Meksass v Allianz Australia Insurance Limited
[2025] NSWPICMP 57
•3 February 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Meksass v Allianz Australia Insurance Limited [2025] NSWPICMP 57 |
| CLAIMANT: | Georges Meksass |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 3 February 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Threshold injury; confirmed certificate; requirement for re-examination; stated no previous injuries; prior motor vehicle accident; relevant treatment following the motor vehicle accident; no further treatment to neck, back, right knee, delay of onset of symptoms; pre-existing condition arising from general wear and tear; no immediate onset of knee symptoms; mechanism of injury absent in context of subject accident; established osteoarthritis with chondromalacia; Held – new certificate issued. |
| 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 confirms the certificate of Medical Assessor David McGrath dated 12 May 2024. |
BACKGROUND
The claimant, George Meksass, is a 49-year-old man who was injured in an accident which occurred on 30 January 2023.
Following the accident an Application for Personal Injury Benefits was lodged and thereafter the claimant sought a concession from the insurer that his injuries ought to be considered non-threshold injuries.
Following a review the insurer declined to make this concession and thereafter the claimant lodged an Application for a Medical Assessment – Threshold Injury with the Personal Injury Commission.
The claimant was examined by Medical Assessor David McGrath on 7 May 2024 who, in a certificate dated 12 May 2024, determined that the injuries referred to him are threshold injuries. The claimant sought a review of this decision and, in a certificate dated 3 July 2024, President’s delegate Rachel Brittliff determined there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
This would seem to be on the basis that he did not consider whether the accident contributed to the claimant’s lumbar spinal injury in a way that was more than negligible. Thereafter the matter was referred to this Review Panel (Panel).
Directions on 20 August 2024 provided that all the material which was before Medical Assessor McGrath and the Panel has considered this material.
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 provides that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (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 Accident Compensation Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 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 Panel re-convened on 30 September 2024 at 2.00pm noting that additional material had been uploaded. The Panel had been unable to obtain access to the links for the scans of the X-rays and MRIs which the claimant had been directed to provide. Additionally, the Panel further considered the issues as to whether or not there would be a requirement to further examine the claimant.
The claimant was interviewed by Microsoft Teams on 28 October 2024 by Medical Assessor Christopher Oates and Medical Assessor Shane Moloney.
The injuries referred by the Commission for assessment were:
· cervical spine injury;
· lumbar spine injury, and
· shoulder injury.
Pre-accident history
Mr Meksass stated that he was married and lives with his wife and four children aged 13, 11, 9 and 7. At the time of the accident he was working full-time in his electrical business as both sole trader and contract worker. He states that he attended the gym on a regular basis and swam during the summer.
He stated that there had been no previous injuries to those assessed today. In his recorded statement there was documentation of motor vehicle accidents in 2010 and 2016. However, he states that he suffered no injuries in these accidents and no treatment was required. He also stated that he had the usual aches and pains prior to the accident but cannot remember any specific details.
History of motor vehicle accident
Mr Meksass was driving his Toyota HiAce work vehicle going to work on 30 January 2023. He was travelling in a 50kmph zone when a truck collided with the back of his vehicle with some force. He was wearing a seatbelt at the time and was able to get out of the car by himself and exchanged details with the truck driver. The police and ambulance did not attend the scene of the accident although he did contact the police. He states that he felt initially shocked but had no immediate pain. He continued on to work from the accident.
History of symptoms and treatment following the motor accident
Mr Meksass stated that a few days after the accident he developed severe right knee pain with difficulty walking and initially thought he saw a general practitioner (GP) within two weeks of the accident.
The Panel discussed with Mr Meksass that the first recorded consultation was on 3 March 2023 which is five weeks after the accident and Dr Aboud at that time recorded neck and back pain with no mention of any knee pain. A follow-up consultation on 16 March 2023 recorded knee pain which had been present for three weeks. Dr Aboud organised an X-ray and at a follow-up consultation on 22 March 2023 then ordered an MRI of the right knee.
His treating GP, Dr Aboud referred him to an orthopaedic surgeon, Dr Sumner who consulted him on 11 August 2023. Dr Sumner recorded that Mr Meksass developed right knee pain two to three weeks after the accident and by the time of this consultation, his knee was much improved. Dr Sumner also recorded that there were no real acute signs on the MRI and no injections or surgery was warranted. Mr Meksass stated that the history recorded by Dr Sumner was incorrect as his knee pain had commenced within a couple of days of the accident.
He was initially referred for physiotherapy to his neck, back and right knee but stated there was no benefit from this and he requested a change in practitioner which was not funded. He then attended a chiropractor mainly for his neck which was self-funded.
His treating GP, Dr Aboud also referred him to Dr Kam, neurosurgeon for neck and back pain. Dr Kam recommended an epidural injection at the L5/ S1 level but Mr Meksass declined this treatment. He also stated that no surgical intervention was warranted.
Mr Meksass stated that there had been no further treatment to his neck, back and right knee this year. He has had no further accidents or injuries since the initial car accident.
No analgesic medication is consumed at present.
Current symptoms
Mr Meksass has right knee pain which occasionally feels unstable and is too painful to jog. He states that it cracks occasionally when walking up and down stairs.
There was stiffness in the cervical spine on waking which is relieved by stretching and he gets occasional pain radiating into the trapezius muscle region bilaterally but worse on the right.
There is low back pain which he also manages with stretching and sporadically he gets pain down the leg right or left to the level of the knees. He is able to walk and drive normally and now works five days per week. He avoids any overhead work as it aggravates his neck pain and essentially does contract work with the assistance of his apprentice which is mainly light duty.
Interview and examination
This claimant was not a convincing historian, with respect to the clinical timeline of the onset of symptoms in the body parts referred for assessment. There is inconsistency in the history recorded by the treating GP, orthopaedic specialist Dr Sunner, his statement signed on 31 January 2024, the history recorded by the original Medical Assessor and his own memory of the event. Mr Meksass states that he developed severe right knee pain within a couple of days of the accident but both doctors recorded onset two or three weeks after the accident. In fact, the initial consultation with Dr Aboud five weeks after the accident was for neck and back pain. By contrast the statement at paragraph 29 referred to the immediate onset of pain in the claimant’s right knee, both shoulders, low back and neck. When the Medical Assessors reviewed the statement with the claimant, he seemed to be quite unfamiliar with its existence and contents suggesting it was produced by someone else.
Mr Meksass was apparently consulting another GP at Lane Street Medical Centre at South Wentworthville prior to the accident and possibly immediately afterwards.
No material was available from a medical practitioner at the Lane Street Medical Centre, South Wentworthville.
After considering the contemporaneous medical evidence, the claimant’s statement and history given by the claimant, the Medical Assessors are not persuaded that the mild meniscal extrusion in the right knee is an acute traumatic injury, but rather a pre-existing condition arising from general wear and tear, noting that the occupation of electrician involves significant periods of squatting and kneeling. The Panel notes that the claimant has done this work as his sole occupation over a period of approximately 25 years. Were this lesion an acute injury the Medical Assessors would have expected immediate onset of knee symptoms or at least within a few hours of injury. We also note that the mechanism of injury required to produce such a lesion, which is twisting on a semi-flexed knee, whilst weight bearing, is absent in the context of the subject accident. The Panel accepts the medical material which indicates the knee became symptomatic and was reported some weeks after the accident. The Panel notes there was no onset of pain or seeking of medical advice within hours or even a few days of the accident which would be expected if an acute knee injury had resulted in a meniscal disruption. The Panel concurs with that of the treating orthopaedic surgeon, Dr Sunner who, in his report dated 11 August 2023 noted that the onset of right knee pain occurred two to three weeks after the accident and that the MRI scan of the right knee was “fairly unremarkable.” The Panel is firmly of the view that the examination of the claimant and the material does not support a finding that the subject accident caused or materially contributed to the claimant’s knee condition.
The Panel was not satisfied that the claimant sustained an injury to his right knee in the motor vehicle accident. Accordingly, any knee injury is a threshold injury.
Cervical spine
The claimant had a normal range of neck movements and normal reflexes, power and sensation. The examination showed no muscle atrophy. He did not have radiculopathy from the neck. Absent any signs of radiculopathy of the cervical spine is a threshold injury.
Lumbar spine
The claimant demonstrated a slight loss of flexion associated with lower back pain. A neurological examination was conducted and normal tendon reflexes, power and sensation were noted. There was no sign of atrophy. Straight leg raising was normal. There was no sciatic nerve root tension. The claimant showed generally good spinal alignment and posture. It is noted that absent any signs of radiculopathy of the lumbar spine injury is a threshold injury.
Noting the above, the Panel has determined that the injuries referred to it ought to be considered a threshold injury.
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