Kotb v AAI Limited t/as GIO
[2023] NSWPICMP 310
•30 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kotb v AAI Limited t/as GIO [2023] NSWPICMP 310 |
| CLAIMANT: | Mustafa Kotb |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 30 June 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 10 October 2020 in a rear-end collision; the dispute related to the assessment of threshold injury and treatment and care; claimant re-examined; original review submissions limited to threshold dispute; claimant argued that all matters reviewed; no contrary response from insurer; review is of medical assessment (section 7.26(1)) and a new assessment of all matters (section 7.26(6)); Meeuwissen v Boden referred to; Panel reviewed all medical assessment disputes; significant pre-existing history of right knee, right shoulder and lumbar spine pain; no plausible medical explanation why motor accident caused or aggravated right knee condition; subsequent falls causing further injuries to arms due to right knee instability not caused by motor accident; deterioration of shoulder pathology from 2012 to 2021 explicable by normal ageing process associated with significant pathology and inflammatory arthritis; findings made that claimant suffered threshold injuries; findings made on treatment disputes noting distinction between “reasonable and necessary” and causation; Held – assessment of threshold injury confirmed; treatment and care certificates revoked. |
| DETERMINATIONS MADE: | Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 8 November 2022 that the claimant suffered threshold injuries. Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care and The Review Panel revokes the certificate dated 8 November 2022 and issues a new certificate determining that: · the following treatment and care: · ten sessions of cleaning and lawn mowing; · referral to Professor George Murrell; · referral to Dr Ian Hargreaves, hand and wrist surgeon; · MRI scan of the shoulders; · MRI scans of the hands and wrists; · X-ray and ultrasound of both shoulders, and · provision of a TENS machine. IS REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · ten sessions of cleaning and lawn mowing; · referral to Dr Ian Hargreaves, hand and wrist surgeon; · MRI scans of the hands and wrists; · MRI scans of the shoulders. · X-ray and ultrasound of both shoulders, and · provision of a TENS machine. DOES NOT RELATE TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. The following treatment and care: · referral to Professor Murrell RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. |
REASONS
BACKGROUND
Mr Mustafa Kotb (the claimant) sustained injury in a motor accident on 10 October 2020 when the insured driver caused a rear-end collision (the motor accident).[1]
[1] This is only a brief and non-exhaustive summary of the motor accident.
The insurer is liable to pay to Mr Kotb any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The issues presently in dispute are whether Mr Kotb’s physical injuries caused by the motor accident are a “threshold injury” within the meaning of the MAI Act and “whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)” (emphasis added).
Pursuant to Schedule 2, cl 2 of the MAI Act, disputes about whether the injury is a threshold injury. Clause 2 (b) of Schedule 2 of the MAI Act was recently amended with the inclusion of the words “or to be provided” into the provision. That amendment followed a previous Review Panel decision rejecting the proposition that there was power under the MAI Act to determine a claim for future treatment.[2] Accordingly, there is a clear statutory intention of a power due to the amendment.
[2] Obeid v AAI Ltd [2022] NSWPICMP 76 (Obeid).
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
The various treatment disputes were:
· ten sessions of cleaning and lawn mowing;
· referral to Professor George Murrell;
· referral to Dr Ian Hargreaves, hand and wrist surgeon;
· MRI scan of the shoulders;
· MRI scans of the hands and wrists;
· X-ray and ultrasound of both shoulders, and
· provision of a TENS machine.
Medical Assessment
Various medical disputes were referred to Medical Assessor Home who issued a Medical Assessment Certificate dated 8 November 2022 (the medical assessment). Medical Assessor Home found that the injuries to the shoulders and lumbar spine were minor injuries and other injuries were not caused by the motor accident.
Medical Assessor Home also determined various medical disputes concerning treatment and care.
In relation to the medical dispute on minor injury, Medical Assessor Home stated:
“In the subject motor vehicle accident, the claimant was the seat-belted driver of a car struck from behind whilst also travelling. His vehicle sustained rear-end damage and was pushed to the left. There was no secondary collision.
The mechanism of the accident is consistent with causing a Whiplash Associated Disorder of the lumbar spine with exacerbation of the pre-existing chronic low back pain complaints.
However, it appears that no additional complaints arose, as the claimant was already experiencing low neck pain with referred pain to the back of the left thigh in the period leading up to the subject accident. No additional symptoms are recorded.
There has been no further imaging of the spine and there were no radicular complaints at the current assessment. There were no clinical signs of radiculopathy. There is restricted motion of the spine, consistent with underlying lumbar spondylosis.
The diagnosis is an exacerbation of underlying lumbar spondylosis for a closed period of several months.
In relation to the right and left shoulder conditions, the claimant has a long history of bilateral shoulder pain due to chronic rotator cuff tears.
The immediate post-accident MRI imaging of both shoulders demonstrates massive rotator cuff tears with proximal humeral head migration. This humeral head migration occurs over a long period of time and would reflect the extensive pre-accident pathology.
The mechanism of the accident would not be consistent with causing a further labral or glenohumeral joint injury, noting that there was a neutral position of the shoulders at the time of the subject accident.
Therefore, the diagnosis is symptomatic exacerbation of pre-existing chronic bilateral rotator cuff pathology.
The imaging does not demonstrate new trauma to either shoulder give the chronicity of the imaging findings.
At the right knee, there is a long history of symptomatic chronic advanced osteoarthrosis and active synovitis of the right knee. The claimant suffered subsequent falls several months after the accident.
I do not find that the subsequent imaging has demonstrated any pathology likely to be caused by the subject accident but rather, established tricompartmental degenerative change of the right knee.
The post-accident CT scan demonstrated no joint effusion, although there was a multiloculated left Baker’s cyst, which was a pre-existing finding.
The mechanism of the accident, a rear-end impact would not be likely to cause right or left knee injury. No injury is plausible in the absence of additional early symptoms.
Whilst the claimant recalls that he experienced pain in his right knee several days after the accident, I am not satisfied that this reflects an acute traumatic injury to the right knee but rather a continuation of his chronic well established symptomatic right knee osteoarthrosis complaint.
To the extent that the claimant suffered a subsequent fall in late 2020, this was a frequent occurrence for the claimant.
The subsequent imaging and current clinical assessment does not show any additional reason the claimant would suffer a fall as a consequence of the subject motor vehicle accident, and in particular, there is no evidence of an accident-related ligament injury.
Whilst I note the opinion of Dr Szomor, the claimant may have suffered a diagnosis of synovitis due to the motor vehicle accident, a diagnosis of synovitis was well-established as a chronic complaint prior to the subject motor vehicle accident, well documented by Dr Rosario. Further, the subsequent imaging did not show an effusion.
Therefore, I do not find the claimant suffered a consequential fall resulting in the injuries sustained in the subject motor vehicle accident.
It follows that the further injuries to his right wrist, representing an aggravation of underlying degenerative change and a direct injury to the left knee were not caused by the subject motor vehicle accident, but by an unrelated fall.
There is no record of injury to the right leg, left leg, right ankle, left ankle caused by the subject motor vehicle accident.”
The Medical Assessor noted that the claimant was unable to undertake domestic chores or gardening activities prior to the accident due to his history of chronic right knee and lumbar spine pain. It was accepted that the referral to Professor Murrell was reasonable and necessary to assess the extent of any injury sustained to the shoulders in the subject accident.
The Medical Assessor found that the right and left hand and wrist complaints were not related to the motor accident. Similarly, the Medical Assessor held that the scans for the right and left hand and wrists were unrelated to the accident. He accepted that the request for scans of the shoulders were caused by the accident to ascertain whether there was any additional pathology. However, he also found that the request for ultrasound and X-rays of both shoulders were not caused by the accident due to the long-standing bilateral massive tears in the rotator cuff.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
The assessment by the Medical Assessor and the parties’ submissions were made prior to
1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW
The claimant applied for referral to a review panel of the medical dispute of whether the claimant only suffered minor injuries. There was no review of the medical assessments concerning treatment and care.
The President’s delegate referred the dispute to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment of minor injury was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[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 of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
The Panel issued the following further Direction on 14 April 2023:
“The Panel notes that the claimant’s submissions on the application to review the medical assessment were limited to alleging error on the minor (threshold) injury dispute.
The claimant is to advise the Panel by close of business, 20 April 2023, whether he accepts that the Review is limited to the threshold dispute. Absent that concession, the parties have liberty to file and serve submissions by close of business, 27 April 2023 on the scope of the review before the Panel.”
The claimant provided further submissions in response to this Direction. The Panel did not receive submissions in reply from the insurer.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts. The section provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (“treatment and care expenses”) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
…
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
[9] See s 3B(2) of the Civil Liability Act 2002.
THE EXTENT OF THE REVIEW BEFORE THE PANEL
The claimant contended that all medical assessments matters were before the Panel and filed further submissions addressing error on the treatment and care disputes. We did not receive submissions in response from the insurer.
Given the absence of contradiction by the insurer, we will assume that all medical assessment matters are before the Panel. That conclusion is consistent with the fact that the review is of the medical assessment in accordance with s 7.26(1) of the MAI Act. In Meeuwissen v Boden,[10] the Court of Appeal examined similar wording under the Motor Accidents Compensation Act, 1999 and noted that what must be incorrect for the purposes of the sustaining a review “is ‘the medical assessment’ and not the certificate that results from the assessment”.[11]
[10] [2010] NSWCA 253 (Meeuwissen).
[11] Meeuwissen at [19] per Basten JA, Beazley Ja and Sackville AJA agreeing.
Section 7.26(6) of the MAI Act otherwise provides:
“The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.”
It is arguable that “all the matters” in s 7.26(6) refers to all the medical assessment matters in dispute. There are three medical assessments matters, first a threshold dispute, secondly, a treatment dispute concerning reasonable and necessary and thirdly, causation of treatment. The reference to matters in s 7.26(6) may relate to all the medical assessment matters within the medical assessment. This last point was touched upon in Meeuwissen[12] although that case did not involve different certificates.
[12] At [26].
None of this was argued by the parties and, as we noted, the claimant’s position was not the subject of contradiction. If an error in one certificate opens all certificates issued for the medical assessment for review, then that may be considered unfortunate but a product of the legislation. Whether that requires amendment to avoid undoubted inefficiencies is not a matter for this Panel or the Commission.
SUBMISSIONS
Claimant’s submissions undated[13]
[13] Claimant’s bundle, p 16.
The claimant submitted that he injured his neck, both shoulders, both wrists, lower back, both legs, ankles, both knees and hips.
The claimant referred to the following evidence:
· Certificate dated 16 November 2020 referring to injury to the neck, back, shoulder and knee;
· Allied health report dated 13 January 2021 which referred to lower back, neck, bilateral shoulders and right knee pain;
· referral to physiotherapy dated 19 February 2021 referencing knee, neck and lower back pain;
· Allied health report dated 3 March 2021 referencing lower back, neck, bilateral shoulder and right knee injuries, and
· Ms Nguyen’s clinical notes commencing 10 March 2021 which noted knees gave way two weeks after the motor accident falling on bilateral wrists and hurting bilateral shoulders and subsequent notes.
The claimant submitted that the motor accident was of “high impact” which caused continued pain. The constant sharp pain was otherwise “suggestive of radiculopathy”.
The claimant referred to the radiology for the right shoulder and right wrist dated
5 March 2021 as well as the referrals on the same day. Reference was also made to the referral dated 18 January 2021 in relation to the right knee giving way and the report of
Dr Hargreaves dated 13 April 2021 supported the relationship of the knee giving way causing wrist injury and Dr Szomor’s report dated 23 January 2021. Dr Szomor noted that the right knee gave way causing the left knee injury.
Claimant’s submissions undated [14]
[14] Claimant’s bundle, p 1.
These submissions were filed seeking to review the finding of minor injury.
The claimant submitted there was a failure to give proper reasons. In particular the claimant referred to the scan of the right shoulder dated 5 March 2012 showing a 38 mm full thickness tear which was assessed as 46 mm in length in the scan dated 7 April 2021. The later scan also identified other tears to the teres major, full thickness cartilage loss and loss in the glenohumeral and acromioclavicular joints.
The claimant otherwise contrasted the left shoulder pathology shown on the 5 March 2012 scan and the MRI scan dated 7 April 2021. It was submitted that the claimant was “managing the injuries with conservative treatment and did not have significant complications or pain prior to the motor accident”.[15]
[15] Claimant’s bundle, p 3.
It submitted that the Medical Assessor did not compare the scans and that the larger tears and new tears were caused by the motor accident.
The claimant otherwise relied on the fact that his hands were on the steering wheel and a significant rear-end collision would cause “joint injury to both shoulders”.
The claimant submitted that the photographs show “the impact was severe and likely at high speed”. This high-speed collision whilst holding the steering wheel is confirmed by the claimant dated 14 June 2021.
The claimant relied on the egg-shell skull rule and submitted that the claimant’s frailty is not a proper basis to deny that the motor accident had a significant effect.
In relation to bilateral wrist injuries, the claimant accepted there was pre-existing symptoms but that there was a significant aggravation relying on:
· screws have come loose as evident by the CT scan report dated 13 April 2021;
· report of Dr Hargreaves dated 13 April 2021 that the claimant may have suffered a fractured capitate, and
· report of Dr Hargreaves dated 22 April 2021 that the CT scan shows that the wrists look like “Swiss cheese” and therefore it was “peculiar” that the Medical Assessor did not find an aggravation causally related to the motor accident.
Claimant’s submissions undated
These submissions were filed following the direction issued by the Panel calling for further submissions. The claimant submitted that the review was for the purposes of threshold and treatment dispute and made further submissions in relation to the treatment.
The claimant noted the MRI scan of the right shoulder dated 7 April 2021 showed a massive rotator cuff tear in both shoulders insignificant proximal humeral head and migration. The opinion of Prof Murrell was noted that there was probable exacerbation caused by the motor vehicle accident and a request for further info investigation by way of ultrasound and X-ray.
It was submitted that it was a logical and inconsistent that the Medical Assessor accepted the MRI to both shoulders was reasonable and necessary and related to the accident but that the X-ray and ultrasound was not reasonable and necessary and not related to the subject accident.
It was noted that Prof Morrell saw the claimant in 2002 and 2012 and was in a “distinctly better position to determine the extent of any injury caused or aggravated by the subject accident” because the doctor had seen the claimant both before and after the motor accident.
The claimant noted that the referral for a TENS machine was made for pain relief of the neck, back, arm wrist and hand injuries and the claimant had reported minimal back pain relief as result physiotherapy treatment. It was submitted that the motor accident caused an aggravation of the back injury and accordingly was causing causally related to the accident.
The claimant referred to the opinion of Dr Hargreaves dated 13 April 2021 that the claimant may have suffered a fractured capitate. The doctor also stated in a report dated 23 March 2021 that there had been an exacerbation of right wrist pain after recent motor accident. It was submitted for similar reasons that the referral for MRI scans of the bilateral hands and wrists was related to the motor accident.
The claimant noted that he was unable to perform household chores prior to the motor accident but submitted that the aggravated injuries had led him with a “greater necessity for 10 sessions of cleaning and motor lawn mowing services”.
Insurer’s submissions dated 9 June 2021[16]
[16] Insurer’s bundle, p 18.
The insurer referred to the findings of the internal review. It further submitted that no medical practitioner diagnosed any clinical signs of radiculopathy.
The insurer noted the extensive medical history of pre-existing problems including bilateral cuff tears in 2012.
The insurer submitted that any injury did not meet the definition of a non-minor injury.
Insurer’s submissions dated 22 December 2022[17]
[17] Insurer’s bundle, p 83.
These submissions were filed opposing the review application submitting that there was no error in the medical assessment.
The insurer objected to the statement and photographs on the basis that this material was not before the Medical Assessor. It otherwise submitted that the photographs support the contention that the accident occurred at low velocity.
MATERIAL BEFORE THE REVIEW PANEL
Claimant’s statement dated 14 June 2021[18]
[18] Claimant’s bundle, p 128.
The claimant referred to a previous motor accident and work injury when injury to the neck, t back, knee and shoulders. Other pre-existing conditions included back and neck pain.
The claimant referred to the motor accident which was a rear-end collision when he “held onto the steering wheel very tight prior to impact”. He said he felt immediate pain in both shoulders, back and right leg. After a couple of days, the claimant said he felt pain the neck, back, both shoulders, right knee and both wrists.
The claimant said that his knee gave way and caused him to fall twice causing further pain in both knees, both shoulders, both wrists, back and neck.
Photographs of the vehicles show damage to the passenger front of the insured vehicle and rear driver’s side of the claimant’s vehicle.[19]
Pre-accident medical records
[19] Claimant’s bundle, p 135.
The March 2012 scans showed large full thickness tear of the left supraspinatus measuring at least 4 cm x 4 cm with recent long head of biceps rupture.[20]
[20] Claimant’s bundle, p 59.
The March 2012 ultrasound of the right shoulder showed full thickness tears of the supraspinatus (38 mm x 59 mm), subscapularis (36 mm) and infraspinatus (14 mm).[21]
[21] Claimant’s bundle, p 62.
Post- accident medical records
The claim form dated 11 November 2020 referred to the motor accident causing injury to both shoulders, lower back and right leg.[22]
[22] Claimant’s bundle, p 26.
On 11 November 2020 the certificate referred to the motor accident causing “soft tissue injury to neck back shoulder knee (provisional)” with a history of prior neck, back and knee conditions.[23]
[23] Insurer’s bundle, p 22.
The CT scan of the right knee dated 31 December 2020 showed osteoarthritis in the knee joints.[24]
[24] Claimant’s bundle, p 67.
The X-ray of the right wrist dated 12 January 2021 suggested a partially united old fracture. No acute fracture was identified.[25]
[25] Claimant’s bundle, p 38.
The Allied health recovery request dated 13 January 2021 included a clinical assessment of lower back, neck, bilateral shoulders and right knee.[26]
[26] Insurer’s bundle, p 28.
The referral from Dr Wong to Dr Szomor dated 18 January 2021 noted that the “recurrent r knee gave way after” the recent motor accident and that this had caused two falls.[27]
[27] Claimant’s bundle, p 65.
On initial presentation on 23 January 2021 to Dr Zoltan Szomor,[28] orthopaedic surgeon, the claimant reported:
“Pain developed in the knees a few days later. More recently the right knee gave way twice in one week resulting in further injury to the wrist and left knee…. I note that Mr Kotb has been on the disability pension for multiple joints and spine problems for years, which were a result of a previous injury. He had a right distal femur treated with internal fixation and the distal femoral nail on the medial side is still in situ. He did have right knee arthritic symptoms in the past, but at a tolerable level.”
[28] Claimant’s bundle, p 32.
Dr Szomor noted the recent scan showed right knee synovitis with bilateral knee osteoarthritis which was an explanation for the knee giving way.
X-rays of both knees dated 10 March 2021 showed severe osteoarthritis.[29]
[29] Claimant’s bundle, p 78.
Clinical notes dated 10 March 2021 noted the motor accident and the following history:[30]
“2 weeks after the accident, fell over knees gave away and fell onto bilateral wrist, hurting bilateral shoulder.”
[30] Claimant’s bundle, p 83.
On 23 March 2021 Dr Ben Wong, general practitioner, referred the claimant to Professor Murrell due to exacerbation of right shoulder pain after a recent motor accident.[31]
[31] Claimant’s bundle, p 34.
The MRI scan of the right shoulder dated 7 April 2021[32] noted a clinical history of “fall from knee level give away and jammed both shoulders and wrists” and showed:
“… severe degenerative changes with extensive grade 4 chondromalacia, chronic complete tears of the long head of biceps tendon and supraspinatus tendon, chronic full-thickness subscapularis tendon tear superiorly and, partial thickness infraspinatus tendon tear and small full-thickness teres minor tear.”
[32] Claimant’s bundle, p 39.
The scan of the left shoulder showed chronic complete tears of the long head of biceps, supraspinatus and infraspinatus insertions and full-thickness tears of the teres minor and subscapularis insertion. Severe acromioclavicular and glenohumeral joint osteoarthritis with joint effusion was also present.
The MRI scan of both wrists showed no acute fracture and extensive degeneration.
Dr Hargreaves, surgeon, provided a report dated 13 April 2021.[33] The doctor noted a history of the knee giving way two weeks after the motor accident falling onto his hands. The right hand was particularly swollen. The scan showed fluid in the STT joint on the right and a possible fractured capitate
[33] Claimant’s bundle, p 30.
The CT scan of the wrists dated 15 April 2021[34] showed arthritis of the left wrist with lucency around the screw in the second metacarpal suggesting loosening from infection. The right wrist was reported as showing similar changes.
[34] Claimant’s bundle, p 36.
In a subsequent report Dr Hargreaves noted the CT scan showed that both wrists looked like “Swiss cheese” with multiples holes for arthritic changes. Given the underlying arthritic condition, the doctor recommended treatment by soft splint only.[35]
[35] Claimant’s bundle, p 31.
EXAMINATION
The claimant was medically examined by Medical Assessor Berry who provided the following examination report:
“This man attended with an Arabic interpreter. He told me that he was 66 years of age, born on 12 October 1956. He told me that he was ambidextrous but I was uncertain as to whether this was the case.
Mr Kotb told me that he came to Australia 45 years ago and had done multiple work including working as a cleaner and having his own business with his wife. The claimant had a long history of low back pain which had been present for at least 10 years. He had also had right shoulder pain and left shoulder pain. He was unable to tell me what injuries he had sustained, but he was advised some years ago to undergo right and left shoulder replacements but declined to do so.
Mr Kotb told me that on 10 October 2020, he was the driver of a Hyundai sedan. His wife was the front seat passenger and they were returning from Punchbowl where they had been shopping for various food items. They were suddently hit from behind and the vehicle was pushed onto the footpath. He and his wife self-extricated from the vehicle. After exchanging details he drove the vehicle home.
Mr Kotb attended his general practitioner later, he could not remember when, as he had developed pain in both shoulders and in the low back. He was quite frank that he said he had problems beforehand and after the accident they were much worse. He recalled that he was reviewed by Dr George Murrell who wanted further investigations done. He also saw Dr Ian Hargreaves for his wrists which were painful and he had had previous surgery on his wrists.
Current Symptoms
The claimant told me today that his shoulders are painful, stiff and swollen. He is unable to drive as he cannot turn the steering wheel. Mr Kotb also has back pain which is present all the time where as before the accident it use to come and go. He is unable to mow the lawns or do any of the household activities.
Current Treatment
Mr Kotb uses Dencorub on his shoulders and he takes Endone and Tramal.
Previous Injury
Mr Kotb cannot remember any work injuries or other injuries.
General Health
The claimant told me that he was aware that he had had shoulder and back problems since at least 2013.
Work History
Apart from telling me that he had worked as a cleaner, he could not remember any other details.
Social History
The claimant was able to indicate that he was a married man and that he was unable to do any of the household duties.
Physical Examination
Mr Kotb was 168cm in height and 92kgs in weight.
Cervical Spine
The claimant demonstrated a full range of movement. There was no tenderness to palpation. There was no muscle spasm and no muscle guarding.
Upper Extremities
The claimant could not move his arms more than 60 degrees in abduction and forward flexion. He showed me his wrists which were swollen and scarred and there was minimal movement at the wrist joints. The hands were normal in terms of grip, power and sensation. Neurological examination (testing of power, sensory loss and reflexes) of the upper limbs was normal.
Thoracolumbar Spine
The claimant was tender to palpation. He was unable to get on the examination couch for a full examination and in fact when attempting to flex his back, he lost his balance and almost fell. At that stage the examination was terminated and the claimant was put back into the care of his wife.”
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[36] and Insurance Australia Ltd v Marsh.[37]
[36] [2021] NSWCA 287 at [40], [41] and [45].
[37] [2022] NSWCA 31 at [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[38] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[38] [2022] NSWPICMP 6 at [44]-[62].
As the insurer correctly submitted, there is no reported signs of radiculopathy. The claimant’s submission that “sharp pain” is suggestive of radiculopathy is simply wrong and are not signs of radiculopathy.
Whilst the Panel is required to form its own opinion, we agree with the following observations expressed by Medical Assessor Home:
“At the right knee, there is a long history of symptomatic chronic advanced osteoarthrosis and active synovitis of the right knee. The claimant suffered subsequent falls several months after the accident.
I do not find that the subsequent imaging has demonstrated any pathology likely to be caused by the subject accident but rather, established tricompartmental degenerative change of the right knee.
The post-accident CT scan demonstrated no joint effusion, although there was a multiloculated left Baker’s cyst, which was a pre-existing finding.
The mechanism of the accident, a rear-end impact would not be likely to cause right or left knee injury. No injury is plausible in the absence of additional early symptoms.”
The claimant did not describe the motor accident causing an impact to either knee. Such an injury is not explicable by the nature of the motor accident.
Dr Szomor recorded a history in his report dated 23 January 2021 that the right knee gave way causing the left knee injury. That reasonably contemporaneous history supports the conclusion that any left knee symptoms only arose following the fall. The history is also consistent with the fall arising from the right knee giving way. For the reasons provided earlier[39] we do not accept that the right knee was either injured or aggravated by the motor accident and that this condition was longstanding.
[39] See [90]
Accordingly, we are not satisfied that the motor accident caused any knee injury or aggravated any pre-existing knee condition.
The claimant submitted that the hands/wrists were injured when the claimant’s knee collapsed causing him to fall to the ground. That submission is consistent with the history provided by Dr Hargreaves in a report dated 13 April 2022 that the knees gave way two weeks after the motor accident falling onto his hands. That history is also consistent with the clinical history recorded for the shoulder MRI scan. As we are not satisfied that the motor accident contributed to the bilateral knee condition, the fall and subsequent hand/wrist injury is not caused by the motor accident.
The claimant otherwise relied on the opinion expressed by Dr Hargreaves that there was a possibility that the motor accident caused a fractured capitate. The doctor mentioned this diagnosis as a “possibility” and did not explain how it was caused by the motor accident. If the doctor meant that it was caused when the claimant fell to the ground, then, for the reasons expressed earlier, this is not causatively related to the motor accident. If the doctor suggested that the fracture occurred at the time of the motor accident, then it is not self-evident and implausible that this occurred from the nature of the motor accident. There was otherwise no contemporaneous complaint of such hand/wrist injury.
The claimant alleges that the motor accident caused an aggravation of the shoulders. The claimant suffered from inflammatory arthritis of the shoulders. The March 2012 MRI scan showed large full thickness tear of the left supraspinatus measuring at least 4 cm x 4 cm with a long head of biceps rupture. The April 2021 MRI scan showed a deterioration in pathology consistent with the normal aging process of someone with severe pathology established nine years previously. The claimant suffers from inflammatory arthritis. It would be expected that the scanned pathology of the shoulders would deteriorate over the 10-year period.
The claimant reported shoulder symptoms following the motor accident. There is no history of direct trauma to the shoulders from a rear end collision. The right shoulder could sustain a minor indirect pressure from the seatbelt restraint. There is otherwise no medical reason why the motor accident would cause any injury to or aggravation of the left shoulder condition as there was no seatbelt restraint to that shoulder and no direct impact.
We note that the clinical history recorded for the April 2021 MRI scan of the right shoulder was a “fall from knee level give away and jammed both shoulders and wrists”. The bilateral scans then showed significant longstanding degeneration in both shoulders.
We provided reasons why we do not accept that the subsequent fall(s) were causatively related to the accident. Accordingly, we do not accept that any further deterioration in the bilateral shoulder pathology caused by any fall is causatively related to the motor accident.
We accept that the motor accident probably caused a minor soft tissue injury to the right shoulder from the seat-belt restraint. We do not accept on the balance of probabilities that the motor accident aggravated the underlying pathology.
We accept that the motor accident probably exacerbated a chronic back condition. The lumbar spine is protected by the seat, and it is unlikely, given the chronic nature of the claimant’s complaints, that the extent of any exacerbation of the back condition was significant. We agree with Medical Assessor Home that the extent of any exacerbation was limited to a matter of months. It is otherwise extremely unlikely that the motor accident caused “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”. We do not accept that there is any scan evidence supporting such a finding.
The medical evidence, including the examination findings of Medical Assessor Home otherwise does not show any past signs of radiculopathy.
We accept that the motor accident would have caused a whiplash type injury to the cervical spine which is supported by the contemporaneous complaints of neck pain. However there is no evidence supporting “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”. There are also no signs of cervical radiculopathy recorded by any doctor. Further, based on recent examination findings of Medical Assessor Berry, the cervical spine injury has resolved.
Other injuries
We agree with Medical Assessor Home that “there is no record of injury to the right leg, left leg, right ankle, left ankle caused by the subject motor vehicle accident”. Further, the nature of the motor accident does not explain injury to those body parts.
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[40] These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[40] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[41] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[41] [2018] NSWSC 1710 at [29] (Phillips).
Our reasons on injury dispose of some of the causation disputes. We have not accepted that the there is any causal relationship between the wrists/hands and the motor accident. Accordingly, the referral to Dr Hargreaves and the associated MRI scans are not causatively related.
The 10 sessions of cleaning and lawn mowing is unrelated to the motor accident. Mr Kotb could and did not undertake these activities prior to the motor accident of his underlying health conditions. That the motor accident may have aggravated some of his underlying conditions, does not create or increase a need for care that was provided to Mr Kotb in any event because of his underlying health issues.
We accept that a referral to an orthopaedic surgeon was causatively related to the motor accident based on our findings that there were soft tissue injuries to the cervical and lumbar spine and the right shoulder. We do not accept that bilateral shoulder MRI scans are causatively related to the motor accident given our findings that the left shoulder was not injured and there was only minimal indirect soft tissue trauma to the right shoulder. The need for further investigations (X-rays and ultrasound) are not causatively related to the motor accident.
Reasonable and necessary
Mr Kotb is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[42], Grove J stated:[43]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[42] [2003] NSWCA 52 (Clampett).
[43] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[44]
[44] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[45] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[45] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The claimant’s submissions and the reasons of Medical Assessor Home fail to acknowledge the distinction between “reasonable and necessary in the circumstances” and the test of causation.
There is no doubt that Mr Kotb has significant medical conditions to his wrists, shoulders and back. The various treatments, reasonably inexpensive and all medically appropriate to either investigate the extent of or treat the underling condition. These treatments are reasonable and necessary to treat the underlying conditions.
We accept that all the disputed treatment is “reasonable and necessary in the circumstances”. We emphasise that this conclusion is not one of causation.
CONCLUSION
For these reasons the Panel concludes that the certificate concerning the threshold injury is confirmed. The certificate concerning treatment and care is revoked. A replacement certificate is attached to these Reasons.
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