Raymond v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 178
•22 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Raymond v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 178 |
| CLAIMANT: | Simone Raymond |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 22 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant was driving a car and wearing a seatbelt when she was rear-ended by another car; on review, the Panel found that the injuries to the claimant’s cervical spine are soft tissue injuries caused by the motor accident and are threshold injuries; the injuries to the right knee, tear of the medial meniscus, are non-threshold injuries; there is no evidence that that the meniscal tear pre-existed the motor vehicle accident; there is a definite history of injury and ongoing symptoms; the Panel found that the meniscal tear was either caused or exacerbated and become symptomatic as a result of the motor vehicle accident; Held – original medical certificate regarding threshold injuries caused by the motor accident to claimant’s cervical spine and right knee revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Christopher Harrington dated (a) the following injuries caused by the motor accident are threshold injuries (formerly minor injuries): • cervical spine – soft tissue injury, and (b) the following injuries caused by the motor accident are non-threshold injuries: • right knee – tear of the medial meniscus. |
STATEMENT OF REASONS
INTRODUCTION
On 3 February 2022, Ms Simone Raymond (the claimant) was driving a Honda Jazz car with her son as a passenger. She had her seatbelt on. Her car was stopped and waiting to turn right when another car hit the back of her car. The airbags in her car did not deploy. After the accident her car was towed away and written off by her insurer.
After the accident the claimant did not attend hospital but went home and saw her general practitioner (GP) six days later. Her first consultation with her GP was on 9 February 2022.[1]
[1] Claimant’s bundle pp 6-7.
The claimant made an Application for Personal Injury Benefits dated 21 February 2022.
The reported injuries included: neck pain, headaches, right arm and right knee.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Ms Raymond under the Motor Accident Injuries Act 2017 (MAI Act).
By letters dated 3 March and 10 November 2022 insurer wrote the claimant accepting liability for the payment of statutory benefits for 26 weeks and after 26 weeks from the date of the motor accident.[2]
[2] Insurer’s bundle pp 18-19.
On 8 February 2023 insurer wrote to the claimant declining the claim for statutory benefits after 26 weeks from the date of the motor accident.[3]
[3] Claimant’s bundle pp 13-14.
In an email dated 12 February 2023 the claimant sought an internal review of this decision. The insurer determined its internal review decision on 2 March 2023.[4] The outcome of the internal review was that the minor injury determination was confirmed.
[4] Claimant’s bundle pp 21-32.
The claimant sought a medical assessment of her right knee and cervical spinal injuries. The claimant was medically assessed by Medical Assessor Harrington on 24 May 2023 who issued a certificate dated 31 May 2023.[5]
[5] Claimant’s bundle pp 6-14.
Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “(e) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[6]
On 9 June 2023 the claimant’s solicitors filed an application with the Personal Injury Commission (Commission) seeking a Panel review of the certificate of Medical Assessor Harrington. The application stated that:
“If the Medical Assessor had accepted that the motor accident made a material contribution to the tear of the medial meniscus this should have lead to a finding that the right knee injury was a non-threshold injury given that the soft tissue injury definition in section 1.6 (2) of the Motor Accident Injuries Act excludes a partial tear or rupture of cartilage or menisci.”
This Panel has been constituted to review the certificate of Medical Assessor Harrington dated 31 May 2023.
ASSESSMENT UNDER REVIEW
[6] Section 7.20 of the MAI Act.
The dispute was initially referred to Medical Assessor Harrington who assessed the cervical spine and right knee. Medical Assessor Harrington issued an assessment certificate dated 31 May 2023. The Medical Assessor found cervical spine – “soft tissue injury” and right knee – “tear of medical meniscus” injuries were caused by the accident and are threshold injuries for the purposes of the MAI Act.
Medical Assessor Harrington medically examined the claimant on 24 May 2023. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
Medical Assessor Harrington’s diagnosis of the claimant’s neck is a whiplash soft tissue injury +/- aggravation of facet changes at C5/6. He wrote that the claimant has a tear of her medial meniscus which was most likely pre-existing but could’ve become symptomatic as a result of hitting the steering column when her car was rear-ended. Her symptoms are somewhat mechanical which would be consistent with the meniscus rather than an aggravation of underlying chondromalacia patella.
Medical Assessor Harrington found that the claimant’s injuries were threshold injuries. He wrote:
2.“Ms Raymond suffered a soft tissue injury to the neck which has left her with pain over the right strap muscles. In my opinion, this injury is responsible for the limitation when elevating her right shoulder, rather than localised shoulder pathology. The soft tissue injury meets the definition of a threshold injury. There are no neurological signs.
3.She has also suffered a threshold injury to the right knee. The tear of her medial meniscus was likely present before the subject injury, but could have extended or been aggravated when she hit the steering column.”
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Harrington was lodged on 9 June 2023 which is within 28 days of the date on which the certificate was made available to the parties.
The Panel notes that the claimant is seeking a review of the certificate Medical Assessor Harrington who issued an assessment certificate dated 31 May 2023. The Medical Assessor found cervical spine – “soft tissue injury” and right knee – “tear of medical meniscus” injuries were caused by the accident and are threshold injuries.
The claimant lodged an Application to Admit Late Documents Form dated 18 July 2023, seeking to lodge “claimant’s submissions in response to NRMA submissions” dated 18 July 2023. The claimant attaches a letter to the Insurer dated 18 July 2023 in which it seeks consent to the lodgement of the late documents. By a decision dated 25 July 2023 the presence delegate decided to admit the claimant’s submissions.
The Application to Admit Late Documents includes treating psychologist notes from Margaret Conaghan from the Hummingbird Centre and treating physiotherapy notes from Mr Elliott Meers from Kinetic physiotherapy. The bundle of late documents also includes further submissions responding to the insurer.[7]
[7] Claimant’s bundle pp 376-417
On 28 July 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that she accepted the submission that Medical Assessor failed to consider the question of whether the subject accident materially contributed to the extension or aggravation of the pre-existing tear of the medical meniscus.
The Panel also notes that applications have been made for a review of the certificate of Medical Assessor Wechsler dated 26 July 2023 and of the certificate of Medical Assessor Mason dated 12 September 2023. This current Panel is not considering or reviewing either of these two certificates. It is only concerned with a review of the certificate of Medical Assessor Harrington dated 31 May 2023.
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 new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[8] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[8] 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.[9]
[9] 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.[10]
[10] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued Directions to the parties dated 27 September 2023 directing that it intended to re-examine the claimant.
THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the 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.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
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 that is not a recognised psychiatric illness”.
Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) 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 MAI 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 threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 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.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
ASSESSING THE CAUSATION OF INJURIES
The difficult issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[11] his Honour Justice Wright stated at [35]:
[11] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
5.“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
7.6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
8.'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
9.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
10.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
11.This, therefore, involves a medical decision and a non-medical informed judgement.
12.6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.’”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[12] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cls 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
[12] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41].
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[13] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73. The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74. For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
[13] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].
EVIDENCE BEFORE THE REVIEW PANEL
Application for Personal Injury Benefits
The Application for Personal Injury Benefits dated 19 February 2022 the claimant describes her interests include: neck spasms to neck headaches leg with severe bruising and pain, pain in the knee, forearm pain and swelling.[14]
[14] Claimant’s bundle pp 81-85.
The claimant gives a detailed statement about the accident and her medical treatment which includes the following relevant passages:
“4. Immediately after the accident, I was sore all over. In particular, my right knee was immediately very painful after the accident where it had banged on the dashboard. My right forearm and head hit the steering wheel. I also remember experiencing right forearm and neck pain, my vision was blurred and I felt sore on my face and head. I was in a lot of shock. Arnold also sustained injuries in the accident including neck pain and dizziness.
5. Following the accident, the police, the fire brigade and the ambulance attended the scene and the ambulance officers gave me some Panadol. The police and the ambulance officers seemed to be concentrating on the other driver whose vehicle hit me. This driver was screaming very loudly and appeared very distressed. She was crying and hysterical….
10. I attended my first appointment with Dr Mozafari on 9 February 2022 and I told him about the accident. In particular, I remember complaining to him about pain and spasms in my neck, right knee, right forearm and right calf. I was also experiencing headaches with pain into my face and I was suffering from migraine headaches which restricted my sleeping.
11. Following the accident, I was only able to return to my work as a massage therapist on a sporadic basis usually working no more than 8 hours per week instead of 40 hours per week. This is chiefly because of the ongoing problems with my right knee and my neck and right shoulder which are both painful and stiff. I cannot stand on my feet for very long and this is essential to the work of a massage therapist. I experienced an ongoing and constant feel of nausea.
12. Dr Mozafari initially treated me by referral to physiotherapy and with painkillers. However my main problems with my right knee and neck did not resolve.
13. On 17 February 2022 I had an ultrasound on my right leg and I also had an x-ray performed on my right knee. I was advised that there was nothing untoward found in either of these studies but I continued to experience pain in my right knee with a constant sense of giving way and I experienced difficulty with walking.
14. On 21 February 2022, in light of ongoing right knee problems, Dr Mozafari gave me a referral to have an MRI scan performed on my right knee. A copy of this referral note is attached. I followed up this request for approval of the MRI scan when NRMA’s occupational therapist (Ingrid Banks) attended my home on 21 March 2022. I again followed up Ms Banks concerning this MRI approval on several more occasions but it was not until 20 May 2022 that the MRI scan on my right knee was finally approved. I did not wish to undergo the MRI scan without obtaining prior approval from NRMA because I was advised by ……[name redacted] …. that I could not have any treatment without NRMA approval.
15. I confirm that the MRI on my right knee took place on 21 June 2022. The scan was performed at John Hunter Radiology and it showed a horizontal cleavage plane tear of my right medial meniscus and an osteochondral injury to the right patella with early degenerative changes.
16. I also developed some pain in my left knee commencing in around May 2022. I can only think this left knee pain was caused because of the ongoing restrictions imposed by my right knee injury. I also began to develop pain in my lower back, hamstring as well as my left knee as a result of having to compensate for the injury to my right knee.
17. I consulted with Katrina Evans of Holistic Touch Physiotherapy of Merewether for physiotherapy treatment both for my neck and for my knees commencing from 21 March 2022 up to 26 August 2022. I was referred to her by Dr Mozafari on 9 February 2022 to treat the pain in my neck, right forearm, right knee and right calf.
18. Following this MRI scan, I was referred by Dr Mozafari on 18 July 2022 to an orthopaedic specialist being Dr Peter Berton of Kotara. Again, there was a delay with obtaining approval from NRMA. I eventually saw him on 30 August 2022 and I explained to him the problems that I was experiencing at that time which included pain and stiffness in my right knee with a constant sense of giving way. I note that in his report dated 30 August 2022, Dr Berton obtained the history that I did sustain a ‘significant injury’ to my right knee which has had a functional deterioration following the incident. Dr Berton referred me for alignment studies to look at the biomechanics and loading of my right knee and this was done on 8 September 2022. I went back to see Dr Berton on 20 October 2022. At that stage, he recommended a further MRI for my right knee which has yet to be approved and he also referred me to a different physiotherapist at Ethos Health who was located near my home.
19. I continue to experience severe pain in my right knee which swells and throbs at night. I also get pain on the inner side of my right thigh near the knee. I cannot walk as far as I could prior to the accident and I have difficulty negotiating stairs. I also avoid squatting and kneeling on my right knee and my right knee intermittently locks. I continue to experience a sensation of my right knee being on the verge of giving way. I struggle to remain on my feet for lengthy periods without significantly worsening my right knee pain.
20. In relation to my neck, the mainstay of the treatment has mainly been physiotherapy. I have not seen a specialist. The pain extends up to the right-hand side of my face and the right-hand side of my head and I also feel pain in my right shoulder. I continue to experience an audible click in the right shoulder when I abduct or rotate it. I did undergo an MRI scan on my cervical spine on 29 May 2022 and this showed disc bulges at C4/C5, C5/C6 and C6/C7. I experience headaches associated with neck pain and restricted movement to my neck/right shoulder.”
Police and ambulance reports
The NSW ambulance and police did attend at the motor accident but there were no ambulance or police reports included in the parties bundles of documents.
Hospital reports
There are no hospital notes related to the subject motor accident.
Treating medical evidence
Pre-accident treating records
There were limited medical records available for the claimant’s medical history prior to motor vehicle accident.
In bundles of documents the parties produced over 600 pages of clinical and treating medical records for the claimant prior to and after the subject motor vehicle accident. The Panel has reviewed all the treating medical records produced by both the claimant and the insurer.
The medical history given by the claimant prior to the subject motor accident is that she had no previous history of knee, shoulder or neck injuries or problems. The claimant denies having any other injuries and has never had any surgery.[15]
[15] Claimant’s bundle 575
Post-accident treating records
There are numerous Certificates of Capacity and clinical records available from the claimant’s treating GP) Dr Ehsan Mozafari from February 2022 until January 2023 after the accident. These notes are very comprehensive and contained detailed summaries of the claimant’s complaints about her right knee and right leg pain and a thorough summary of the testing and investigation conducted by Dr Mozafari.[16] There are also numerous Certificates of Capacity from Dr M covering February 2022 until January 2023.[17]
[16] Claimant’s bundle pp 31-77.
[17] Claimant’s bundle pp 143-208.
In Certificate of Capacity/Certificate of Fitness dated 22 July 2020 there is a note that
Mr El-Rifai was in a previous motor accident referred to as occurring in 2012.There are two reports from Dr Peter Berton, orthopaedic surgeon, dated 30 August and 2022.[18] In the first report Dr Berton writes that the claimant's post-accident injury symptoms involve her neck, shoulders and right knee. Dr Berton writes: “It would appear that a significant injury did take place at the time of the accident and that the claimant has had a functional deterioration following the incident.”
[18] Claimant’s bundle pp 83-88.
There are reports from Mr Liam Tutty exercise physiologist dated 9 and 23 June 2022 and 18 July 2022.[19] These report on the claimant’s injuries and exercise regime.
[19] Claimant’s bundle pp 103-112, and 119-121.
There is a report dated 30 November 2022 from Associate Professor Leon Kleinman who is an orthopaedic surgeon.[20] Professor Kleinman found a full range of movement in her right knee. Professor Kleinman opinion is that as a result of the motor accident the claimant sustained soft tissue injuries to her cervical spine, a soft tissue injury to her right shoulder and a dashboard injury to her right knee.[21]
[20] Claimant’s bundle pp 568-583.
[21] Claimant’s bundle p 578.
REVIEW OF THE RADIOLOGY
There are a number of X-rays, MRIs and CT scans reporting on the claimant’s cervical spine and knees.
There is an X-ray of the right knee dated 17 February 2022 performed by Dr Chris Allen. This shows bony alignment is normal. No evidence of fracture or dislocation. Joint spaces are well preserved.[22]
[22] Claimant’s bundle p 97.
There is an MRI scan of the cervical spine dated 29 May 2022 by Dr Liam Shun. This shows that vertebral body heights are maintained. There is no evidence of previous fracture. There is normal alignment. The cord is normal signal at all levels.[23]
[23] Claimant’s bundle p 100.
There is an MRI scan of the claimant's right knee dated 21 June 2022 from Dr Bateman.[24] The comments from this report are that there is a horizontal cleavage plain tear of the medial meniscus. Probable previous osteochondral injury to the posterior patella with early degenerative changes.
[24] Claimant’s bundle p 95.
There is a report from Dr John Korber radiologist dated 7 September 2022.[25] Dr Korber's report makes it clear that he was not briefed with the mechanism of injury. Dr Korber comments on the MRI dated 21 June 2022 as follows:
[25] Claimant’s bundle pp 123-128.
19.“MRI scans of the right knee demonstrated intact cruciate ligaments. In the patellofemoral joint there is cystic change in the patella with associated marrow oedema around an overlying 2.5 mm cartilage defect. The ACL and the patella tendon are intact. There is no significant joint effusion. ACL and PCL are intact. The lateral meniscus is intact. There is a horizontal cleavage tear in the medial meniscus which extends to the under surface. The MCL and PCL are intact. No other abnormality is seen. There is significant adipose tissue medially suggesting that the claimant is heavy.”
Dr Korber then writes in his summary that:
20.“It is accepted that horizontal cleavage tears are a degenerative finding. As to the patella changes, the imaging is performed some four and a half months after the accident. This has demonstrated cystic change in the patella with associated oedema that would have preceded the injury. These changes are degenerative and take some time to occur. Chondromalacia is an accompanying feature of these changes. On the balance of probabilities this is also degenerative, being associated with the nearby cystic bone disease. The decision would also rely heavily on the mechanism of injury which has not been outlined. If the cartilage defect in the patella were due to injury I would have expected a direct impact of the knee cap and immediate anterior knee pain, and a more contemporaneous presentation. The mechanism of injury has not been outlined. I have not seen any contemporaneous history from either GP or ED record.”
SUBMISSIONS
Claimant’s submissions
The claimant’s solicitors provided written submissions dated 9 June 2023, 13 July 2023 and 27 March 2023.[26]
[26] Claimant’s bundle pp 2-6 and pp 5-9.
In submissions dated 9 June 2023 the claimant submits that Medical Assessor Harrington applied the wrong test of causation to the claimant's right knee injury. Because he applied the incorrect test of causation, Medical Assessor Harrington has come to the erroneous conclusion that the claimant's right knee injury is a threshold injury. Medical Assessor Harrington accepts the claimant suffered from a tear of her right medial meniscus but he says the tear was likely to be pre-existing he doesn't accept the premise that the mechanism of the accident may have caused the claimant’s knee to hit the steering column which could have extended or aggravated the tear of the medial meniscus.
The common law test of causation in such a case doesn't require that the accident be a direct cause of the tear only that the accident made a material contribution to the tear. The insurer relied upon Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J and AAI Ltd t as AAMI v Ahmed [2023] NSWPICMP 126.
Overall the claimant contends that Medical Assessor Harrington failed to expose his path of reasoning as to why the extensional aggravation of the medial meniscal tear likely to be caused by the motor accident is not sufficient to amount to a material contribution to the claimant's knee presentation.
There are no submissions made about the cervical spine in the submissions dated 9 June 2023.
In submissions dated 13 July 2023 the claimant's solicitors emphasise that the question of whether there may have been a pre-existing tear of the medial meniscus is not the end of the enquiry that should be made. Medical Assessor Harrington should have determined on the balance of probabilities whether the accident caused an extension or aggravation of a tear of the medial meniscus even if he was right in contending that the tear was likely present before the subject accident. If he had made this determination then the claimant submits he would have inevitably come to the correct legal conclusion that the motor accident materially contributed to the medial meniscus tear.[27]
[27] Claimant’s bundle pp 412-415 .
The earlier submissions dated 27 March 2023 deal with the right knee injury, the right eye injury, psychiatric injury and the neck injury. In relation to the claimant's neck injury the claimant refers to the CT scan performed on 29 May 2022. This shows disc bulges at multiple levels of the cervical spine. The claimant continued to suffer from significant pain and restriction in movement of the neck referred to the right shoulder. Whether this amounts to radiculopathy as required by the regulations is a matter for medical assessment.
The claimant relies upon the two reports of Dr Peter Berton dated 30 August and 20 October 2022. These reports refer to the claimant’s right knee hitting the vehicles steering column and suffering injury and swelling. The claimant's submission is that one or both of the pathologies shown on the MRI scan of 21 June 2022 have been materially contributed to by the accident some 4.5 months earlier. If it is accepted that the horizontal cleavage tear of the meniscus has been materially contributed to or aggravated by the accident and the definition of soft tissue injury at s 1.6(2) is no longer satisfied given that there is a complete or partial rupture of cartilage.
The claimant submissions refer to Dr Korber's report which shows damage to both the cartilage and underlying bone. This is a non-minor injury the injury to the bone does not need to be solely caused or even substantially caused by the accident. The claimant merely needs to show that the accident has contributed to the knee problem in a way that is more than negligible.
Insurer’s submissions
The insurer has provided written submissions dated 28 June 2023 and 18 April 2023.[28]
[28] Insurer’s bundle pp 2-3 and pp 6-11.
The insurer’s solicitors disagree that there is material error.
The insurer submits that it is evident that the Medical Assessor has applied the correct test of causation when assessing the right knee injury.
The insurer submits that there is no radiological evidence to suggest the pre-existing tear has been extended as a result of the subject accident and it is clear by the Medical Assessor’s summation of the radiological evidence, that he has viewed and considered this information when assessing causation.
The insurer submits that Medical Assessor Harrington determined there was a pre-existing injury in the form of torn medial meniscus which was asymptomatic according to the claimant. The subject accident then produced symptoms arising from the right knee, however the subject accident was not the cause of the tear, nor is there any evidence to suggest the subject accident extended the tear. Simply put, there is no evidence to suggest the subject accident caused any internal derangement of the knee. The Medical Assessor concluded as the symptoms are somewhat mechanical in nature, he would consider this more in line with a meniscus injury, which falls under the definition as a soft tissue injury and thereby a threshold injury.
In the submissions dated 18 April 2023 there the insurer submits there is no evidence that Ms Raymond sustained a fracture, an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci, or cartilage as a result of the subject accident. It also submits that Ms Raymond’s injuries do not satisfy the criterion of radiculopathy as set out by clause 5.8 of the Guidelines. Despite the persistence of symptoms, there is no evidence from the clinical examination from the treating providers that satisfies the diagnosis of radiculopathy as defined within the Guidelines.[29]
[29] Insurer’s bundle pp 6-11.
MEDICAL EXAMINATION
Details of who attended the assessment
Ms Raymond attended the Commission rooms on 1 November 2023 for re-examination by Medical Assessor Rosenthal. She was accompanied by her son, Arnold.
HISTORY
Ms Raymond confirmed the circumstances of the subject accident which occurred on 3 February 2022. She confirmed that she was the driver of a Honda Jazz with her seatbelt on. She was stopped waiting to turn right when a vehicle collided with the rear of her vehicle. No airbags in the vehicle went off. Police and ambulance did attend but she was not taken away by ambulance. Her car was towed away.
She went home following the accident but it was during the COVID shutdown and it was difficult to get a booking with her GP. She had to wait several days before she was able to see her GP. She said she had neck and right arm pain as well as right knee pain. Her right knee, she said, struck the dashboard in the collision. She found she had trouble walking on her right leg.
An X-ray was initially performed on her knee which found no abnormality. She was sent for physiotherapy and then also had exercise physiology.
Her neck and her right knee continued to trouble her. Eventually, she had an MRI of the knee on 21 June 2022. The MRI was reported to show a horizontal cleavage plane tear of the medial meniscus. Degenerative changes were also noted within the right knee.
She was referred to Dr Peter Berton, an orthopaedic surgeon. He ordered further CT scans of both knees. The left knee had become symptomatic as she was compensating and putting most of her weight on the left leg because of right knee pain.
Eventually, further treatment was declined by NRMA. They refused to fund further reviews by Dr Berton. Physiotherapy and exercise physiology was stopped. A dispute occurred and her injuries to the cervical spine and right knee were referred to Medical Assessor Christopher Harrington who found that both injuries were threshold injuries for the purposes of the MAI Act.
PAST HISTORY
She reports no pre-existing right knee symptoms. Her knee was perfectly fine prior to the accident. She did not ever recall having any treatment or X-rays on her right knee. She also reported no previous neck conditions. She did develop migraine after the accident and saw a neurologist who has put her on Endep for migraine control.
CURRENT SYMPTOMS
She has constant pain in her right knee when walking. It is clicking. She has trouble going up and down stairs.
She has had to reduce her workload as a massage therapist because she said she has to continue working for financial reasons. She is standing and stooping over her clients working 7.5 hours per day in a clinic. At the end of the working day her right knee becomes quite painful.
She continues also to have constant neck pain with various sensory issues and changes occurring in the left arm. She reports pain down her right arm and tingling in the fingers. Apparently, she had an MRI of her cervical spine which showed degenerative facet changes at C5/6.
CURRENT TREATMENT
She is having physiotherapy self-funded which she attends intermittently. The physiotherapist works on both her neck and her right knee.
She uses Voltaren cream and ice on her knee. She takes Panadol and also Endep.
Sitting is generally OK but standing and walking for long periods are restricted.
SOCIAL HISTORY
She lives in a Newcastle suburb. She is a sole parent with children. She does minimal household duties but she can manage some cleaning. Her mother comes and helps. She gets assistance with her garden. She is driving OK. She avoids major shopping and does ‘click and collect’ as prolonged walking in shops becomes more painful for her knee.
PHYSICAL EXAMINATION
On examination, she appeared to walk with a normal gait and posture. She was in no significant distress.
She weighed 87.8kg and was 163cm tall.
Examination of her leg revealed some slight wasting in the right thigh which measured 48.5cm on the right compared to 49.5cm on the left. There was restricted knee flexion but no swelling. There was inferior patellar tenderness and clicking, a marginally positive McMurray’s test. Ligaments were intact and alignment was normal.
Range of motion at the right knee was 0° extension to 100° of flexion.
At the left knee there was 0° extension to 120° of flexion.
A retropatellar click was evident in both knees.
She was unable to perform a squat but could walk on her heels and toes.
At the neck, she had a full range of movement.
There was a full range of movement at both shoulders.
There were no neurological deficits in the upper limbs. Muscle power, tone and reflexes were normal and there were no sensory changes. There was no evidence of clinical radiculopathy.
INVESTIGATIONS
The MRI of the knee was presented on disc and was viewed at the Commission rooms. I agree with the radiology report that there is a horizontal tear of the medial meniscus. There are other changes of a degenerative nature within the radiology.
DIAGNOSIS, CAUSATION AND SUMMARY OF THE PANEL’S OPINION
In the motor vehicle crash on 3 February 2022 Ms Raymond sustained a number of injuries caused by the accident.
Right knee – tear of the medial meniscus
The Panel accepts that Ms Raymond sustained a non-threshold injury to her right knee as a result of the accident. The claimant’s right knee was injured in the subject motor vehicle accident with the right knee hitting the dashboard. Her right knee symptoms presented immediately and were investigated. The radiology confirms a horizontal tear of the medial meniscus. The Panel notes varying medical opinions it has referred to above as to whether or not this tear is degenerative and whether it has extended.
At the re-examination of both knees the Panel found her leg revealed some slight wasting in the right thigh which measured 48.5cm on the right compared to 49.5cm on the left. There was restricted knee flexion but no swelling. There was inferior patellar tenderness and clicking, a marginally positive McMurray’s test. Ligaments were intact and alignment was normal. Range of motion at the right knee was 0° extension to 100° of flexion. At the left knee there was 0° extension to 120° of flexion.
There is no evidence that that the meniscal tear pre-existed the motor vehicle accident. There is a definite history of injury and ongoing symptoms. It is the Panel’s view that the meniscal tear was either caused or extended to become symptomatic as a result of the motor vehicle accident. For this reason, the right knee tear of the medial meniscus would be considered as a non-threshold injury on the balance of probabilities.
In reaching its conclusions about the causation of the claimant’s right knee injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is satisfied that the subject motor vehicle accident materially contributed to the claimant’s right knee injury or caused or exacerbated any such injury.
Accordingly the Panel finds that Ms Raymond sustained a non-threshold injury to her right knee caused by the motor accident.
Cervical spine – soft tissue injury
The Panel accepts that Ms Raymond sustained soft tissue threshold injury to her cervical spine as a result of the accident. The claimant had a MRI scan of the cervical spine on 29 May 2022. This showed that vertebral body heights are maintained. There is no evidence of previous fracture. There is normal alignment. At the re-examination the Panel found no dysmetria, muscle spasm, or guarding in the neck. The claimant had a full range of movement at her cervical spine. There was a full range of movement at both shoulders. There were no neurological deficits in the upper limbs. Muscle power, tone and reflexes were normal and there were no sensory changes. There was no evidence of clinical radiculopathy. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment for his cervical spine was that it was a soft tissue injury.
CONCLUSION AND CERTIFICATION
The Panel’s opinion is that the accident caused injuries to the claimant’s cervical spine and to her right knee.
For the above reasons the Panel revokes the certificate of Medical Assessor Harrington dated 31 May 2023 and issues a replacement certificate determining that:
(a) the following injuries caused by the motor accident are threshold injuries (formerly minor injuries):
•cervical spine – soft tissue injury, and
(b) the following injuries caused by the motor accident are non-threshold injuries:
•right knee – tear of the medial meniscus.
The new certificate for treatment and care is attached at the commencement of these reasons.
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