Selkirk v CIC Allianz Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Selkirk v CIC Allianz Insurance Limited [2025] NSWPICMP 295
CLAIMANT:	Simone Selkirk
INSURER:	CIC Allianz Insurance Limited
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	30 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whole person impairment (WPI) dispute; Medical Assessor determined the claimant had 4% WPI; review sought by claimant under section 7.26; consideration and application of clauses 6.5 to 6.7 of the Motor Accident Guidelines (the Guidelines) in respect of causation and clauses 6.19 to 6.22 of the Guidelines in respect of permanent impairment; Held – MAC revoked; new certificate issued; Review Panel certified the claimant sustained right hand/right thumb soft tissue injuries; left arm soft tissue injury (resolved); left elbow soft tissue injury (resolved); left hand soft tissue injury (resolved); left leg soft tissue injury (resolved); left hip soft tissue injury, left knee soft tissue injury, lumbar spine soft tissue injury, and thoracic spine soft tissue injury caused by the motor accident; WPI assessed at 16%; treatment and care relates to the injuries caused by the motor accident but are not reasonable and necessary in the circumstances.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the replacement certificate issued by Medical Assessor Cameron dated 23 December 2023. 2. Certifies that the claimant sustained the following injuries caused by the motor accident on 13 May 2018 that give rise to a whole person impairment that is greater than 10%, that is, 16%: (a) right hand/right thumb – soft tissue injuries and the development or aggravation of underlying basal thumb osteoarthritis which, in turn, caused a gradual subluxation over time and resulted in the right trapeziectomy with ligament reconstruction and tendon interposition surgery; (b) left arm – soft tissue injury – resolved; (c) left elbow – soft tissue injury – resolved; (d) left hand – soft tissue injury – resolved; (e) left leg – soft tissue injury – resolved; (f) left hip – soft tissue injury; (g) left knee – soft tissue injury; (h) lumbar spine – soft tissue injury, and (i) thoracic spine – soft tissue injury. 3. Certifies that the following treatment and care relates to the injuries caused by the motor accident on 13 May 2018 but are not reasonable and necessary in the circumstances: (a) eight sessions of chiropractic treatment with Mr Steve McCann; (b) one year gym membership with a personal trainer at Elixer Gym; (c) eight sessions of exercise physiology with Active Care Physiotherapy and Sports Therapy, and (d) eight sessions of remedial massage at Bondi Massage. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

The claimant, Ms Simone Selkirk, is a 50-year-old woman who was involved in a motor accident on 13 May 2018 whilst a passenger in a taxi. There was an altercation between Ms Selkirk and the taxi driver and as a result, Ms Selkirk was dragged along by the taxi as the driver drove off causing her to fall onto the roadway and sustain injuries (the motor accident).
Ms Selkirk made an application for personal injury benefits. The relevant compulsory third party insurer is CIC Allianz Insurance Limited (the insurer).
Ms Selkirk claims that the motor accident caused injuries to her left arm, left elbow, left hand, right hand/right thumb, bilateral hips, left knee, left leg, thoracic spine and lumbar spine.
Ms Selkirk’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A medical dispute about the degree of Ms Selkirk’s whole person impairment (WPI) and a treatment dispute have arisen in connection with her claim. These constitute medical assessment matters under Schedule 2, cl 2(a) and (b) of the MAI Act respectively.
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 medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Ian Cameron for assessment.
Medical Assessor Cameron issued a certificate on 15 October 2023 and a replacement certificate on 23 December 2023. The latter certificate is the subject of this review in which Medical Assessor Cameron determined that Ms Selkirk suffered soft tissue injuries to the left arm, left elbow, left hand, right hand/right thumb, bilateral hips, left leg, thoracic spine, lumbar spine and left knee, together with a possible osteochondral injury caused by the motor accident and assessed her as having a WPI less than 10%, that is, 4%. He also determined that the proposed treatments in dispute related to the injuries caused by the motor accident, but were not reasonable and necessary in the circumstances (the Medical Assessment).

THE REVIEW PROCEDURE

Ms Selkirk sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
The President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
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: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. 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 motor accident, without those matters having to be the subject of assessment.
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: Rule 128 of the PIC Rules.
On 26 March 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
On 7 May 2024, the Panel informed the parties that it considered a re-examination of Ms Selkirk was required. Arrangements were made for Ms Selkirk to be re-examined by Medical Assessor Sophia Lahz on 3 July 2024 on behalf of the Panel. Ms Selkirk was directed to provide the Panel with the following:
(a) a copy of Ms Selkirk’s general practitioners’ (Edgecliff Medical Centre) clinical records from 17 July 2020 to date and clinical records from any other medical practice she may now attend, and
(b) access to electronic copies of all medical imaging studies of Ms Selkirk’s injured parts of the body to date (in particular, the right thumb, right hand, right wrist and left knee) or ensure that the original imaging studies are made available at or before the time of the re-examination.
The medical imaging documents subject to the direction referred to above were not provided until 1 August 2024.
The Edgecliff Medical Centre clinical records subject to the direction referred to above were not provided until 1 November 2024.

LEGISLATIVE FRAMEWORK

General provisions

Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Ms Selkirk’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

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 version 9.3 effective from 6 December 2024 (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 motor 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.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
Subsequent injury is addressed in cl 6.34 of the Guidelines which states:
“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of a subsequent impairment, its possible presence should be ignored.”
Clause 6.19 of the Guidelines states:
“Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment. The AMA 4 Guides (page 315) state that permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% whole person impairment (WPI) in the next year with or without medical treatment). If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to these Guidelines.”
The evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 of the Guidelines.
The evaluation of permanent impairment must not include any allowance for a predicted deterioration. However, it may be appropriate to comment on this possibility in the impairment valuation report: cl 6.22 of the Guidelines.

EVIDENCE BEFORE THE PANEL

The evidence before the Panel consisted of the following:
(a)    the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 1 March 2024 (insurer’s documents);
(b)    Ms Selkirk’s indexed and paginated bundle of documents lodged on the Commission’s portal on 22 April 2024 (claimant’s documents);
(c)    Ms Selkirk’s Application to Admit Late Documents dated 14 June 2024 and attached documents (AALD 14 June 2024);
(d)    Ms Selkirk’s Application to Admit Late Documents dated 3 July 2024 and attached documents (AALD 3 July 2024);
(e)    Ms Selkirk’s Application to Admit Late Documents dated 11 July 2024 and attached documents (AALD 11 July 2024);
(f)    Ms Selkirk’s Application to Admit Late Documents dated 1 August 2024 attaching I-Med Radiology clinical records (AALD 1 August 2024), and
(g)    Ms Selkirk’s Application to Admit Late Documents dated 1 November 2024 attaching Edgecliff Medical Centre clinical records (AALD 1 November 2024).

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron examined Ms Selkirk on 3 October 2023 and issued a replacement certificate under s 7.23(1) of the MAI Act on 23 December 2023.[1]
[1] Claimant’s documents at pages 16-28.
Medical Assessor Cameron was asked to assess the dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act in respect of the following physical conditions:
(a)    left arm – soft tissue injury;
(b)    left elbow – soft tissue injury;
(c)    left hand – soft tissue injury;
(d)    right hand/right thumb – soft tissue injury;
(e)    bilateral hips – soft tissue injuries;
(f)    left knee – soft tissue injury with possible osteochondral injury;
(g)    left leg – soft tissue injury
(h)    lumbar spine – soft tissue injury, and
(i)    thoracic spine – soft tissue injury.
Medical Assessor Cameron was asked to assess the following treatment and care dispute between the parties under Schedule 2, cl 2(b) of the MAI Act:
(a)    eight sessions of chiropractic treatment with Mr Steve McCann;
(b)    one year gym membership with a personal trainer at Elixir Gym;
(c)    eight sessions of exercise physiology with Active Care Physiotherapy and Sports Therapy, and
(d)    eight sessions of remedial massage at Bondi Massage.
In respect of Ms Selkirk’s pre-accident medical history and relevant personal details, Medical Assessor Cameron noted that she lived alone and worked full-time as a solicitor, largely from home. She reported that she had been in good health prior to the motor accident.
Medical Assessor Cameron took the following history of the motor accident:
“On 13 May 2018, Ms Selkirk was [sic: a] passenger in a taxi. There was an altercation and as a result, Ms Selkirk was dragged by the taxi. She was thrown to the roadway and injured her left knee and hip. She also said that she braced herself with her right hand and sustained an injury to the right wrist.”[2]
[2] Claimant's documents at page 19 at [10].
Medical Assessor Cameron took the following brief history of symptoms and treatment following the motor accident:
“Ms Selkirk consulted her general practitioner, Dr Middleton. She returned to work very quickly.
There were continuing symptoms from the left knee and hip region; the right wrist and thumb gradually became worse.
There was extensive treatment.
Ms Selkirk, on 14 February 2023 from Dr Smithers, had a right trapeziectomy ligament reconstruction and tendon repositioning.”[3]
[3] Claimant's documents at page 19 at [11].
In respect of Ms Selkirk’s current symptoms, Medical Assessor Cameron noted that she had an ache in her right knee that altered her gait and caused pain walking up and down hill. She complained of right hamstring pain; some neck pain and back pain. On occasions, the left knee was uncomfortable in bed. The left knee was unstable and she was fearful of falling. The right trapeziectomy ligament reconstruction and tendon repositioning in 2023 helped her right wrist symptoms but right hand function had not returned to normal. There was reduced grip strength and ability to use the right hand. She reported a limited carrying ability and was unable to fly to Melbourne for work due to her inability to put a bag in an overhead locker. She reported driving but its duration was limited. A cleaner performs her heavy house work. She experienced difficulty with cooking. She was working full-time as a solicitor.
In respect of current treatment, Medical Assessor Cameron noted that Ms Selkirk medicated with Panadol or Nurofen and that her general practitioner was now Dr Foo. Hand therapy was continuing.
In respect of general presentation on clinical examination, Medical Assessor Cameron observed that Ms Selkirk was right-handed; 165cm in height; and weighed 66kg. She was cooperative and provided a clear history.

On examination of the cervical spine, Medical Assessor Cameron observed that there was a full range of movement in all planes with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present. Nerve tension signs were negative.
On examination of the upper extremities, Medical Assessor Cameron observed that there was a full range of motion in both shoulders. At the right wrist, range of movement was flexion 50°; extension 50°; radial deviation 20°; and ulnar deviation 40°. At the right thumb, there was a full range of movement. There was a full range of motion at other upper extremity joints. There were no neurological abnormalities in the upper extremities. There was no difference in circumferences of the upper extremities detected.
On examination of the thoracic spine, Medical Assessor Cameron observed that there was moderately and symmetrically reduced range of motion to 70% normal in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present.
On examination of the lumbar spine, Medical Assessor Cameron observed that there was moderately and symmetrically reduced range of motion to 70% normal in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints present. Nerve tension signs were negative.
On examination of the lower extremities, Medical Assessor Cameron observed that left knee range of movement was 0° to 110° with crepitus. There was a full range of movement of the left hip. There was a full range of motion at other lower extremity joints. There were no neurological abnormalities in the lower extremities. Circumferences of the lower extremities were above the knee 44cm bilaterally and below the knee 38cm bilaterally. There were two small scars over the anterior aspect of the left knee. He also observed that Ms Selkirk walked with a normal gait.
Medical Assessor Cameron referred to and summarised the relevant documentation provided to him.[4]
[4] Claimant's documents at pages 21-23 at [17]-[18].
Medical Assessor Cameron opined that Ms Selkirk had suffered the following injuries caused by the motor accident:
(a)    left arm – soft tissue injury – using the abnormal range of motion method: 0% WPI;
(b)    left elbow – soft tissue injury – using the abnormal range of motion method: 0% WPI;
(c)    left hand – soft tissue injury – using the abnormal range of motion method: 0% WPI;
(d)    right hand/right thumb – soft tissue injury – using Figure 26, page 36 and Figure 29, page 38 of the AMA 4 Guides: 2% WPI;
(e)    bilateral hips – soft tissue injuries – using the abnormal range of motion method: 0% WPI each;
(f)    left knee – soft tissue injury with possible osteochondral injury – using Table 62, page 83 AMA 4 Guides: 2% WPI;
(g)    left leg – soft tissue injury – using the abnormal range of motion method: 0% WPI;
(h)    lumbar spine – soft tissue injury – using the Diagnosis Related Estimate (DRE) method, assessed as DRE Lumbosacral Category I: 0% WPI, and
(i)    thoracic spine – soft tissue injury – using the DRE method, assessed as DRE Thoracolumbar Category I: 0% WPI.
In respect of the right hand/right thumb injury, Medical Assessor Cameron opined that there was no evidence of a significant injury to the right wrist of sufficient severity to require surgical intervention a considerable time after the motor accident. Further, there was no evidence of significant symptoms from the right wrist and right thumb for a considerable time after the motor accident.
In respect of the treatment and care dispute for the proposed treatments referred for assessment, Medical Assessor Cameron opined that they relate to the injuries caused by the motor accident but were not reasonable and necessary because there was no indication for ongoing treatment of the types requested for the injury sustained by Ms Selkirk. She had undergone extensive treatments and there was no justification for further treatments of the types requested.

REVIEW OF EVIDENCE

Application for personal injury benefits

Ms Selkirk completed an undated application for personal injury benefits in respect of the motor accident.[5]
[5] Claimant’s documents at pages 413-418.
The application form set out the basic particulars of the motor accident, including the time of the motor accident as being 12.04am on 13 May 2018.
In the application form, Ms Selkirk provided a description of the motor accident in the form of a diagram accompanied by the following words:
“Me getting into the back seat of taxi to get mobile phone.
Cab drove off with me hanging out of back seat of taxi.
Landed heavily on road dragged out of taxi. *Very injured.”[6]
[6] Claimant's documents at page 415 at [3].
In respect of the injuries caused by the motor accident, Ms Selkirk wrote the following words in the space provided in the application form, “see attachment”.[7] However, there was no such attachment to the application form in evidence.
[7] Claimant's documents at page 415 at [3].
In the application form, Ms Selkirk denied having suffered an illness or injury affecting the same or similar parts of her body at the time of the motor accident.[8]

Treating medical records and reports

[8] Claimant's documents at page 416.

Pre-accident

In evidence, were Ms Selkirk’s clinical records from 28 November 2009 to 6 June 2024 produced by Edgecliff Medical Centre.[9]
[9] AALD 1 November 2024.
On 19 March 2014, Ms Selkirk consulted Dr Rosalee Fuzes, general practitioner, of Edgecliff Medical Centre complaining of a painful right shoulder for about 15 months. On examination, Dr Fuzes observed a free range of movement but Ms Selkirk complained about a lot of pain. She was referred for a right shoulder ultrasound and advised to take Nurofen. If no better, she recommended referral for a steroid injection. Dr Fuzes noted no history of injury.[10]
[10] AALD 1 November 2024 at page 18.
On 21 March 2014, Ms Selkirk underwent right shoulder and left knee ultrasounds by Dr Michael Reeves on the referral of Dr Fuzes. The clinical history provided in respect of the right shoulder was that of right severe pain radiating to the scapular and right arm. The clinical history provided in respect of the left knee was that of a clicky left knee. In respect of the right shoulder, Dr Reeves observed no abnormality in the rotator cuff. In respect of the left knee, Dr Reeves concluded that there was no cause for Ms Selkirk’s symptoms demonstrated on ultrasound.[11]
[11] Claimant's documents at page 549.
On 23 June 2014, Ms Selkirk consulted Dr Fiona Murphy, general practitioner, of Edgecliff Medical Centre complaining of right shoulder joint pain.[12]
[12] AALD 1 November 2024 at page 18.
On 10 May 2017, Ms Selkirk consulted a nurse at Edgecliff Medical Centre with a wound to her right hand. A swab was taken of the wound. The wound was cleansed and steri-strips and dressing were applied.[13]
[13] AALD 1 November 2024 at page 24.
On 14 February 2018, Ms Selkirk consulted Dr Barbara Middleton, general practitioner, of Edgecliff Medical Centre complaining of some numbness in her right little finger over the past few weeks and reporting a wrist injury a few weeks earlier. She also reported some low back pain for which she was seeing a chiropractor.[14]
[14] AALD 1 November 2024 at page 25.

Post accident

On 14 May 2018, Ms Selkirk consulted Dr Middleton and advised that she had been assaulted by a taxi driver at about midnight on 12 May 2018 when he drove off with her halfway out the back door. She sustained some injuries and Dr Middleton noted them as a left elbow abrasion, 3cm x 1.5cm; a left knee abrasion, 3cm x 3cm; a left thigh contusion, 7cm x 7cm; a left ankle abrasion and swelling; a right big toe abrasion, 2cm x 2cm; a bruised and swollen right ankle; low back pain; headache; and a bruised right knee.[15]
[15] AALD 1 November 2024 at page 26.
On 14 May 2018, Ms Selkirk consulted Dr Erin Hawken, chiropractor, who she had been consulting prior to the motor accident. The entry dated 14 May 2018 in Dr Hawken’s clinical records noted the following history:
“Injured in taxi driver car incident.
Taxi driver drove off whilst Simmone was getting into the rear drivers side of taxi with intention to eject her from the car. She managed to hold on for a short distance & eventually fell from the car onto the road side with significant impact on landing to the LHS of her body. Bilat ankle sprain due to trying to maintain footing, contusion on L knee and elbow, massive bruise on L hip and thigh, grazing on R big toe, broken R thumbnail. Clearly very traumatised from incident - emotional & crying.
Now experiencing headaches temporal and frontal - no visual changes, no NNTW. Pain in L arm from shoulder region to forearm and wrist only. Lower back pain & seizing across entire lower back and R glut region. Mid thoracic discomfort. Neck painful & ‘seizing up’.
Symptoms all increasing in severity with time & feeling generally sore all over.”[16]
[16] Claimant's documents at page 627.
In evidence, there are photographs of the grazing to the left elbow, grazing and bruising to the left knee and lower leg, bruising to the right knee and the broken right thumb nail alleged to have been caused by the motor accident.[17] The entry in the Bondi Junction Massage and Float Centre clinical records dated 24 June 2018 noted that Ms Selkirk “hit her right arm”[18] in the motor accident.
[17] Claimant's documents at pages 772-774.
[18] Claimant’s documents at page 200.
On 16 August 2018, Ms Selkirk consulted Dr Middleton advising that she was having ongoing treatment by a chiropractor for her ankle and knee injuries. She still had some pain in the left knee and needed a certificate of capacity for the insurer.[19]
[19] AALD 1 November 2024 at page 26.
On 23 August 2018, Ms Selkirk consulted Dr Middleton advising that the insurer had approved a left knee MRI scan in relation to the motor accident. Dr Middleton provided her with a referral for the MRI scan.[20]
[20] AALD 1 November 2024 at page 26.
On 10 September 2018, Ms Selkirk underwent a left knee MRI scan by Dr Faisal Rashid on the referral of Dr Middleton. The clinical history provided to Dr Rashid was that of left knee pain after a motor vehicle accident. Dr Rashid observed a broad late subacute osteochondritis dissecans at the weight-bearing medial femoral condyle with some evidence of persisting instability; intact discoid lateral meniscus; borderline patellar alta with retropatellar chondral wear/softening in keeping with chondromalacia patellae; and

intra-articular body within the medial gastrocnemius bursar, possibly grade IV osteochondritis dissecans from the medial femoral condyle osteochondritis dissecans.[21]
[21] AALD 1 August 2024 at pages 8-9.
On 13 September 2018, Dr Lex Bilsen, general practitioner, of Edgecliff Medical Centre referred Ms Selkirk to Dr Bradley Seeto, orthopaedic surgeon, for an opinion and management of her left knee pain following an accident in May 2018.[22]
[22] Claimant's documents at page 333.
On 15 October 2018, Ms Selkirk consulted Dr Bradley Seeto, orthopaedic surgeon, of Sydney Knee Specialists on the referral of Dr Bilsen. Dr Seeto took the following history:
“Simone was attempting to retrieve her mobile phone from the backseat of a taxi when the taxi took off dragging her behind and causing an injury to her left thigh, left elbow, and left knee. Prior to her injury, she advises that she did not present with any previous problems with the left knee and has had no previous left knee surgery or injections.
Over the past six months, there has been worsening pain over the anterior, anteromedial, and anterolateral aspects of the knee. The pain is present on a daily basis, a dull ache in nature, and rated 6 to 7 out of 10 in severity. Pain is worse with weight bearing, worse when negotiating stairs and hills, particularly descending, and is associated with episodes of pseudo-instability on unstable ground. There is night and rest pain and knee joint locking experienced. The pain is associated with swelling and locking. Simone has been on some analgesia on particularly painful days but has had no previous requirement for any analgesia use for knee pain prior to the taxi incident. She has had no recent physiotherapy, but has undergone a remedial massage which she finds helpful as well as chiropractic therapy.”[23]
[23] Claimant's documents at page 523.
On examination, Dr Seeto observed that Ms Selkirk stood with physiological lower limb alignment; there was a traumatic scar affecting the anterior aspect of the right knee (childhood soft tissue injury); ability to perform a full squat, but with instability and generalised anterior discomfort; mild tenderness over the medial and lateral joint lines to palpation; small effusion present in both knees; patellofemoral crepitus through range of motion; loading the patellofemoral joints was not particularly painful; cruciate and collateral ligaments were stable and not painful to stressing; the leg was neurovascularly intact; and the hip was asymptomatic to rotation.
Dr Seeto reviewed the MRI scan dated 10 September 2018 and noted some arthritic change affecting predominantly the medial and patellofemoral compartments of the left knee. He observed a subchondral cyst affecting the weight-bearing portion of the medial femoral condyle with surrounding subchondral oedema. The lateral compartment of the knee was well preserved. There were multiple loose bodies in the posterior aspect of the left knee.
Dr Seeto opined that Ms Selkirk’s left knee was previously asymptomatic but that, since the motor accident, it had now become symptomatic and was deteriorating. The situation was compounded by the presence of arthritis. The loose bodies in the posterior aspect of the left knee may have been as a consequence of her trauma in the motor accident.
Dr Seeto recommended a trial period of ongoing conservative management including activity modification, intermittent use of anti-inflammatory medications, physiotherapy, massage therapy and an ultrasound guided steroid and local anaesthetic injection into the left knee.
Dr Seeto opined that, in the future, should Ms Selkirk have ongoing disabling pain, she would be facing a total knee replacement, which should be avoided if at all possible. He arranged for a review one week after the left knee injection to gauge her response to it.
On 30 October 2018, Dr Middleton referred Ms Selkirk to Mr Christopher Jones for treatment of her left knee pain.[24]
[24] Claimant's documents at page 334.
On 29 November 2018, Ms Selkirk consulted Dr Middleton requesting referrals for various treatment of her left knee and left hip as she was still experiencing ongoing pain from the motor accident. Dr Middleton noted that Ms Selkirk’s pain improved after receiving treatment. She referred Ms Selkirk to Ms Colleen Kent, osteopath.[25]
[25] AALD 1 November 2024 at page 27.
On 1 February 2019, Ms Selkirk consulted Dr Middleton complaining that her right knee had been painful when she was walking in the ocean but that otherwise, it was not painful. Dr Middleton issued her with a certificate of capacity.[26]
[26] AALD 1 November 2024 at page 27.
On 1 May 2019, Ms Selkirk consulted Dr Middleton complaining that her left knee had not been as well as it had been and that she was sometimes still experiencing some pain at night. She advised Dr Middleton that her physiotherapist wanted her to increase her exercise program. Dr Middleton issued her with a certificate of capacity.[27]
[27] AALD 1 November 2024 at page 29.
On 1 July 2019, Ms Selkirk consulted Dr Middleton advising that she needed a referral to an exercise physiologist to develop an exercise program. Dr Middleton issued her with a certificate of capacity.[28]
[28] AALD 1 November 2024 at page 29.
On 22 July 2019, Ms Selkirk underwent X-rays of the full spine, pelvis and bilateral

weight-bearing knees by Dr Jonathan Seeff on the referral of Dr Gavin Gordon. In respect of the bilateral knees, Dr Seeff observed bilateral bicompartmental osteoarthritic changes involving the medial tibiofemoral joint (left greater than the right) and the patellofemoral joints; no significant joint effusion; and no periarticular soft tissue calcification or osteochondral lesion. In respect of the full spine and pelvis, Dr Seeff observed a thoracolumbar scoliosis convex to the left; intact pedicles within the thoracic and lumbar spine; maintained disc spaces without vertebral body collapse; straightening of the cervical spine loss of disc height from C5 to T1; no vertebral body collapse; and normal alignment of the atlas and axis.[29]
[29] AALD 1 August 2024 at page 7.
On 13 August 2019, Ms Selkirk consulted Dr Middleton advising she required another certificate for the treatment of her left knee. Dr Middleton issued her with a certificate of capacity.[30]
[30] AALD 1 November 2024 at page 30.
In a report dated 24 September 2019, Mr Michael Ward, specialist musculoskeletal physiotherapist, of Core Health concluded that remedial massage therapy was not considered reasonable and necessary given the current stage of rehabilitation, noting that the rationale provided on the treatment plan was not consistent with his current understanding of the presentation. Mr Ward did consider that up to eight standard chiropractic consultations were reasonable and necessary with the expectation that such treatment would focus on active based rehabilitation.[31]
[31] Insurer's documents at pages 62-65.
On 1 October 2019, Ms Selkirk consulted Dr Middleton complaining of ongoing left knee pain. She advised that the insurer would not pay for remedial massage. She requested referral to a psychologist for pain management. Dr Middleton noted that Ms Selkirk felt that remedial massage was the best treatment. Dr Middleton encouraged her to exercise as much is possible. Dr Middleton issued her with a certificate of capacity.[32]
[32] AALD 1 November 2024 at page 30.
On 25 October 2019, Dr Christopher Jones, osteopath, reported to the insurer in response to its request to provide a summary of his notes in respect of consultations with Ms Selkirk.[33] Dr Jones provided a history of the motor accident and Ms Selkirk’s symptoms thereafter that was consistent with the evidence in respect of her left knee. Dr Jones was involved in the treatment of Ms Selkirk’s left knee. Between 30 October 2018 and 28 May 2019, Ms Selkirk had attended 14 sessions with Dr Jones. During that period, she reported periods of improvement and then aggravation/deterioration. Dr Jones provided treatment in the form of soft tissue massage for the quadriceps, hamstrings, popliteus calves and joint mobilisation. He also recommended that Ms Selkirk perform stretching, vastus medialis oblique activation exercises, exercise bike activity and wall squats at home.
[33] Claimant's documents at pages 547-548.
On 14 November 2019, Ms Selkirk consulted Dr Middleton complaining of ongoing left knee pain that ached at night and also when just sitting. She complained that when she walks she gets left hip pain. Dr Middleton prescribed one 15mg Mobic tablet daily.[34]
[34] AALD 1 November 2024 at page 32.
On 9 January 2020, Ms Selkirk consulted Dr Middleton requiring a certificate of capacity. Dr Middleton noted that she had seen an insurer medical specialist and that she would not be having any further massage therapy. Ms Selkirk required treatment by an exercise physiologist and Dr Middleton provided a referral as well as a certificate of capacity.[35]
[35] AALD 1 November 2024 at page 32.
On 28 May 2020, Dr Middleton referred Ms Selkirk to Dr Seeto for opinion and management of left knee pain.[36]
[36] Claimant's documents at page 230.
On 16 June 2020, Ms Nicole Baer, sports and exercise physiotherapist, of Active Care Physiotherapy and Sports Therapy provided a report to Dr Middleton.[37] Ms Baer reported that Ms Selkirk had presented to her that day for an assessment of her persistent medial knee pain and right lumbo-pelvic pain which had commenced 18 months earlier when she was thrown from a moving taxi on her left knee. Since then, she reported feeling knee instability with knee pain and right lumbo-pelvic region pain that affected her activities of daily living. Ms Selkirk reported that her pain was eased most by regular massages and chiropractic readjustments but that the relief was not long lasting. She believed that massage gave her the greatest pain relief and she had a fear of increasing activity due to pain without the benefit of massage. Ms Baer opined as follows:
“Based on my clinical assessment and the findings of the detailed medical reports from Dr Chris Oates Simone's best treatment option must include exercise, education and a weight loss program. Following evidence-based guidelines of patellofemoral pain and knee osteoarthritis I had a discussion with Simone about the benefits of a graduated individualised exercise program incorporating cardiovascular exercise together with specific knee, hip and trunk strength exercises. The program must also include a neuromuscular stability component.
As part of Simone's physiotherapy treatment plan she would benefit greatly in incorporating education on pain science as well as education about exercise to assist in desensitising her to pain and increasing her load capacity without the fear of pain which appears to be limiting her ability to progress.”[38]
[37] Claimant's documents at pages 551-552.
[38] Claimant's documents at page 552.

On 17 June 2020, Ms Selkirk consulted Dr Seeto on the referral of Dr Middleton. Dr Seeto noted that since the last consultation on 18 October 2018, Ms Selkirk’s left knee symptoms had progressively deteriorated and had been particularly bad over the past five months. He noted that she had not been receiving any chiropractic therapies, remedial massage therapies, physiotherapy or other treatment for the left knee for some time because of a dispute with the insurer. He noted that plain X-rays of both knees demonstrated bilateral medial compartment arthritis.[39]
[39] Claimant's documents at pages 550.
In respect of the future management of Ms Selkirk’s left knee, Dr Seeto opined as follows:
“I have explained to Simone that her left knee has likely reached its maximal medical improvement. Given the duration since her original injury, her symptoms are chronic and stable. I would expect that her symptoms will progressively deteriorate over time and at some stage in the future when her symptoms are severe enough and interfering with her quality of life and function and unresponsive to nonoperative means, she will be facing a total knee replacement.
Exercise Physiology and remedial massage could be useful as combined therapy to address her pain and muscle tightness. Simone has used chiropractic treatment with good effect in the past and provided it improves her symptoms I would support her continued use of the therapy. Psychological counseling [sic] may assist her to manage her mental health concerns associated with her chronic ongoing knee pain and associated sleep disturbance.”[40]
[40] Claimant's documents at page 550.
On 10 December 2020, Ms Selkirk consulted Dr Middleton by telephone requesting another certificate of capacity for her knee injury. Dr Middleton issued a certificate of capacity.[41]
[41] AALD 1 November 2024 at page 35.
On 15 February 2021, Ms Selkirk consulted Dr Middleton by telephone requesting another certificate of capacity. Dr Middleton issued a certificate of capacity.[42]
[42] AALD 1 November 2024 at page 37.
On 22 March 2021, Ms Selkirk consulted Dr Middleton reporting that she had been seeing an exercise physiologist and stating that she was desperate to undergo remedial massage, requesting a certificate in this regard. Ms Selkirk advised that the exercise physiologist was performing muscle release with heavy pressure on her muscles. She told Dr Middleton that she actually had not done any exercise and was wanting more remedial massage so that she could exercise. Dr Middleton explained to her that, after two years of massage therapy that was not helping, she needed to concentrate on exercise.[43]
[43] AALD 1 November 2024 at page 38.
In evidence, were Ms Selkirk’s clinical records from 18 October 2019 to 1 September 2022 produced by Oxford Village Medical Centre and Skin Cancer Clinic.[44] Most of the entries in the clinical records referred to medical issues unrelated to the claimed injuries sustained in the motor accident. The first entry in those clinical records in respect of Ms Selkirk’s claimed motor accident related injuries was with Dr James Lam, general practitioner, on 6 July 2022, when he referred her for a right hand ultrasound.[45]
[44] AALD 3 July 2024.
[45] AALD 3 July 2024 at page 13.
In evidence, there is a list of treatments undergone by Ms Selkirk and paid by the insurer between 25 July 2018 and 10 May 2021.[46] The treatments include physiotherapy, chiropractic therapy, remedial massage therapy, osteopathy services and general practitioner visits.
[46] Insurer's documents at pages 135-136.
On 15 July 2022, Ms Selkirk underwent an ultrasound of the right hand by Dr Kenneth Sesel on the referral of Dr Lam. Dr Sesel concluded that the predominant abnormality was the degenerative change in the first carpometacarpal joint at the base of the thumb. He opined that this finding should be correlated with a plain X-ray series in the first instance and, provided there was no contraindication visible, it could be targeted with a steroid injection under ultrasound guidance if it correlated clinically.[47]
[47] AALD 1 August 2024 at page 6.
On 18 July 2022, Ms Selkirk consulted Dr Lam, who explained the results in the recent ultrasound of her right hand. In accordance with Dr Sesel’s advice, Dr Lam recommended a steroid injection under ultrasound guidance into the base of the right thumb. Ms Selkirk declined the injection and commented that “they always tell me to get an injection” and so, Dr Lam referred her for an X-ray of the right hand and right thumb.[48]
[48] AALD 3 July 2024 at pages 13-14.
On 26 July 2022, Ms Selkirk underwent an X-ray of the right hand and right thumb by Dr Sesel on the referral of Dr Lam. The clinical history provided to Dr Sesel was that of pain at the right thumb base. Dr Sesel concluded that there was early development of osteoarthritis in the small joints of the fingers with more advanced involvement at the first carpometacarpal joint at the base of the thumb, which was currently symptomatic. He opined that if symptoms warranted intervention, it could respond very well to an ultrasound guided steroid injection.[49]
[49] AALD 1 August 2024 at page 5.
On 28 July 2022, Ms Selkirk consulted Dr Allison Ward, general practitioner, of Oxford Village Medical Centre and Skin Cancer Clinic to discuss the results in the recent

X-ray of her right hand and right thumb. Ms Selkirk was provided with a copy of the results.[50]
[50] AALD 3 July 2024 at page 14.
On 1 August 2022, Ms Selkirk presented to Sydney Hospital complaining of a recent flare-up of symptoms in her right hand and right thumb. The hospital discharge summary noted a history of falling out of a taxi four years ago onto her outstretched right hand. The summary also noted a chronic inability to extend the right thumb. In the hospital’s referral to Dr Baffsky, the attending medical officer reported that Ms Selkirk had presented with chronic first carpometacarpal joint pain and queried post-traumatic arthritis or a ligamentous injury that was treated with rest, splinting and simple analgesia.
On 10 August 2022, Ms Selkirk consulted Dr Lam and provided a history of the motor accident. Dr Lam recorded that she had sustained injuries to her left knee, left hip, right hand/thumb when she fell from a moving taxi. Ms Selkirk complained that her thumb was getting worse and that she had consulted a hand surgeon at Sydney Hospital, who diagnosed her with “subsequent arthritis”. Dr Lam noted that Ms Selkirk required a new private hand surgeon and he issued her with a referral to a hand surgeon and a certificate of capacity.[51]
[51] AALD 3 July 2024 at pages 14-15.
On 11 October 2022, Ms Selkirk consulted Dr Serena Foo, general practitioner, of Edgecliff Medical Centre advising that she had been involved in a taxi accident in May 2018 and now noted an increase in pain and weakness in her right thumb. She required a referral to a hand surgeon. Dr Foo referred her to Dr Christopher Smithers, orthopaedic surgeon.[52]
[52] AALD 1 November 2024 at pages 47-48.
In her referral letter to Dr Smithers, Dr Foo referred to the motor accident and noted that Dr Middleton had assessed Ms Selkirk for “her general obvious injuries, which were extensive”. Dr Foo added the following:
“Ms Selkirk had also injured her right hand, as per the pictures that have been provided of her broken Right Hand thumb nail arising from the accident road impact. Ms Selkirk sprained and grazed her Right Hand on impact, however, as it was not considered by her as her more significant injuries, Ms Selkirk did not identify her right-hand injuries as significant and an injury that she expected she would recover from so the reporting of her right-hand injury was overlooked in Dr Middleton's medical notes listed injuries.
Ms Selkirk states that her right-hand sprain and injury took around 6 odd weeks to heal, after which time she did not experience any further symptoms for around 19 months.
Ms Selkirk states she recalls mild Right Hand thumb twinges being experienced around late 2019/early 2020, but again dismissed the symptoms as nothing of lasting concern.
Ms Selkirk states that the twinges were experienced on and off over 2020 and became more regular and more painful by mid to late 2020. Ms Selkirk recalled she was mainly aware of this right-hand thumb pain when she was holding her steering wheel. She reports that gripping the steering wheel was uncomfortable, but that the pain came and went so she dismissed it as requiring any medical attention.
Ms Selkirk did not seek any medical intervention again dismissing the pain as, in her belief, carpal tunnel syndrome. Ms Selkirk does not however report she experienced any numbness to her hand in that period.
Ms Selkirk reports her right-hand thumb pain continued to worsen over 2021 and became chronic in early 2022, where she has now sought medical advice for treatment.
…
Ms Selkirk has not been involved in nor identified any other intervening trauma incidents involving injuring her Right Hand since the Taxi Accident on 13 May 2018 that could have contributed to the current Right Thumb injury presentation relevant to this referral. No medical notes have been noted at our clinic on any other right-hand injury incidents to date.
Ms Selkirk did indicate that some time before May 2018 Ms Selkirk had experienced numbness to her Right Little Finger (there was no referral nor complaint relevant to her Right-Hand Thumb involved with this). Ms Selkirk identified this as a potential symptom of a pinched nerve in her neck/shoulder or elbow for which she sought Chiropractic treatment and adjustments to address that left [sic: right] little Finger numbness, which had subsequently resolved itself in early 2018.”[53]
[53] AALD 11 July 2024 at pages 15-16.
On 24 November 2022, Ms Selkirk consulted Dr Christopher Smithers, shoulder, elbow, wrist and hand orthopaedic surgeon, at the request of Dr Foo. Dr Smithers took the following history:
“I reviewed Simone, aged 47 years, today in regard to her right thumb CMC joint osteoarthritis. She is right-hand dominant and works as a lawyer and is now having significant troubles with right hand function due to the thumb base pain and weakness. This has been consistently troublesome for approximately two years. Prior to this she did have intermittent symptoms which commenced following an accident while alighting from a taxi. While attempting to retrieve her mobile phone from the rear or [sic: of] the vehicle with the door open the taxi moved forward from a stationary position resulting in Miss Selkirk falling out of the vehicle while it was moving. This resulted in multiple abrasions and contusions involving the right and left upper and lower limbs, though the predominant impact was taken by the left side of her body. She did break her right thumb nail and approximately six weeks following the injury describes relatively mild thumb pain and swelling. This occurred on 13 May 2018. Miss Selkirk describes mild intermittent symptoms in 2019 which progressed in 2020 to become consistent thumb base pain by late 2020. Symptoms have now progressed such that she has pain throughout the day with difficulty holding pens or coffee cups or water jugs and has severe pain and difficulty opening jars or turning heavy door knobs. She now requires a hand-based splint throughout the day and night. Miss Selkirk denies any other injury to the right thumb and any contralateral thumb pain. There is no family history of thumb arthritis.”[54]
[54] AALD 11 July 2024 at page 6.
On examination, Dr Smithers observed a subtle adducted posture to the right metacarpal compared with the left, 20° of passive extension at the metacarpophalangeal joint and a mildly reduced hand span. On the right thumb carpometacarpal joint, she had marked tenderness and a positive grind test. There was no other identifiable source for radial-sided wrist pain. The left thumb carpometacarpal joint examined normally and sensation was intact throughout.
Dr Smithers opined as follows:
“Simone's right thumb pain is due to CMC joint osteoarthritis. Based on the timeframe of development of symptoms and the pain in the weeks following, the accident likely contributed to the thumb CMC joint subluxation and early development of osteoarthritis.”[55]
[55] AALD 11 July 2024 at page 6.
Dr Smithers formed the view that the chances of satisfactorily managing Ms Selkirk’s arthritis in the long-term with non-operative means were very low. He referred her for an ultrasound-guided cortisone injection in the right thumb carpometacarpal joint. They also discussed the surgical option of trapeziectomy with ligament reconstruction and tendon interposition and he tentatively booked her in for surgery on 14 February 2023.
On 14 February 2023, Ms Selkirk underwent a right trapeziectomy, ligament reconstruction and tendon interposition by Dr Smithers. The operation report noted that the indication for surgery was right thumb carpometacarpal joint arthritis.[56]
[56] AALD 11 July 2024 at page 4.
On 27 February 2023, Ms Selkirk consulted Dr Smithers, who noted that she was doing really well post-surgery. She did not require any analgesia. She had her sutures removed and transitioned to a removal splint. There was mild swelling of the surgical site and the wound had healed well. She complained of mild paraesthesia at the thenar eminence and no paraesthesia otherwise. Finger range of motion was full and limited thumb interphalangeal, metacarpophalangeal and carpometacarpal joint range was not causing pain. She was to proceed with range of motion exercises under the direction of Ms Jo Munro.[57]
[57] AALD 11 July 2024 at page 3.
On 27 March 2023, Ms Selkirk underwent an X-ray of her right thumb by Dr Salman Ansari on the referral of Dr Smithers. Dr Ansari noted the trapeziectomy and that no post-operative complication was identified.[58]
[58] AALD 11 July 2024 at page 9.
On 27 March 2023, Ms Selkirk consulted Dr Smithers, who noted that she was making good progress post-surgery. She was out of the splint and using her right hand for many of her normal activities. Over the past week she had some increasing pain, which was more likely related to too much activity early in the rehabilitation period. Post-surgery imaging reassured the maintenance of position. He encouraged Ms Selkirk to use the splint intermittently and not to push through any pain. She was to continue with simple range of motion exercises.[59]
[59] AALD 11 July 2024 at page 1.
On 1 June 2023, Ms Selkirk consulted Dr Foo by telephone advising that she had undergone right thumb surgery some months ago but still had some pain and restricted movement, for example, when doing up buttons. She requested a referral to the Sydney Hand Hospital.[60]
[60] AALD 1 November 2024 at page 52.
On 22 June 2023, Ms Selkirk consulted Dr Foo advising that she had injured her left knee along with her right thumb and right hand in the motor accident in 2018. She complained of constant pain, worse with walking and on hills. She had undergone remedial massage and had ongoing issues. She had consulted a hand therapist due to the right thumb abnormality since surgery and requested a second opinion and X-rays. Dr Foo referred her to a hand specialist and for X-rays.[61]
[61] AALD 1 November 2024 at page 53.
On 23 June 2023, Ms Selkirk underwent an X-ray of her right thumb by Dr Talia Friedman on the referral of Dr Foo. The history provided to Dr Foo was a complaint of pinch strength pain. Dr Friedman reported that there was a lucency through the dorsal aspect of the base of the metacarpal which raised the possibility of a subacute fracture. Dr Friedman opined that this could be further confirmed or excluded by CT scan. Dr Friedman also observed some minor degenerative change at the interphalangeal joints of the thumb.[62]
[62] AALD 1 August 2024 at page 4.
On 28 November 2023, Ms Meredith Rogers, senior hand therapist at St Vincent’s Hospital, reported on Ms Selkirk to the hospital’s occupational therapy department.[63] Ms Rogers noted that Ms Selkirk was referred to her by Sydney Hospital to which she had been referred by Dr Foo. Ms Selkirk first consulted her on 1 June 2023 and had been undergoing regular hand therapy since then. Ms Rogers concluded as follows:
“ … Simone’s pain and function as self-reported on the PRWHE remain at a similar level after 5 months of therapy. She has reported a small increase in her ability to perform some ADLs however she still experiences base of thumb pain with gripping and pinching that is impacting on her ADLs such as cleaning. She has reported benefit from a shoulder massage which she will continue to pursue and she has been compliant with her home program. To date, MCPJ hyperextension correction has been difficult to achieve with therapy. We are hopeful with longer term use of the Push CMCJ brace this may be achieved. Whilst functional improvements take some time to achieve after LRTI, Simone seeks your opinion about her thumb and is interested in any suggestions you may have to assist with her pain and function.”[64]
[63] Claimant's documents at pages 800-801.
[64] Claimant's documents at page 801.
On 29 November 2023, Ms Selkirk consulted Dr Foo advising of ongoing right thumb issues. She had an upcoming appointment at the hand clinic and requested repeat X-rays. Dr Foo advised her to attend the hand clinic before undergoing repeat X-rays as the clinic may require her to undergo an MRI scan.[65]
[65] AALD 1 November 2024 at page 53.
On 18 April 2024, Ms Selkirk consulted Dr Foo by telephone advising that she was still having issues with her right hand and that it was now affecting her mental health.[66]
[66] AALD 1 November 2024 at page 54.
On 22 April 2024, Ms Selkirk consulted Dr Foo to discuss her mental health, reporting that ever since the hand surgery she has experienced ongoing pain and weakness in the right thumb. Many movements exacerbated her pain.[67]
[67] AALD 1 November 2024 at pages 54-55.
On 29 May 2024, Ms Selkirk consulted Dr Foo by telephone advising that her left knee was still painful and that she was experiencing difficulty walking, especially down stairs or downhill. Ms Selkirk requested an ultrasound. Dr Foo noted that an MRI scan suggested a meniscal injury. Ms Selkirk stated that she now also experienced right hip and piriformis pain that she queried was related to her compensatory gait.[68]
[68] AALD 1 November 2024 at page 55.
On 3 June 2024, Ms Selkirk underwent an ultrasound of her right hip and buttock region by Dr Sesel on the referral of Dr Foo. Dr Sesel opined that the study was normal apart from some mild tenderness over the trochanteric bursa.[69]
[69] AALD 1 August 2024 at page 3.
On 5 June 2024, Ms Selkirk underwent a left knee MRI scan by Dr Jules Comin on the referral of Dr Foo. The clinical history provided was that of pain following a trauma. Dr Comin observed a discoid lateral meniscus without tearing or degeneration; scarring and free margin fraying of the medial meniscus without an acute or distracted tear; cruciate ligament scarring; advanced degenerative change at the medial tibiofemoral and patellofemoral compartments with patchy areas of subcortical oedema; synovitis and effusion but no loose fragments. Dr Comin opined that, given the severity of degenerative changes, referral for specialist surgical opinion would be appropriate. Alternatively, a joint steroid injection could be considered.[70]
[70] AALD 1 August 2024 at pages 1-2.
On 6 June 2024, Ms Selkirk consulted Dr Foo complaining of worsening right hip pain that affected her ability to sit and walk, especially on stairs. Dr Foo advised that an ultrasound demonstrated trochanteric bursitis and that the piriformis was okay. Ms Selkirk also complained that her left knee pain affected her ability to walk and that her gait was abnormal. Last week she had to walk like a crab. Dr Foo opined that her symptoms were all likely due to poor biomechanics following the motor accident, compensating with gait, causing pain in the right hip, leg and ankles. A biomechanics assessment was needed.[71] Dr Foo referred Ms Selkirk to Ms Danielle Richter, podiatrist[72] and Dr Michael Solomon, orthopaedic surgeon.[73]
[71] AALD 1 November 2024 at page 56.
[72] AALD 14 June 2024 at page 6.
[73] AALD 14 June 2024 at page 7

There is a transverse partial sensory loss (both digital nerves involved) at the right thumb. According to the instructions on page 24, AMA 4 Guides and Figure 7 there is 25% TI for partial sensory loss at the thumb.
The 8% TI for loss of thumb motion is combined with 25% TI transverse partial sensory loss at the thumb, giving 31% TI, namely, 12 hand impairment = 11% UEI total for the right thumb.
There is also11% UEI for thumb carpometacarpal resection arthroplasty Table 27, page 61, AMA 4 Guides. The instructions on page 62 AMA 4 Guides state that impairment for motion restriction is derived separately and then combined with that for arthroplasty.
The 11% UEI for loss of thumb motion and sensation is combined with 11% UEI for carpometacarpal resection arthroplasty (trapeziectomy) giving 21% UEI.
There is 2% UEI for the right wrist due to the injury, combined with 21% UEI giving 23% UEI namely, 14% WPI (Table 3, page 20 AMA 4 Guides).

Left arm

The soft tissue injury to the left arm has completely resolved and therefore, is assessed at 0% WPI.

Left elbow

The soft tissue injury to the left elbow has completely resolved and therefore, is assessed at 0% WPI.

Left hand

The soft tissue injury to the left hand has completely resolved and therefore, is assessed at 0% WPI.

Left leg

The soft tissue injury to the left leg (bruising to the thigh) has completely resolved and therefore, is assessed at 0% WPI.

Left knee

There is no impairment of the left knee for loss of range of motion according to Table 41, page 78, AMA 4 Guides. There is 2% WPI for painful patellofemoral crepitus (Table 62, AMA 4 Guides, page 83 footnote).

Thoracic spine (thoracolumbar)

Examination of the thoracic spine did not indicate any positive findings and therefore, is assessed as DRE Thoracolumbar Category I impairment for the reasons stated in [265] above, attracting a 0% WPI.

Lumbar spine (lumbosacral)

Examination of the lumbar spine did not indicate any positive findings and therefore, is assessed as DRE Lumbosacral Category I impairment for the reasons stated in [266] above, attracting a 0% WPI.

Left hip

At the left hip, the clinical examination findings incorporating range of movement do not indicate a greater than 0% WPI for the reasons stated in [268]-[272] above.

Pre-existing or subsequent impairment

On 24 March 2014, Ms Selkirk underwent a left knee ultrasound with a history of having a “clicky” left knee. The radiologist concluded that there was no cause for Ms Selkirk’s symptoms demonstrated on ultrasound.
On 14 February 2018, Ms Selkirk consulted Dr Middleton complaining of some numbness in her right little finger over the past few weeks and reporting a wrist injury a few weeks earlier. She also reported some low back pain for which she was seeing a chiropractor.
The Panel finds that there was no history of preceding symptoms within a reasonable time prior to the motor accident to suggest any prior impairment. There was no objective evidence of pre-existing symptomatic impairment at the time of the motor accident.
There was no evidence of any subsequent impairment.
Accordingly, the Panel finds apportionment of impairment irrelevant.

Summary of assessment of permanent impairment

The Panel assesses Ms Selkirk’s permanent impairment as follows:
(a)    current WPI: 16%;
(b)    pre-existing WPI: 0%, and
(c)    subsequent WPI: 0%.

TREATMENT DISPUTE

Since the motor accident, Ms Selkirk has received extensive chiropractic treatment causally related to the injuries sustained in the motor accident. She was immediately referred to the chiropractor by her general practitioner for myriad symptoms after the motor accident. She has also received extensive remedial massage treatment.
Ms Selkirk acknowledged that the abovementioned interventions have only short-term symptomatic benefits (7 to 10 days at the moment). Therefore, the above treatment interventions are not providing any sustained symptomatic relief.
As noted by other Medical Assessors, the abovementioned passive interventions are not in accordance with the SIRA Treatment Guidelines. Therefore whilst these interventions are related to the motor accident, they are not reasonable and necessary in the circumstances.
The proposed gym membership is also related to the motor accident and in the present circumstances, Ms Selkirk does not wish to pursue this particular intervention due to the lack of funded passive interventions. Ms Selkirk says that she cannot comply with the prescribed exercises due to absence of osteopathy and chiropractic adjustments.
Similarly, the exercise physiology interventions are related to the motor accident although, they are not reasonable and necessary for the reasons mentioned above regarding the gym membership.
Accordingly, the Panel finds that, whilst the disputed proposed treatment and care, namely, eight sessions of chiropractic treatment with Mr Steve McCann; one year gym membership with a personal trainer at Elixir Gym; eight sessions of exercise physiology with Active Care Physiotherapy and Sports Therapy; and eight sessions of remedial massage at Bondi Massage relate to the injuries caused by the motor accident, such treatment and care is not reasonable and necessary in the circumstances for the reasons stated above.

FINDINGS

The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[94] and Insurance Australia Ltd v Marsh.[95]
[94] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[95] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Lahz based on her examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.
The Panel determines that Ms Selkirk did not sustain an injury to her right hip caused by the motor accident.
The Panel determines that Ms Selkirk sustained the following injuries caused by the motor accident:
(a)    right hand/right thumb – soft tissue injuries and the development or aggravation of underlying basal thumb osteoarthritis which, in turn, caused a gradual subluxation over time and resulted in the right trapeziectomy with ligament reconstruction and tendon interposition surgery;
(b)    left arm – soft tissue injury – resolved;
(c)    left elbow – soft tissue injury – resolved;
(d)    left hand – soft tissue injury – resolved;
(e)    left leg – soft tissue injury – resolved;
(f)    left hip – soft tissue injury;
(g)    left knee – soft tissue injury;
(h)    lumbar spine – soft tissue injury, and
(i)    thoracic spine – soft tissue injury.

The Panel determines that the injuries caused by the motor accident give rise to a WPI that is greater than 10%, that is, 16%.
The Panel determines that the disputed proposed treatment and care, namely, eight sessions of chiropractic treatment with Mr Steve McCann; one year gym membership with a personal trainer at Elixir Gym; eight sessions of exercise physiology with Active Care Physiotherapy and Sports Therapy; and eight sessions of remedial massage at Bondi Massage relate to the injuries caused by the motor accident.
The Panel determines that the disputed proposed treatment and care referred to above is not reasonable and necessary in the circumstances.
The Panel revokes the replacement certificate issued by Medical Assessor Cameron dated 23 December 2023.

CONCLUSION

The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.

[2025] NSWPICMP 295

30 April 2025