Transport Accident Commission v Stein

DETERMINATION OF REVIEW PANEL
CITATION:	Transport Accident Commission v Stein [2024] NSWPICMP 678
CLAIMANT:	Annemie Stein
INSURER:	Transport Accident Commission
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	24 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was the driver of a car involved in a head on collision; claimant reported pain in both knees, left hip, lower back and thigh; Held – the Medical Review Panel (the Panel) found the injuries to the left and right knees were caused by the accident and attributed 3% permanent impairment to each; claimant suffered a soft tissue injury of the lumbar spine caused by the motor accident; no radiculopathy present; left hip soft tissue injury caused by the motor accident; right hip restricted motion not caused by the motor accident; no left shoulder injury caused by the accident; evidence that left shoulder injury is degenerative in nature and not caused by the motor accident; scaring barely noticeable and is assessed at 0% permanent impairment using the TEMSKI scale in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021); the Panel found no rateable or assessable impairment for scarring; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Drew Dixon dated 28 August 2023 and issues a replacement certificate determining that: (a) The following injuries were caused by the motor accident give rise to a permanent impairment of 6% and is not greater than 10%: • left hip – soft tissue injury; • left knee - 3% whole person impairment; • lumbar spine – soft tissue injury; • right knee- 3% whole person impairment, and • scarring – not rateable. (b) The following injuries were not caused by the motor accident: • right hip – soft tissue injury, and • left shoulder – soft tissue injury.

STATEMENT OF REASONS

INTRODUCTION

On 7 February 2014 Annemie Stein (the claimant) was the driver of a car involved in a head on collision. The claimant was wearing a seat belt and the air bags deployed. There was no head injury but the claimant reported pain in both knees, left hip, lower back and thigh. The NSW Police, Fire Brigade and Ambulance attended the scene of the motor accident.
The Transport Accident Commission (the insurer) is the relevant insurer with liability to pay any damages to Ms Stein under the Motor Accidents Compensation Act 1999 (MAC Act).
The claimant was previously assessed by Medical Assessor Clive Kenna, who issued a Medical Assessment Certificate dated 6 April 2016 which assessed the claimant’s injuries to the left and right knees, lumbar spine and left hip at 6% whole person impairment (WPI). [1]
[1] Insurer’s bundle 5 pp 37-47.
The claimant made an Application for Further Assessment. Because of the further application the injuries assessed by Medical Assessor Kenna were referred to Medical Assessor Dixon for assessment. These “further injuries” included the claimant’s right hip, left shoulder and scarring.
Medical Assessor Drew Dixon issued a further medical certificate dated 28 August 2023.[2] He found that the injuries referred to him for assessment were caused by the motor accident and there was a 15 % WPI.
[2] Claimant’s bundle A 1 pp 5-12. Sub-section 58(1) (d) of the MAC Act.
On 9 October 2023 the insurer’s solicitors filed an application with the Personal Injury Commission (Commission) seeking a Panel review of the further certificate of Medical Assessor Dixon.

ASSESSMENT UNDER REVIEW

The dispute was referred to Medical Assessor Dixon who assessed Ms Stein and issued a certificate dated 28 August 2023.[3]
[3] Claimant’s bundle A 1 pp 5-12.
The injuries referred for assessment included left hip, left knee, left shoulder, lumbar spine, right hip, right knee and scarring.
Medical Assessor Dixon’s diagnosis and findings on causation were as follows:
“Her chest injury from the seat belt and air bags in the head-on collision has, in the main, settled. She has post traumatic stiffness of her left shoulder, where her MRI showed infraspinatus tear and subacromial bursitis. Her knees, which hit the dashboard on impact, resulted in meniscal strain and tears, seen on MRI. Her left hip showed gluteal tear on MRI. She had low back strain without radicular complaint with symmetrical stiffness, no dysmetria and no spasm and no neurological deficit in the lower extremities.
The claimant was involved in a very severe head on collision. She was wearing a seat belt and the air bags deployed and she had an injury to both shoulders as she was clutching the steering wheel on impact. She also had an injury to her chest and while her chest has settled and she initially had pain and stiffness in the right shoulder, she is now developing pain in the left shoulder as a consequence of her right shoulder injury. She has had a soft tissue injury to her lower back without sciatica or radicular complaint and has had direct injury to her hips, where the one on the left has been associated with mild residual post traumatic stiffness. While favouring the left hip, she has developed mild post traumatic stiffness of the right hip, as a consequential injury. The direct blow to her knees has been associated with post traumatic retropatellar crepitus and internal derangement of the knee with torn lateral mensici, requiring partial meniscectomies.”
Medical Assessor Dixon then set out his findings for the permanent impairment as follows:
“… for her back strain injury is from Table 72, Page 110, AMA IV, 0% WPI. There was no dysmetria, radicular complaint or radiculopathy. That for the left shoulder is from Pie Charts 38, 41 and 44, Pages 43-45, AMA IV, 9% UEI which equates to 5% WPI. There has been deterioration in the left shoulder. That for her right hip is from Table 40, Page 78, AMA IV, 2% WPI for the restricted range of motion. That for the left hip is from Table 40, Page 78, AMA IV, 2% WPI. That for the knees is from Table 62, Page 83, AMA IV, 2% WPI for the retropatellar crepitus following direct blow and 1% WPI for partial lateral meniscectomies for each knee from Table 64, giving 3% WPI for each knee. This is consistent with that found by Medical Assessor Clive Kenna in his MAC dated 6 April 2016. There was no assessable impairment for scarring…There were no symptomatic pre-existing conditions.”
Medical Assessor Dixon concluded that Ms Stein’s injuries resulted in a 15 % degree of permanent impairment.

REVIEW PROCEDURE

The present application is a review of a medical assessment made under s 63 of the MAC Act.
Ms Stein’s claim and her entitlements to compensation are governed by the provisions of the MAC Act. Under the MAC Act, damages for non-economic loss can only be awarded where the permanent impairment is assessed to be greater than 10% and is the result of an injury caused by a motor accident. The assessment of the degree of permanent impairment of an injured person is to be made in accordance with the Guidelines referred to below.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134 and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[4]
[4] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment and the review of medical assessments by this Panel.[5]
[5] Sections 61, 62 and 63 of the MAC Act.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). These Guidelines apply to motor accidents occurring between 5 October 1999 and 30 November 2017 (inclusive), and are the Motor Accidents Medical Guidelines issued under s 44(1)(c) of the MAC Act. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides are to be followed.
[6] Section 133. Motor Accident Permanent Impairment Guidelines Version 1 Effective from 1 June 2018
Due to the nature of the injuries sustained by the claimant, the Chapter 3 of the AMA4 Guides is relevant when assessing the musculoskeletal system.

Review

On 9 October 2023 an application for review of the medical assessment of Medical Assessor Dixon was lodged by the insurer’s solicitors.
On 30 October 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[7]
[7] Section 63(2B) of the MAC Act. Claimant’s bundle A 2 pp 13- 16.
The Commission commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination. The Panel decided it appropriate for the assessment to review all matters with which the assessment of Medical Assessor Dixon was concerned.
The Panel issued a Direction to the parties dated 31 January 2024 requiring each party to file an updated or additional indexed and paginated bundle of documents and advising the parties that the Panel had decided to re-examine the claimant. In response to this Direction the solicitor for the insurer and claimant both filed a bundle of documents. On 14 March 2024 the claimant attended her re-examination with the Medical Assessors.

CAUSATION OF INJURY

Both the claimant’s and insurer’s solicitors’ submissions, which are referred to below, raise a number of issues including: aetiology of injury, causation and alleged inconsistency. In view of this the Panel sets out the following comments about the issues raised by the parties.
First, regarding the issue of inconsistency, cl 1.41 the Guidelines provides that where there is an inconsistency between the Medical Assessor’s clinical findings and the information obtained through medical records and observations those inconsistencies must be brought to the injured person’s attention. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.[9]
[9] Clause 1.41 of the Motor Accident Permanent Impairment Guidelines version 1.
In this review the Panel has put a series of detailed questions about the claimant’s history to the claimant and asked her to respond in detail to those issues which are recorded in the reasons below.
Second, the issue of causation of injury is addressed in the Guidelines as follows:
“1.5   An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6    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.
1.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited trading as NRMA Insurance[10] his Honour Justice Wright stated at [35]:
[10] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372. See also Insurance Australia Limited trading as NRMA Insurance v Trkulja [2023] NSWSC 956.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation 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.
6.7There 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.”
Wright J then described the panel’s role in a medical review was to:
“… consider whether the motor accident did cause or contribute to [the claimant’s] condition. This required, not a consideration of material derived as a result of an internet search …. but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.” [11]
[11] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [75].
Regarding the issue of the existence or otherwise of contemporaneous evidence of complaint (which has been raised by the claimant’s solicitors in its submissions) the Panel has had regard to the following legal authority.
In Norrington v QBE Insurance (Australia)Ltd[12] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[12] [2021] NSWSC 548, Norrington.
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority(NSW)[13] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where “busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35])”.
[13] [2012] NSWSC 650.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[14] Justice Walton set aside the decision of a medical review panel. In considering the question of causation in relation to an amputated toe Justice Walton stated by focusing on whether there was a contemporaneous record of complaint in the clinical notes the actual question the review panel was required to consider was overlooked, in that case, did the motor vehicle accident materially contribute to the right second toe amputation.
[14] [2021] NSWSC 804, Kinchela.
The Panel has had regard to the above authorities which emphasise that a failure by a treating doctor to make a record of a complaint of injury or symptoms by claimant should not be treated as decisive or as proof that injury did not occur or that symptoms did not exist.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[15] In Raina v CIC Allianz Insurance Ltd Campbell J stated:[16]
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[15] Sub-section 3B(2) of the CL Act.
[16] [2021] NSWSC 13 (Raina) at [65].

Finally, there is the issue of which party bears the “onus of proof” where causation is in issue. In Insurance Australia Limited trading as NRMA Insurance v Trkulja[17] Chen J held that the review panel correctly identified the appropriate legal principles in connection with causation but then misdirected itself and reversed the onus of proof. His Honour held that the review panel misstated the legal onus: “… the onus is upon the first defendant [claimant] to satisfy the review panel that causation is established, not upon the insurer.”[18] Chen J also noted that the review panel did not refer “…to s 5E of the Civil Liability Act 2002 (NSW) (‘CLA’) which identifies where the onus of proof lies: s 3(2)(a) of the CLA; Raina v CIC Allianz Insurance Limited (2021) 95 MVR 73; [2021] NSWSC 13 at [65] (‘Raina’).”[19]
[17] [2023] NSWSC 956.
[18] [2023] NSWSC 956 at [84].
[19] [2023] NSWSC 956 at [84].
The Panel notes that s 5E of the Civil Liability Act 2002 provides that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

EVIDENCE BEFORE THE REVIEW PANEL

Police, Fire Brigade and ambulance reports

Treating medical evidence

The Panel has reviewed all the pre and post-accident treating medical records produced by both the claimant and the insurer.

Pre-accident treating records

There are limited medical records available for the claimant’s medical history prior to motor vehicle accident.
Prior to the subject motor accident, the claimant has a history in 1998 of bilateral knee surgery and a left hip abductor repair in 2008.
Relevant details of her pre accident medical history are referred to in the reports from various doctors detailed below.

Post-accident treating records
NSW Ambulance Service, NSW Police and hospital records

The NSW Ambulance Service, Police and Fire brigade attended the accident scene.
The NSW Police report dated 7 August 2014 is referred to by the insurer as stating that the accident was classified as a “non injury / non fatal crash” and records that “the female driver of the Silver Lexus Sedan was uninjured”. The claimant was able to self- extricate after the accident and did not attend hospital.

Accident notification form and motor accident personal injury claim form

In her Motor Accident Personal Injury Claim Form dated 12 November 2014 [20] Ms Stein reported injuries to her neck, shoulders, hips and knees. She said she had two weeks off work as a director of an antiques jewellery business.

Treating medical practitioner and treating records
[20] Claimant’s bundle pp 41-60.

On 25 February 2014 the claimant attended her treating general practitioner (GP) Dr Aileen Liu. [21] Dr Liu noted this was her first consultation with the claimant since the subject motor accident on 7 February 2014.
[21] Claimant’s bundle pp 38- 40.
Dr Liu noted:
“I first examined her on the 25th of February which was the first time I had seen her since the accident. There was bruising on the left breast presumably from the impact and bruising on her sternum. She had spasm of the trapezius muscles of the neck bilaterally. She complained of pain in the hips and the knees at the time of the accident. She had full range of motion in her arms and legs. There were no fractures. There was no other bruising. All the reflexes were brisk. The diagnosis was soft tissue injuries and I thought she should make a likely full return to pre accident status.”

Medico-legal reports and other reports

There are numerous medic-legal and reports from treating and other doctors.
All of the reports produced by the parties have been reviewed and considered by the Panel. A few of these reports are referred to below.

Dr Waller, orthopaedic surgeon

There are three reports from Dr Waller dated 9 May 2014 (x2) and 11 August 2014 which describe surgery conducted by Dr Waller on both the claimant’s knees.[22] The reports refer to signs of early osteoarthritis and note that the arthritis may progress.
[22] Claimant’s bundle pp 34- 40.
In a report dated 11 August 2014 Dr Waller noted that:
“Ms Stein had previously had arthroscopies of both knees by me in 1998. She recovered well following those procedures. She had, however, been experiencing some discomfort in her knees in the last year or two prior to her motor vehicle accident in February 2014. She had been planning some stem cell injections into the knees.”
In report dated 11 August 2014 Dr Waller’s opinion is that Ms Stein is sufficiently recovered from her injuries and is fit to return to her work.

Dr James Bodel, orthopaedic surgeon

There are three reports from Dr Bodel dated 24 September 2015, 13 September 2018 and
[23] Claimant’s bundle pp 64- 71 and 75- 88.
3 March 2021.[23]
In the report dated 24 September 2015 Dr Bodel wrote that the claimant’s clinical condition has stabilised. She has a DRE lumbosacral category II level of assessable impairment in accordance with the description in Table 72 on Page 3/110 of AMA4. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and there is a 5% WPI rating.
Dr Bodel rates each knee at a 3% WPI. Then by using the combined values chart Dr Bodel concludes that the claimant has a total of 11% WPI.
In the report dated 13 September 2018, Dr Bodel concluded that there are four individual ratings to be combined in this circumstance and they are in descending order 6% WPI for the left lower extremity, 5% for the lumbar spine, 5% for the left upper extremity and 4% for the right lower extremity. There is a total of an 18% WPI in this case. These are combined using the Combined Values Charts on Page 322 of AMA4.

Dr Gehr, orthopaedic surgeon

There is a report of Dr Gehr, orthopaedic surgeon, dated 21 October 2021 where Dr Gehr diagnosed the claimant with bilateral osteoarthritis of the knees and of the hips, which he said were constitutional. [24]
[24] Claimant’s bundle pp 89- 105.
The report notes:
“Ms. Stein has bilateral osteoarthritis of the knees and bilateral osteoarthritis of the hips. These conditions are constitutional. She has had operations on the left hip and both knees in the past and the diagnosis of arthritis has been given by a number of practitioners regarding the knees. In the event she had a significant injury to her hips and/or knees in the motor vehicle accident on 7/2/2014 she would have had these symptoms from the injury within 12-24 hours of the accident. She saw her GP 2 weeks or more after the accident and was not complaining of either the hips or the knees.”
The claimant told Dr Gehr that she had no swelling in the knees but 15 minutes of stiffness in the morning. Dr Gehr noted that she did not complain of any ongoing problems with her shoulders.
Dr Gehr’s diagnosis was that: “In the event she had a significant injury to her hips and/or knees in the motor vehicle accident of 7/2/2014 she would have had symptoms from the injury within 12-24 hours of the accident. She saw her GP 2 weeks or more after the accident and was not complaining of either the hips or the knees.”
Dr Gehr also diagnosed soft tissue injuries to the cervical spine and some soft tissue injuries to the shoulder girdle and neck which had recovered. The symptoms in her hip and left knee arthritis were apparently aggravated by the accident but not related to it. He said: “There is no relationship between her hip arthritis and her knee arthritis in the motor vehicle accident.” Dr Gehr noted that she was not likely to change in the foreseeable future. Dr Gehr concluded that: “With regard to the injuries in the motor vehicle accident she has recovered.”
Dr Gehr rated the claimant’s WPI as follows: right knee 12%, left knee 4%, scars on knee not rateable, right hip 2%, left hip 2% and lumbar spine 5% giving a total WPI of 21%.

Dr Anthony Smith, orthopaedic surgeon

There are three reports from Dr Smith dated 25 May 2105 and 17 July 2023 (x2). [25]
[25] Insurer’s bundle pp 48 – 65.
In the report dated 17 July 2023 Dr Smith’s diagnosis was that the claimant has bilateral knee osteoarthritis, which dates back many years prior to the motor vehicle accident of 7 February 2014.
Dr Smith have found that the claimant’s injuries to her knees and hips were not caused by the motor accident. Dr Smith wrote that:
“It was my opinion that prior to the accident of 7 February 2014, she had pre-existing symptomatic bilateral knee joint osteoarthritis and bilateral hip arthritis, and had had an operation on the left hip before the index motor vehicle accident, and on both knees. There was a GP note about two weeks post 7 February 2014, whereby she complained to the GP regarding pain in the left breast and the stern of the shoulders. There was no mention of the hips or the knees. I consider that she possibly had a soft tissue injury to the cervical spine and possibly the shoulder girdle, which had recovered. I considered that there was no relationship between her hip and knee osteoarthritis and the motor vehicle accident of 7 February 2014.”
Dr Smith concluded that:
“She also has bilateral hip osteoarthritis. At the age of 56, the incidence of lumbar degenerative disease is almost 100%. Rotator cuff disease is not quite as common as that. She will have a whole range of orthopaedic and non-orthopaedic comorbidities. In the event that she had significant injury to either knee or hip in the motor vehicle accident of 7 February 2014, I would have thought that hip and knee pain would have been among the symptoms she complained of when she first saw her own GP about two weeks post-accident, which was not the case. It is my opinion that there was no post-traumatic lesion seen in the post-motor vehicle accident investigations, and that the meniscal tears seen in the MRIs post-accident of 2014 were part of her bilateral knee joint osteoarthritic process. She made no complaint of ongoing low back or shoulder pain at the time I saw her originally. Currently, I would expect her to have some symptoms from spinal degenerative disease, whether the accident occurred or whether it did not occur. The incidence of spinal degenerative disease in her age group is almost 100%. Rotator cuff disease is not quite as common as spinal degenerative disease.” [26]
[26] Insurer bundle p 58.
Dr Smith stated that in his opinion there is no relationship between the claimant’s current predicament with her knee arthritis and hip arthritis, and any spinal degenerative disease she may have had. She has been having these symptoms for 14 years prior to the motor vehicle accident of 7 February 2014.
Dr Smith’s conclusion about the claimant’s WPI is as follows:
“…utilising AMA 4, the hips can be assessed using the range of motion method in Table 40 on page 78 of AMA 4. The right hip has a 2% whole person impairment. The left hip has a 4% whole person impairment. The knees can be assessed in Table 41 on page 78 using the range of motion method. There is no assessable whole person impairment regarding either knee in Table 64 on page 85. With regard to the left knee, where she had a partial lateral meniscectomy in Table 64 page 85, there is a 1% whole person impairment.”

REVIEW OF THE RADIOLOGY

The Panel has considered all the relevant radiology reports produced by the parties and summarised in its re-examination report below some of the CT scans, MRI reports and other radiology that it found to be relevant.
There is an MRI on the left shoulder from Dr Fung St Vincent's hospital dated 20 February 2017. [27]The concluding comments of this report are there is a degenerative high-grade tear of the infraspinatus with a mild thickening of the bursa correlated with clinical features of bursitis.
[27] Claimant’s bundle p 74.
There is an MRI of both knees by Dr George Hazan dated 5 March 2014. These MRIs found that the claimant had subtle meniscal tears in both knees.

SUBMISSIONS

Insurer’s submissions

The insurer has provided three written submissions dated 9 October 2023, 9 March 2023 and 20 December 2021.[28]
[28] Insurer’s bundle pp 1-9, 14-19, 20-22.
In the submissions dated 9 October 2023 the insurer’s solicitors submitted that Medical Assessor Dixon failed to:
(a)    undertake and record his findings on examination in respect of the claimant’s left and right hips;
(b)    deduct WPI for pre-existing asymptomatic injuries;
(c)    deduct WPI for subsequent injuries to the same body parts;
(d)    respond to the medical evidence and material provided to him and Medical Assessor Kenna;
(e)    consider the Certificate of Medical Assessor Kenna to identify the inconsistencies in his findings with that of Medical Assessor Kenna, and
(f)    give proper reasons for his conclusions regarding diagnosis, causation and WPI.
The insurer notes that the claimant has provided inconsistent histories to Medical Assessors Kenna and Dixon, which cause further doubt as to the veracity of the Certificate of Medical Assessor Dixon.
The insurer submits that the claimant has provided an inconstant history to Medical Assessor Kenna, who states at pages 2 and 3 of his Certificate that at the assessment in 2016 the claimant “acknowledge[d] previous problems pertaining to both knees and indeed her left hip”. At page 3 of his Certificate, Medical Assessor Kenna also noted the following:
“There was a letter from Dr Lawford of 3 June 2009 (5 years pre-MVA) to Dr Liu noting that at that point in time she was a 42-year-old female with a number of joint problems over the years, having developed bilateral knee pain in the 1990s for which she had arthroscopies (performed by Dr Waller in 1998) in which she was told she would eventually require bilateral knee replacements. At that point in time, she was also to have a hip arthroscopy in the not too distance [sic] future. The operation on the left hip, I understand, was performed on 5 June 2009 when a labral tear was diagnosed and debrided.”
The insurer notes that this pre-accident history does not appear to have been provided by the claimant, nor considered by Medical Assessor Dixon. Medical Assessor Kenna previously assessed the claimant’s left hip injury at 0% WPI.
The insurer submits that regarding the left hip Medical Assessor Dixon determined that there had been a deterioration of the claimant’s left hip and a subsequent overuse injury to the right hip. Medical Assessor Dixon assessed the left hip at 2% WPI respectively (no ROM examination recorded). The claimant’s pre-accident medical history, which the insurer contends that Medical Assessor Dixon failed to consider, would suggest that any deterioration and/or subsequent injury to the right hip was a result of arthritic changes and possibly related to the prior left hip condition for which she underwent surgery in 2009 and/or subsequent 2015 fall by the claimant, rather than related to accident.
The insurer refers to the report of Dr Gehr, orthopaedic surgeon, dated 21 October 2021. Dr Gehr diagnosed the claimant with bilateral osteoarthritis of the knees and of the hips, which he said were constitutional.
In its submissions the insurer is critical of Dr Gehr’s report dated 21 October 2021. It submits that it is not at all clear if he was asked to simply assess the damages arising out of this motor vehicle accident. For example, Dr Gehr found a WPI for the right knee of 12%. How much of that relates to her pre-accident arthritis is unknown. However, given Dr Gehr’s earlier notes it would seem that most of it is unrelated.
The insurer then refers to the claimant’s second application or further application for re-evaluation of injuries to her left knee, right knee, lumbar spine and left hip said to be consequent upon deterioration of those injuries. A previous assessment by Medical Assessor Clive Kenna of the Medical Assessment Service in 16 March 2016 found that those injuries amounted to 6% WPI.
The insurer submits that when fairly read, the reports of Dr Gehr provide little support for the claimant’s application. There is very little support in any of that material for an assertion that the claimant’s injuries suffered in the accident have deteriorated. It is clear that she was suffering from osteoarthritis in both her shoulder and her left knee prior to this accident. If there has been any deterioration it is the natural deterioration of arthritic conditions.
The insurer submits that the other injuries, soft tissue at worst, seem to have mostly resolved. In any event there is no evidence of deterioration, necessary to found a basis for a further referral.
According to the insurer Medical Assessor Dixon has not addressed the claimant’s prior left hip surgery, her subsequent left hamstring injury, the claimant’s failure to report any significant injury to her bilateral hips following the accident, the apparent late onset of any symptoms to these regions and the diagnosis of bilateral osteoarthritis to the knees and hips.
The insurer notes that Medical Assessor Dixon’s appears to accept that an injury had been sustained to the claimant’s left shoulder yet no bilateral shoulder injury was recorded by Medical Assessor Kenna. In any event, the mechanism of the injury as described by Medical Assessor Dixon does not match the history recorded by Dr Bodel in his 2018 report either.
In its submissions dated 9 March 2023 the insurer makes submissions about the application for review being federally impacted.
The insurer submits in regards the claimant’s MAS Application for Further Medical Assessment [FM10467252/21] as a whole, the insurer relies upon its earlier submissions dated 20 December 2021.
The insurer’s earlier submissions address both applications FM10467252/21 and F-M10467256/21, the latter which has not been reinstated. However, all of the submissions are still relevant as they address both the primary injuries alleged and the additional injuries alleged.
The insurer submits that the claimant’s application [F-M10467252/21] is said to be based upon a deterioration of her condition. The insurer submits that the medical evidence does not suggest any deterioration of her condition arising out of the motor vehicle accident. The claimant has arthritic changes as outlined in the Insurer’s primary submissions and no doubt these are getting worse. However, they are unrelated to the motor vehicle accident.
The insurer submits that the claimant’s application [F-M10467252/21] should be dismissed because it does not contain any medical evidence suggesting a deterioration related to the motor vehicle accident. The claimant also provides no credible basis for asserting that she has injuries arising out of the motor vehicle accident sufficient to suggest that she has a WPI of over 10%.
In its submissions dated 20 December 2021 the insurer writes that:
“The Claimant’s application for leave to commence proceedings pursuant to section 109 of the Motor Accident Compensation Act 1999 (MACA) was dismissed by Acting Judge Kearns of the District Court of NSW on 16 December 2021. In the circumstances, there is no utility for the Claimant’s MAS applications to proceed.
2. Further, these MAS applications involve an interstate party given that the CTP insurer is the Transport Accident Commission of Victoria (TAC) (the Insurer) and hence, the Personal Injury Commission (PIC) has no jurisdiction to determine a medical dispute in this matter and the applications should be dismissed pursuant to Rule 77(b)(iv) of the Personal Injury Commission Rules 2021.
3. Should the Claimant wish to pursue these applications for whatever reason, then the Claimant will need to make an application to the District Court asking the Court to remit the matter to the PIC to determine the medical dispute. Such an application, if made, will be opposed by the Insurer on the basis that there is no utility in having the assessments undertaken when the Claimant’s leave to commence proceedings was dismissed by Kearns AJ.”
The insurer then submits that the injury to the claimant’s shoulder was degenerative and would suggest that it pre-existed this accident.
The claimant consulted Dr Bodel who noted that the claimant had trouble with her knees some years prior to the accident. She apparently told Dr Bodel that she had some arthroscopies when she was studying ballet and that her knees were normal thereafter until the motor vehicle accident.

The insurer refers to a report from Dr Gehr who noted a letter from Dr Waller of 25 March 2014, five weeks after the motor vehicle accident. It records that the claimant had developed some pain in both knees prior to the accident and had been in discussions with a Dr Ibrahim about possible treatment. Again, it is clear from that history that the claimant had significant problems with her knees prior to this accident, contrary to what she told Dr Bodel.
In response to the claimant’s submissions the insurer identifies the medical evidence it relies upon.
The insurer firstly relies upon the report of Medical Assessor Kenna. In his report Medical Assessor Kenna noted that the claimant had previous problems with both her knees and left hip. Medical Assessor Kenna noted that prior to the subject accident the claimant had been advised by Dr Waller that she would eventually require bilateral knee replacements. The claimant was also told that she would need to have a hip arthroscopy “in the not too distance [sic] future”. The claimant had an operation to her left hip in June 2009. Medical Assessor Kenna confirmed that the claimant had a background of ‘substantive preexistent symptomatology’ in both her knees. Medical Assessor Kenna found that the claimant had torn menisci in both knees and soft tissue injuries to her back.
The insurer relies on a report from Dr Hazam, radiologist, dated 5 March 2014. This report was about an MRI of the claimant’s knees. The doctor recorded that the claimant noted that she had 14 years of symptoms, again in contradiction to what she had told Dr Bodel. The insurer notes there is no mention in this report of any problems arising out of a motor vehicle accident.
The insurer also relies upon two reports from Dr Waller, one of 11 August 2014 and the next of 18 September 2014. Dr Waller had not prescribed her any ongoing medication and that she had been experiencing discomfort in her knees in the previous year or two with treatment plans. Dr Waller thought the claimant was fit for work and did not require ongoing rehabilitation or work assistance and had ‘sufficiently recovered from her injuries’.
The insurer submits that, both applications should be dismissed as they now have no utility and the Commission has no jurisdiction to determine a medical dispute in a matter involving two interstate parties.
In conclusion the insurer submits that the medical evidence does not suggest any deterioration of the claimant’s condition arising out of the motor vehicle accident. She has arthritic changes in her hips, knees and shoulders and no doubt these are getting worse. They are unrelated to the motor vehicle accident.

Claimant’s submissions

The claimant’s solicitors provided written submissions dated 12 October 2023.[29]
[29] Claimant’s bundle pp 3-12.
In the submissions the claimant submits that the aappointment with Medical Assessor Dixon took place on 24 August 2023. This is some seven years, five months and nine days after the appointment with Medical Assessor Kenna.
Medical Assessor Dixon did all that was required of him when carrying out his assessment.
Contrary to the insurer’s submissions, Medical Assessor Dixon set out his findings concerning the claimant's left and right hip.
Regarding the subsequent injuries to the hamstring, the claimant argues that there is no requirement set out in the Guidelines or the AMA4 Guides for any deduction to be made on account of asymptomatic conditions.
The claimant submits that Medical Assessor Dixon was not required to put to the claimant each of the different findings of each medico-legal expert.
The claimant submits that in accordance with Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46], Medical Assessor Dixon was also not required to “analyse every piece of information from every opinion contained in a document with which he was provided”. In providing the Certificate, Medical Assessor Dixon was required to explain his actual path of reasoning but that does not require verbose or lengthy reasons, with the extent of reason to be provided dependant on the circumstances, at [35] and [36] in Lederer v Insurance Australia Limited trading as NRMA Insurance ACN 000016722 [2022] NSWSC 322 per Brereton JA. 42. Indeed, the reasons need not be lengthy and a single sentence may suffice, see Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [4] to [9] per Leeming JA.[30]
[30] Claimant’s bundle pp 11-12.
The claimant’s submissions support the economic way that Medical Assessor Dixon dealt with the matter. When the totality of the Certificate is read, it is plain that Medical Assessor Dixon acknowledged the totality of the material provided to him and in an economical fashion, as he was permitted to do, reasoned through the history, considered the documents before him and conducted an assessment of the claimant before arriving at his conclusions.
In conclusion the claimant submits that the Medical Assessor has clearly undertaken his assessment in accordance with the Permanent Impairment Guidelines and the AMA 4 Guidelines.

MEDICAL EXAMINATION

The claimant was medically examined at the Medical Assessor Homes’ Sydney CBD rooms on 14 March 2024 and Medical Assessor Sophia Lahz attended via video link. Ms Stein attended unaccompanied.
Ms Stein attended approximately 10-15 minutes late for the appointment.

History of injury

Ms Stein reported that she had been in excellent general health before the 2014 motor accident. She worked full-time in the QVB as an antique jewellery dealer. She currently works part-time, her business having relocated to the Dymocks building which she reported, was physically easier for her. However, she now lives at Mt Wilson and travels to the city two days per week, which she finds difficult due to painful injuries. From June, her jewellery business will shift wholly on-line, to which she is looking forward.
The Medical Assessors asked about history of knee pain before the motor accident. Approximately 16 years ago, Ms Stein reported undergoing bilateral knee arthroscopy with Dr Craig Waller followed by excellent recovery. She became able to walk well and negotiate stairs without problems, for many years. She did say however that Dr Waller informed her that there was already damage to the knee articular cartilage in 1998.
She initially said that there were no further knee symptoms until the subject accident (2014) although with a prompt, she recalled at one stage having considered stem cell injections to the knees. However, she was uncertain whether this had been either before or else after the motor accident.
The Panel noted that Dr Waller’s post motor vehicle accident 2014 correspondence refers to knee pain the previous year (2013). In the finish, she did not proceed with the stem cell injections in part due to the considerable expense.
The Panel noted that MRI scan of the right knee 5 March 2014 soon after the motor accident showed subtle tear of the anterior horn of lateral meniscus with patellofemoral arthropathy as well as ruptured popliteal cyst.
MRI of the left knee also 5 March 2014 also showed subtle meniscal tear of the anterior horn of the lateral meniscus and posterior horn of the medial meniscus with loss of cartilage at the patellofemoral articulation. There were oedematous changes at the tibial insertion of the ACL (anterior cruciate ligament).
On specific enquiry, Ms Stein recalled a left hip arthroscopy in 2009, “a partial tidy-up” performed by Dr Peter Walker. Post-operatively the hip pain took a while to recover although it improved to a level whereby she experienced only occasional hip pain.

History of the motor accident

Ms Stein confirmed her involvement in the subject 2014 motor accident. At the time, she was the single occupant driver of a Lexus en-route to her property in the Blue Mountains (Mount Wilson) when she was involved in a head-on collision at a corner. All airbags deployed, these hitting both knees and also the left hip. There was considerable damage to the front of her vehicle.
Ms Stein reported that the ambulance attended, checking her condition. She complained of pain in both knees and spent her subsequent holiday mostly in bed for around 10 days. She said that the physical injuries affected mostly the left side of her body, whereas now she thinks that “the right side is also caving in”.

History of symptoms and treatment following the motor accident

Not long after the motor accident, Ms Stein consulted Dr Liu, her GP, who soon referred her to Dr Craig Waller (orthopaedic surgeon) for review of bilateral knee pain. She saw Dr Waller and on 9 May 2014, she came to bilateral knee arthroscopies, undergoing chondroplasty and partial lateral meniscectomies.
She also consulted her usual hip surgeon Dr Walker on 6 May 2014 regarding lateral left-sided hip pain although he suggested that she undergo the knee surgeries first before he would consider any surgical intervention at the left hip. Subsequently, he did not advise any left hip surgery although she did receive a steroid injection to the left hip (via the groin) which she said did not help.
The Panel noted the findings of MRI left hip on 21 May 2014 of chondrolabral separation at the posterior acetabulum and partial thickness cartilage loss at the superolateral labrum. On 27 May 2014, a left hip arthrogram was done, associated with steroid and local anaesthetic injection.
Progress MRI left hip 25 July 2014 (post motor vehicle accident) showed chronic anterosuperior chondrolabral separation, extending longitudinally. There was a grade IV chondral (cartilaginous) lesion at the anterior superolateral acetabular rim along with distal gluteus minimus tendinosis. There was mild fluid distension of the gluteal bursae and there was chronic left hamstring origin tendinosis.
After the accident, Ms Stein attended physiotherapy and massage sessions. She said that physiotherapy and osteopathy sessions had been virtually continuous since the motor accident.

Details of any relevant injuries or conditions sustained since the motor accident

In May 2016, the claimant unfortunately tripped at home over the dog bowl, with resultant complete rupture of the left-sided hamstring, coming to surgery (she said) not long afterwards.
MRI of the left hamstrings origin 6 May 2016 showed acute full thickness tear of the hamstring tendon with retraction. Progress scan on 23 May 2016 confirmed full thickness tears of the proximal hamstring tendons with retraction. The reporting radiologist suggested that she should have surgery (if this were planned) within three weeks of the injury.
The surgical hamstrings repair was successful (given she could not walk preoperatively) although ongoing, she complains of left buttock numbness as well as discomfort with prolonged sitting.
Left lateral hip pain has persisted since the motor accident, although she reported that the right lateral hip pain only developed after she had undergone a left hamstrings repair, having to be NWB (non-weight bearing) for a period. She then developed symptoms in both the right greater trochanteric region and sole of the right foot (from plantar fasciitis).
Bilateral outer hip pain R>L akin to a “toothache” most occurs with negotiation of stairs and on walking. As will be noted below, hip symptoms improve transiently after regular (six monthly) lumbar spine epidural injections.

Current symptoms and proposed treatment

Ms Stein has also received steroid injections to both hips.
Ms Stein told the Medical Assessors that she developed low back pain at the time of the accident although this does not feature in the contemporaneous GP records. When asked the reasons for this, she said that other injuries (knees and left hip) took precedence. She also spontaneously mentioned that she could not recall ever having any lower back scans since the motor accident.
During 2021, Ms Stein started consulting Dr Paul Mason, a sports physician who arranged a CT-guided lumbar spine steroid injection to L4-5.
Ongoing, Ms Stein has low back pain akin to a “toothache” 4/10 intensity, worse on the right. She mentioned that low backache can spread to the lateral hips and that when she receives her six monthly lumbar epidural injection, there is transient improvement in the bilateral hip symptoms. She has been receiving regular lumbar epidural injections for three years.
She added that whilst Dr Mason reportedly would like to refer her for lumbar spine surgery, her GP has strongly advised against lower back surgery due to uncertainty of outcomes.
Ms Stein reported that she has also developed restless legs syndrome since the motor accident, for which she takes Sifrol.
When asked about the upper limbs, she reported “pins and needles” daily in her hands on waking up, of unclear causation.
When asked specifically about the onset of left shoulder pain, she commented that the “lawyer wrote it down” although she could not remember when she first noticed symptoms in this location in relation to the 2014 motor accident. However, the Medical Assessors highlighted to Ms Stein that there is no contemporaneous mention of left shoulder pain in the medical records. Specifically, left shoulder pain is not mentioned in the GP’s letter dated August 2014, Dr Smith’s 2015 medicolegal report, nor in Medical Assessor Kenna’s 2016 SIRA certificate.
An MRI of the left shoulder was not performed until 20 February 2017, nearly three years after the motor accident. This showed a degenerative high-grade tear of the anterior enthesis of infraspinatus predominantly articular sided. There were also findings of mild bursitis.
Ms Stein recalled that she did receive physiotherapy to the left shoulder.
Ms Stein explained that she consulted Dr Goldberg, a shoulder surgeon who arranged an MRI scan of the left shoulder. The latter showed a “tear” for which he suggested potential reparative surgery entailing a nine-month recovery period. However, she was not enthused and opted not to undergo surgery.
Left shoulder symptoms still occur “on and off”.
Ms Stein experiences minimal, occasional pain at the right knee involving the medial and lateral aspects.
The left knee is the much greater problem with Ms Stein requiring knee strapping for symptomatic relief. She showed the Medical Assessors the strapping applied to the left knee. The left knee can swell and also give way.
Both knees also “clunk and grate”.
Ms Stein’s current medications include regular Nurofen Plus. In the past, she has also used Valium and Panadeine Forte. She takes Sertraline for anxiety more so than depression. (She reports ongoing anxiety whenever passing by the scene of the motor accident near Mount Wilson). She takes Sifrol for restless legs and has expressed interest in trial of CBD oil for chronic pain.
Ms Stein reported reduced sitting tolerance and a driving tolerance (one hour) and walking tolerance also one hour. She is unable to kneel due to knee pain. She can bend over reasonably well although it is painful to extend the lumbar spine.
Ms Stein is independent in personal care.
She uses a shopping trolley in the supermarket and takes care with any lifting. Ms Stein pays a cleaner for the heavy chores at home.
Ms Stein is a non-smoker who consumes just one alcoholic drink daily on most but not all evenings.

Examination

On examination, she was a pleasant, forthright woman with red hair. There was mild central adiposity with weight 70kg and height 165cm.
Neck flexion and extension were full, lateral flexion ¾ normal range to either side and rotation 4/5 to either side. There was no cervical spine tenderness, guarding or else spasm and no non-verifiable radicular complaints. There was no dysmetria.
At the right shoulder, there were 160 degrees of flexion, extension of 50 degrees, abduction of 100 degrees, adduction of 50 degrees, ER of 80 degrees and IR of 50 degrees.
At the left shoulder, there were 160 degrees flexion, 60 degrees extension, 150 degrees of abduction, 50 degrees of adduction, 80 degrees of ER and 50 degrees of IR.
IR was painful bilaterally. Tenderness was noted at the anterolateral shoulders bilaterally. There was pain on resisted ER bilaterally consistent with cuff tendinopathy. Empty can tests were negative bilaterally.
There was normal lumbar lordosis associated with tenderness at L3/4, L4/5 and L5/S1 as well as the bilateral SIJ (sacroiliac joints). There was no muscle spasm or guarding and there were no non-verifiable lower limb radicular complaints. She pointed to the right side of the lowermost lumbar spine as the site of pain.
There was full range of lumbar flexion and extension and ½ normal range of lateral flexion to either side. In a seated position, there was full range of spinal rotation to either side. There was no dysmetria.
She could sit on the edge of the bed with each leg fully extended (equating to 80 degrees of SLR).
There were normal lower limb sensation, normal reflexes and power. There was no wasting of the thighs or calves.
Active left hip movements were flexion 110 degrees, extension 0 degrees, adduction 30 degrees, abduction 35 degrees, ER 35 degrees and IR 30 degrees. There was some discomfort on rolling of the left hip.
At the right hip, there were flexion 110 degrees, extension 0 degrees, adduction 25 degrees, abduction 35 degrees, ER 30 degrees and IR 30 degrees.
At the knees, there were 0-140 degrees of active motion bilaterally.
At the right knee there was a small effusion with medial and lateral popliteal fossa tenderness as well as tenderness over the medial and lateral joint lines. The knee was stable in AP and ML planes. Painful patellofemoral crepitus was present.
At the left knee, there was again tenderness at the medial and lateral joint lines although the knee was stable in the AP and ML planes. There was some pain on lateral rotation of the flexed knee. There was moderate joint effusion. Painful patellofemoral crepitus was present.
Crepitus was more marked at the left than right knee.
There was trivial, asymptomatic barely noticeable scarring at both knees.
At the left hamstring origin, there was an 8 cm long surgical scar without adverse features. There was excellent power of the left hamstrings.

DIAGNOSIS, CAUSATION AND CONSIDERATION

Diagnosis and causation

The Panel’s conclusion is that the subject accident did cause or materially contribute or cause a material aggravation to the claimant’s left and right knee injuries.
The Panel’s conclusion about the left hip is there was a soft tissue injury caused by the motor accident. The Panel’s conclusion about the right hip is that any limitation of right hip movement is not causally related to the subject accident.
The Panel's conclusion about the claimant’s lumbar symptoms is that she sustained a soft tissue injury to her lumbar spine which had resolved some months after the subject motor accident.
The Panel's conclusion about the claimant’s left shoulder is there was no injury caused by the subject motor accident.
The Panel's conclusion about the claimant’s scarring from the knee surgery scars is that the scars are not ratable.
In reaching its conclusions about the issues of causation of the claimant’s injuries, the Panel notes the Guidelines which provides in cl 6.7 that 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. The Panel has carefully considered all the detailed submission provided by both parties and the cases referred to regarding the issue of causation.

Left and right knees

The Panel accepts that the subject accident did cause or materially contribute or cause a material aggravation to the claimant’s longstanding left and right knee injuries. There is contemporaneous evidence within medical records of her treating GP Dr Aileen Liu of bilateral knee pain and injuries caused by the motor accident.

The Panel notes several reports from Dr Smith, Dr Waller and Dr Gehr who noted that the claimant reported longstanding bilateral knee pain and osteoarthritis symptoms. Dr Waller performed arthroscopies on the claimant’s knees in 1998. Dr Smith’s diagnosis was that the claimant has bilateral knee osteoarthritis, which dates back many years prior to the motor vehicle accident of 7 February 2014. Dr Smith found that the claimant’s injuries to her knees and hips were not caused by the motor accident.
After the motor accident, Ms Stein underwent bilateral lateral meniscectomies (1% WPI each side, Table 64, page 85 AMA4). On clinical examination, there is painful patellofemoral crepitus (Table 62, page 83) foot note i.e. 2% WPI for each knee.
Therefore, there is 2% combined with 1% WPI for each knee i.e. 3% WPI for the right knee and 3% WPI for the left knee.
Whilst the claimant has history of bilateral knee pain/arthroscopies, there is no pre-existing WPI that can be deducted, based on available information. Based on the available evidence it appears that both knees had recovered from the 1998 surgery and were stable at the time of the subject accident in 2014. The 1998 knee arthroscopies did not involve meniscectomy and in any event, she underwent new bilateral partial lateral meniscectomies very soon after the subject motor accident.

Lumbar spine

The Panel found that the claimant suffered a soft tissue injury of the lumbar spine caused by the motor accident. The Medical Assessors accepted the claimant’s account that the lower back injury had been eclipsed by other injuries from the motor accident despite the lack of contemporaneous documentation.
The Panel found no objective clinical abnormalities on examination of the lumbar spine. There were no findings made at the examination to support a finding of DRE category II. Thus, there is 0% WPI (Lumbosacral DRE1) due to absence of muscle spasm, guarding, dysmetria, non-verifiable radicular complaints and two necessary findings to conclude that radiculopathy is present (as per the Permanent Impairment Guidelines).

Left and right hips

The Panel found there had been a left hip soft tissue injury caused by the motor accident given the contemporaneous documentation of left hip symptoms. However, on clinical examination, there was a full active range of motion in the left hip not attracting any WPI according to Table 40, page 78 AMA4. Any subsequent injury to the left hip was not caused by the subject motor accident. The Panel notes that claimant had a left hip left hip abductor repair in 2008.
At the re-examination of the right hip the Medical Assessors found a minor restriction of right-sided hip external rotation attracting 2% WPI according to Table 40, page 78 AMA4. The Panel found only one written contemporaneous record to confirm occurrence of a right hip soft tissue injury. On 25 February 2014 the claimant attended her treating GP Dr Aileen Liu. [31] Dr Liu noted that the claimant complained of pain in the hips and the knees at the time of the accident. The claimant told the Medical Assessors at the re-examination that the right hip only became painful after the fall incurring a left hamstring rupture and reparative surgery. In the Panel’s opinion any limitation of right hip movement is not causally related to the subject motor accident.
[31] Claimant’s bundle pp 38- 40.

Left shoulder

Regarding the claimed left shoulder injury there is only one mention of this in the contemporaneous medical records. Dr Liu did note spasm of the trapezius muscles of the neck bilaterally but a full range of motion in the arms and legs. The next mention of the left shoulder “injury” is not until more than three years after the motor accident with left shoulder MRI occurring in 2017. There is an MRI on the left shoulder from Dr Fung St Vincent's hospital dated 20 February 2017.[32] The concluding comments of this report are there is a degenerative high-grade tear of the infraspinatus. Dr Smith found that the claimant made no complaint of ongoing low back or shoulder pain at the time he saw her. Dr Bodel noted a left shoulder rotator cuff tear. Dr Gehr did not note or remark upon any shoulder injury.
[32] Claimant’s bundle p 74.
Based on the available evidence the Panel found no evidence of injury to the neck or shoulders caused by the motor accident. In the Panel’s opinion any tear or evidence of shoulder injury is degenerative in nature and not caused by the motor accident. The mild restriction of shoulder range of motion observed by the Panel is not caused or due to the subject motor accident.

Scarring

At the re-examination the Medical Assessors examined the claimant’s scarring but found it barely noticeable. The scarring would rate a 0% WPI impairment using the TEMSKI scale in the SIRA Guidelines, p 136. Accordingly, the Panel found no rateable or assessable impairment for scarring.

Conclusion on degree of permanent impairment

In summary, the Panel found a total of 6% WPI, comprised of 3% WPI for the right knee and 3% WPI for the left knee, due to the subject motor accident.

CONSISTENCY

The Panel accepted the claimant’s account of how the motor vehicle accident occurred.

CONCLUSION AND CERTIFICATION

For the above reasons the Panel revokes the certificate issued by Medical Assessor Dixon. In the claimant’s case the Panel finds the only assessable injuries caused by the subject motor accident were 3% WPI for the right knee and 3% WPI for the left knee.
The new certificate is attached at the commencement of these Reasons.

[2024] NSWPICMP 678

24 September 2024