Janiv v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 752
•4 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Janiv v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 752 |
CLAIMANT: | Oren Janiv |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Thomas Rosenthal |
DATE OF DECISION: | 4 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; replacement certificate left knee ACL rupture; medial and lateral meniscus tears; finding of determination of threshold injury; statutory provisions; lumbar spine issues and sciatica; significant amount of material noting pre-existing condition; prior left knee injury; cruciate and medial meniscus tears confirmed to pre-date accident; need for surgery; investigations; contemporaneous documentation supports injury to knee; radiology not sufficiently accurate to determine whether meniscal tears extended; Held – non-threshold injury. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Jonathan Herald dated · left knee ACL rupture and medial and lateral meniscal tears, is a non-threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 36-year-old man who was injured in a motor vehicle accident which occurred on 31 March 2020. The claimant sought a concession from the insurer that his injury ought to be considered a non-threshold injury. The insurer declined to make this concession and accordingly the assessment of threshold injury was referred to the Personal Injury Commission (Commission).
The primary contention between the parties is whether or not the requirement for the surgical procedure which the claimant underwent on 9 April 2021 was caused or aggravated in the motor vehicle accident and accordingly ought to be considered an injury arising from the motor vehicle accident.
Medical Assessor Jonathan Herald examined the claimant on 14 November 2023 and in a Certificate dated 11 December 2023 determined that the injury referred to him, that is left knee ACL rupture and medial and lateral meniscal tears, was not an injury arising out of the motor vehicle accident and accordingly these injuries are a threshold injury. The claimant sought a review of this determination which was opposed by the insurer. The application for review was referred to President’s delegate Tami O’Carroll, who, in a certificate dated
26 February 2024, determined that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. This would seem to be on the basis that the Medical Assessor misconceived his task and failed to assess the injury referred to him. The allegation on the part of the claimant is that the accident aggravated a previously stable meniscus which necessitated surgery.
Accordingly, the matter was referred to the Panel who met on 17 April 2024 by Microsoft Teams and considered the matter.
The Panel noted that all relevant material had now been uploaded to the portal as well as determining that the primary matter for consideration was whether the meniscus tear extended or was further extended by the motor vehicle accident. That is, whether or not there was an aggravation in the motor vehicle accident which contributed to the requirement for the surgery which the claimant subsequently underwent. The Panel decided that there is a need to review the material and examine the claimant so as to take a complete and accurate history.
A medical appointment was scheduled with Medical Assessors Geoffrey Stubbs and Thomas Rosenthal for 15 May 2024. This medical appointment was unable to go ahead and thereafter a new medical appointment was scheduled for 14 August 2024. Prior to this Medical Assessor Stubbs because unavailable to continue to serve on the Medical Panel and shortly thereafter Medical Assessor Mohammed Assem was inducted on to the Medical Panel and continues to serve on it.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The claimant was re-examined on 11 September 2024 and was examined by Medical Assessor Thomas Rosenthal.
History of motor vehicle accident
Mr Janiv is a 36-year-old male who was involved in a motor vehicle accident on
31 March 2020. He was riding a motorbike going straight. He had his helmet, jacket and all gear on. He was travelling at 60 kmph. A car coming in the opposite direction decided to turn right in front of him resulting in a collision. He ended up flying through the air and landing on the road. An ambulance came and took him to St Vincent’s Hospital.
History of symptoms and treatment following the motor accident
He had right shoulder, groin and left knee injuries as a result of the accident.
The left knee was swollen and clearly had been traumatised. He had X-rays performed at the hospital but no invasive treatment occurred.
He came under the care of Dr Seeto who did an MRI and then requested an arthroscopy. The MRI again showed his ACL tear and also medial and lateral meniscal tears. He noted that his knee was locking up particularly while he was doing exercises on the beach prior to his arthroscopy. The arthroscopy done by Dr Seeto was a partial meniscectomy and following the surgery the locking stopped.
The surgery was approved and funded by the insurer but they subsequently decided when new information came in that the surgery was not reasonable and necessary in regards to the subject accident. With the new information, the insurer determined that the injury was a threshold injury as medicolegal advice indicated that all the MRI changes in the left knee were pre-existing.
Mr Janiv has continued to have ongoing symptoms in the knee but no further investigations or surgery have occurred.
He had to stop competing in his judo competitions. He advised me that he had previously won a silver medal. He runs a judo club and continues to run the club. He can still instruct judo but cannot compete because of his ongoing symptoms.
He has noticed that his left knee now hyperextends and he still feels unstable at times on the left knee.
Current symptoms
He cannot fully flex the left knee as compared to the right. It occasionally swells. He cannot run. He does long walks. There is no locking now. It still feels slightly unstable.
He is still doing strengthening exercises to improve his wasted quadriceps.
He did give up one of his jobs as a security guard which involved carrying cash in the City. This was a second job immediately prior to his car accident and he did not return to this.
He still gets fairly constant pain in his left knee.
Current treatment
He occasionally uses a compressive bandage. He takes CBD oil to control the symptoms.
He still has trouble kneeling and squatting. He is not having any physiotherapy now.
Other conditions
He has subsequently developed a lumbar spine issue and has had recent sciatica which has eased off. He was treated with massage and dry needling. He continues to do ongoing exercises to strengthen his leg and lumbar spine.
PHYSICAL EXAMINATION
On examination, Mr Janiv weighed 80kg. He was 176cm tall.
There was clear evidence of varus deformity at the left knee which measured 12°. He had an extension lag of -5° and 125° of flexion of the left knee. There was some retropatellar crepitus and minimal patellar tenderness. He had a very mild anterior drawer test. The lateral collateral ligaments were intact. McMurray’s test was negative.
There was thigh wasting on the left which measured 50.5cm compared to 52cm on the right, 10cm above the superior patellar pole.
Calves measured equally at 37cm, 10cm below the inferior patellar pole.
The right knee had 0° of extension to 135° of flexion. No abnormality was present in the right knee which had normal alignment.
He could get up on his heels and toes and squat but tended to favour the right leg when doing so.
MEDICAL MATERIAL
The certificate of capacity completed by Dr Van Laar Veth (St Vincent’s Hospital) dated
1 April 2020 diagnoses specifically “left knee lateral collateral ligament sprain.”
A subsequent certificate of fitness completed by Dr Thompson dated 14 April 2020 diagnoses “left ACL rupture”.
The Panel was provided with a significant amount of material noting a pre-existing condition in the claimant’s left knee. The material provided confirms an ACL tear following a Judo injury back in 2008. The insurer submitted that the motor vehicle accident did not have an effect on this pre-existing condition. The insurer relied on a report of Dr Keller dated
11 January 2023 which, following a review of the material, observed that the left anterior cruciate and medial meniscal tears are confirmed to pre-date the subject accident and the need for surgery was due to the prior complaint and not the accident.
The Panel is of the view that the report of Dr Bosanquet dated 14 February 2023, in which the MRI scan of the claimant’s left knee dated 3 June 2016 was provided to him observes the ACL tear and medial meniscus tear were already present and comments the motor bike accident would have caused an aggravation to the underlying injuries to the left knee but that aggravation would have settled after three months.
The Panel also noted that the claimant was competing in Judo tournaments prior to the motor vehicle accident, there was a frank injury which was identified in the clinical notes to the claimant’s left knee and the claimant’s history notes that there was a deterioration in the functioning of his left knee following the motor vehicle accident.
INVESTIGATIONS
The X-rays have been sent on USB which were viewed. The X-rays correspond to the reports of the MRIs from 3 June 2016 and 6 April 2020. Direct comparisons were made. Medical Assessor Rosenthal could not, from his expertise, determine significant differences between the radiology of the knee from 2016 compared to the radiology in 2020.
I note there is a slight variation in the reports which were done by Dr Melvin Wong from Spectrum Imaging in 2016 and then Dr Guy O’Connell from I-MED in 2020.
The report from 2020 notes that there is marrow oedema and it is reasonable, on the balance of probabilities, to assume that there was further extension of the medial meniscal tear based on the radiology.
The likelihood of the motor vehicle accident causing extension of the tears was apparently confirmed by Dr Seeto in a report that he did following his arthroscopy.
DECISION
Mr Janiv’s left knee sustained trauma in the subject accident on 31 March 2020. The contemporaneous documentation supports the injury to the knee.
The treatment by Dr Seeto is outlined in his letter of 6 June 2023. The left knee was asymptomatic prior to the subject accident. The claimant was competing in competitive judo prior to the accident. Following the accident and surgery there was improvement in his knee symptoms but he was unable to continue competing in judo.
The radiology (MRI) pre accident in 2016 and post-accident in April 2020 reported similar changes to the previous ACL graft and meniscal tears. The 2020 post accident MRI did report extensive oedema and acute on chronic changes, which were new findings. In the Medical Assessors view the radiology is not sufficiently accurate to determine whether the meniscal tears extended (as noted by Dr Seeto). Arthroscopy findings are more accurate in determining pathological changes. The meniscal tear became symptomatic and required repair post-accident. This was confirmed by his findings on arthroscopy.
Based on the information above, it is the Medical Assessors’ view that on the balance of probabilities there was an extension of the tear of the meniscus caused by the subject accident. The previously ruptured ACL graft was not changed by the subject accident.
Based on the fact that there was documented trauma to the left knee and his knee became significantly symptomatic following the subject accident with the addition of description changes of the menisci seen on MRI and the report of Dr Seeto, it is likely that the pre-existing meniscal tear, at least in the medial meniscus, had extended and became symptomatic. The torn ACL graft remained unchanged pre- and post-accident.
On the balance of probabilities, it is the Panel’s view that the injury is a non-threshold injury.
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