Venizelou v AAI Ltd

[2021] NSWPICMP 215

DETERMINATION OF REVIEW PANEL
CITATION:	Venizelou v AAI Ltd [2021] NSWPICMP 215
CLAIMANT:	Lia Venizelou
INSURER:	AAI Ltd
REVIEW PANEL:	Principal Member John Harris Dr Drew Dixon Dr Geoffrey Stubbs
DATE OF DECISION:	11 November 2021
CATCHWORDS:	MOTOR ACCIDENTS-  The claimant suffered injury in 2020 to the left knee when she fell as a passenger on a bus; the claimant had a pre-existing arthritic knee and a total knee replacement was recommended in 2017; that treatment did not proceed and prior to the motor accident the claimant was independent, exercising and in full time employment; following the motor accident, the claimant developed recurrent locking and a significant increase in symptoms; Held – the motor accident aggravated and accelerated degenerative changes and caused further tearing of a degenerate lateral meniscus; this was a non-minor injury as defined in section 1.6 of the Motor Accident Injuries Act 2017 (MAI Act); the motor accident need only be a material contribution to the need for treatment; AAI Ltd v Phillips applied; Secretary, Department of Education v Johnson referred to; the Panel accepted that the motor accident significantly increased the symptoms and brought forward the need for surgery which was undertaken in mid-2021; discussion about the meaning of reasonable and necessary in the circumstances; the medical evidence unanimously concluded that the surgery was appropriate and required; original medical assessment revoked.

STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT

Medical Assessment – Minor Injury and Treatment and Care

Review Panel Assessment of Minor Injury
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate dated 29 March 2021 and issues a new certificate determining that:

The following injuries:

·        right shoulder injury soft tissue injury;

·        right thigh soft tissue injury;

·        right ankle soft tissue injury, and

·        left wrist soft tissue injury.

are MINOR INJURIES for the purposes of the Motor Accident Injuries Act 2017.

The left knee injury is a NON-MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.

Review Panel Assessment of Treatment and Care and 
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate dated 29 March 2021 and issues a new certificate determining that:

The following treatment and care:

·        radiological investigation regarding a total knee replacement, and

·        surgery – left total knee replacement.

IS REASONABLE AND NECESSARY in the circumstances.

The following treatment and care:

·        radiological investigation regarding a total knee replacement, and

·        surgery – left total knee replacement.

RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT.

REASONS

Background

1. Ms Lia Venizelou suffered injury in a motor accident on 4 February 2020 whilst she was a passenger on a bus that broke suddenly.

1. The insurer insured the owner and driver of the bus for liability to pay Ms Venizelou any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).

1. The issues in dispute are whether the injuries sustained by Ms Venizelou were defined as a minor injury for the purposes of the MAI Act and whether specific treatment for the left knee was reasonable and necessary in the circumstances and caused by the motor accident.

1. Section 7.17 of the MAI Act defines a “medical dispute” to include dispute between the parties about a medical assessment matter.

2. Pursuant to Schedule 2, clause 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act” and whether “any treatment and care 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”.

1. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the dispute is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.

   [1] Section 7.20 of the MAI Act.

1. The disputes were referred to Medical Assessor Woo who issued a medical assessment certificate dated 29 March 2021. Medical Assessor Woo concluded that Ms Venizelou suffered a minor injury as defined under the MAI Act and that the left total knee replacement was not reasonable and necessary in the circumstances and does not relate to the injury caused by the motor accident. The Medical Assessor concluded that the radiological investigations were reasonable and necessary.

1. Whether a person has only suffered minor injuries caused by the motor vehicle accident affects the entitlement to both statutory benefits and damages. 

1. Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. Accordingly, if the claimant’s injuries are only minor then, subject to some exceptions, she has no entitlement to treatment and care expenses after 26 weeks. An injured person otherwise cannot recover damages under the Act if the “only injuries resulting from the motor accident were minor injuries”.[3]

   [2] Sections 3.11 and 3.28 of the MAI Act.

   [3] Section 4.4 of the MAI Act.

The review

1. The applications for referral of the medical assessments to a review panel were made by Ms Venizelou within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]

   [4] Section 7.26(10) of the MAI Act.

1. On 19 July 2021, the President’s delegate referred the medical assessments to the review panel (the Panel) as they were satisfied that 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.[5]

   [5] Section 7.26(5) of the MAI Act.

1. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.

2. The new review provisions provide[6] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).

   [6] Section 7.26(5A) of the MAI Act.

1. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[7]

   [7] Section 41(2) of the PIC Act.

1. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]

   [8] Rule 128 of the PIC Rules.

1. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9] 

   [9] Section 7.26(6) of the MAI Act.

1. The Panel issued a direction to the parties requesting the provision of respective bundles. The parties complied with this Direction.

2. The Panel issued a further Direction dated 20 October 2021 in the following terms:

   “The Claimant is to provide a response by close of business, 26 October 2021, on the following:

   (a)  Whether it is accepted that the Review Panel can adopt the findings and conclusions of Medical Assessor Woo that the injuries, other than to the left knee, were minor injuries as defined by and under the Motor Accident Injuries Act 2017.

   (b)  Whether Ms Venizelou has undergone a total left knee replacement (the Panel refers to the hospital notes around p 167 of the Claimant’s bundle which refer to an upcoming operation).”

1. The claimant responded:

   “(a)    Yes, except for the left knee.

   (b)     In reference to the claimant’s bundle, at page 164, clinical notes from Prince of Wales Hospital indicates “due for knee replacement in Left knee this coming Monday at POW”. The claimant confirms she underwent left knee replacement surgery on 19 July 2021 at Prince of Wales Hospital.”

2. On 28 October 2021 the Panel issued a further direction in the following terms:

   “1.     Noting the Claimant’s responses to the Direction dated 20 October 2021, the Panel believes that the assessment can be undertaken on the papers.

   2. Further, in the event that the Panel concludes that the knee surgery was reasonable and necessary in the circumstances and relates to the injuries caused by the motor accident, the parties are to address whether the knee replacement surgery means that the injuries are non-minor because that type of surgery would have involved complete or partial rupture of tendons, ligaments, menisci or cartilage within the meaning of s 1.6 of the Motor Accident Injuries Act 2017.

   3.     Either party is to provide any further written submissions on the matters raised in paragraphs 1 and 2, and the matter generally, by close of business, 4 November 2021.”

1. The claimant filed written submissions in response but did not address the issue of whether the new assessment could be undertaken on the papers.

2. The insurer did not respond to the further direction despite being given a further opportunity outside of the timetable.

Statutory provisions

1. A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:

   “[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”

1. Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.

2. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:

   “5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.

   5.4 Diagnostic imaging is not considered necessary to assess minor injury.

   5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

   5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

   (a)  a comprehensive accurate history, including pre-accident history and pre-existing conditions

   (b)  a review of all relevant records available at the assessment

   (c)   a comprehensive description of the injured person’s current symptoms

   (d)   a careful and thorough physical and/or psychological examination

   (e)  diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

3. Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.

1. Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:

   “(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—

   (a)the reasonable cost of treatment and care,

   ….

   (2)    No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”

1. Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.

1. That conclusion is consistent with Schedule 2 of the MAI Act that defines a medical assessment matter as “whether any treatment and care 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)” (emphasis added).

Submissions

1. Ms Venizelou referred to the relevant legislation concerning the definition of “minor injury” and submitted that where the Medical Assessor has not diagnosed a soft tissue injury then paragraph 5.6 of the Guidelines applies. It was submitted that where a soft tissue injury is not diagnosed then the Guidelines apply the appropriate principles in determining whether there is a minor or non-minor injury.

2. Reference was made to the definition of minor injury in s 1.16 of the MAI Act and the first part which defines a minor injury and the second portion, defined as a “negative criterium” which will exclude an injury as being classified as soft tissue injury. The claimant submitted:[10]

“[N]owhere in the Act does it specify that if this [negative] criterium is not met then then the, injury will be classified as a minor injury.”

[10] Claimant’s submissions, [14].

1. The claimant submitted that the MAI Act did not provide “an exhaustive list of injuries that are said to be minor to non-minor” and it would be highly impractical to do so. Reference was made to Schedule 1[2] clause 4 of the Motor Accident Injuries Regulations 2017 which excludes an injury to a spinal nerve root that manifests itself in neurological signs.

2. It was submitted that if a soft tissue injury was not diagnosed, then recourse is had to other aspects of the legislation and subordinate legislation, such as clause 5.6 of the Guidelines, in determining whether the left knee injury is minor or non-minor.

1. The claimant referred to the MRI scan of the left knee dated 7 March 2020 which was reported as showing intrasubstance fissuring but no high-grade tear. This aspect was not addressed by the Medical Assessor although was reported on by Dr Murray Hyde Page who reported on 2 July 2020 that the incident “caused significant swelling and increased symptoms including lock of the knee that she did not previously have”. In a report dated 16 April 2020 Dr Hyde Page concluded that the motor accident had exacerbated and accelerated the joint disease.

1. The claimant submitted that her pre-accident symptoms had largely resolved. This was evident from the report of Dr David Broe dated 16 April 2020 who reported that
   Ms Venizelou had minimal symptoms prior to the accident, was not on pain relief and fully mobile. That history was inconsistent with the incorrect history referred to by the medical assessor that Ms Venizelou was on Naprosyn prior to the motor accident.

1. It was submitted that there are two tests for treatment, that is whether the treatment is “reasonable and necessary” and secondly whether the treatment is causally related to the accident.

1. The claimant submitted that there was no test in the Guidelines which explicitly covers “medical causation for a proposed treatment” but that the relevant principles set out in clauses 6.6 and 6.7 of the Guidelines pertaining to causation of injury with respect to permanent impairment compensation “will naturally apply in its absence”.[11]

   [11] Claimant’s submissions, [34].

2. The claimant referred to the report of Dr Nick Verzyas dated 9 August 2017 that surgical intervention would be required but that this was avoided prior to the accident. Ms Venizelou took no steps to place herself on the public hospital waiting list during this period. Following the accident Dr Broe recommended surgery. Dr Page provided a similar opinion. 

3. It was submitted that in light of the clinical picture both pre and post-accident, the motor accident materially contributed to the need of surgery.

4. The general principles for determining reasonable and necessary in the circumstances “is whether there is a relationship to the accident, whether there is a benefit to the claimant, the appropriateness of the treatment, the appropriateness of the provider and cost considerations”.[12] These principles were not considered by the Medical Assessor.

   [12] Claimant’s submissions, [46].

5. Principles that should have been considered included the level of functioning displayed by the claimant before and after the accident including, as articulated by Dr Broe 

   in the report dated 16 April 2020, the level of function prior to the accident such as working full time and the loss of function following the accident. Further, Dr Page noted that conservative treatment would not be successful and the “only sensible treatment … [was] … a left total knee replacement”.

6. Reference was made to the decision in McKenzie v Wood[13] where the Court noted that urgent medical intervention that would have been undertaken in due course established that the costs of surgery should be recovered.

   [13] [2015] NSWCA 142 (McKenzie).

1. The insurer submitted that Medical Assessor Woo’s certificate was not incorrect in a material respect. It referred to the comprehensive analysis of the available evidence and submitted that the finding of an aggravation of pre-existing changes “in no way constitutes a non-minor injury”.[14]

[14] Insurer’s submissions, [15].

MATERIAL BEFORE THE REVIEW PANEL

1. The parties filed bundles of documents in accordance with the Direction. The following is a summary of this material relevant to the dispute.

Pre-motor accident records

1. Prior to the motor accident, Ms Venizelou consulted her general practitioner on 20 January 2017, 24 February 2017, 27 March 2017, 28 April 2017, 2 June 2017 and 30 June 2017, for the left knee.

2. Further attendance in 2018 and up until November 2019 did not refer to the left knee. On 18 November 2019 there is a reference to “bil knee pain” in the clinical notes.

1. Dr Vertzyas, Orthopaedic Surgeon, reviewed Ms Venizelou and provided a further report dated 9 August 2017. At that time the pain was described as a dull ache. Examination showed a 15 degrees of valgus alignment with antalgic gait. The doctor opined that Ms Venizelou had symptomatically reached the stage where she required a total knee replacement.

Post motor accident

1. Ms Venizelou consulted and reported the motor accident to her general practitioner on 7 February 2020. The doctor recorded left knee pain and “bruises” and prescribed Naprosyn. Dr Kyrillos provided an initial certificate dated 14 February 2020 recommending physiotherapy and Naprosyn.

1. An application for personal injury benefits was completed by Ms Venizelou on 11 February 2020. In that application the motor accident was described as occurring when “the bus driver slammed on the brakes heavily, causing me to be thrown off my seat and landing on the floor”. The description of injuries included the left knee.

1. Physiotherapy commenced on 11 February 2020. On 13 March 2020 the physiotherapist requested funding for a further seven sessions.

1. The MRI scan of the left knee dated 7 March 2020 is reported by Dr Ho as showing moderate degenerative changes in the ACL and PCL, macerated lateral meniscus with a large radial component, moderate to severe chondropathy in the patellofemoral compartment and likely old tear of the medial meniscus.

1. A physiotherapist report dated 16 March 2020 noted physiotherapy commenced on 11 February 2020 and 10 sessions were provided. Signs and symptoms of the left knee were described as swelling and inflammation, pain on weight bearing and restricted range of motion. The clinical assessment was described as an acute exacerbation of the osteoarthritis in the left knee.

1. A further report dated 16 March 2020 is expressed in similar terms.

1. A referral to Dr David Broe from the general practitioner dated 16 March 2020 referred to left knee arthroscopies in 2005 and 2015.

1. A report dated by Shara Kinney, exercise physiologist, dated 15 April 2020 referred to an aggravation of left knee pain and that “prior to accident could manage discomfort, but accident caused discomfort to worsen”. The current signs and symptoms were reported as follows:

·constant ache discomfort since the accident, “crunching when standing up and clicking sensations when walking;

·weakness through leg, pain scale 7/10;

·dragging of left foot; and

·two-thirds normal range of flexion.

1. Dr David Broe, Orthopaedic Surgeon provided a report dated 16 April 2020. The doctor obtained a history of minimal symptoms prior to the motor accident, the claimant was not on pain relief, was fully mobile and working everyday with no functional impairment.

1. Dr Broe recorded that Ms Venizelou fell directly on her left knee in the motor accident which caused significant irritation in the knee joint. Current symptoms included significant discomfort, marked limp and overall function was diminished. The doctor opined that the accident had exacerbated and accelerated the joint disease and that Ms Venizelou was heading towards knee replacement surgery.

1. In a further report dated 28 May 2020, Dr Broe stated:

   “In the last few months she has deteriorated rapidly. Her joint has acutely degenerated particularly laterally. Symptomatically she is in much more pain. She has constant weight-bearing pain. She limps continuously. She has marked stiffness. She has swelling. He malalignment has increased and her valgus deformity has increased. She is requiring increased levels of pain control. She has night time symptoms.”

2. Knee replacement surgery was described as the “only thing that is going to give long-lasting relief with restoration [of] function”. The doctor provided a quotation for a left total knee replacement at that time.

1. An x-ray of the left knee dated 19 May 2020 is reported by Dr Wong as showing advanced degenerative changes in the lateral compartment with loss of joint space, moderate patellofemoral and mild medical compartment degenerative changes and extensive chondrocalcinosis in the medial and lateral compartments.

1. Dr Murray Hyde Page was qualified by the insurer and provided a report dated 2 July 2020. The doctor obtained a history that Ms Venizelou had “persistent pain, swelling and catching in [the] left knee which is very stiff and feels weak”. Ms Venizelou walked with a limp and was concerned that the knee had locked on occasions and caused her to fall. Walking was restricted to short distances whereas prior to the fall she could walk a few kilometres before there was any discomfort in the left knee.

1. The history of prior symptoms included past left knee arthroscopy and meniscectomy, with a good result. In the weeks before the motor accident Ms Venizelou described only “mild discomfort”.

1. Ms Venizelou stated that she was keen to go ahead with a knee replacement whereas prior to the accident the symptoms were such that she was hoping to put off the knee replacement for five years.

1. Dr Page’s clinical examination was:

“Mrs Venizelou is 5'4” tall and weighs 69kg. She is a healthy looking lady. She walks with a painful limp due to the swelling and valgus deformity in her left knee. The knee is obviously quite stiff.

Closer examination reveals she has a 20° valgus deformity of the left knee and the knee is swollen with a significant effusion. She had generalised pain and discomfort.
She has a range of movement of 10 to 95°. She has decreased quadriceps strength and there is 1cm wasting of the left thigh compared to the right.
She has normal examination of her left hip and the rest of her left lower limb.
She has normal examination of her lumbar spine and right hip and right ankle and foot. She has a normal examination of her left hand.

Overall today’s examination indicates a swollen stiff painful left knee with a marked valgus deformity and she walked with a painful limp.”

1. Dr Page opined that Ms Venizelou had aggravated pre-existent severe lateral compartment osteoarthritis where there was general chondrocalcinosis. The aggravation had not ceased.

1. Dr Page reviewed the clinical notes of St Kyrillos Medical Centre and provided a further report dated 22 October 2020. The doctor noted that the clinical notes showed attendances in the first half 2017 and a further attendance in November 2019 and that Dr Vertzyas opined in 2017 that the symptoms were then severe enough to warrant a total knee replacement.

1. Dr Page concluded in light of the further material that the motor accident “only caused a minor aggravation of this pre-existent symptomatic condition and certainly was not the main cause of the painful osteoarthritic knee and the need for a total knee replacement”.  The doctor otherwise opined that any aggravation by the motor accident had “ceased”.

2. The clinical notes of the general practitioner, refer to a persistent pain in the left knee (16 March 2020), exercise bike aggravating the left knee and an inability to do house chores (7 May 2020) and the left knee swelling and locking (13 July 2020).

1. A clinical note from Prince of Wales Hospital dated 15 July 2021 noted that
   Ms Venizelou was due for a total left knee replacement on Monday and was advised to stop taking NSAIDs, “now has increasing pain to L knee and reduced mobility”. The nursing assessment referred to severe left knee pain and was “unable to stand slight movement/touch to leg”.

RE-EXAMINATION

1. The Panel determined that Ms Venizelou did not need to be re-examined. That decision was made following a serious pandemic where the availability and delay of
   in-person assessment had been greatly impacted.

1. The parties were provided with a direction dated 28 October 2021 which noted that the Panel were considering undertaking the new assessment on the papers.

1. The claimant filed written submissions responding to that direction but did not address that issue. The insurer did not respond.

1. We have been advised that Ms Venizelou had undergone a left total knee replacement in the last three months. There was no utility in a physical examination as Ms Venizelou is recovering from the surgery. Further, our findings on whether the knee injury was minor or non-minor is dependent upon review of the written material including the examination findings by the specialists who undertook examinations in the period before and after the motor accident. The conclusion on causation is based on an analysis of the same material which also included relevant histories provided by
   Ms Venizelou.

1. This approach is consistent with clause 5.6 of the Guidelines which require the medical assessor and the Panel to consider various matters.

1. The objectives of the Commission otherwise provide that it should “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[15] Consistent with these objectives and even though this is a new assessment, the Panel was of the view that it could undertake the new assessment by these means.

FINDINGS

[15] Section 3(c) of the Personal Injury Commission Act 2020

1. The review is a new assessment of all matters with which the medical assessment is concerned. This comment has particular relevance in relation to the insurer’s submissions on review which were principally directed to whether there was materially error. As the President’s delegate was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, those submissions have limited application save as to how they can be applied to a new assessment of all matters.

2. Our findings on the nature of the injury sustained are based on a review of the clinical records and medical reports in the context of using the specialist medical knowledge on the Panel.

3. 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 MAI Act[16]. In Raina v CIC Allianz Insurance Ltd[17] Campbell J stated:

   “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.”

   [16] See s 3B(2) of the Civil Liability Act 2002.

   [17] [2021] NSWSC 13 (Raina) at [65].

4. These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the Act.

5. We accept the claimant’s concession that all injuries except the injury to the left knee are minor injuries for the purposes of the MAI Act. This means that it is only necessary to assess the nature of the left knee injury and the medical assessment issues associated with the total left knee replacement surgery.

Left knee injury

1. Ms Venizelou suffered a left knee injury in the motor accident when she fell directly onto her left knee. This conclusion is consistent with the history in the claim form and the repeated consistent history recorded by various doctors.

2. Prior to the motor accident Ms Venizelou suffered left knee discomfort. She sought medical treatment in 2017 and received specialist opinion at that time that a total left replacement was required.

3. The contemporaneous record show that Ms Venizelou did not seek medical attention from her general practitioner for the left knee in 2018 and the left knee was only mentioned once in 2019 in the context of bilateral knee pain.

4. We accept the contemporaneous records that prior to the motor accident,
   Ms Venizelou was independent in care, walking a number of kilometres, in full-time employment and getting the bus to and from work.

1. Ms Venizelou was not taking pain relief for her left symptoms prior to the accident. That conclusion is based on a review of the medical records.

1. The various accounts of the motor accident show that Ms Venizelou sustained a fall onto her left knee.

1. Immediately following the motor accident Ms Venizelou was prescribed Naprosyn which is a nonsteroidal anti-inflammatory drug which reduces hormones that causes inflammation and pain in the body.

1. The physical symptoms that Ms Venizelou suffered in the left knee following the motor accident are well documented. There was a severe increase in the amount of pain, swelling, locking in the knee, loss of mobility and reduced range of movement and loss of function. Dr Page recorded that walking had been reduced from walking a few kilometres prior to the accident to being restricted to short distances.

1. The Panel note that the recent onset of locking in the knee is significant. That history was recorded by Dr Page and to the general practitioner.

1. We also believe it is significant that Dr Broe examined Ms Venizelou in April and again in May 2020 and noted an increase in malalignment during this period. That finding is a clinical assessment by a treating specialist of a deteriorating situation following the motor accident.

1. The locking in the left knee, a recent symptom following the motor accident, was, on the probabilities, caused by the motor accident. That conclusion is consistent with the MRI scan dated 7 March 2020 which showed intrasubstance fissuring and a macerated lateral meniscus.

1. The fall clearly aggravated and accelerated the underlying osteoarthritis in the knee. Based on the clinical presentation and on a review of the pre-existing records, this aggravation did not cease. Ms Venizelou’s complaints to all health practitioners following the motor accident are significantly worse than the complaints disclosed in the prior records and the fact that she was managing with her symptoms.

1. We do not agree with Dr Page’s second opinion that the effects of the fall ceased at some unspecified point in circumstances where Ms Venizelou was complaining of far more significant symptoms following the motor accident.

1. Further, Ms Venizelou developed recurrent locking in the left knee after the

   motor accident. These symptoms were referred to in the claimant’s submissions but not addressed by the insurer. This locking was likely due to further tearing of the macerated lateral meniscus. We rely on the contemporaneous complaint of locking post-accident as the basis for our conclusion that the symptoms were not occurring before the accident.

1. A direct fall onto a degenerate knee as described by Ms Venizelou could easily further tear a degenerate lateral meniscus.

1. In the fall Ms Venizelou suffered several injuries, all of which recovered except for increased pain and disability about the injured arthritic left knee. Ms Venizelou required physical therapy treatment, further specialist surgical consultation and specialist investigations. Something additional had occurred in her left knee in the fall and the existing osteoarthritis was accelerated and aggravated (made precociously and permanently worse). Ms Venizelou complained of "locking", a new symptom in the left knee. The phenomenon of locking is often due to an internal derangement of the knee allowing for the probability that not only had there been aggravation of the existing arthritis, but some new internal mechanical damage had occurred.

1. For these reasons we conclude that the injury to the left knee included further tearing of a degenerate lateral meniscus.

Minor Injury

1. For the reasons set out above, the Panel is satisfied that there was further tearing of the lateral meniscus in the fall. This conclusion means that the left knee injury caused by the motor accident included a partial rupture of a degenerate lateral meniscus. That finding means that the injury to the left knee was not a minor injury within the meaning of s 1.6 of the MAI Act as the injury included a partial rupture of the menisci as well as the aggravation and acceleration of underlying degenerative changes in the knee joint.

1. We do not agree with the claimant’s submissions that recourse can be had to clause 5.6 of the Guidelines as applying the appropriate principles in determining whether there is a minor or a non-minor injury. Clause 5.6 of the Guidelines contains the procedure for assessing whether an injury is assessed as a minor or non-minor injury. It is not an independent basis for determining whether the injury is non-minor.

1. So much is clear from clause 5.2 of the Guidelines which provides that section 1.2 of the MAI Act and Part 1, clause 4 of the Regulations provides the definition of a minor injury. Further the heading preceding clause 5.3 is “General provisions for assessment” of minor injuries which is consistent with our view that these clauses do not provide a separate basis for defining soft tissue injury.

1. Accordingly, recourse is had principally to the definition of minor injury in s 1.6 and, some of the exceptions such as Part 1, clause 4 of the Regulations.

2. Although it is unnecessary to determine, we briefly address the claimant’s alternative submission that the injury is non-minor due to the surgery.  

1. The claimant further submitted that the fact that she had undergone a total knee replacement which meant that the injury was non-minor because the surgery would have involved an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

1. A total knee replacement involves replacing the articular surfaces of the knee joint with artificial materials. The surgery will involve excising parts of ligaments to insert the artificial materials. Accordingly, the surgery will involve a complete or partial rupture of tendons, ligaments menisci or cartilage within the meaning of s 1.6 of the MAI Act.

1. It is unclear whether surgery resulting from injury constitutes the injury for the purposes of s 1.6 of the MAI Act. Given our finding that the tear of the lateral meniscus constitutes a non-minor injury, and, in the absence of submissions from the insurer, we refrain from determining the claimant’s alternative submission.

Reasonable and necessary in the circumstances

1. Ms Venizelou is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.

1. When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[18], Grove J stated:[19]

“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 Ed 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.”

[18] [2003] NSWCA 52 (Clampett).

[19] Clampett at [22]-[23], Meagher & Santow JJA agreeing.

1. Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[20]

   [20] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].

1. Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[21] They include:

   (a)    the appropriateness of the particular treatment;

   (b)    the availability of alternative treatment;

   (c)    the cost of the treatment;

   (d)    the actual or potential effectiveness of the treatment; and

   (e)    the acceptance by medical experts of the treatment as being appropriate or likely to be effective.

   [21] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].

1. Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.

2. The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.

1. The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.

1. The specialist medical evidence is unanimous that Ms Venizelou required a total knee replacement. That is the opinion expressed by Dr Broe, the treating specialist who undertook the operation, and Dr Page. The contrary denial by the insurer that the left knee surgery was not reasonable and necessary in the circumstances does not accord with the medical evidence and reflects a misunderstanding of the distinct tests of whether the treatment is caused by the motor accident and the distinct issue of whether the treatment is reasonable and necessary.

1. The medical experts on the Panel fully endorse that the operative treatment was reasonable and necessary in the circumstances. Ms Venizelou had become extremely symptomatic with restricted mobility. The surgery was the only appropriate treatment for the symptoms and the pathology.

2. Conservative treated following the motor accident had been trialled and failed.
   Ms Venizelou has attempted other forms of treatment which were not successful.

1. The surgical procedure was appropriate and was the type of treatment that is expected to significantly reduce knee symptoms over a period of approximately six months following the operation. We conclude that this type of treatment is accepted by medical experts as being appropriate and likely to be effective.

2. We agree with Dr Broe’s opinion that the surgery was required. We conclude that the total knee replacement surgery was reasonable and necessary in the circumstances.

1. For the same reasons we conclude that radiological evidence to assess whether a knee replacement should be undertaken is also reasonable and necessary in the circumstances.

Did the treatment relate to the injury resulting from the accident

1. The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson[22]. These principles are well settled and equally apply by reasons of the words used in the treatment issue.

   [22] [2019] NSWCA 324.

1. The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[23] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.

   [23] [2018] NSWSC 1710 at [29] (Phillips).

2. We reject the claimant’s submissions[24] that the test set out in clause 6.6 and 6.7 of the Guidelines directly applies the relevant test of causation for treatment. Clauses 6.6 and 6.7 refer to injury and impairment. However, whilst the clauses do not directly apply to treatment, clause 6.7 refers to “the accepted approach [which] involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident”. This is consistent with the decisions referred to above.

   [24] Set out at [37] herein.

1. The claimant otherwise referred to the decision of the Court of Appeal in McKenzie where the Court accept that a hip operation which was inevitable but had become urgent was a recoverable expense.

1. Findings of fact in other cases, do not create legal precedent: Edwards v Noble.[25] However, McKenzie is an example of where a motor accident has materially contributed to the need for treatment that would have ultimately come to fruition in any event.

   [25] [1971] HCA 54 at [14] per Barwick CJ.

1. When Ms Venizelou was seen by the medical examiners after her motor vehicle accident it was noted that she had a fixed flexion contracture and varus deformity about the left knee. It was understandable that the medical examiners felt that the knee had an advanced stage of arthritis and that the only appropriate treatment was total knee replacement, and this would have occurred in any case. This was also the view of the orthopaedic surgeon who saw her in 2017 and the treating surgeon who saw in 2020. However, the decision to perform further treatment, specifically a total knee replacement, is not made on the MRI findings or on the degree of stiffness or the deformity alone. The decision to treat is made on the degree of pain and disability that a patient suffers.

1. In the four years from early 2015 to November 2019 Ms Venizelou saw her general practitioner only seven times concerning her knees, the bulk of this was in the first half of 2017. Ms Venizelou remained in full-time employment as a legal secretary, lived independently, managed all her activities and was able to travel by public transport.

1. Though we could be confident that the next step in her treatment would be future knee replacement, at the time of the motor accident Ms Venizelou had not reached the clinical level of pain and disability where this was required. The medical assessment would foresee the future need but could not predict with any confidence when it would be required save that it would have occurred at some future point. Had the fall not occurred, Ms Venizelou’s knee may have stayed as it was for an indefinite time period.

1. The injury brought on severe pain and disability. It also caused the locking issue which Mr Venizelou associated with recurrent falls.  Ms Venizelou received conservative treatment and was quickly assessed by the treating specialist Dr Broe, as requiring knee replacement surgery. Dr Page agreed that surgery was then required.

1. The payment for the surgery was declined by the insurer and Ms Venizelou underwent the surgery in July 2021.

1. Dr Page expressed an incorrect test on the relationship between the injury caused by the motor accident and the treatment. We otherwise disagree with his conclusion as to the nature of the left knee injury.

1. We accept that in due course, Ms Venizelou would have come to a total knee replacement, and this was discussed with her then treating specialist in 2017. However, we accept the history reported after mid-2017 that Ms Venizelou was functioning well, mobile and in mild pain.

1. The motor accident significantly increased the symptoms whereby, within a short period, Dr Broe was recommending surgery. This was undertaken in mid-2021. We accept that the motor accident materially increased the need for surgery because it brought forward the need for the operation by reason of the severe aggravation in symptoms and the development of locking within the knee.

1. Whilst all cases are fact sensitive, the conclusion by the Court of Appeal in McKenzie is consistent with this approach.

CONCLUSIONS

1. For these reasons the certificates issued by Medical Assessor Woo are revoked. The replacement certificates are set out at the commencement of these Reasons.