradually deteriorated and in September of this year she underwent a knee replacement procedure.
Current symptoms – Ms Stanoevski said that since the accident she has become much less active. Beforehand, she said she was able to walk 2 km to see her mother in a nearby nursing home but could not manage to do this now. She says she was no longer able to manage her housework without considerable help, and that beforehand she used to enjoy folk dancing, an activity which is now beyond her. She said that the back of her right heel continues to give her some discomfort, and that she still uses orthotics in her shoes. She described her usual footwear as ‘granny shoes’, although she was wearing sandals for the assessment. She said that her right knee remains sore after her recent surgery and that she continues to have difficulty negotiating stairs.
Clinical examination
Ms Stanoevski attended the examination by herself and had a cheerful and forthright manner. She apparently drove herself to the appointment. She was articulate and consistent with responses to questions put to her. She was well-groomed and had a fair complexion. Her BMI was 37.2 (164 cm and 100 kg) which placed her well within the obese category.
She did not use a walking aid and was able to walk normally with no evidence of a limp. She was wearing sandals with a slightly raised heel. She had a flat-footed stance with no arch to either foot. There were prominent swellings on the back of both heels. In order to stand on tiptoes, she required some assistance from the examiner, and she was unable to walk on tiptoes.
Cervical spine
There was three quarters normal rotation and side bending equally on both sides. Flexion was better than extension, but this was because the natural posture of the neck was slightly extended to compensate for thoracic kyphosis. About the neutral point, flexion and extension were equal. Neurological examination of the upper limbs revealed no abnormality. Motor strength was 5/5 in all groups, the reflexes were brisk and symmetrical, sensation was normally perceived and there was no evidence of peripheral nerve compression. There was tenderness only to heavy pressure around the neck generally. There was no spasm or guarding, no asymmetry of motion and no evidence of radiculopathy or complaint with neck movement.
Upper limbs.
There was a full range of symmetrical motion of the shoulders, elbows, wrists, hands and fingers. Grip strength was 5/5. There was no evidence of Heberden’s nodes or other factors associated with genetic predisposition to osteoarthritis.
Thoracic spine.
Ms Stanoevski had a rather round-shouldered posture from a more than usual thoracic kyphosis. The spinous processes were in in the midline on palpation and no rotation of the thoracic spine was seen. The neurological examination revealed no abnormality. Thoracic spine findings were unremarkable.
Lumbar spine.
There was excellent movement with fingertips to the ankles on forward flexion. Extension was good and rotation was full. Side bending was symmetrical to just beyond the knee level. Neither ankle jerks nor the right knee jerk could be elicited. The Babinski sign was negative on both sides. There was normal appreciation of light touch. Nerve tension signs were negative with Ms Stanoevski both seated and supine. Her balance while standing was awkward but did not deteriorate with the eyes closed.
Lower limbs.
Hip flexion exceeds 100° there was good functional abduction, adduction and rotation. Movements were pain-free.
Knee flexion was 100° on the right, and 125° on the left. There was a 20° flexion contracture on the right and 10° flexion contracture on the left. The circumference of the right knee was 45.5 cm on the right and 41 cm on the left. This swelling was consistent with local tissue thickening following the knee replacement. The thigh circumference at 10 cm measured 53 cm on the right and 54.5 cm on the left, the difference being consistent the known history of right-sided osteoarthritis and knee replacement. Both right and left ankles had a 23 cm circumference. There was no swelling. There was a mildly tender bony hard lump insertion of the Achilles tendon on both sides. On the right side about the size of a quail egg, on the left about half that size. The standing gait showed a planovalgus stance with no medial arch in either foot. The arch did not return with standing on toes. This was a long-term fixed flat foot. Each ankle had 10° of dorsi flexion. There was 20° of plantarflexion on the right and 25° on the left. The right hindfoot showed 0° of eversion and 10° of inversion. On the left side, 10° of eversion and 20° of inversion. Both feet were normally sensate but there was a positive windlass sign on passive toe dorsiflexion on the right. (Provocative test for plantar fasciitis) Babinski sign was negative. The abrasions on the front of the right shin were no longer visible.
The lack of the right knee jerk can be put down to the total knee replacement. The absence of the ankle jerks (tendon stretch reflexes) on both sides is due to the rigidity of bilateral calcific insertional tendinitis. There was no other sensory disturbance. The rigid nature of the bilateral flat-footed deformity explains some of the balance problems. There were no clinical findings of osteoarthritis in the left knee other than the fixed flexion contracture and mild loss of flexion Specifically there was no joint line tenderness, no retro patella crepitus and no effusion on the left side. The increase circumference of the right knee is typical after total knee replacement.
There are clinical features of lifetime rigid flat feet and the left-sided calcific Achilles tendinopathy. We note that the claimant had flat-feet which is a constitutional condition entirely unrelated to the motor accident.
The measurements of the ankles were:

Right ankle WPI Left ankle WPI

Table 42 Extension 10° 3% Extension 10° 3%

Table 43 Eversion Nil 2% Eversion 10° 1%

Total 5% 4%
Imaging studies
Ms Stanoevski had a supine AP and lateral x-ray of the right knee performed on 12 November 2021 prior to surgery. This shows a supine joint space of 2 mm on the medial side which is likely 0 mm if weight-bearing films were taken. An ultrasound of the right knee 24 April 2017 is unremarkable.
Plain x-ray of the thoraco-lumbar spine of 11 September 2018 shows the presence of a kyphoscoliosis. In the AP projection there is a slight concavity of the mid thoracic spine and a compensating curve noted in the lower thoracic spine. The curved is balanced and not clinically detectable. On the lateral x-ray there is generalised anterior wedging of the upper thoracic vertebrate down to about the T8 level. This accounts for the excessive thoracic kyphosis. The diagnosis is Scheuermann’s disease. Ms Stanoevski was unaware of any problems with her spine in adolescence, and most people with mild Scheuermann’s disease do not have any symptoms. Two levels below the apex of the diaphragmatic shadow there is an anterior wedge compression fracture of the vertebral body. This corresponds to the reported level of T12.
There are plain x-rays of the right heel showing an extensive area of calcification in the distal insertion of the Achilles tendon which extends proximally for about three centimetres. A CT scan of 17 August 2017 stated that the calcified area appears to be broken into three segments. The plain x-ray shows an intact anterior calcaneal spur.
Consistency
Ms Stanoevski was straightforward with the history and fully cooperative in the clinical examination. Her recollection of events of the accident were broadly consistent with her earlier statement dated 15 April 2020
The only point of contention is the development of symptoms in the left Achilles tendon. Clinically this has all the features of a calcific tendinitis as well. Ms Stanoevski is adamant that she experienced no pain in the left Achilles tendon, but Dr Bryant nominates the left side as symptomatic in the later letters to Dr Lam and in the report to Bryden’s lawyers.

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[64] and Insurance Australia Ltd v Marsh.[65]
[64] [2021] NSWCA 287 at [40], [41] and [45].
[65] [2022] NSWCA 31 at [11], [21] and [64].

Circumstances of the motor accident

The Panel is required to determine the injuries sustained in the motor accident in the context of determining this medical dispute. The claimant’s submissions that the variation will be analysed by cross-examination at the hearing, when the insurer has disputed injury and disputed that the claimant was struck by a vehicle at 50 kmph, is incorrect.
The claimant’s submission that there “is no evidence to support this view” in response to the insurer’s submission of unreliability and was made ignoring the history recorded at hospital that:
“Patient unclear but thinks she was run over by car, unclear what point of impact.”
The Panel is required to form our own opinion and are not bound by the opinions of others. Further the Panel is required to determine questions of causation of the degree of permanent impairment caused by the motor accident: Motor Accidents Authority v Mills.[66]
[66] [2010] NSWCA 82.
The insurer has raised a substantial articulated argument that the injuries recorded in the hospital notes do not accord with a pedestrian being struck by a motor vehicle travelling at 50 kmph.
We cannot ignore that submission now that it has been made. We address the submission based on the documentation before us and the medical expertise within the Panel of the nature of injuries sustained by the claimant in what was asserted as a “significant hit and run accident”.
Indeed, Mr Johnston concluded that the car was not travelling at 50 kmph and suggested a range of between 20 to 40 kmph with the claimant being struck by the side mirror. Mr Griffiths accepted in his supplementary report that the absence of bruising to the back can be explicable by impact at the lower end of the range.
We do not accept the insurer’s submissions that the various versions recorded by doctors are substantially different. Indeed, our view is that they are generally consistent. That comment is subject to the version recorded by the medical officer and set out at [103] herein. It is difficult to know in what context that one version was recorded as the claimant would have presented at hospital in obvious shock and distress. Further, the note is a short record made in the context of treatment and may not be accurate.[67]
[67] See the discussion in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [55].
However, the injuries that are discussed in the hospital notes are completely incompatible with the claimant being struck by a car travelling at 50 kmph. The symptoms are consistent with being struck by the side mirror of a car travelling at a much lesser speed and falling to the ground. The presence of the haematuria at hospital tends to support the claimant’s contention of being struck.
The doctors on the Panel have the expertise to comment on injuries caused by motor vehicle accidents, probably more so than the respective experts qualified by the parties. Further, we consider the claimant’s various statements and what she told the Medical Assessors on the Panel. The claimant also presented in a credible fashion during the medical examination, and we have also considered this when concluding how the claimant was injured.
We do not accept Mr Griffiths’ hypothesis that the claimant was injured when she fell at home. That view is entirely speculative. We agree with the claimant’s submission that there is no medical evidence to support that submission.[68]
[68] Claimant’s submissions, [10].
Although there was no bruising noted on her back at the hospital, some tenderness over the spinal processes was noted. Frank haematuria noted is consistent with some renal bleeding from a blow to the left loin. Again, this is consistent with being struck at low speed probably by a passing side mirror. That impact would have caused Ms Stanoevski to fall against her car door and to the ground. We do not accept that the claimant was dragged along the road for several metres after being hit. Whilst the claimant appears to believe she was dragged, it is difficult to understand how she could have been dragged along the road. We observe that Mr Johnston did not support that part of the history in his opinion as to how the accident occurred.

Right leg injury

The abrasions have resolved and there is no assessable impairment due to that injury.

Right heel/foot

We accept that the fall resulting from the motor accident unmasked the previously asymptomatic calcific Achilles tendinopathy, either by forceful contraction of the calf muscles to resist the fall or by forced movement of the right ankle beyond its normal range.
The claimant’s recent submissions referenced corporeal shockwave therapy for the right heel in 2020. However, that treatment was to the plantar fasciitis. Dr Bryant found that the right Achilles tendinitis had resolved in 2018. The claimant’s reference to Dr Bryant’s treatment as a “protracted and ongoing rehabilitation program” fails to note that the doctor’s opinion in 2021 was that the claimant only had plantar fasciitis in the right foot/heel at that time.
When the claimant was examined, both feet appeared to be very stiff and to have very limited ability to prevent a fall if she stumbled. It was noted that whilst Ms Stanoevski had no prior symptoms, evidence of right sided Achilles tendinopathy was displayed on X-rays taken two years before the motor accident.
Achilles tendinopathy is a degenerative condition. Radiological features become increasingly prevalent with age, but most are asymptomatic. A heel spur is a usual accompaniment. The Achilles tendon and the plantar fascia, although anatomically separate, functionally act as a continuous structure. While radiological features of calcification may be present, the clinical symptoms and pain and disability tend to be intermittent.
The development of symptomatic left-sided calcific tendinitis and right-sided plantar fasciitis are part and parcel of calcific tendinopathy. Both occurred more than a year after the accident and are unrelated to the motor accident. Both would be expected as part of Ms Stanoevski’s generalised degenerative tendinopathy.
We accept that there was an aggravation of a degenerative condition in the right ankle as a result of the motor accident. The impairment is 5%. We have included the left ankle figures for completeness. However, there is no suggestion and no basis to conclude that Ms Stanoevski injured her left ankle in the motor accident.

Right knee injury

In her statement dated 15 April 2020 Ms Stanoevski noted that right knee pain came on “about a month after the accident” and asserted that it was due to “putting more pressure on my right knee”.[69] That history is consistent with the absence of reference of right knee injury and pain in the contemporaneous hospital notes, contemporaneous reports of the general practitioner and the absence of reference in the claim form. In late 2017 Dr Endrey-Walder recorded a history that knee symptoms developed one month after the motor accident.
[69] Claimant’s bundle, page 5.
Some doctors record a history that the right knee was injured at the time of the motor accident.[70] An incorrect history relying on the contemporality of symptoms with the subject incident greatly reduces the value of the medical opinion. That error alone greatly undercuts the value of the opinion as it is not based on a fair climate.[71] The claimant otherwise confirmed to the Medical Assessors that the pain developed approximately one-month after the motor accident.
[70] Such as Dr Mitchell and Dr Kai-Lee.
[71] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
For these reasons the Panel does not accept that Ms Stanoevski injured her right knee at the time of the motor accident.
The claimant had symptomatic right knee pain in 2016 and scan evidence at that time showed significant loss in the joint space of the medial compartment with moderate degenerative changes in the knees.
The right knee replacement was not causally related to the motor vehicle accident. We do not accept that the limping aggravated any degenerative changes in the right knee or rendered it symptomatic. The claimant was symptomatic for a significant period in 2016. It is reasonable to assume, given the extensive degenerative changes in the right knee, that the right knee osteoarthritis would progress of its own accord over time.
The reflex changes, the difference in circumference of the lower limbs and the fixed flexion contracture in both knees is due to the right knee osteoarthritis. When there is a significant flexion contracture in osteoarthritic lower limb joints the contralateral joint develops a complimentary contracture to equalise leg length and maintain walking and standing balance.
We do not accept that limping would have aggravated or exacerbated the substantial degenerative changes in the right knee. The injury to the right ankle does not impose stresses on the right knee. Any extra mechanical stresses are imposed on the contralateral leg because it is doing the work of the injured leg. The symptoms developed, according to the claimant and histories given elsewhere, approximately one month after the motor accident. This is in the context that there was right knee pain in 2016 with significant degenerative changes.
We are not satisfied that the onset of pain is causally related to stress imposed by the injured ankle. Rather, give the significant right knee pathology and pain in 2016, it is more likely that the onset of pain one month after the motor accident is due to the pre-existing condition which would deteriorate over time. Any additional inefficiency of walking would have been borne by the left leg. Accordingly, we do not accept that there was any contribution between the motor accident and the onset of symptoms in the right knee some one-month after the accident.

Neck injury

Neck pain is briefly mentioned in the hospital notes at the time of the incident. There was no impairment assessed by any doctors and the claimant admitted that the neck had improved in the 2020 statement.[72]
[72] Claimant’s bundle, page 5.
The neck injury was of brief duration, resolved and gave rise to no assessable impairment. The examination by the Medical Assessors otherwise provided no assessable impairment of the cervical spine.

Lumbar spine

The insurer conceded that the back was mentioned at hospital, submitted that it was not mentioned again until 4 May 2017 when there were investigations for a possible coccyx fracture. We do not accept the insurer’s submission that the absence of mention to the back in this brief period is significant.
The X-ray in early May 2017 referred to persistent coccyx pain. No fracture was identified although advanced degenerative changes in the lumbar facet joints were identified. The same pathology was seen in the October 2015 X-ray.
The insurer submitted that the back was not mentioned in the notes of the general practitioner from 30 May 2017 to 26 April 2019.[73] In April 2019 the claimant fell whilst on a holiday in Tasmania and sustained a fracture at T12.
[73] Insurer’s submissions, [6].
These submissions were made in the context that any back injury was of short-term duration and otherwise proved that the motor accident did not involve a collision at 50 kmph.
The claimant suffered a fracture at T12 in April 2019. At hospital at that time Ms Stanoevski denied “any previous issue with the back”.[74] This history is consistent with the absence of treatment for the low back from late May 2017 to that time.
[74] AD 12, page 14.
We accept that the back was mentioned as an ongoing complaint to Dr Endrey-Walder in November 2017. Dr Endrey-Walder then noted back pain in the mid-lumbar region.[75]
[75] Claimant’s bundle, page 75.
The claimant’s statement dated 15 May 2018[76] does not mention back pain and was restricted to injuries sustained in the motor accident to the “right foot and right leg”.[77] The subsequent statement dated 15 April 2020 refers to “occasional sharp pain in my lower back”. The 2019 fall is mentioned, and Ms Stanoevski stated that the back pain returned to how it was before the fall “after a few weeks”.[78]
[76] Insurer’s bundle, page 29.
[77] Insurer’s bundle, page 34.
[78] Insurer’s bundle, page 8.
The claimant suffered a soft tissue injury to the low back at the time of the motor accident when she was struck or fell to the ground. Complaints were reported to the hospital on 20 April 2017 and to the general practitioner during May 2017. The X-ray in early May 2017 referred to low back/coccyx pain.
This is not a case of an absence of contemporaneous notes because the low back was treated following the motor accident and mentioned on several occasions.
We do not accept that the effects of injury to the back lasted more than two or some months following the motor accident because:
(a)   there is no reference to treatment after May 2017 until 27 April 2019;
(b)   on 27 April 2019 the claimant reported that there was no history of low back pain in the context of the fall causing a low back injury;
(c)   the claimant did not mention the back as causing pain in her May 2018 statement;
(d)   the back complaints in May 2017 were to the coccyx area (at the base of the spine below the lumbar area) whilst the complaints to Dr Endrey-Walder in late 2017 were in the mid lumbar area, and
(e)   the pathology shown on the various scans after the motor accident show the same pathology as 2015.
We accept that there was a soft tissue injury to the low back which resolved over a period of two or so months. Any back problems present on examination are explained by the natural progression of the underlying degenerative changes to the lower facet joints which were present on scanning in October 2015 as well as the fall sustained in April 2019.

ASSESSMENT

The claimant has been assessed at 5% whole person impairment due to the right ankle injury. The injuries to the lumbar spine, cervical spine and leg abrasions have resolved and give rise to no assessable impairment. For the reasons articulated earlier, we do not accept that the motor accident caused any injury or subsequent aggravation to the right knee by way of limping or altered gait.
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.

CONCLUSION

The certificate issued by Medical Assessor Kumar is revoked. A replacement certificate is attached at the commencement of these Reasons.

Right ankle	WPI	Left ankle	WPI
Table 42	Extension	10°	3%	Extension	10°	3%
Table 43	Eversion	Nil	2%	Eversion	10°	1%
Total	5%	4%

[2023] NSWPICMP 6

10 January 2023