Roberts v QBE Insurance (Australia) Ltd
[2025] NSWPICMP 456
•26 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Roberts v QBE Insurance (Australia) Ltd [2025] NSWPICMP 456 |
CLAIMANT: | Roberts |
INSURER: | QBE Insurance (Australia) Ltd (QBE) |
REVIEW PANEL | |
MEMBER: | Terrence Stern OAM |
MEDICAL ASSESSOR: | Dr Sophia Lahz |
MEDICAL ASSESSOR: | Dr Margaret Gibson |
DATE OF DECISION: | 26 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) determined the claimant’s whole person impairment (WPI) as a result of the accident was 19%; insurer made an application under section 7.26 for referral of assessment to the Review Panel; the Review Panel conducted its own examination and found that WPI as a result of injuries sustained in the accident totalled 3%; Held – MAC revoked; Review Panel substituted a 3% WPI as a result of the accident. |
DETERMINATIONS MADE: | 1. The Review Panel revokes the certificate of Medical Assessor James Bodel of 30 September 2024 and substitutes the determination that the following injuries were caused by the accident and give rise to a whole person impairment (WPI) of 3%, being less than 10% (Table 64, page 85 of AMA 4 Guides): · right knee – mild anterior cruciate ligament laxity, and · left knee – soft tissue injury giving rise to 0% WPI. 2. The Review Panel revokes the certificate of Medical Assessor James Bodel of 30 September 2024 and substitutes the determination that the following injuries were not caused by the accident: · cervical spine – soft tissue injury with radiculopathy into the upper limbs; · lumbar spine – soft tissue injury with radiculopathy into the lower limbs; · injury to right shoulder – soft tissue injury/ referred pain from the cervical spine; · injury to left shoulder – soft tissue injury/ referred pain from the cervical spine; · injury to right knee – medial meniscus – undisplaced intrasubstance tear at the posterior from, and associated cartilage ulceration, and undulation of the subchondral plate, a tear of the anterior cruciate ligament, and a joint effusion of tended sheath of the popliteus sheath; · injury to left knee – significant cartilage loss as the medial femoral condyle has grade 3 chondromalacia with undulation of the subchondral plate and cartilage ulceration. There is a located effusion within the popliteus tendon sheath and a mild soft tissue oedema overlying the patella and the patellar tendon; · injury to right hip – soft tissue injury due to referred pain from the knees and lower back; · injury to left hip – soft tissue injury due to referred pain from the knees and lower back; · injury to right leg – soft tissue injury due to referred pain from the hips and knees, and · injury to left leg – soft tissue injury due to referred pain from the hips and knees. |
STATEMENT OF REASONS
INTRODUCTION
Background
On 29 January 2021 the claimant, David Roberts (Mr Roberts), was injured in a motor vehicle accident (the accident).
A medical dispute about the degree of Mr Roberts’ whole person impairment (WPI) has arisen in connection with that claim and that dispute was referred to the Personal Injury Commission (the Commission) for assessment.
On 30 September 2024, Medical Assessor James Bodel determined Mr Roberts had a 19% WPI.
Medical dispute
A medical dispute about the degree of Mr Roberts’ WPI has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the Motor Accidents Injuries Act 2017 (MAI Act).
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Commission and the Commission assigned it to Medical Assessor Bodel for assessment.
On 30 July 2024, Medical Assessor Bodel assessed Mr Roberts and on 30 September 2024, certified that the injuries to his cervical spine, lumbar spine, right shoulder, left shoulder, right knee, and left knee gave rise to WPI greater than 10%, being 19%.
LEGISLATIVE FRAMEWORK
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘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:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
ASSESSMENT UNDER REVIEW
Medical Assessor Bodel examined Mr Roberts on 30 July 2024 and issued his certificate on 30 September 2024. The Review Panel (Panel) sets out his report below.
At [2] of his certificate, Medical Assessor Bodel set out the injuries that were referred to him for assessment:
“[2] • Cervical spine – Soft tissue injury with radiculopathy into the upper limbs.
• Lumbar spine - Soft tissue injury with radiculopathy into the lower limbs.
• Injury to right shoulder - soft tissue injury/ referred pain from the cervical spine.
• Injury to left shoulder - Soft tissue injury/ referred pain from the cervical spine.
• Injury to right hip - soft tissue injury due to referred pain from the knees and lower back.
• Injury to left hip - soft tissue injury due to referred pain from the knees and lower back.
• Injury to right knee - medial meniscus demonstrates an undisplaced intra-substance tear at the posterior horn, an associated cartilage ulceration, an undulation of the subchondral plate, a tear of the anterior cruciate ligament and a joint effusion of tendon sheath of the popliteus sheath.
• Injury to left knee - significant cartilage loss as the medial femoral condyle has grade 3 chondromalacia with undulation of the subchondral plate and cartilage ulceration. There is a located effusion within the popliteus tendon sheath and a mild soft tissue oedema overlying the patella and the patellar tendon.
• Injury to right leg - soft tissue injury due to referred pain from the hips and knees.
• Injury to left leg - soft tissue injury due to referred pain from the hips and knees”
At [3]-[4] of his certificate, Medical Assessor Bodel considered the submissions made by the parties.
At [5]-[6], Medical Assessor Bodel lists the documents he had available and considered in his certificate:
“[5] The documents provided in the Application and Reply:
[6] • Medical records from Ropes Crossing Medical Centre.
• Medical records from the Penrith Mall Medical Centre.
• Letter serving these from Sparke Helmore.”
Medical Assessor Bodel took a pre-accident history of the accident at [8]:
“[8] At the time of this motor vehicle accident, Mr Roberts was in receipt of the Disability Support Pension. He has had previous spinal fusion between C2 and C7 done by Dr Andrew Cam, which was a work-related matter many years ago when he was working for Winnebago. He did labouring work at Hot Max tool store for about 6-7 years until he was made redundant and then went onto the Disability Support Pension. He is taking medication for hypertension. He has been on painkilling medication for many years because of the neck injury. He has also been heavily dependent on alcohol and has had neck and back pain, shoulder pain and knee pain intermittently over the years. He was relatively asymptomatic, at the time of the accident.”
Medical Assessor Bodel took a history of the accident at [9]:
“[9] Mr Roberts at the back of his car putting ‘bread rolls in the boot’ on 29 January 2021. He states that a car on the other side of the carpark drove in, and crushed him twice at the back of his car. Once the pressure was taken off, he collapsed. An ambulance was called and he was taken to Nepean Hospital.”
Medical Assessor Bodel set out the history of symptoms and treatment following the accident at [10]:
“[10] Mr Roberts suffered injuries to the neck, shoulders, back and the knees, and was observed for 4-5 hours at Nepean Hospital and then discharged home. He indicated that most of the pathology was down the left side of his body more than the right. He later came under the care of his GP. He was given analgesic and anti-inflammatory medication, and he was sent to have MRI scans of the knees, showing pathology in both knees and some degenerative change. Personal Injury Commission ‖ Sensitive – Personal and Health Information 5 He came under the care of Dr Warren Kuo, an orthopaedic surgeon, and he had both knees arthroscoped on two occasions. He had injections of cortisone to the right knee, all of which was of minimal benefit. Physiotherapy does help. He continues to have pain and stiffness in the knees and the knees give way on him, particularly the right knee.”
Medical Assessor Bodel listed Mr Roberts’ current symptoms at [12]:
“[12] • He has pain in the neck.
• He has pain in the back.
• He has pain in both shoulders.
•He has pain in both knees, the right side much worse than the left.”
Medical Assessor Bodel listed Mr Roberts’ current and proposed treatment at [13]:
“[13] • He is taking Panadol Osteo.
• He takes between 6-8 Panadol a day.
• He uses Voltaren gel.
• He is doing some exercises.”
Medical Assessor Bodel then set out his clinical examination at [14]-[19]:
“[14] Mr Roberts is 63 years of age. He is uncomfortable throughout the interview and he rises very slowly. He walks with a broad-based gait pattern and when he stands, he cannot fully extend the knees. There is, however, no leg length inequality.
[15] Mr Roberts has had a previous spinal fusion from C2 or C3 to C7. This is an old injury and unrelated to the accident. On clinical observation, he has a slight restriction of neck flexion, extension and rotation in all directions but this is symmetrical throughout. There is no clinical sign of dysmetria. There are no signs of neurological abnormality in the upper limbs. There is no reflex abnormality or sensory impairment in a dermatomal distribution, and no evidence of guarding or muscle wasting. The reflexes are present and equal.
[16] There is a good range of lateral bending and rotation of the thoracic spine. There is no dysmetria and no restriction of chest wall movement.
[17] There is asymmetry of back movement and guarding on the left side. There is dysmetria with 50% of the expected range of lateral bending to the left and 80% of the expected range of lateral bending to the right. This is consistent with the definition of dysmetria in Table 6.8 on Page 106 of the Motor Accident Authority Guidelines. There is no impairment of straight leg raising. The reflexes are present and equal. There is no neurological abnormality in the lower limbs. There are no clinical signs of radiculopathy.
[18] There is a restricted range of shoulder movement in both shoulders as recorded in the table below:
Shoulder movements
Active ROM measured RIGHT
Active ROM measured LEFT
Flexion
160°
160°
Extension
40°
40°
Adduction
20°
20°
Abduction
140°
140°
Internal rotation
70°
70°
External rotation
70°
70°
There is no restriction of elbow, wrist or hand movement in the upper limbs and grip strength is normal. There is no sign of radiculopathy.
[19] There is no leg length inequality. There is a full range of hip movement, and a full range of ankle and subtalar movement. He has a restricted range of movement in the knees.
Knee Movements
Active ROM measured RIGHT
Active ROM measured LEFT
Flexion
100°
120°
Extension
-5°
-5°
The ligaments are stable on both knees. There is mild medial joint line tenderness. There is a very mild anterior cruciate ligament laxity in the region of the right knee, but there is a firm end point and this is only a very mild laxity.”
As to diagnosis and reasons, Medical Assessor Bodel set out his findings at [23]:
“[23] Mr Roberts has suffered a tear of the medial meniscus and ACL rupture of the right knee, and soft tissue aggravation of previously asymptomatic degenerative change in both knees. He has suffered a soft tissue musculoligamentous injury to the lower part of the back and he has suffered rotator cuff pathology in both shoulders, and a soft tissue injury to the neck aggravating a long-standing previous spinal fusion. He has stiffness in the neck but it is symmetrical throughout and there is no asymmetry of neck movement. He has asymmetry of back movement and dysmetria.”
Medical Assessor Bodel was of the opinion at [24] that Mr Roberts had a soft tissue injury to his neck and back, rotator cuff pathology in both shoulders, a meniscal tear and a rupture of the anterior cruciate ligament (ACL) in the right knee as well as a contusion to the left knee, all caused by the accident, noting that Mr Roberts was asymptomatic in those areas prior to the accident.
At [25]-[26], Medical Assessor Bodel sets out his opinion on causation, finding that all the injuries referred by the parties were caused by the accident except for the soft tissue injuries to the right and left hips, which were due to referred pain from the knees and lower back, and the injuries to the left and right legs, which were soft tissue injuries due to referred pain from the hips and knees.
SUBMISSIONS
Submissions of the insurer dated 28 October 2024
The Panel summarises the submissions of QBE of 28 October 2024 by reference to paragraph numbers below:
[1.1] Mr Roberts is a 63-year-old male who alleges injuries from a motor accident on 29 January 2021.
[1.2] QBE submits that Mr Roberts lodged a claim for common law damages, including non-economic loss.
[1.6] Medical Assessor Bodel issued a certificate on 30 September 2024 finding:
(a)injuries to the cervical/lumbar spine, shoulders, and knees were caused by the accident;
(b)19% WPI, and
(c)injuries to the hips and legs were not caused by the accident.
[2.1] Mr Roberts’ psychological injuries were assessed separately by Medical Assessor Walsh.
[2.2] Medical Assessor Gerard Walsh issued a certificate on 31 July 2024 which found Mr Roberts had post-traumatic stress disorder from the accident, but it was not stable for WPI assessment.
[2.3] QBE lodged a review application on 22 August 2024 and the parties await the Delegate’s decision.
[3.1] QBE sets out s7.26 of the MAI Act.
[3.3] QBE refers to Meeuwissen v Boden (2010) 78 NSWLR 143 and highlights the key principles:
(a)the medical assessment itself must be incorrect;
(b)“material respect” need not mean outcome-altering alone;
(c)only reasonable suspicion of error is required, and
(d)the power to refer is mandatory once that threshold is met.
[3.5] QBE submits that the assessment contains material error, justifying referral to a panel.
[3.6] QBE reiterates the President need only reasonably suspect the assessment contains material error under Meeuwissen.
[3.7] QBE submits the Medical Assessor erred by:
(a)failing to engage with QBE’s arguments;
(b)failing to apply Guidelines on causation, apportionment, inconsistency;
(c)failing to consider all evidence;
(d)failing to provide a clear reasoning path, and
(e)failing to give adequate reasons.
[3.8] QBE submits that proper application of the evidence would have led to findings that injuries were pre-existing and subject to apportionment.
[3.9] QBE submits that WPI would not exceed 10% absent those errors.
[4.1] QBE submits the Medical Assessor failed to adequately consider evidence contradicting Mr Roberts’ history and causation findings.
[4.2] QBE cites cl 6.31 of the Guidelines requiring deduction for pre-existing impairment.
[4.3] QBE submits the Medical Assessor overlooked inaccurate history and ignored insurer’s warnings in submissions.
[4.4] QBE submits the certificate and evidence show a clear pre-accident cervical history not fully acknowledged.
[4.5] QBE submits the Medical Assessor contradicted his own findings by stating Mr Roberts had prior fusion and chronic pain, then accepting he was “relatively asymptomatic.”
[4.6] QBE submits this is inconsistent with documented complaints in 2015, 2017, and 13 January 2021.
[4.7] QBE submits the Medical Assessor failed to reference pre-accident general practitioner (GP) records, raising suspicion that they were not reviewed.
[4.8] QBE submits this omission directly impacted causation findings and was material.
[4.9] QBE submits the Medical Assessor ignored the absence of early post-accident complaints, which undermines causation and procedural fairness.
[4.10] QBE submits that the accident mechanism was not capable of causing upper body injuries, a point unaddressed.
[4.11] QBE submits that shoulder injuries were incorrectly attributed to the accident based on reduced range of motion alone.
[4.12] QBE submits the Medical Assessor ignored evidence of a prior left shoulder work injury and pre-accident right shoulder complaints.
[4.13] QBE submits that the conclusion that all spine and shoulder injuries were accident-related rests solely on Mr Roberts being “asymptomatic,” which is not supported.
[4.14] QBE submits the Medical Assessor failed to apportion for pre-existing impairment.
[5.1] QBE submits that the Medical Assessor’s diagnosis and examination findings are contradictory.
[5.2] The Medical Assessor reports that “radiculopathy” was diagnosed, but clinical findings later confirmed there were “no signs of radiculopathy.”
[5.3] QBE submits the Medical Assessor noted diagnosis related estimate (DRE) I and II, which are inconsistent with a radiculopathy diagnosis (which requires at least DRE III).
[5.4] QBE notes the certificate still claimed “radiculopathy” into the upper and lower limbs.
[6.1] QBE refers to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480: reasons must explain the actual path of reasoning.
[6.2] QBE refers to Insurance Australia Group Ltd v Keen [2021] NSWSC 113: reasons must reflect the Medical Assessor’s own opinion but not be overly scrutinised.
[6.3] QBE refers to AAI Limited v Fitzpatrick [2015] NSWSC 1108: reasons must explain how each conclusion was reached.
[6.4] QBE submits the Medical Assessor’s path of reasoning is not apparent.
[6.5] QBE submits the reasoning is inadequate to show how arguments were addressed.
[6.6] QBE submits this amounts to denial of procedural fairness.
[6.7] QBE relies on Ropes Crossing records showing pre-accident symptoms that mirror those examined post-accident.
[6.8] QBE submits these symptoms show no material change post-accident.
[6.9] QBE acknowledges not every finding requires extensive reasons, but significant or disputed issues must be explained.
[6.10] QBE submits that medical controversies require fuller reasoning, per Fitzpatrick.
[6.11] QBE submits that the Medical Assessor’s failure to explain key conclusions is not trivial and could have altered the diagnosis.
[6.12] QBE submits that reasons enable parties to understand and assess the legal validity of a decision.
[6.13] QBE submits the certificate lacks reasoning on why post-accident symptoms differ from pre-accident ones.
[6.14] QBE submits that this is a denial of procedural fairness and creates reasonable suspicion of material error.
[6.15] QBE submits that inadequate reasoning suggests the Medical Assessor was not properly informed.
[6.16] QBE submits that the assessment outcome was not open on the evidence due to these errors.
[7.1] The Medical Assessor has a duty to comply with the Guidelines.
[7.2] QBE submits the Medical Assessor did not comply with cl 6.31 regarding pre-existing impairment.
[7.3] QBE submits the Medical Assessor also failed to comply with cl 6.41 regarding inconsistency.
[7.4] QBE cites cl 6.41: inconsistencies must be raised with the injured person to ensure fairness.
[7.5] QBE submits that the Medical Assessor incorrectly accepted that Mr Roberts was asymptomatic pre-accident.
[7.6] QBE submits this led to a failure to raise inconsistencies with Mr Roberts and skewed findings on causation and impairment.
[8.1] QBE submits the President must be satisfied that the errors, if corrected, would likely lead to a different outcome.
[8.2] QBE submits that had the evidence been properly reviewed, a substantially different determination would have been reached.
[8.3] QBE submits the errors are material and affected the assessment outcome.
Submissions of the claimant dated 18 November 2024
The Panel summarises the submissions of Mr Roberts of 18 November 2024 by reference to paragraph numbers below:
[1] Mr Roberts’ submissions respond to QBE's Review Application dated 28 October 2024.
[2] The assessment by Dr James Bodel dated 30 September 2024 concluded he sustained a WPI greater than 10% from the accident.
[3] Mr Roberts submits that QBE's application and supporting evidence do not meet the threshold under the MAI Act to warrant referral to a Review Panel, and the application should be dismissed.
[4] Mr Roberts submits the application should be dismissed on the basis that QBE has not discharged its onus of proving that:
(a) Dr Bodel failed to engage with QBE’s arguments;
(b) Dr Bodel misapplied the causation or impairment assessment process;
(c) Dr Bodel failed to apply the relevant Guidelines and law;
(d) Dr Bodel provided inconsistent reasons or failed to apply the test of consistency;
(e) Dr Bodel failed to provide adequate reasoning, or
(f) Dr Bodel failed to articulate a clear path of reasoning.
[5] In response to QBE’s submissions dated 23 October 2023:
(a)Mr Roberts submits that QBE has failed to establish any cause to suspect that the Certificate contains material error.
(b)Mr Roberts submits that paragraphs 2.1 to 2.3 are irrelevant and appear to show QBE's attempt to undermine multiple independent assessments that did not support its case.
(c)Mr Roberts submits that contrary to paragraphs 3.1 to 3.10, Dr Bodel complied with the procedures under cls 1.17 to 1.22 of the Permanent Impairment Guidelines.
(d)Mr Roberts submits that QBE's claim that Dr Bodel failed to engage with its arguments is baseless in light of his clear assessment and rejection of Dr Wallace's views.
(e)Mr Roberts submits that Dr Bodel demonstrably considered all arguments and made clear findings disagreeing with QBE's expert.
(f)Mr Roberts submits that the mere fact that Dr Bodel disagreed with Dr Wallace and Dr Breit does not establish a material error.
(g)Mr Roberts submits that QBE is inconsistent in its submissions, alternating between asserting pre-existing injuries and arguing for apportionment without supporting evidence.
(h)Mr Roberts submits there is no demonstrated error in the recording of symptoms or application of law or evidence.
(i)Mr Roberts submits QBE's allegations of inconsistency in DRE findings are without basis.
(j)Mr Roberts submits that Dr Bodel provided adequate reasoning and applied the appropriate legal and medical standards, supported by D'Ament v Allianz Australia Insurance Ltd [2018] NSWSC 1371.
(k)Mr Roberts submits QBE’s expectations of reasoning are unfounded in law.
(l)Mr Roberts refers to pages 6-12 of the certificate which provide detailed reasoning addressing and rejecting QBE's expert views.
(m)Mr Roberts submits that QBE has not demonstrated any breach of Guidelines or common law principles.
(n)Mr Roberts submits that QBE has not established any error capable of affecting the outcome.
(p)Mr Roberts submits that Dr Bodel:
(i) conducted a full assessment;
(ii) reviewed all provided material;
(iii) applied the AMA 4 and Guidelines;
(iv) explained his methods and findings;
(v) provided reasons consistent with the law;
(vi) followed proper methodology and reasoning;
(vii) acted in compliance with the applicable Guides;
(viii) made findings consistent with medical evidence;
(ix) made findings consistent with Mr Roberts' history;
(x) made no identifiable material errors;
(xi) gave comprehensive and adequate reasons, and
(xii) demonstrated his reasoning path.
[6] Mr Roberts submits that QBE has failed to show any material error in the assessment.
[7] Mr Roberts submits that QBE has failed to discharge the onus and the application must be dismissed.
[8] Mr Roberts refers to Meeuwissen v Boden (2010) 78 NSWLR 143 where Basten JA confirmed that what must be materially incorrect is the assessment process, not merely the outcome.
[9] Mr Roberts submits that as the Delegate cannot vary the outcome, the focus is on whether the process was materially flawed.
[10] Mr Roberts refers to Meeuwissen, noting it is the assessment that must be materially incorrect, not just the certificate.
[11] Mr Roberts submits that once the statutory threshold is met, referral is mandatory.
[12] Mr Roberts highlights that reasonable suspicion of error can arise from a mere state of unease.
[13] Mr Roberts refers to Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848, where Campbell J warned against evaluating individual arguments without considering cumulative impact.
[14] Mr Roberts notes that a state of unease may arise from reading reasons and the applicant’s criticisms together.
[15] Mr Roberts submits that QBE has not created such a state of unease.
[16] Mr Roberts relies on Dogon v Redmond & Ors [2010] NSWSC 1329 concerning the Proper Officer’s power under s 63 MACA.
[17] Mr Roberts submits that the Proper Officer must be satisfied there is reasonable cause to suspect a material error.
[18] Mr Roberts submits that QBE has not explained why such suspicion should arise.
[19] Mr Roberts submits that there is no evidence that Dr Bodel failed to consider the evidence or apply the correct criteria.
[21] Mr Roberts relies on Farache v Motor Accidents Authority of NSW & Ors [2011] NSWSC 446.
[23] Mr Roberts submits that in Farache, Dr Dixon failed to address causation and the ambulance records, warranting referral.
[24] Mr Roberts contrasts that with Dr Bodel, who properly addressed all relevant issues.
[25] Mr Roberts submits Dr Bodel complied with the Guidelines and AMA 4.
[27] Mr Roberts submits that QBE has not discharged the onus necessary to enliven the Delegate’s review power.
EVIDENCE BEFORE THE PANEL
Application for personal injury benefits form (26 April 2921)
The Application for personal injury benefits form dated 26 April 2021 by Mr Roberts states “I was at the rear of my vehicle placing shopping bag into the boot of my car. Suddenly, a ford collided with my legs” in regard to the description of the accident. Mr Roberts listed his injuries as “Injury to legs” and “Injury to knees”.
Ambulance report (29 January 2021)
The ambulance report of 29 January 2021 describes the accident and injuries:
“60 yo male pedestrian vs car o/a police on scene with pt sitting on chair on the footpath pt reports standing at the back of his car and was struck from behind by a vehicle that was parked behind him, with occupant stating her foot 'supped' on the accelerator pt reports ambulating onto footpath himself however, now unable to ambulate o/e nil head strike/ loc nil midline spinal tenderness on palpation nil obvious chest/abdo/pelvic injuries pt c/o r posterior knee pain nil abrasion / haematoma / deformity neurovascularly intact r foot improved with morphine admin no changes enroute”
Activities of Daily Living Assessment Report
The Activities of Daily Living Assessment Report dated 16 October 2023 noted that Mr Roberts has ongoing disability in all of the injured areas and that he required domestic assistance for heavy household maintenance and cleaning activities.
Discharge summary
The discharge summary from Nepean Hospital dated 29 January 2021 confirms that he presented with pain in the legs and he was observed for four to five hours and then discharged home.
CT scan of the right knee
The CT scan of the right knee dated 4 February 2021by Nepean Radiology notes:
“Spiral series have been acquired through the right knee joint with multiplanar and 30 reformations.
There is a small knee joint effusion extending into the suprapatellar recess. No evidence of a recent fracture. Mild degenerative disease involves all three knee joint compartments. There are no intra-articular bony bodies. No focal bone lesion.
The extensor mechanism, collateral ligaments and cruciate ligaments appear to be grossly intact. No abnormality within the popliteal fossa.
Mild degenerative disease associated with a small joint effusion. No evidence of a recent fracture. If internal knee joint derangement is suspected clinically then further assessment with an MRI examination is suggested.”
Report from Dr Wallace
The report of Dr Wallace, requested by QBE, notes the causation of the knee injuries to have been “caused by injuries sustained in the index motor vehicle accident of 29 January 2021 with a proportion being due to pre-existing degenerative osteoarthritis at the bilateral knees.” Answering questions by QBE, Dr Wallace states “Mr Roberts has suffered no assessable whole person impairment as a result of injuries sustained at his bilateral knees as a result of the index motor vehicle accident of 29 January 2021.”
RE-EXAMINATION BY THE PANEL
Medical Assessor Lahz and Medical Assessor Gibson jointly examined Mr Roberts on Monday 4 April 2025, the examination taking 90 minutes.
The Panel sets out the report below:
History
Mr Roberts said that due to bilateral knee pain, left more than right, he has a restricted driver’s licence with a six-kilometre radius. He stated that this restriction commenced after the accident.
Mr Roberts was in receipt of a Disability Support Pension for approximately five years before the accident although he was uncertain for which conditions.
The Panel noted that QBE referred to a right shoulder injury as being instrumental in his ceasing to work although Mr Roberts could not shed further light on this.
When asked about previous health, he reported initially to have been in good general health and without any specific musculoskeletal conditions. He mentioned that he suffers from an inherited skin condition (name not recalled) with recurrent skin breakdown/rash.
He said he had been living with a partner before the accident although she had died from the effects of alcoholism. He said that he too had been drinking heavily (the notes refer to four litres of wine daily) although he has since cut back and is now only taking three long neck beers daily.
It was put to Mr Roberts that the GP records referred to neck pain and he then volunteered that there had been a cervical fusion many years ago by Dr Kam after a work injury. He said the fusion had not been especially helpful, with long-standing intermittent neck soreness
3-4/10 over the left side into the shoulder and consistent limitation of neck turn towards the left (which is much worse since the accident). He said there were occasional neurological symptoms in the hands associated with vibration, such as whilst operating a lawn mower. General practitioner records on various dates intermittently refer to neck pain preceding the accident.It was also brought to his attention that there had been lower back investigations during 2019 and that he had then received lumbar facet joint injections. He mentioned that there had been a lifting injury at work (moving a steel ramp) when working with a roller. He said the lower back symptoms improved with treatment. There had then been some symptom radiation to the right leg reaching the posterior knee. He said there had been ongoing low back pain “on and off” 3-4/10 intensity before the accident.
There was also a fall on slippery marble in early 2019 with documented injuries of the right wrist, lumbar spine, cervical spine, right hip and knees. There was mention made in general practitioner records of bruising to the right knee. He did remember the fall.
It was also pointed out to Mr Roberts that records in early 2020 showed him to be on strong analgesia inclusive of Lyrica and Tapentadol and that on 13 January 2021 about eight days before the accident, the general practitioner in clinical records had referred to worsening neck and low back pain on Lyrica. He did not actually recall the specific consultation on 13 January 2021. He maintained overall that there had been manageable lower back and neck pain before the accident and he had been able to proceed with daily activities aside from paid work.
Mr Roberts could not recall any knee problems before the accident although it was brought to his attention that the general practitioner records indicate left knee pain with x-rays performed in April 2018. He could not remember this. (The records do not refer to the left knee subsequently.) The general practitioner records immediately preceding the accident only refer to neck and lower back complaints.
Mr Roberts said that both neck and lower back pain became much worse after the accident although he could not provide either a mechanism of injury from the accident nor a symptom trajectory/time of onset. He suggested that the neck may have been injured because his head went backwards in the accident with the second impact. It was put to him that the ambulance, hospital and GP records do not refer to any other injuries besides the right knee. Mr Roberts said in fact that it was the left knee he could not bear weight on immediately after the accident. He said that currently the left knee is significantly more symptomatic than the right knee and maintained that this had been the case since the accident. However, it was put to him that the contemporaneous medical records all refer to the right knee rather than the left. A CT of the right knee was done in early February 2021, just a few days after the accident.
Mr Roberts commented that QBE gave him no help after the accident despite severe pain in both knees. He received no physiotherapy and in fact, it was six months before he was permitted to consult with orthopaedic surgeon Dr Kuo regarding the knees. Dr Kuo’s notes in July 2021 indicate R>L knee pain, consistent with the hospital and GP records at the time of the accident.
The only thing Mr Roberts really seeks from this medicolegal process concerning the accident is to have his knees fixed so he can keep his house and garden neat and tidy.
Mr Roberts confirmed the accident occurring on 29 January 2021. He had been parked outside a bread shop and had just placed some bread rolls in the hatch of his vehicle, when he saw a fast-approaching car out of the corner of his eye. The car initially struck him on the right leg causing him to be squashed between two vehicles. The driver then panicked, reversed and placed the foot on the accelerator instead of the brake. He said he was then struck on the left side of the body. On specific enquiry, he said he did not fall to the ground although he nearly did.
Mr Roberts explained that the ambulance and police attended and he was then taken to Nepean Hospital. He said he was having difficulty weight bearing on the left leg although as noted above, this is contrary to the information in multiple clinical records indicating that the right knee was the main injury from the accident. He reported that he received a “needle” in the knee and after four hours he was permitted home.
The Medical Assessors specifically stated there was no other injury from the accident besides the right knee although he remained adamant that both knees had been injured, the right from the first impact and the left from the second impact. An X-ray of the right knee at hospital showed no fracture.
When asked about timing of left knee symptoms, he mentioned there had been several falls since the accident and it was possible that these had contributed to the left knee symptoms.
A CT scan of the right knee in early February 2021 showed mild tricompartmental osteoarthritis and small effusion without intra articular bodies.
He underwent bilateral knee MRI scans around the time of seeing Dr Kuo initially in July 2021. As noted Dr Kuo’s records refer to R>L knee pain with patellofemoral crepitus/positive grind test and normal range of right knee motion albeit with pain at end of range. His notes also refer to a right-sided grade 2 positive Lachman’s indicative of some anteroposterior instability of the right knee.
Dr Kuo reported that the left knee was stable although there was a left-sided positive McMurray’s (meniscal) test.
An MRI of the knees on 8 July 2021 showed right-sided posterior horn medial meniscal tear and ACL tear with soft tissue oedema at the patella. Grade 1-2 chondral changes were also noted at the right medial femoral condyle. At the left knee, there was chondral ulceration at the medial femoral condyle although the menisci were intact. There was reference to grade 3 medial compartment left knee osteoarthritis.
Dr Kuo recommended hydrotherapy with which Mr Roberts could not proceed due to a staphylococcal infection at the big toe. He still hasn’t had any hydrotherapy although now (several years later), he intends to try hydrotherapy for the knees.
In October 2021, medical records indicated that he was using a right knee brace and receiving physiotherapy. He also received a steroid injection to the right knee although he said that various steroid injections to either knee since the accident had not worked.
A left knee MRI on 21 December 2022 showed MFC (medial femoral condyle) grade II chondromalacia with ganglion cysts. There was normal patellofemoral cartilage and normal cruciate ligaments. Cartilage in the lateral compartment was normal.
In April 2023 he underwent left knee arthroscopy for lateral patellar debridement with grade II-III changes noted at medial femoral condyle and excision of the plica undertaken.
In October 2023 he received a left knee steroid injection.
In November 2023, he came to right knee arthroscopy for debridement of lateral trochlea. Grade I-II patellofemoral changes were noted.
Mr Roberts said that surgery has only provided mild benefits at the knees.
For the last five months he has been attending physiotherapy for the knees and doing a home exercise programme.
A left knee MRI 15 December 2023 showed chondral change at medial femoral condyle and medial tibial plateau bone bruising.
Dr Kuo has foreshadowed left total knee replacement being necessary with outcome of medicolegal proceedings awaited to determine if this can be funded. As noted, he will also trial hydrotherapy and play things by ear regarding the knees.
He can only walk around the block due to bilateral L>R knee pain 8/10 intensity at worst on the left and 6/10 on the right. He complains of pain over the medial and lateral aspects of both knees with pain anteriorly as well as posteriorly. The knees can sometimes give way and occasionally swell. There is no locking of the knees although he complains of clicking in both knees. Non-steroidal anti-inflammatory drugs can provide symptomatic relief.
He finds himself very limited around the house. If he mows the lawn, knee pain will have him laid up for three days afterwards. QBE has been intermittently funding lawn mowing and domestic cleaning services for him. As noted, physiotherapy is also being funded at the moment.
He has been using a walking stick in the right hand for security for the last three years.
He cannot move quickly and can neither kneel nor squat.
At the hips, he complains of intermittent clicking sensations which commenced around 3.5 years ago. There is no hip pain. He said that hip clicking is due to the motor accident because it had not been present beforehand.
There are no particular problems at the feet aside from tingling sensations which he ascribed to long-term heavy alcohol consumption. He does report an associated mild sense of imbalance.
At the neck there is frequent high neck pain ranging from 4-7/10 intensity, which spread to the left shoulder and occasionally the right shoulder. There are no upper limb neurological symptoms.
There has been right shoulder pain recently for which he received a steroid injection two months ago.
He does not report any particular problems currently at the shoulders aside from symptom radiation towards the left trapezius/shoulder girdle.
As noted, he could not provide any particular mechanism of injury to the shoulders in the motor accident.
There is no mid back pain.
He experiences mild intermittent non-radiating low backache which again he could not specifically relate to the subject motor accident.
His current medications are Lyrica, Panadol Osteo, Mobic, Nexium, Efexor and an antihypertensive medication, name not recalled.
Clinical examination
Cervical spine
There was normal neck posture associated with tenderness at C1-2, left-sided neck base and at the left trapezius. The posterior (old) surgical scar from cervical fusion was noted. There was no muscle spasm or guarding.
Neck flexion was preserved whereas extension was virtually nil. Lateral flexion was symmetrical to either side and minimal. With rotation, there was 1/3 leftward motion and 1/2 rightward motion. There was dysmetria in the flexion/extension and rotation planes.
Upper limbs and shoulders
There were no neurological abnormalities in the upper limbs with respect to atrophy, sensation, power or neural tension signs. The dominant right arm measured 31cm versus left arm 32cm. The forearms were symmetrical at 29 cm. Upper limb reflexes were symmetrical and brisk.
There was no wasting about the shoulder girdles.
He was asked to make best efforts with all requested movements.
Active range of motion at the shoulders is shown in the following table:
Right
Left
Abduction
90 90 90
110 110 110
Adduction
70
70
Flexion
120, 105, 30
125, 110 130
Extension
50
55
Internal rotation
90
90
External rotation
70
80
With shoulder movements, he complained of uncomfortable tightness enveloping the shoulder girdles, upper lateral chest wall and axillae.
Impingement tests at the shoulders were bilaterally negative.
Thoracic spine
There were no abnormalities on thoracic spine examination with respect to range of motion, muscle spasm, guarding or radiculopathy. There was also no dysmetria.
Lumbar spine
At the lumbar spine, there was 1/2 normal range of flexion and extension, and symmetrical lateral flexion to either side 3/4 normal range. Rotation was 1/2 normal to either side. There was marked lumbar lordosis without muscle spasm or guarding.
Lower limbs
Lower limb neural tension (SLR) signs were bilaterally negative. The thighs measured symmetrically and calves also symmetrically 38cm. Knee and ankle jerks were brisk and symmetrical. There was normal lower limb sensation despite subjective complaints of tingling in the feet. There was normal lower limb power in all groups.
Hips
The hips moved actively as follows:
Right
Left
Flexion
110
110
Extension
0
0
IR
40
30
ER
35
20
Abduction
40
35
Adduction
50
30
Knees
The knees were in neutral alignment and there was normal knee range of motion being
0-125 degrees on the right and 0-120 degrees on the left. There was no patellofemoral crepitus on either side although there was a right-sided clunk. There was mild right-sided AP (anteroposterior) laxity without ML (mediolateral) laxity. There was no AP or else ML laxity on the left. The knees were not swollen.
Panel’s conclusions
The Medical Assessors accept that there were injuries of both knees in the accident given the mechanism of the injury and his account of events. Right knee pain was initially present with left knee pain following shortly thereafter. However, the most notable injury was to the right knee based on the contents of the contemporaneous medical records.
The Panel found no evidence of any injuries from the accident to the neck, lower back, hips, legs or else shoulders. There was no contemporaneous evidence of injury and the claimant himself had difficulty relating his symptoms in these locations to the accident. The mechanism of injury was discussed in detail with Mr Roberts and it was clearly the lower limbs which were struck. The medical assessors found no credible mechanism for injury to the upper body/lumbar spine/cervical spine from the motor accident. Given the medical assessors found no injuries of the abovementioned body parts, due to the accident, there is no need to assess related WPI.
Based on medical assessors’ clinical findings there is an injury to the left knee, but it is soft-tissue only and there is no impairment of the left knee pursuant to the specific tables in AMA 4 Guides.
At the right knee, there is impairment for mild ACL laxity according with 3% WPI (Table 64, page 85 AMA 4 Guides).
HOW THE PANEL DEALT WITH THE SUBMISSIONS
The Panel reiterates that although Mr Roberts states that his neck and lower back pain became much worse after the 2021 accident, he was not able to explain how he had sustained the injury to his neck and lower back.
Responding to a request for his explanation as to how he had come to hurt his neck and lower back, Mr Robert’s commented that his neck and Left>Right shoulder pain could be attributable to him “getting older”. Further, he stated that the only thing which he really sought from this medicolegal process concerning the accident was to have his knees fixed.
Mr Roberts told the Medical examiners that when the car reversed, and the driver apparently placing his foot on the accelerator instead of the brake, Mr Roberts had been struck on the left side of his body but did not fall to the ground.
With respect to the submissions, the Panel again points out that the hospital records specifically contain the notation that there was no other injury from the accident apart from the right knee.
As noted above, Mr Roberts could not explain how he had hurt his shoulders in the accident.
He cannot specifically relate his low back pain to the accident.
Again, as noted above, the Panel found no evidence of any injuries to his neck, lower back, hips, legs, or shoulders.
DETERMINATION
The Panel revokes the certificate of Medical Assessor James Bodel of 30 September 2024 and substitutes the determination that the following injuries were caused by the accident and give rise to a WPI of 3%, being less than 10% (Table 64, page 85 AMA 4 Guides)
· right knee – mild anterior cruciate ligament laxity, and
· left knee – soft tissue injury giving rise to 0% WPI.
The Panel revokes the certificate of Medical Assessor James Bodel of 30 September 2024 and substitutes the determination that the following injuries were not caused by the accident:
· Cervical spine – Soft tissue injury with radiculopathy into the upper limbs.
· lumbar spine - soft tissue injury with radiculopathy into the lower limbs;
· injury to right shoulder – soft tissue injury/ referred pain from the cervical spine;
· injury to left shoulder – soft tissue injury/ referred pain from the cervical spine;
· injury to right knee – medial meniscus – undisplaced intrasubstance tear at the posterior from, and associated cartilage ulceration, and undulation of the subchondral plate, a tear of the anterior cruciate ligament, and a joint effusion of tended sheath of the popliteus sheath;
· injury to left knee – significant cartilage loss as the medial femoral condyle has grade 3 chondromalacia with undulation of the subchondral plate and cartilage ulceration. there is a located effusion within the popliteus tendon sheath and a mild soft tissue oedema overlying the patella and the patellar tendon;
· injury to right hip – soft tissue injury due to referred pain from the knees and lower back;
· injury to left hip – soft tissue injury due to referred pain from the knees and lower back;
· injury to right leg – soft tissue injury due to referred pain from the hips and knees, and
· injury to left leg – soft tissue injury due to referred pain from the hips and knees.
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