Shen v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Shen v AAI Limited t/as AAMI [2024] NSWPICMP 480
CLAIMANT:	Ou Shen
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	17 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Assessor determined the degree of permanent impairment caused by the accident was 7% and that the proposed treatment disputes were not reasonable or necessary; Medical Review Panel considered the issue of causation; Held – the injuries referred and caused by the accident gave rise to a permanent impairment of 12%; the proposed treatment for eight sessions of physiotherapy in relation to the knee injury was causally related to the accident and was reasonable and necessary in the circumstances; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Cameron dated 25 May 2024 and substitutes the determination to certify that the injuries caused by the motor accident and referred to the Review Panel, gave rise to a whole person impairment of 12%. 2. The Review Panel concludes that the only treatment and care related to the injuries caused by the motor accident that is reasonable and necessary in the circumstances are: (a) the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023 in relation to the knee injury sustained in the subject accident. 3. The Review Panel concludes that the following treatment and care were caused by the accident however are not reasonable and necessary in the circumstances: (a) the request for an MRI scan of the brain; (b) the request for an MRI scan of the lumbar spine; (c) the request for an MRI scan of the left shoulder; (d) the request for a CT angiogram; (e) the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023, and (f) the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023.

STATEMENT OF REASONS

INTRODUCTION

On 8 April 2021, Ou Shen (Mrs Shen), the claimant, was injured in a motor vehicle accident (the accident). She was a pedestrian when the insured vehicle struck her at approximately 30kmph. She was walking with her husband when the accident occurred. Both were injured and admitted to hospital. Further details of the accident are set out below.
Mrs Shen has brought a claim for common law damages for the injuries she sustained under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited ABN 48 005 297 807 trading as AAMI (AAMI) is the relevant insurer.
A medical dispute about the degree of Mrs Shen’s whole person impairment (WPI) and treatment has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the 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 Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor Ian Cameron for assessment.
On 25 May 2023, Medical Assessor Cameron issued a certificate under s 7.23(1) of the MAI Act.

REVIEW PROCEDURE

Mrs Shen sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel (the Panel).
The 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. The President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (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 27 October 2023, the Panel informed the parties that it considered a re-examination of Mrs Shen was required. Arrangements were made for Mrs Shen to be re-examined by Medical Assessor Dixon on 6 February 2024.

LEGISLATIVE FRAMEWORK

General provisions

Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Mrs Shen’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 (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:
(a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b)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.”
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.

TREATMENT DISPUTE

Mrs Shen’s claim is governed by the provisions of the MAI Act. It provides a scheme for the compulsory third-party insurance of 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.
Statutory benefits payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act include:
(a) treatment and care benefits under division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Unlike the previous scheme, damages for treatment and care cannot be recovered by Mrs Shen, against the insurer. The only mechanism for the recovery of the cost of treatment and care is through a statutory benefits claim.
Section 3.24 provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(b)the reasonable cost of treatment and care,
…
(2) Statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was reasonable and necessary in the circumstances or related to the injury resulting from the motor accident concerned.”

Causation of injury

AAMI is not liable to pay statutory benefits if the treatment in dispute does “not relate to the injury resulting from the motor accident”.
This requires the Panel to determine the injuries resulting from or caused by the accident (if there is a dispute) before determining whether the treatment relates to those injuries.

Treatment related to the injury resulting from the accident

The Panel notes AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 where the test of the relationship between surgical treatment and an accident was determined in a matter where the Motor Accident Compensation Act 1999 applied and where the claimant had sustained injury in three motor accidents. While a slightly different test applied under the 1999 legislation, the case remains relevant on the issue of “relationship”.
The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”

Reasonable and necessary

In order for AAMI to be liable to pay for the treatment, the claimant must establish that the treatment is “reasonable and necessary in the circumstances”. The “reasonable and necessary” test is different to, and arguably stricter than the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 his Honour Justice Grove in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Meagher JA and Santow JJA agreeing), stated:
“[22] I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Edn and ‘that cannot be dispensed with’ - Macquarie.
[23] The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a)     the appropriateness of the treatment in dispute;
(b)     the availability of alternative treatment;
(c)     the cost effectiveness of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the appropriateness of the treatment.
While related to a different scheme and another test, the Panel considers these observations are relevant to our decision of whether Mrs Shen’s proposed treatment is “reasonable and necessary”.

In the circumstances

Of further note is that the test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. The question of the relationship between accident and treatment is dealt with in the consideration of whether the accident caused the injury and the disputed treatment’s relationship to that injury, Therefore it may be reasonable and necessary for a claimant to have treatment to alleviate symptoms from an injury or a condition but if the injury or condition was not caused by the accident the claimant will not be entitled to statutory benefits.
The words “in the circumstances” in the context of whether a particular treatment is “reasonable and necessary” must therefore refer to the particular circumstances of the claim and the claimant in the proceedings before the Panel. As the members of another Panel said in the matter of Allianz Australia Insurance Limited v Vella (No 1) [2023] NSWPICMP 73:
“That may mean that a particular claimant has subjective requirements that may mean that some treatment for a specific injury is reasonable and necessary whereas the same treatment for the same condition of a different claimant may not satisfy the test”.

Dispute resolution

Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including:
“(b) whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron examined Mrs Shen on 9 May 2023, and issued a certificate under s 7.23 of the MAI Act.
Medical Assessor Cameron was referred the following injuries for assessment:
(a)    injuries in bilateral shoulders – acromioclavicular joint sprain with ongoing crepitus and pain;
(b)    injuries in bilateral knees – moderate cruciate and collateral ligamentous laxity, undisplaced fracture of the lateral femoral condyle and undisplaced fracture of the tibial plateau of the left knee;
(c)    injuries in lumbar spine – crush fracture of the L4 vertebral body attended by a left L5 radiculopathy, with a reduced ankle reflex and wasting of the left calf and, and
(d)    skin – scarring in left knee.
The following treatment and/ or care disputes were referred by the Commission for assessment:
(a)    whether the request for an MRI scan of the brain is reasonable and necessary in the circumstances;
(b)    whether the request for an MRI scan of the lumbar spine is reasonable and necessary in the circumstances;
(c)    whether the request for an MRI scan of the left shoulder is reasonable and necessary in the circumstances;
(d)    whether the request for a CT angiogram is reasonable and necessary in the circumstances;
(e)    whether the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023 is reasonable and necessary in relation to the knee injury sustained in the subject accident;
(f)    whether the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023 is reasonable and necessary in relation to the shoulder injury sustained in the subject accident, and
(g)     whether the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023 is reasonable and necessary in relation to the leg injury sustained in the subject accident.
At [3] and [4] in his reasons, Medical Assessor Cameron considered both parties submissions.
He at [9] took a pre-accident history. He noted that Mrs Shen was living with her husband. Mrs Shen had university education in China in information technology. She had worked using those skills in China and came to Australia in 2019 and has not had paid employment in Australia.
Mrs Shen reported that her past health was very good and she had completed a 10km running race in 2019.
Medical Assessor Cameron took a history of the motor accident at [10] and a history of symptoms and treatment following the motor accident at [11]:
“On 8 April 2021, Mrs Shen was walking in the street with her husband. She was hit by a car. An ambulance attended and she was taken to Royal North Shore Hospital. A multi-ligament injury to the left knee was noted. There was a left knee reconstruction on 14 April 2021. There were other injuries sustained. Mrs Shen was discharged on 16 July 2021. She returned to the hospital several days later with problems with the left knee. She may have had a deep venous thrombosis.”
At home, Mrs Shen was assisted by friends and colleagues with her husband. Her husband was also injured in the incident. Mrs Shen told Medical Assessor Cameron that she had had ongoing problems with the left leg and also problems with her left shoulder.
Medical Assessor Cameron took a history of her current symptoms at [13]:
“Mrs Shen said that there were multiple problems with her left leg. She said that it felt unstable and on occasions it ‘locked.’ She said walking is difficult. She said that she feels as though there is ‘no space between the bones in her left knee.’ There is also pain from the left shoulder at extremes of movement. Mrs Shen also noted pain from the left hand. She said the right knee is now also somewhat painful. There has been extensive physiotherapy with 80 – 100 treatments. There has also been a gym program. That is no longer funded by AAMI but Mrs Shen does continue to attend the gym twice weekly. Mrs Shen reported difficulty with stairs. There are stairs within the apartment. There had been a fall at home and symptoms increased after this.”

Medical Assessor Cameron conducted a clinical examination. The results of this examination were set out in his reasons at [15]:
“Mrs Shen is right-handed, 162cm in height and weighs 61kg.
Mrs Shen was co-operative and provided a clear history.
At the cervical spine there was a full range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
At both shoulders there was a full range of movement in each plane of movement, specifically abduction was to 180°, adduction to 50°, flexion to 180°, extension to 50°, external rotation to 80°, internal rotation to 90°.
At the left shoulder Mrs Shen localised pain in the region of the left acromioclavicular joint. There was no crepitus at the time of examination.
There was a full range of motion at other upper extremity joints including the hands.
There were no neurological abnormalities in the upper extremities.
No difference in circumferences of the upper extremities was detected.
At the thoracic spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was no deformity at the lumbar spine.
At the left knee there was a 10cm surgical scar on the medial aspect of the left knee. It was not prominent.
Range of motion of the left knee was 0 - 130°. Mrs Shen said there was numbness over the left knee. No crepitus was detected and the knee was mildly unstable.
There was a full range of motion at the right knee.
There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences lower extremities were, above knee right 39.5cm, left 38cm; below knee 31cm bilaterally.
Mrs Shen walked unaided. Her balance was adequate.”
At [17]-[18], Medical Assessor Cameron provided a summary of the relevant documentation, radiological and medical imaging.
He set out his diagnosis, considering causation, and reasons at [20]-[21]:
“In the incident on 8 April 2021, in which Mrs Shen was hit as a pedestrian, she sustained serious multiple injuries to her left knee. She also sustained an injury to her left shoulder. There has been surgical repair to the left knee with a generally reasonable result. There is no evidence of a crush fracture of L4 based on the information available to me. There is no evidence of ongoing crepitus from either acromioclavicular joint.”
Medical Assessor Cameron concluded that the following injuries were caused by the accident:
(a)    left shoulder – soft tissue injury;
(b)    right shoulder – soft tissue injury;
(c)    left knee – complex multi-ligament injury with undisplaced fracture of the lateral femoral condyle and undisplaced fracture of the tibial plateau;
(d)    right knee – soft tissue injury;
(e)    lumbar spine – soft tissue injury, and
(f)    skin – left knee scarring.
Medical Assessor Cameron certified that the degree of permanent impairment caused by the accident was 7%.
Medical Assessor Cameron determined that the treatments would not have been requested had the motor accident not occurred.
Medical Assessor Cameron concluded that there was no clinical justification for the additional imaging that had been requested. The imaging requested would not assist Mrs Shen and could raise further concerns in view of normal findings that are often reported as “abnormalities” in the routine use of imaging studies.
He further commented that Mrs Shen has had a large number of physiotherapy treatments since the motor accident and they have assisted her recovery. She had moved on to a self-managed exercise program that was appropriate for the stage of her recovery.
Medical Assessor Cameron concluded that although the following treatment and care relate to the injuries caused by the accident, they were not reasonable or necessary in the circumstances:
(a)    the request for an MRI scan of the brain;
(b)    the request for an MRI scan of the lumbar spine;
(c)    the request for an MRI scan of the left shoulder;
(d)    the request for a CT angiogram;
(e)    the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023 in relation to the knee injury sustained in the accident;
(f)    whether the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023 in relation to the shoulder injury sustained in the accident, and
(g)    whether the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023 in relation to the leg injury sustained in the accident.

SUBMISSIONS

Mrs Shen’s submissions

Mrs Shen provided written submissions via her solicitor, dated 21 June 2023 in respect of the Review. The submissions are summarised below.
Circumstances of the accident
[1]     Mrs Shen was involved in a significant accident on 8 April 2021. She was a pedestrian. The insured vehicle collided into Mrs Shen at approximately a speed of 30kmph (NSW police report). Mrs Shen was transported via ambulance to Royal North Shore Hospital where she was admitted for nine days (Discharge summary). She had an operation to her left knee to put the joint back into place and sustained injuries to her lower back and left shoulder. Mrs Shen was walking side by side with her husband when the accident occurred. Both were severely injured and admitted to hospital.
[2]     Mrs Shen consequently developed secondary injuries to her right shoulder and right knee due to the severity of the injury and her impairments to the left side of her body.
[3]     Mrs Shen will be able to establish that there is reasonable cause to suspect that the assessor has made a material error and the President’s Delegate ought to refer the matter to the Review Panel for another assessment.
The first ground – lumbar spine
[5]     Mrs Shen referred a “crush fracture of the L4 vertebral body attended by a left L5 radiculopathy, with a reduced ankle reflex and wasting of the left calf” to the Personal Injury Commission for assessment of whole person impairment.
[6]     On page 8 of 12, the Medical Assessor notes, “With reference to the lumbar spine, it has not been established that a fracture occurred and there is no current evidence of radiculopathy or left calf muscle wasting.”
[7]     Mrs Shen submitted that from this statement it was clear that the Medical Assessor had failed to adequately consider the material before him, being the report of Dr Buckley dated 21 May 2022 and the X-ray of the lumbosacral spine dated 31 May 2021. The report of Dr Stephen Buckley directly contradicted the Medical Assessor’s decision.
[14] A review of the entire certificate demonstrates that the Medical Assessor did not make any comparisons in respect of the ankle reflex despite there being an indication by other medical assessors that there was an issue with same.
MRI lumbar spine
[15] Mrs Shen submitted that it was unclear how the Medical Assessor had determined that Mrs Shen’s request for imaging to the lumbar spine had been denied. This was perhaps due to the Medical Assessor’s tendency to use a “catch-all” reasoning in respect of the list of imaging requested.
[16] The Medical Assessor on page 11 of 12 noted, “Mrs Shen has had extensive imaging conducted following the motor accident” yet fails to point to a single scan in respect of Mrs Shen’s lumbar spine in his certificate. His reasoning, at least in respect of the lumbar spine, cannot be substantiated. Furthermore, and as noted above, the only two imaging studies he referred to in his decision was the MRI left shoulder dated 16 March 2022 and the MRI left knee dated 8 August 2022. The Medical Assessor had clearly employed a “catch-all” reasoning for the requests for further imaging, which means that he has not properly discharged his duties as a medical assessor in determining whether the specific treatment that has been referred before him is reasonable and necessary.
[17] There had been no MRI scans to the lumbar spine to date and the Medical Assessor certainly did not have the benefit of referring to any MRI scans to the lumbar spine at the assessment.
The second ground – left knee
Whole Person Impairment
[20] Mrs Shen sustained a multi-fracture dislocation of the left knee resulting in moderate cruciate and collateral laxity, undisplaced fracture of the lateral femoral condyle and undisplaced fracture of the tibial plateau.
[24] Mrs Shen’s pathology and symptoms were clearly demonstrable of at least a mild collateral ligament laxity which attracts a minimum of 3% WPI and at least a moderate cruciate ligament laxity, which attracts a minimum of 7% WPI. Together, they make a combined WPI value of 10% alone. The Medical Assessor seems to have completely missed the collateral ligament laxity in his final WPI assessment despite referring to the medical evidence which demonstrates the existence and diagnosis of collateral ligament laxity. This was demonstrable of a material error as there seemed to be no logical conclusion or path of reasoning provided in not including this aspect within the diagnosis-based estimate evaluations performed on page 6 of 12.
The third ground – scarring
[32] Mrs Shen submitted that the Medical Assessor erred in not allocating at least 1% whole person impairment in respect of left knee scarring. Mrs Shen’s best fit was 1% WPI as per table 6.18 (TEMSKI) motor accident guidelines.

AAMI’s reply submissions dated 12 July 2023

AAMI provided written submissions dated 12 July 2023, in respect of the Review. The submissions are summarised below.
AAMI submitted that whilst Dr Buckley’s opinion does differ from that of Commission’s Merdical Assessor Cameron, this difference between medical experts in relation to diagnosis and opinion does not, in and of itself, constitute a material error, rather simply a difference of opinion which is not uncommon as between experts.

WPI – lumbar spine

Mrs Shen submitted that Medical Assessor Cameron had erred in a material respect in arriving at his whole person impairment calculation for the lumbar spine. The basis of Mrs Shen’s allegation in this regard appears to be that Mrs Shen asserts that as Dr Buckley determined that Mrs Shen had sustained a crush fracture of the L4 vertebral body, this is a diagnosis that should have been accepted by Medical Assessor Cameron.
Contrary to Dr Buckley’s opinion, Medical Assessor Cameron did not agree that there was a crush fracture. Medical Assessor Cameron undertook a careful examination of Mrs Shen overall but particularly in relation to the lumbar spine and, as he noted at page 4 of his report, he considered all of the documentation that had been submitted by both parties when arriving at his eventual diagnosis. At page 5 of his report, Medical Assessor Cameron noted in some detail his findings with respect to the lumbar spine. In particular, he took note of the findings with reference to Dr Buckley’s assessment of the lumbar spine, but he did not agree with them.
Based upon the material that was presented to Medical Assessor Cameron, and the examination he undertook of Mrs Shen, he arrived at the conclusion that with respect to the lumbar spine Mrs Shen had “no significant clinical findings”. Medical Assessor Cameron was of the view that Mrs Shen had sustained a soft tissue injury to this region. At paragraph 20 of his report, he confirmed his difference of opinion from Dr Buckley by stating that, in his view, “there is no evidence of a crush fracture of the L4 based on the information available to me”. At several points during his report, Medical Assessor Cameron confirms that he considered all of the information provided by the parties. It was not open to Mrs Shen to infer that Medical Assessor Cameron did not consider the X-ray report referred to at paragraph 10 of Mrs Shen’s submissions, simply because Dr Buckley formed a different clinical opinion of the evidence.

Treatment – MRI of the lumbar spine

Once again, based upon the opinion (medico-legal) of Dr Buckley, Mrs Shen submitted that Medical Assessor Cameron’s finding that the request for an MRI scan of the lumbar spine was not reasonable and necessary in the circumstances. AAMI submits that Medical Assessor Cameron has explained in sufficient detail in his report why he came to such a view. On a background of his diagnosis that there was no evidence of a crush fracture of the L4 and that there was, on his clinical examination, no significant clinical findings, Medical Assessor Cameron formed the view that Mrs Shen had already been extensively radiologically investigated, he did not believe that this further proposed investigation would offer anything different or better from a diagnostic point of view. On that basis then, he concluded that the requested treatment was not reasonable and necessary. Once again, there is no material error in the Medical Assessor’s decision in this regard. It simply differs from the recommendations made by Dr Buckley.

Left knee – WPI calculation

Mrs Shen alleges that Medical Assessor Cameron has made material error with respect to his calculation regarding the left knee. Once again, Mrs Shen bases this allegation upon the findings contained in Dr Buckley’s report. As noted above, AAMI submits that it is inappropriate for Mrs Shen’s solicitor to offer his own views with respect to WPI as indicated at paragraph 21. Medical Assessor Cameron has provided a detailed account of his examination regarding the left knee and explanation as to how he has calculated the overall whole person impairment rating.
The Medical Assessor made it plain that he has considered the available radiology and, combined with his own clinical examination of Mrs Shen, he has formed a view as to how whole person impairment should be calculated for this injury. The essence of Mrs Shen’s criticism in this regard is that Medical Assessor Cameron, on examination, found “mild cruciate ligament laxity” (3% WPI). The fact that this was a different finding on clinical assessment from that apparently made by Dr Buckley does not, in and of itself, constitute a material error.

Scarring – calculation of WPI

AAMI submitted that the fact that Medical Assessor Cameron’s view differed from that of Dr Buckley is not, in and of itself, an error. It is plain from Medical Assessor’s Cameron’s report that he carefully considered the scarring, and, in his professional medical opinion, the scarring was not found to be “prominent”, hence the WPI calculated.

MEDICAL EVIDENCE

Application for personal injury benefits (APIB), dated 20 April 2021

In the APIB form, Mrs Shen described the motor accident as:
“I was walking along Victoria Avenue approaching Blakesley Street in Chatswood with my husband. We looked left and right and ahead before proceeding to cross the road from Victoria Avenue to go past the intersection with Blakesley Street, Chatswood when the vehicle at fault collided into us.”
Mrs Shen described the injuries she received as a result of the motor accident as:
“left knee requiring surgery
Lower back
Hands
Right leg”

Royal North Shore Hospital Discharge Summary, 16 April 2024

Mrs Shen was transported to Royal North Shore Hospital for treatment following the motor accident where she stayed until she was discharged on 16 April 2024. The discharge summary stated:
“Issues and Progress
1.      L knee multiligamentous injury- MCL, ACL, medial meniscus
Presentation
-       Traumatic left knee dislocation following MVA at 20 kph
-       Neurovascularly intact at presentation
Investigations
-       Trauma XR's and CT: posterior subluxation of knee (full reports attached)
-       ABI: 1.15
-       CTA (full report attached)
-       depression fracture lateral femoral condyle
-       avulsion fracture medial femoral condyle insertion of MCL
-       minimally displaced fracture of the left posterolateral tibial plateau .
-       no popliteal injury
-       MRI (full report attached)
-       MCL, ACL and medial meniscal tear
Management
Reduced in ED
Trauma team review + tertiary survey: no other injuries identified
Operation on 14/04 (full report attached)
-       MCL layered repair
-       Medial meniscus posterior root avulsion repaired
-       ACL reconstruction with gracilis autograft
Discharge Plan:
-       Discharge home
-       No weight bearing through affected leg for 6 weeks
-       Continue analgesia as charted below, small supply provided
-       Follow up with your GP within 1 week for scripts, referrals and ongoing management including regarding
-       Incidental findings on CT trauma:? mesenteric panniculitis, R breast? fibroadenoma (see full report attached)
-       Follow up in 2 weeks for a wound check at Dr Parker clinic
-       Location Ambulatory care centre, level 3 RNSH
-       Time 29/04/2021 at 1:15pm “

MRI of the left knee, 8 April 2021

The MRI of 8 April 2021 reported that:
“Single lateral projection with moderate rotation. Within this limitation, normal patellofemoral alignment is maintained. There is posterior subluxation of one of the femoral condyles, likely the medial (irregularity of the other femoral condyle likely correlates to the lateral impaction fracture seen on the later CT angiogram legs).”

Xray lumbosacral spine, 31 May 2021

On 31 May 2021, Mrs Shen underwent X-ray lumbosacral spine, which revealed a scoliosis concave to the left of some 20°, centred on the L4/L5 level, consistent with a crush fracture at L4, on the left side of the vertebral body.

Physiotherapy report of Ms Ho, dated 12 October 2021

Ms Zoey Ho reported that Mrs Shen had stiffness and mild pain in her left knee. There was also constant numbness and pain which increased with walking and over-exertion in knee.

Certificates of Capacity, dated 20 April 2021

A Certificate of Capacity/Certificate of Fitness dated 20 April 2021 was completed by Dr Jiang Li. Dr Li provided a diagnosis of severe injuries to the left knee with meniscular tears and ligaments torn, and insomnia from anxiety.

MRI left knee, 9 December 2021

The MRI of the left knee on 9 December 2021 reported s reported as showing intact anterior cruciate ligament (ACL) and medial collateral ligament (MCL) repairs, and a complex tear of the medial meniscus and mild to moderate osteoarthritis, particularly in the patellofemoral component.

Dr Della Torre, orthopaedic surgeon, January 2022

The report of Dr Della Torre dated 25 January 2022 said that Mrs Shen had reached a plateau. He said that there was a stable medial collateral ligament reconstruction with Grade 2 laxity ACL and a complex tear to the medial meniscus. He said there was still left quadriceps atrophy. He noted there was lower back pain, as well as left shoulder complaints. There was some right knee pain
Dr Paul Della Torre, orthopaedic surgeon referred Mrs Shen for left knee guided cortisone injection dated 23 August 2022. Dr Della Torre reported the reason for the referral as left knee effusion and synovitis.

MRI left shoulder, 16 March 2022

On 16 March 2022, the MRI of the left shoulder found that Mrs Shen has supraspinatus tendinopathy with bursal sided partial tearing and bursal sided fraying, subacromial bursitis and mild acromioclavicular AC joint arthrosis in her left shoulder.

MRI left knee, 8 August 2022

The MRI of the left knee dated 8 August 2022, showed evidence of the reconstruction and thinning of the graft. It said the medial collateral ligament was intact. It said there was chondromalacia patellae present.

MRI left shoulder, 16 March 2022

The MRI of the left shoulder of 16 March 2022, reported as showing supraspinatus tendinopathy with bursal-sided partial tearing and bursal-sided fraying and subacromial bursitis, with mild acromioclavicular joint arthrosis.

Dr Allan Young, orthopaedic surgeon, April 2022

Dr Young provided a medical report dated 8 April 2022. Dr Young reported the following:
“I am uncertain as to the cause of Ou’s ongoing left shoulder pain. I have recommended that she have an MRI scan to further investigate. Ou is concerned regarding the MRI scan and claustrophobia and so I have suggested she has this with sedation at North Shore Radiology”.

Report of Dr Stephen Buckley (consultant physician in rehabilitation medicine), dated 21 May 2022

Dr Buckley examined Mrs Shen on 7 March 2022. He reported:
“Diagnosis:
·        Right acromioclavicular joint sprain with continuing crepitus and pain.
·        A multi fracture dislocation of the left knee, with consequently-
oModerate cruciate and collateral laxity
oFracture of the lateral femoral condyle, undisplaced
oFracture of the tibial plateau, undisplaced
·        Crush fracture of the L4 vertebral body with less than a 25% loss of height, but with L5 radiculopathy
Requirements for Care:
Medical Care: General Practitioner – six times annually
Operations:
·Provision for a lumbar laminectomy and discectomy
·Provision for a left total knee replacement
·Provision for a left knee revision procedure
·Housekeeper: Five hours per week
·Fitness for Work: Unemployable on the open employment market”
Dr Stephen Buckley in his report dated 21 May 2021 noted that there was a prominent red medial scar of 12cm, extending from the medial joint line to just medial and below the tibial tubercle.

Report of Dr Myles Coolican, November 2022

On 14 November 2022, Dr Coolican reported that:
“Mrs Shen’s chief complaint is pain at the front inside the knee and around the medial aspect. The pain is worse with her first steps in the morning and when she gets going after sitting. The knee is also sore with stairs and if she walks for more than 30 minutes. The knee swells. She says the knee feels like it separates, and she demonstrated the knee buckling into hyperextension. She has seen Dr Paul Della Tore who recommended an injection and has discussed revising the ACL reconstruction. She tells me that Dr Parker told her the ACL graft is intact. Her mobility is restricted to 30 minutes.”

Dr David Parker, orthopaedic surgeon, 8 May 2023

On 8 May 2023, Dr Park examined Mrs Shen and reported:
“I think that the main issue with Ou Shen’s knee is that she has muscle wasting and some mild residual stiffness and this is exacerbating her patellofemoral discomfort and sense of instability. She was very concerned about the MRI report describing a thin ACL graft but I explained to her today that even some very mild residual laxity in the ACL which she has is highly unlikely to cause her any instability in the absence of any more vigorous sporting activities. I certainly strongly advised her against any further surgery for anterior cruciate ligament. It may be reasonable to consider removal of the interference screws in her medial femoral condyle but I did stress to her that this should only give some possible improvement of localised tenderness and discomfort in this region. I do think the most useful thing she could do will be a good physiotherapy program just to work on improving her muscle strength and balance which should give an overall improvement of her pain of function moving forward. She may also get benefit with use of a simple knee support and possibly another intraarticular injection of corticosteroid and hyaluronic acid.”

THE PANEL

At the first Panel meeting on 19 October 2023, the Panel concluded it would be necessary to conduct an examination in order to address the parties’ submissions in relation to the motor accident.

The Panel’s examination

On 23 May 2023, Medical Assessor Drew Dixon, on behalf of the Panel conducted an examination on Mrs Shen in the presence of Mandarin Interpreter Chen Cao CPNTYK14N.

HISTORY

Mrs Shen was walking across a road with her husband in Chatswood at approximately 6.00pm on 8 April 2021 and did not see any vehicle approaching. They were almost to the other side when they were both knocked over by a car. She recalled being hit and thrown a few metres away and then lost consciousness, although there was no head injury. She was taken by ambulance to Royal North Shore Hospital and was advised that she had a complex knee injury with multiple ligaments torn and that she required repair of such ligaments and an ACL reconstruction.
She was discharged on 16 April 2021 and had outpatient physiotherapy. She did however develop further pain and swelling of her knee and returned to Royal North Shore Hospital where a deep venous thrombosis (DVT) was found on Doppler ultrasound. She was then discharged on 23 April 2021 on an anti-coagulant, Apixaban.
Consequentially she had hydrotherapy, physiotherapy and exercise physiology until June 2021 and had a cortisone injection for her left knee in late August 2022.
She developed post-traumatic stress disorder and had psychological review.
Her injuries included bilateral shoulder strain injuries with an injury to her lower back associated with left L5 radicular complaint.
She was assessed by the Commission’s Medical Assessor Cameron, on 9 May 2023 and in his Medical Assessment Certificate (MAC) of 25 May 2023 he noted a WPI of 7% for soft tissue injuries of both shoulders, the complex multi-ligament injury of the left knee with undisplaced fracture of the lateral femoral condyle and undisplaced fracture of the tibial plateau and soft tissue injury to the right knee and a soft tissue injury to the lumbar spine.

SOCIAL HISTORY

She and her husband live in a townhouse in Artarmon. She has had training in Information Technology and used those skills when living in China. She then came to Australia in 2019 but has not had a remunerative occupation in Australia and not been driving a motor vehicle. She reports her past health was excellent. She had been able to do regular long-distance running.

SYMPTOMS

On review on 23 May 2024, she reported intermittent locking of her left knee with a feeling of instability. She also reported her right knee had become painful while favouring her left knee. She reiterated that she had an extensive rehab program at the gym and physiotherapy and did continue attending the gym. There were stairs within her apartment, and she has difficulty managing those stairs. She had also had a fall at home.
She complained of anterior pain and stiffness of her left shoulder and she feels at times her left shoulder subluxes at night when she is in bed and she had difficulty sleeping on the left shoulder due to pain.
She reported her right shoulder had settled. She reported pain in the lower back with lumbar stiffness. She reported no sciatica but did have difficulty with prolonged sitting, standing and repetitive bending and stooping aggravated her back pain.

EXAMINATION

On examination on 23rd May 2024, she presented in a straightforward manner and interacted fluently with the Interpreter. She was 181cm tall and weighed 59kg.
There were stiffness on elevation of her left shoulder with forward flexion 130 degrees, active abduction 120 degrees with impingement, adduction was 40 degrees, extension 30 degrees, external rotation 60 degrees and internal rotation 70 degrees. There was tenderness at the anterolateral deltoid and mild tenderness of the biceps groove. The apprehension test for instability was equivocal. The power of her left shoulder girdle was grade 4 out of 5 and there was no winging of the left scapula on resisted protraction. There had been deterioration of her left shoulder since her MAC of 25 May 2023.
There was a full range of motion of her right shoulder where power was grade 5 out of 5 and she had a full symmetrical range of motion of her cervical spine. There was no neurological deficit in the upper limbs. Both arms measured 27cm, 10cm above the elbow and her left forearm showed 1cm of wasting, 19cm on the left and 20cm on the right – she was right handed.
There was stiffness of her lumbar segment with flexion extension decreased by one third and lateral flexion decreased by one quarter bilaterally. There was no erector spinae muscle spasm. There was tenderness at L5 in the midline. Straight leg raise was 70 degrees bilaterally and there was no neurological deficit of either lower extremity. There was 1cm of wasting of her left thigh, 39cm, 10cm above the upper pole of the patella compared with 40cm on the right. There was no wasting of the lower legs.
The range of motion of her left knee was 0 degrees through to 100 degrees with a mildly positive anterior draw sign, consistent with mild anterior cruciate laxity. The knee was otherwise stable. There was tenderness at the anteromedial joint line and there was swelling of the knee with popliteal fullness. There was no retropatellar crepitus.
There was an 11cm para patella medial arthrotomy scar, although reasonably healed, had a very tender neuroma (probably from the infrapatellar branch of the saphenous nerve) which is painful if bumped and tender when percussed and she reports it impacts on her activities of daily living (ADL's). She is readily able to localise this scar and the scar is visible with summer clothing with mild colour contrast but no suture marks. Her arthroscopic portals were non tender, and the other scars had healed reasonably.

INVESTIGATIONS

Her investigations include an X-ray of the left knee on 9 December 2021 which showed intact ACL and MCL repairs and a complex tear of the medial meniscus and mild to moderate osteoarthritis, particularly in the patellofemoral joint.
X-ray of the lumbar spine on 8 January 2022 showed lower lumbar scoliosis with moderate to severe L4/5 and L5/S1 facet degeneration but there was no significant compression fracture reported and no acute bony injury. The sacral iliac joints were symmetrical, and the joint spaces were preserved.
MRI of the left shoulder on 16 March 2022 showed a tendon tear adjacent to the left shoulder. No abnormality of the AC joint was reported.
MRI of the left knee on 8 August 2022 showed reconstruction with thinning of the shaft and the medial collateral ligament was intact. There was chondromalacia patella.

SUMMARY

In summary, Mrs Shen was a pedestrian hit by a motor vehicle in the accident. Her main injury was a complex ligamentous injury to the left knee which required repair and undisplaced fracture of the lateral femoral condyle and undisplaced fracture of the tibial plateau which has consolidated with residual instability and some locking in the left knee. She had a consequential injury to her right knee while favouring her left knee. She sustained soft tissue injuries to both shoulders and her lumbar spine without radicular complaint.
The Panel concluded that the physiotherapy treatments for her left knee, due to the significant injury to the knee in the subject motor vehicle accident, were reasonable and necessary.
Although Mrs Shen was not referred for scarring, when she was seen by Dr Stephen Buckley. In his report dated 21 May 2022 he noted a prominent red medial scar of 12cm extending from the medial joint line to just below the tibial tubercle. He found that because the scar was irregular, showed hypertrophic change and Mrs Shen regards it as disfiguring and visible in summer clothing, it had a probable rating of 1% WPI from the Table for the Evaluation of Minor Skin Impairment (TEMSKI) Table 6.18.
It remains unclear why Mrs Shen requires an MRI of her brain or CT angiogram as although she had a period of loss of consciousness, there was no indication of a head injury.
Areas of dispute, namely the assessment of the lumbar spine (WPI) and the treatment, MRI of the lumbar spine and calculation of left knee WPI is disputed.
With respect to the lumbar spine, Dr Stephen Buckley had suggested a crush fracture of LV4 however Mrs Shen’s treating orthopaedic surgeon, Dr Paul Della Torre in his report of June 2021, noted the X-ray of the lumbar spine revealed degenerative changes but no acute pathology.
Mrs Shen has had occupational therapy (OT) assessment and assistive devices have been recommended such as a toilet surround and shower chair which would help with toilet transfers and trying to stand in the shower, where there is a risk of falls on bending and reaching her lower legs.
The provision of these assistive devices is not an issue.
The request for an MRI scan of the brain and CT angiogram was made during the assessment by Dr Stephen Buckley but as far as can be ascertained, such a request has not come through her nominated treating doctor. There does not appear to be any satisfactory rationale for doing it now.
Mrs Shen did have an X-ray of the lumbar spine on 8 January 2024 which showed rotoscoliosis of the lower lumbar spine with moderate to severe L4/5 and L5/S1 facet degeneration. There is no acute bony abnormality, and no compression fracture of LV4 was evident on viewing of the films today.
The request for the CT angiogram does not appear reasonable or necessary nor the MRI of the brain as there was no apparent head injury in the subject accident.

IMPAIRMENT

That for the left knee for the mild AC joint laxity was from Table 64, Page 85 of the AMA 4 Guides, 3% WPI. That for the undisplaced lateral femoral condyle fracture was 2% WPI and that for the lateral tibial plateau fracture undisplaced was 2% WPI. This gave a total of 7% WPI for the left knee.
That for the left shoulder was 8% upper extremity impairment (UEI) which equates to 5% WPI.
That for her tender scar as described is from TEMSKI Scale 6.18, Page 136 of the AMA 4 Guides, 1% WPI.
There was no assessable impairment for the right shoulder, which had a full range of motion now.
That for the lumbar spine was DRE 1, 0% WPI.
This gave a total from the Combined Values Chart of 12% WPI (excluding 1% for scarring as it was not an injury referred to the Panel for assessment).
Mrs Shen had reached maximum medical improvement.
There were no symptomatic pre-existing conditions.

Addressing the parties’ submissions

In reply to Mrs Shen’s submissions, AAMI submitted that whilst Dr Buckley’s opinion does differ from that of Medical Assessor Cameron, this difference between medical experts in relation to diagnosis and opinion does not, in and of itself, constitute a material error, rather simply a difference of opinion which is not uncommon as between experts.
The Panel further considered the pre-accident history, the history of the motor accident and the relevant medical history, treatment, radiological imaging, and the results of the physical examination in order to address the matter of causation according to clause 6.6 of the Guidelines.
The consideration of whether or not there were clinical signs justifying a determination that there was WPI in accordance with the guidelines, the Panel must prioritise the examination on the day above the clinical findings of previous examinations such as that of Dr Buckley.
On 23 May 2024, the examination of Mrs Shen observed by Medical Assessor Dixon showed there had been deterioration of her left shoulder since her examination by Medical Assessor Cameron of 25 May 2023.
He found that the left knee mild AC joint laxity, the undisplaced lateral femoral condyle fracture and the lateral tibial plateau fracture gave rise to a 7% WPI for the left knee.
On examination there were stiffness on elevation of her left shoulder and there was tenderness at the anterolateral deltoid and mild tenderness of the biceps groove. That for the left shoulder was 8% UEI which equated to 5% WPI.

Determination

The Panel revokes the certificate of Medical Assessor Cameron dated 25 May 2024 and substitutes the determination to certify that the injuries caused by the motor accident, gave rise to a whole person impairment of 12%.
The Panel concludes that the only treatment and care related to the injuries caused by the motor accident that is reasonable and necessary in the circumstances is:
(a) the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023 in relation to the knee injury sustained in the subject accident.
The Panel concludes that the following treatment and care were caused by the accident however were not reasonable and necessary in the circumstances:
(a)    the request for an MRI scan of the brain;
(b)    the request for an MRI scan of the lumbar spine;
(c)    the request for an MRI scan of the left shoulder;
(d)    the request for a CT Angiogram;
(e)    the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023, and
(f)    the request for a further eight sessions of physiotherapy treatment in Allied Health Recovery Request No.8 dated 27 February 2023.

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Citations

Shen v AAI Limited t/as AAMI [2024] NSWPICMP 480

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710

Diab v NRMA Ltd [2014] NSWWCCPD 72

Allianz Australia Insurance Limited v Vella (No 1) [2023] NSWPICMP 73

[2024] NSWPICMP 480

17 July 2024