DETERMINATION OF REVIEW PANEL	
	
CITATION:	AAI Limited t/as GIO v Stojanov (No 1 and No 2) [2023] NSWPICMP 307	
		
CLAIMANT:	Suzana Stojanov	

INSURER:	AAI Limited t/as GIO	
		
REVIEW Panel	 	
		
MEMBER:	Belinda Cassidy	
		
MEDICAL ASSESSOR:	Drew Dixon	
		
MEDICAL ASSESSOR:	Margaret Gibson	
		
DATE OF DECISION:	30 June 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS –   Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury (1) and treatment (2); insurer’s review of Medical Assessor (MA) Bodel’s decision under section 7.26; claimant injured as the driver of a car which collided with the opened or opening door of a parked car; claimant alleged physical injuries to knee, lower back and neck; claimant had radiology a year after the accident which revealed left knee medial meniscus tear; issue of causation; claimant had seen GP and been referred for physiotherapy three days before the car accident for knee and delayed report to pre-accident GP of accident and injury; Held – claimant’s evidence unreliable; claimant’s treating specialist and current GP had no history of previous symptoms therefore their evidence of little weight; Panel found no evidence of radiculopathy at any time since the accident in neck or back and no sign of any complete or partial rupture of tendons, ligaments, menisci etc in the neck or back; Panel not satisfied left knee medical meniscus tear was caused by the accident; all injuries threshold injuries; in (1) Medical Assessment Certificate (MAC) of MA revoked; in (2) MAC in relation to arthroscopic left knee surgery revoked; Panel noted that while section 3.28(3) had been revoked with saving provisions for accidents occurring before 1 April 2023, Schedule 2(2)(c) had been repealed with no saving provisions; Panel had no power to consider that certificate.

	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
Issued under Division 7.5 of the Motor Accident Injuries Act 2017
The Review Panel:
1.	In proceedings R-M10548349/22, revokes the certificate of Medical Assessor Bodel issued in the original proceedings M10411652/21 dated 13 June 2021 and, certifies that the physical injuries sustained by Ms Stojanov are threshold injuries for the purposes of the Act.
2.	In proceedings R-M10548339/22, revokes the certificate of Medical Assessor Bodel issued in the original proceedings M10430266/21 dated 13 June 2021 and, certifies that the left knee treatment is not related to the injuries sustained in the accident and is not reasonable and necessary in the circumstances.

	

STATEMENT OF REASONS
Introduction
1.	Suzana Stojanov was involved in a motor accident on 2 October 2020. She says she was driving down a suburban street in Fairy Meadow when the driver of a parked car opened his door and there was a collision between the door and Ms Stojanov’s car.
2.	Ms Stojanov says she injured her knees, lower back and neck in the accident and made a claim for statutory benefits with GIO, the third-party insurer of the vehicle that Ms Stojanov says caused her accident.
3.	Two medical disputes have arisen in connection with that claim which Ms Stojanov referred to the Personal Injury Commission (the Commission) for assessment. The Commission registered the matters and allocated the following matter numbers to them:
(a)	M10411652/21 – the medical assessment matter about whether any of the claimant’s injuries are not threshold injuries, and
(b)	M10430266/21 – the medical assessment matter about whether certain treatment is related to the accident and reasonable and necessary in the circumstances.
4.	Medical Assessor Bodel determined that one of the claimant’s injuries was not a threshold injury for the purposes of the Motor Accident Injuries Act 2017 (the MAI Act) and that the treatment in dispute should be allowed. The insurer then lodged applications with the Commission seeking a review of each of the Medical Assessor’s decisions as follows:
(a)	R-M10548349/22 – the threshold injury review, and
(b)	R-M10548339/22 – the treatment review.
5.	On 2 February 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment of both medical assessment matters and has allowed the two Reviews. 
6.	On 9 February 2023, the President convened this Panel to conduct the two Reviews.
Legislative framework
Jurisdiction
7.	Ms Stojanov’s claim is governed by the provisions of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
8.	The statutory benefits available under the MAI Act are limited. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 or 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
9.	In a damages claim, no damages are recoverable if the claimant’s only injuries are “threshold” injuries.
Threshold injury
10.	A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue 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.”
11.	Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
12.	Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in this claim, cl 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and clause 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.” 
13.	Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
14.	In summary:
(a)	if a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 10 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act, and
(b)	if the person injured in the car accident sustains a spinal nerve injury this is a soft tissue injury unless the particular nerve root injury manifests in signs of radiculopathy in accordance with cl 4 of the MAI Regulation in which case it is a non-threshold injury.
Assessment under review
15.	Medical Assessor Bodel examined the claimant on 26 May 2022 and issued his certificate on 29 June 2022. 
16.	In terms of the minor injury dispute, he was asked to assess:
(a)	an injury to the cervical spine; 
(b)	an injury to the lumbar spine;
(c)	an injury to the left knee, and
(d)	an injury to the right knee.
17.	In the treatment dispute, Medical Assessor Bodel was asked to assess whether an arthroscopy and medial meniscectomy to the left knee requested by Associated Professor Ireland:
(a)	relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances (under s 3.24), and
(b)	will improve the recovery of the injured person (pursuant to s 3.28(3).
18.	The claimant gave a history of the accident consistent with other histories and said she was shocked and crying uncontrollably after the accident. She rang her brother and noted the damage to her car but drove home.
19.	She said she developed increasing head, neck, lower back, left knee and leg pain and then right knee pan as well. She put up with it and then saw her general practitioner (GP) two weeks later and he gave her Oxycontin and Panadeine Forte.
20.	She saw Dr Ireland who has recommended a left knee arthroscopy and an MRI of the right knee.
21.	The claimant complained of slowly resolving neck pain, worsening back pain, mild anterior knee pain in the right knee and severe pain in her left knee.
22.	The claimant was 168cm and weights 90kg. The Panel notes this is a BMI of 31.9 which is in the obese range.
23.	The claimant’s neck was examined and there was no tenderness, guarding or dysmetria. There were no neurological signs in the upper limb. She had a full range of shoulder, elbow, wrist and hand movements.
24.	The claimant’s thoracic spine was normal on examination.
25.	Ms Stojanov’s lumbar spine was tender with guarding. Range of motion was restricted and produced pain (there was evidence of dysmetria). There were no clinical signs of radiculopathy. Her hip and ankle movements were unrestricted, but her left knee could not be fully extended.
26.	Medical Assessor Bodel found no evidence of a non-minor injury in the claimant’s cervical, thoracic or lumbar spine and no evidence of any right knee non-minor injury.
27.	He records that the claimant was asymptomatic in the knees before the accident, hit her knees on the dashboard in the accident and has complained of knee symptoms since the accident. He notes she has had a scan of her left knee which reports a meniscal tear which has caused her left knee to lock. While he notes there are degenerative changes in the left knee, he says that the torn and displaced medical meniscus was caused by the accident.
28.	He therefore found that the claimant’s left knee injury was a non-threshold injury and that the arthroscopy proposed by Dr Ireland was related to the accident, was reasonable and necessary in the circumstances and would improve Ms Stojanov’s recovery.
Issues for determination
Insurer’s submissions
29.	The insurer submits at [3] that the assessor failed to consider and review the relevant records, failed to take a comprehensive history including a pre-accident history and failed to provide sufficient reasons.
30.	The insurer refers at [3.5] and [3.6] to Medical Assessor Bodel’s reports that the claimant was asymptomatic in her knees before the accident and ignored the report of Dr Rastogi dated 18 November 2020 that the claimant sustained an exacerbation of pre-existing bilateral knee pain.
31.	The insurer says at [3.8] that the assessor relied on the absence of pre-accident clinical records to support the finding the claimant had no previous injuries.
32.	The insurer also says at [3.9] that the assessor has relied on the claimant’s physiotherapist recording in January 2021 that there was acute significant swelling after the injury. The insurer says at [3.10] this was 3.5 months after the accident the claimant’s knee was swollen which is not ‘acute’ and that there are other records that do not mention swelling between the date of the accident and January 2021.
33.	The insurer notes at [3.11-3.12] that the assessor noted the unusual circumstances of the accident and found the tear to be caused. The insurer submits at [3.17] that the assessor did not refer to the report of Dr McIntosh and did not disclose his reasons as to how the mechanism of the accident could have caused the injury.
Claimant’s submissions
34.	The claimant says in answer to the insurer’s submissions at [3.5] and [3.6] that Dr Rastogi is the claimant’s psychologist and that he had no expertise to comment on the claimant’s physical injuries.
35.	The claimant says in answer to [3.8] that the insurer should provide evidence of any pre-existing knee issues. In answer to [3.8] and [3.9] the insurer shoulder provide evidence of a pre-existing meniscal tear.
36.	The claimant says in answer to [3.10] that it is reasonable for the claimant to still have swelling in the knee three and a half months after the accident.
37.	The claimant then submits that Medical Assessor Bodel is not required to outline every clinical note before him as this would impose an onerous burden on him and that he has disclosed his reasons for finding causation established. The claimant says that Dr McIntosh says that “neither knee would have been distorted in the incident”. 
38.	The claimant’s solicitor says that the claimant’s knee would not have to be distorted to sustain a meniscal tear and that “a twisting mechanism can cause such an injury”. The claimant says Medical Assessor Bodel is more experienced and qualified to discuss causation of injury that Dr McIntosh.
Procedural matters
39.	The Panel met on 17 April 2023 and reported to the parties on 20 April 2023.
40.	The Panel determined that both review proceedings would be heard together.
41.	The Panel noted that the Medical Assessor was asked to assess four injuries (neck, lower back and both knees) and that he found a non-threshold injury in only one of them (the left knee). The Panel asked the claimant to confirm whether she conceded or agreed that her other injuries were threshold injuries within the statutory definition.
42.	The Panel drew the claimant’s attention to the records of Dr Rastogi and noted the claimant’s submissions that this doctor was a psychologist or psychiatrist. The Panel observed that Dr Sashwat Rastogi is a GP at the Smithfield Family Medical Practice and is not the same practitioner as Dr Richa Rastogi who is a psychiatrist in another practice in another suburb.
43.	The Panel requested documents from Smithfield Active Physiotherapy and issued directions to the parties.
44.	The insurer responded by way of a message in the portal on 22 May 2023 that there were no further submissions to be made.
45.	The claimant did provide the Smithfield Active Physiotherapy records but did not provide any further submissions or any response to the questions posed by the Panel. This is not, in the Panel’s view, consistent with the claimant’s obligations as a party to the proceedings, or in accordance with the legal representative’s obligation to assist the Commission in ascertaining the real issues in dispute in the proceedings as set out in s 42 of the Personal Injury Commission Act 2020.
Review of the evidence
Claim form and claim documents
46.	The claimant says she has “suffered bad anxiety and physical pain as a result of the accident. The lower part of my neck, my lower back to the right side and my knees were injured in the accident.”
47.	In answer to the question, “were you suffering an illness or injury affecting the same or similar parts of your body at the time of the accident?”, the claimant ticked the “no” box denying any previous illness or injury to her neck, lower back and knees.
48.	An investigation report commissioned by NRMA included a statement from the insured driver. He says:
(a)	it was a wide street with parallel parking on both sides and ample room for two vehicles to pass [26];
(b)	he saw the claimant approach and closed his door to about 20 degrees or 30cm [31];
(c)	the claimant collided with his door which slammed shut [32];
(d)	he estimated she was travelling at about 30kmph, having turned into the street where he was parked from a standing start. The claimant stopped towards the front of his car which suggests she was able to stop quickly and therefore not travelling very fast [33];
(e)	the claimant got out of the car, and they exchanged details;
(f)	her wing mirror was dislodged and there was a minor scrape down the left side of her car and a minor dint on the door jamb [35] and [36], and 
(g)	the claimant did not complain or mention any injury and “she was able to clearly walk around and drove away”.
Treating medical records and reports
Smithfield – Dr Rastogi
49.	The claimant attended the Smithfield Family Medical Practice before and after the accident seeing amongst other doctors, Dr Rastogi. Records from this practice reveal the following attendances:
(a)	1 April 2015, there is no corresponding note in the records but there is a chronic disease management plan dated 1 April 2015. It was noted that the claimant takes Panadeine Forte and Panamax for lower back pain along with Maxalt and Sandomigran for migraine headaches;
(b)	12 May 2016 – lower back pain aggravation – stretches, Nurofen/physiocream. There was local tenderness over the lower spinous process and a Medical Certificate was given;
(c)	19 July 2016 – complaint of lower back pain for a week. The notes suggests this appeared to be muscle strain injury and a medical certificate was provided.
There is also in the records a referral to L Bolla, physiotherapist, dated 17 July 2016 for acute lumbo-sacral strain, pain, spasm and reduced range of motion. There were no lower limb neurological signs – for physical therapy and education on core strength and stability exercises;
(d)	28 November 2016 – exacerbation of lower back pain. Endone, Panadeine Forte and Mobic were prescribed;
(e)	16 March 2017 – medical check-up. Low in iron. There is a note “Takes Mobic / Nurofen for lower back pain, knee pain [and] Panadeine Forte for migraine headaches”;
(f)	17 July 2017 – right sided flank and mid back pain after moving her bed and being hit by the frame. The claimant was prescribed Endone;
(g)	29 July 2017 – left shoulder pain with mild impingement and headache treated with Maxalt and Panadeine Forte;
(h)	10 June 2020 – lumbar spondylosis – exacerbation after twisting and flexion strain (bending to pick up a pet’s water bowl). Low back pain without radiation. Panamax and Endone and Mobic prescribed;
(i)	4 August 2020 – had a fall two days ago and was taken to hospital. The claimant had sprained her ankle but thought it was not getting better. She said she was taking Panadol, Nurofen and Panadeine Forte and she was advised to continue;
(j)	29 September 2020 – this consultation is stated to have occurred over 15 minutes and 53 seconds. The claimant presented with left knee pain. The notes records “patella femoral syndrome”.
The corresponding referral to Henry Lee (physiotherapist in Smithfield Active Physiotherapy) was also dated 29 September 2020 noting:
“[P]resents with left knee pain, lateral aspect with laterally tracking patella, reports pain, effusion and ‘crunch’, occasional locking, tender tight vastus lateralis. Needs release ITB, taping and education on quad conditioning”;
(k)	6 October 2020 – there was a 4 minute 11 second check-up of the claimant’s breasts recorded followed by a 12 minute 6 second consultation where the notes record “migraine aggravated by heat and cold”. The notes say that “Sandomigran ineffective could try Inderal and Endep”; 
(l)	13 October 2020 – the notes suggest this is a “medical check-up” and that the claimant had been involved in an accident a week ago when the driver of car side-swiped her on the passenger side. It was described as a “low speed accident”. Ms Stojanov was said to be driving and could not stop. He takes a record of:
“Car was just driveable, restrained in the car. Emotionally upset, hypervigilant and experiencing panic attacks about going out and driving. Flashbacks, noise and sight of the accident. Felt abandoned about the other person not even enquiring about her condition. Insomnia and cannot go to sleep. Apart from the knees, exacerbation of pre-existing pain. Has trialled meditation and practice relaxation therapy with little benefit”;
(m)	18 November 2020 – the doctor records that she hit the dashboard as she tried to lift her knees up. “Exacerbation of pre-existing bilateral knee pain. Left knee effused, tender patellar margin. Low back pain worse than pre-existing. Neck pain C7 region. Endone and Panamax prescribed”;
(n)	23 November 2020 – the claimant was reported to be in chronic pain, emotionally distressed and with financial pressures. There were “functional limitations” recorded, and
(o)	27 November 2020 – the claimant reported neck pain and stiffness, low back pain and thigh pain since the accident along with “left knee sharp infra patellar pain”.
50.	On 7 December 2020, the claimant said she was unhappy and had a lack of confidence in the level of care she was receiving and wanted to seek alternate GP and have medical records transferred. On 28 June 2021 her medical records were faxed to My Health Medical Centre Liverpool.
51.	On 7 December 2020 Dr Rastogi completed a certificate of fitness. He indicated there were patellofemoral injuries to both knees, an acute neck injury, aggravated lumbar injuries and an adjustment reaction. He identified no pre-existing factors that would be relevant. Dr Rastogi advised that the claimant required physiotherapy and psychological counselling and certified the claimant fit to work from home from 2 October 2020 to 8 January 2021.
Smithfield Active Physiotherapy
52.	Records from Smithfield Active Physiotherapy have been produced these include:
(a)	three attendances in 2016 for lower back and upper back pain. The notes suggest a “long history of LBP [lower back pain]” and that “recently [unclear] she developed back pain which includes thoracic musculature” She was treatment for thoracic and lumbar spine issues;
(b)	the referral for physiotherapy on 29 September 2020, three days before the car accident for left knee pain with laterally tracking patella, effusion and “crunch” occasional locking and so on, and
(c)	a history in the notes on 6 October 2020 which reads, “for about 1 year L knee pain, getting 7/10 [at] rest, 9/10 [with] steps”. The claimant had limited range of motion due to pain and aggravating factors were walking and steps. There is no mention of the car accident.
53.	On 21 July 2016, Smithfield Active Physiotherapy reported to Dr Rastogi regarding treatment for the claimant’s lower back pain which included mobilisation of the thoracic and lumbar spine and exercises for abdominal bracing and core stability were given.
54.	On 6 October 2020, Smithfield Active physiotherapy reported to Dr Rastogi regarding the treatment for left knee pain which included soft tissue release, heat pack, exercises with supervision, a home exercise program and taping.
My Health Medical Centre
55.	After leaving Dr Rastogi’s practice the claimant attended My Health Medical Centre at Liverpool on 11 December 2020. The records include:
(a)	attendance on Dr Roman 11 December 2020 – past history given of asthma and migraine; past medications of Mobic and Panadeine Forte (“on it for 20 years”) and Endone and she was not happy with her current doctor because of the way her CTP claim was progressing after the car accident. Her issues were said to be a trauma related disorder (antidepressant and referral to a psychologist) and musculoskeletal pain neck, lower back and knee (no indication of which knee). Imaging was said to be ordered but not completed possibly because she could not afford it. A certificate of fitness was provided.
(b)	On 14 December 2020 the claimant’s main goals were stated to be mental health (she was referred to a psychologist), physical health and compensation (imaging was now available but not provided until the claim number was received).
(c)	On 18 December 2020 she attended on Dr Roman again with an update on the claim and her claim form “otherwise well” was noted.
(d)	On 23 December 2020 another attendance occurred with Dr Roman. The claimant had her claim number, had seen the psychologist twice, had been paid for the radiology and was referred to Mr Ianni the physiotherapist.
(e)	On 4 January 2021 the claimant attended for a discussion about her musculoskeletal pain which was “quite widespread – bilateral knees, lower back”. Her left knee pain was said to be the main site of pain and it was instability and an MRI was requested.
(f)	On 16 January 2021, physiotherapist Mr Ianni recorded the first visit and took a history of bilateral knee pain with the left worse than the right. The claimant told him both knees collided under the steering wheel. She also said, “left knee initially swollen like a balloon.” Ms Stojanov complained of low back pain right more than left and intermittent right leg neurological symptoms. He has a history of “previously poor L patella tracking”. The Panel notes there is no effusion noted in respect of the examination or referred to in the note other than the claimant’s report.
(g)	On 20 January 2021, Dr Roman reviewed the MRI and records “given ongoing pain, instability, locking since October 2020, patient is keen on an ortho review for consideration of an arthroscopy.”
(h)	A referral was given on 20 January 2021 to Dr Richard Walker “for an opinion and management of right knee meniscal tear … she has ongoing pain, instability and joint locking in the right knee”.
(i)	A referral to Dr Ireland was given on 15 February 2021 – “for an opinion and management of right knee meniscal tear … she has ongoing pain, instability and joint locking in the right knee. Cortisone injection has mildly relieved her pain.”
56.	Dr Marcus responded to a request from NRMA dated 11 March 2011 for a report by handwriting responses on a form. He refers to a right knee medial meniscus tear and lumbar back pain. He notes range of motion in the back is acceptable and the claimant has right and left hip pain. He notes an inability to squat and swelling.
57.	Dr Marcus also notes the claimant is working full hours.
58.	Dr Marcus wrote a further report dated 22 April 2021 to Suncorp. He has a history of the claimant driving at 40 – 50 kms per hour when a car opened its door “and she collided with that vehicle at speed”. Having said that he says “I do not have the exact specifics of the incident as Suzana presented to her usual GP at the time. However, it seems that he was not well versed in CTP claims and Suzana decided to present to our clinic for review.”
59.	Dr Marcus says, “there is no doubt in mind that Suzana’s knee injury was directly caused by her accident in October 2020.”
60.	The Panel notes that at this time, Dr Marcus did not have the records from the claimant’s pre-accident GP with the complaints of knee pain as these were provided in July 2021.
61.	Dr John Ireland wrote to the claimant’s GP, Dr Marcus on 24 February 2021. He has a history of the accident occurring at 40-50 kmph, that the car was forced into the centre of the road, the entire side of her vehicle was damaged, and the car was written off. “She was quite upset and had soreness in her knees from striking the dash and discomfort in the back, headaches and anxiety.” She has swelling in the left knee more than the right, marked patella femoral irritability and a positive McMurray’s test. An MRI shows medial meniscal tear and evidence of a patellofemoral impaction injury. He requested permission for arthroscopy and meniscectomy of the left knee.
62.	Dr Ireland wrote to AAMI on 11 May 2021 saying the meniscal tear is the reason for the arthroscopic surgery. He queried whether there was a twisting component resulting in injury but says if her problems were purely patellofemoral, he would have expected her problems to have resolved.
63.	He agrees that if she had sustained an injury to her meniscus, it would have been painful immediately and says, “indeed her knees were sore as a result of the impact”.
64.	Dr Ireland then says:
“Certainly, it would be anticipated that the patellofemoral changes were pre-existing and degenerative in nature. As to the meniscal tear, this may have been present to an extent prior to the impact but she complained of no pre-existing symptoms.”
Radiology
65.	An X-ray of the lumbosacral spine, cervical spine and both knees was taken, and the report is dated 24 November 2020. It shows:
(a)	degenerative disc space changes at C5/6 and C6/7;
(b)	generalised disc space narrowing, minor retrolisthesis of L2 on 3 and mild subluxation of L3 on 4, and
(c)	small suprapatellar bursal effusion on the left, normal patellofemoral joint space, no fractures and mild degenerative changes on both sides with mild relative narrowing of the medial compartment joint spaces.
66.	A CT scan of the lumbar spine due to “MVA back pain” was done on 24 November 2020 and is reported to show multilevel degenerative disc space changes and disc bulges at all levels.
67.	An MRI of the left knee 20 January 2021 revealed oblique radial free edge tear of the posterior horn of the medical meniscus with meniscal extrusion, early osteoarthritis. Mild patella-femoral compartment osteoarthritis.
Medico-legal and expert reports
68.	The insurer has obtained a report from Dr McIntosh dated 4 June 2021. He was asked to provide an opinion on the collision severity and the likelihood of injury. He says:
(a)	the insured vehicle was a BMW which had a “minor dint on the door jam and door”;
(b)	the claimant’s vehicle had a detached wing mirror and panel damage on the front nearside fender and possible scrape marks and minor panel deformation;
(c)	he had no repair details, and
(d)	the insured estimated the claimant’s speed at 30 kms per hour.
69.	Dr McIntosh suggests the accident was a “very low severity sideswipe collision” and that the change in velocity in the claimant’s car was likely to be less than 5 kms per hour. He says, biomechanical forces were of “very low magnitude” and at [20] expresses the opinion:
(a)	it was very unlikely that a whiplash soft tissue or exacerbation injury could have occurred in the neck;
(b)	it was unlikely a lower back injury could have been caused in the accident, and
(c)	“there is no mechanism for knee injury in the incident, including meniscus injury and patellofemoral joint injury”.
Other assessments
70.	Medical Assessor Samuell examined the claimant on 14 December 2022 and issued his certificate on 20 December 2022. He was asked to assess whether the claimant’s psychological injury was a threshold injury.
71.	The claimant had relied on a report from Ms Jackson who diagnosed a post-traumatic stress disorder with panic and depression. The insurer had argued Ms Jackson was a psychologist and not qualified to diagnose a condition in accordance with DSM-5.
72.	Medical Assessor Samuell has a history of previous mental health issues following a marriage breakdown but no recent troubles. He later noted a further episode of mental health issues due to workplace bullying.
73.	The claimant said she first saw a doctor two weeks after the accident as she was “in shock” and “too scared to leave the house”. This was her first car accident. She reported surgery in August 2021 and psychological treatment from Ms Jackson.
74.	The claimant said she had flashbacks and would hear the noise of the accident every few weeks. She has three to four hours sleep a night and a variable appetite and has gained weight.
75.	She said she was seeing a counsellor through her work due to “work and stuff”.
76.	Medical Assessor Samuell’s view was that there was “a manifest disconnect between the mechanism of accident and her reported symptoms”. He refers to the accident as “trivial”.
77.	Medical Assessor Samuell diagnosed the claimant with an adjustment disorder which was a threshold injury in accordance with the legislation.
Re-examination findings
78.	The claimant attended a medical examination with Medical Assessor Drew Dixon in his rooms on 25 May 2025.
History of the accident and treatment from the claimant
79.	The claimant said that on 2 October 2020 she was the driver of a sedan motoring along a residential street when the driver of a parked BMW opened his door which hit the left-hand side of her whole car and pushed her car into to the centre of the road. 
80.	Ms Stojanov reported that there was substantial damage to the entire length of the passenger side of her car and she stayed in the car for a while due to shock. Because it was blocking traffic, she eventually moved the car out of the way when she felt able to do so and exchanged details with the other driver. There was no head injury or loss of consciousness. 
81.	Ms Stojanov says the impact caused her to hit her knees on the plastic part of the dash under the steering wheel as she moved forward in her seat. She said she also sustained a neck and back strain injury due to this forwards force. She says her car was subsequently written off. 
82.	She attended her local doctor, Dr Rastogi, on 6 October 2020. She did not mention the motor vehicle accident to him as she felt that he was not interested in pursuing third party matters and he was just back from having a prolonged period off work due to illness. She reported he did a breast check-up for her and suggested alternative medication for her migraine headache. 
83.	Ms Stojanov said she subsequently went to another GP as she felt Dr Rastogi was disinterested in her accident. She saw a GP Registrar, Dr Roman, on 11 December 2020 who noted her anxiety and commenced her on anti-depressants and referred her to a psychologist, Ms Jackson, for counselling. 
84.	Ms Stojanov said she complained of pain in her neck, lower back and left knee and Dr Roman filled out an initial certificate of fitness noting the claimant’s primary injuries were worsening mental health and left knee pain with secondary injuries being musculoskeletal in nature around her ongoing back and neck pain. He helped facilitate her claim and referred her to a physiotherapist, Mr Iaani, and arranged for imaging of the left knee and cervical and lumbar spine. 
85.	She then attended Dr Roman on 4 January 2021 with her scans and says he told her the CT of the lumbar spine showed no fractures but multilevel degenerative disc space changes and that the X-ray of the lumbosacral and cervical spine showed no fractures but degenerative changes. 
86.	During that consultation, Dr Roman recorded that the claimant’s left knee seemed to be the site of most of her discomfort and pain and referred her for an MRI of her left knee which revealed an oblique radial free edge tear of the posterior horn of the medial meniscus with meniscal extrusion, buckling of the medial collateral ligament. 
87.	The claimant said that both knees hit plastic under the steering wheel on impact and that since the accident there has been clicking and locking of her knees, more marked on the left. Since the accident the claimant said that her left knee had become more swollen and that she had persisting low back pain with intermittent radiating pain into her right leg. 
Social history from the claimant
88.	Ms Stojanov’s background is she is an Executive Assistant/Office Manager for UTS Sydney from 2008 to the present. Her current work restrictions are working from home as needed. The claimant said she worked from home in October and November 2020 and then took December off and then returned to working from home. In February 2021 she was permitted to work one to two days in the office at Ultimo, where she is Executive Assistant and Office Manager and do the rest of her work from home. This has given her great relief because if she is in the office, she has to get the train to Central and then walk from Central to UTS, noting that the travellator/escalator at Central Station was often broken. She was having difficulty walking due to her left knee and low back pain. 
89.	She lives in the family home with her 28-year-old son who does most of the household chores for her such as the heavy cleaning, heavy grocery shopping and heavy laundry as well as the yard work, with some assistance form her partner who visits on occasion. He drove her to the appointment with Medical Assessor Dixon. 
90.	She herself has difficulty with prolonged driving and she has not been able to return to recreations such as jogging with her dog or going to church where she has to stand up. She has reduced time catching up with family and friends. 
91.	She did report difficulty with foot care and bathing and showering and doing her hair. 
92.	When asked about her pre-accident medical state she said she had a hysterectomy and removal of a melanoma from her back and surgery for her feet. She did not disclose at this time, any previous problems with her knees and spine.
Current symptoms
93.	Ms Stojanov said she has had pain and stiffness in her left knee with persisting swelling since the accident. The pain was in the anteromedial region as well as laterally and there has been recurrent locking of the knee and a feeling of instability. She says that since the accident she has had difficulty using stairs and steps and difficulty with prolonged walking. 
94.	She reported anterior pain in her right knee with audible crepitus. She had difficulty squatting and was unable to kneel on the left knee. She has a limp most of the time. 
95.	Ms Stojanov reported pain in her lower back with lumbar stiffness but no ongoing radicular complaint although she said there had been some pain previously with thigh radiation. 
96.	The claimant also reported persisting pain in her neck with left shoulder brachialgia with trapezial muscle pain and pain in the supraclavicular region and pain in the lower cervical spinous processes as well as residual occipital headaches all since and because of the accident. 
97.	Ms Stojanov said that her neck pain disturbs her sleep, and she has changed her pillow frequently. Her neck pain and stiffness impact her ability to drive, reverse park, change lanes and check the blind spots and she has difficulty looking up to do overhead work at home. She reports no stiffness in her shoulders but has discomfort in the trapezius muscle on elevating her left arm. She reported no paraesthesia in the hands or radicular complaint from her neck. 
98.	Her current treatment is regular Panadeine Forte, Seretide, Ventolin for asthma, Tramadol for pain relief and Zomig for migraine like headaches and Mobic as an anti-inflammatory and Rivaroxaban. 
Examination
99.	Ms Stojanov is 168cm tall and weighed 90kg. 
Lower limbs - knees
100.	She walked with a limp on the left and was unable to toe walk and was very unsteady on heel walking due to pain in her left knee. Her squat test was restricted by one half due to pain in the left knee. There was swelling of the left knee with an effusion and popliteal fullness. There was retro patellar crepitus and she had tenderness of the anteromedial joint line with a positive McMurray’s test and tenderness of the lateral joint line. The knee was stable. The range of motion was restricted to 10 degrees through to 100 degrees. 
101.	In the right knee the range of motion was 0 degrees through to 130 degrees (which is normal) and there was retro patellar crepitus heard but that knee was stable. 
Lumbar spine
102.	In the lower back there was stiffness of the lumbar segment with flexion decreased by one third with pain on back extension which was decreased by one half and slow and jerky recovery with erector spinae muscle spasm on the left. She had tenderness in the left lumbosacral facet area and at the L5 level in the mid-line. 
103.	Her back pain in the past had been mainly on the right. 
104.	Her straight leg raise was 60 degrees on the left and associated with low back pain and 70 degrees on the right. 
105.	There was no neurological deficit of either lower extremity. All reflexes were present and symmetrical, power was grade 5 (out of 5) and there were no objective sensory changes in the lower limb and her Babinski signs were negative. There was one centimetre difference in circumference of her left thigh and left leg below the knee when compared with the right which is likely due to the left knee condition and is not in the clinical judgment of Medical Assessor Dixon due to any muscle wasting from a lower back nerve root injury. 
Cervical spine
106.	In the neck there was stiffness with flexion and extension decreased by one third. Lateral rotation was reduced by one quarter bilaterally and lateral flexion by one third bilaterally. 
107.	Ms Stojanov had tenderness of the vertebra prominens and of the mid and upper cervical facet joints particularly on the left and there was tenderness of the left supraclavicular brachial plexus. 
108.	Her cervical foraminal compression test was negative, and her brachial plexus stretch test was equivocal. There was no neurological deficit or wasting of either upper limb with symmetrical reflexes and no objective sensory changes and power was grade 5 out of 5. There was no radicular complaint in her upper extremities. 
Consistency
109.	The claimant, at this time, presented in a straight-forward manner without embellishment and was pleasant and co-operative and answered the relevant questions put to her without hesitation. 
110.	The claimant was then taken to the claim form. She agreed she had indicated “no” in answer to the question about previous injuries and conditions. Her explanation was that she had a past history of some pain in her knees, neck and back but nothing like the pain that she experienced at the scene of the accident, where she had marked pain in the knees and could not move.
111.	Ms Stojanov was taken to the notes of Dr Rastogi who she had seen on 29 September 2020 (just before the accident) and the complaints of left knee pain with crepitus and effusion, for which he referred for her physiotherapy. Her response was that while she did have some knee pain before the accident, it was not much and nothing like the pain she has experienced in the left knee, since the subject motor vehicle accident.
112.	Ms Stojanov was taken to the notes of the physiotherapist who had recorded pain in the left knee for a year before the accident with pain, effusion and locking and again the clamant said that her pain was not as bad then as it was since the accident.
consideration of the issues
Is the claimant’s evidence reliable?
113.	The claimant says in her clam form that the driver of the other car opened his door into her car as she drove past. She gave this history to Medical Assessor Dixon and Medical Assessor Bodel. The claimant told Ms Jackson that the insured opened his door “wide open”. The insured driver said he had his door partly opened and as he saw Ms Stojanov approach, he partially closed it but accepts it was open to about 20 degrees.
114.	The claimant said in her claim form that after the impact she “pulled to the centre of the road”. She told Ms Jackson she felt her car being pushed into the centre of the road. The claimant told Dr Ireland her car was forced into the centre of the road as a result of the impact. 
115.	Ms Stojanov said in her claim form that she was in shock and could not move the car for 10 minutes. The claimant told Medical Assessor Dixon that after the collision she moved the car because it was blocking traffic and she did so when she felt able to. She then got out and exchanged details. The insured driver says that after the impact, Ms Stojanov approached and exchanged details but did not complain of any injury. The photographs of the accident scene show the claimant out of the car and the car still in the roadway not quite level with, but alongside the insured vehicle.
116.	The claimant gave a history to Medical Assessor Bodel of being in shock and crying uncontrollably. The insured says the claimant got out of her car, they exchanged details, she did not complain of injury and drove away.
117.	The insured says the claimant was travelling at about 30kmph. Dr Rastogi has a report of a low-speed accident. The claimant told Dr Marcus and Dr Ireland that the accident occurred at 40-50kmph. Dr Marcus told NRMA the accident involved a collision “at speed”. 
118.	The claimant told Medical Assessor Dixon that the whole passenger side of her car was damaged. Dr Ireland also has a history of the “entire side” of her vehicle being damaged and the car written off. The photographs show, some deformation damage to the front passenger side in the vicinity of the bumper bar and front wheel arch, a damaged passenger side mirror but no deformation damage is discernible beyond that.
119.	The Panel is of the view that there is a degree of exaggeration over time in the histories the claimant has given of the speed and impact involved in the accident.
120.	The claimant told Dr Samuel she first saw a doctor two weeks after the accident as she was in shock and too scared to leave the house. This history is clearly incorrect as in that first two weeks the claimant did see her doctor and a physiotherapist. This again suggests to the Panel a degree of exaggeration.
121.	The claimant did not disclose any previous neck, back or shoulder complaints in her claim form. She told Medical Assessor Bodel she had no health issues involving the neck, back or either knee at the time of the accident. Dr Ireland has a history of no pre-existing symptoms. When giving her history to Medical Assessor Dixon she did not disclose any previous symptoms and it was only when taken to the claim form and the pre-accident medical records that she acknowledged these previous problems and then appears to have downplayed them.
122.	Ms Stojanov’s reason for there being no mention of her car accident on 6 October 2020 is that she did not tell Dr Rastogi she had a car accident. She says she did not tell him because she had formed the view, he was not interested in her car accident or her claim and that he had just returned from holidays. The Panel is of the view this is not a plausible explanation. The Panel notes that Dr Rastogi could not have expressed his disinterest in the car accident or her claim if he had never been told about it. The Panel also notes that the claimant was with Dr Rastogi for a 16-minute consultation. This is, in the medical members of the Panel’s experience, a long consultation and does not suggest Dr Rastogi was not interested in the claimant or was in any hurry after his holiday.
123.	The claimant has also not explained why her physiotherapist has not mentioned the car accident either noting that the physiotherapist has a one-year history of previous symptoms that has not been disclosed.
124.	There are, in the Panel’s view, too many inconsistencies in the claimant’s evidence about this accident, how it happened and her pre-accident conditions for the Panel to be satisfied that Ms Stojanov’s evidence is reliable. The Panel will therefore look to the documentary evidence for confirmation and corroboration of her complaints. 
What evidence do we accept?
125.	Dr Roman and Dr Marcus’ evidence has little weight as their notes and reports are based on a history of no previous knee or back problems. Dr Marcus in particular appears confused between the right and the left knee. There is no evidence of a medical meniscus tear in the right knee as he suggests.
126.	Dr Ireland’s opinion that there was a knee injury is also based on the exaggerated history of the speed of the accident and the damage to the vehicles and the incorrect history of no previous left knee complaints. His opinion that the medial meniscus was torn in the accident is on the basis of the history given by the claimant of immediate pain in the knee, but this is not consistent with the history from the insured driver (who said the claimant got out of the car and was walking around) and the records of Dr Rastogi (who saw the claimant on 6 October 2020 and the claimant did not complain about knee pain) and the Smithfield physiotherapist who also saw the claimant on 6 October 2020 and has no history of the accident in the context of his treatment of the claimant’s knee pain. 
127.	Medical Assessor Bodel has proceeded on the basis of there being no previous relevant history in the neck, back or knees.
128.	The Panel’s view is that the preferable evidence in this matter are the notes from Dr Rastogi and Smithfield Physiotherapy in particular and the clinical findings in the various examinations.
What injuries did the claimant sustain in the accident?
Did the claimant injure her neck, and if so, is that injury a non-threshold injury?
129.	There is no record of pre-existing neck complaints in the records of Dr Rastogi. There is no specific mention of neck pain in his records after the accident until 18 November 2020. Dr Marcus did not include a reference to a neck injury on the certificate of fitness dated 15 February 2021. There is no mention of neck pain to Dr Ireland.
130.	There is no radiological evidence of any cervical spine fractures or disc herniations and ruptures after the accident. 
131.	There was no neck abnormality when examined by Medical Assessors Bodel and minimal findings on examination by Medical Assessor Dixon (some limitation of movement and tenderness).
132.	The Panel is prepared to accept the claimant may have sustained an injury to her neck in this accident, however the Panel is of the view it was a soft tissue injury that appears to have nearly resolved.
133.	There is no evidence of a “complete or partial rupture of tendons, ligaments, menisci or cartilage” in the neck and no radiological evidence of fractures. There have been none of the five signs of radiculopathy found at any time when she has been examined.
134.	The Panel finds that Ms Stojanov sustained a soft tissue threshold neck injury.
Did the claimant injure her back and if so, is that injury a non-threshold injury?
135.	The claimant has long-standing back complaints evident in the records of Dr Rastogi with spasm and reduced range of motion from time to time. His note of 13 October 2020 records “exacerbation of pre-existing pain”. The Panel is prepared to accept that the claimant may have experienced an episode of exacerbation or aggravation of her lumbo-sacral pain as a result of this accident.
136.	There is radiological evidence of disc bulges present in the lumbar spine but no evidence of fractures or disc herniations. In the light of her history the Panel does not accept that these lumbar disc bulges were caused by the limited forces at play in this accident.
137.	When seen by Dr Ireland there is a notation of back pain but no examination to suggest any of the five signs of radiculopathy. When examined by Medical Assessor Bodel, there were radicular symptoms but none of the five signs of radiculopathy. When examined by Medical Assessor Dixon there was some restriction of motion and tenderness and spasm but no signs of radiculopathy.
138.	The Panel accepts the claimant sustained a soft tissue injury in this accident aggravating a previous lumbar spine condition. The Panel is not satisfied the claimant sustained in this accident any “complete or partial rupture of tendons, ligaments, menisci or cartilage” in the back and no radiological evidence of fractures. The Panel is also not satisfied that the claimant sustained a nerve root injury in the accident.
139.	The Panel finds that Ms Stojanov sustained a soft tissue threshold injury to her lumbar spine.
Did the claimant injure her knees and if so, is that injury a non-threshold injury?
140.	The claimant has a history of knee pain dating back at least to 16 March 2017 when she told Dr Rastogi she was taking Mobic and Nurofen for back and knee pain. Ms Stojanov had a fall on 4 August 2020 spraining her ankle. She attended Dr Rastogi on 29 September 2020, a few days before the accident with left knee pain with a laterally tracking patella, effusion and crunch and locking. The Smithfield physiotherapist has a history of knee pain for a year.
141.	Dr Rastogi records on 13 October 2020 that, “apart from her knees” she was experiencing an exacerbation of pre-existing pain. It is not clear what this means. On 18 November 2020 Dr Rastogi notes an exacerbation of bilateral knee pain and on 27 November 2020 he records left knee sharp infra patella pain.
142.	Mr Ianni records that the claimant reported her knee was swollen up “like a balloon” after the accident. This is not, in the Panel’s view a record from Mr Ianni that he found the claimant’s knee was, at the time he examined her swollen or effused.
143.	The MRI taken on 20 January 2021 disclosed a tear of the posterior horn of the medial meniscus with meniscal extrusion. While this scan is dated after the accident, the question remains whether the meniscal tear was caused by the accident. 
144.	The claimant’s solicitor submits a meniscal tear can be caused by a “twisting mechanism”. Dr Ireland queried whether there was a twisting mechanism involved in order to cause the medial meniscus tear. The Panel agrees that if there was a twisting mechanism involved, the accident could have caused the tear to the medial meniscus.
145.	The claimant has given a consistent history of her car moving to the right after the accident. It is the Panel’s view that it is possible her car moved to the right due to an instinctive reaction on her part rather than being “forced” or pushed. It is apparent to the Panel having viewed the photographs and read the insured’s statement that the claimant’s vehicle stopped after the accident without having travelled a great distance suggesting the forces involved in the accident were not great.
146.	While Dr McIntosh says it is unlikely the claimant would have sustained an injury to her neck or lower back, he cannot rule it out. However, his unchallenged evidence is that there is no mechanism for knee injury in the incident as neither knee would have moved through a large or abnormal range of motion or have been distorted in the accident. 
147.	The claimant has introduced no evidence to provide an alternative opinion to that of Dr McIntosh. The Panel accepts his qualifications as an expert on impact damage, speed and the biomechanical forces involved in an accident in the circumstances of this case.
148.	The claimant told Dr Rastogi (in November 2020) that she banged her knees on the dashboard as she “tried to lift her knees up”. Ms Stojanov told Medical Assessor Bodel she hit her knees on the dashboard. She told Medical Assessor Dixon she hit her knees on the plastic underneath the dashboard as she moved forward in her seat after accident. She told Dr Ireland she hit her knees on the dash. The physiotherapist Mr Ianni has a history of her knees colliding underneath the steering wheel. There is no history from the claimant of a twisting mechanism. 
149.	The Panel accepts, on the basis of the insured’s evidence, the evidence of the claimant and the photographs, that there was an impact between the insured’s partially open door of his car and the claimant’s front left passenger side of her car. 
150.	The Panel accepts, on the basis of insured’s evidence and the unchallenged evidence of Dr McIntosh that it was a low-speed accident between a parked car and the claimant’s car driving at about 30kmph.
151.	The Panel accepts the claimant’s knees (in the area of the patello femoral joint) may have come into contact with the underside of the steering wheel or dashboard in this accident, as the claimant lifted her knees up. The Panel is not satisfied that the impact between her knees and the steering wheel or dashboard was of such severity to cause a significant injury. The Panel is satisfied that any injury was a soft tissue injury on a background of pre-existing complaints in that knee. 
152.	The Panel is not satisfied that there was a twisting mechanism involved in this accident. The claimant gives no history to any medical examiner of any twisting of her knee and the forces involved were minimal according to Dr McIntosh. If the claimant did tear her meniscus in the accident, the Panel would, like Dr Ireland, expect the immediate onset of severe pain, difficulty walking and locking. These were similar to the complaints made before the accident. The insured’s evidence of the claimant’s behaviour after the accident and the absence of any complaints to a health practitioner until two weeks after the accident does not satisfy the Panel that the claimant sustained the tear of her meniscus in the accident.
153.	The Panel finds that Ms Stojanov sustained a soft tissue left and right knee threshold injury.
Conclusion
154.	The Panel has found that the claimant’s neck injury, back injury and knee injuries are soft tissue and therefore threshold injuries within the meaning of s 1.6 of the MAI Act.
155.	As the Panel has come to a different conclusion to Medical Assessor Bodel on causation of the left knee meniscus injury, it follows that his certificate in respect of threshold (minor) injury must be revoked.
156.	As the left knee arthroscopy and medial meniscectomy proposed and requested by Associated Professor Ireland is treatment related to the meniscus tear that the Panel has found was not caused by the accident, it follows that Medical Assessor Bodel’s certifications in respect of that treatment must be revoked. While the surgery is reasonable and necessary treatment for a torn medial meniscus injury, it is not treatment related to an injury caused by the accident.
157.	While the repeal of s 3.28(3) does not apply to Ms Stojanov’s accident and claim, the repeal of the provision concerning the resolution of s 3.28(3) disputes does apply. As a result, the Panel is of the view it has no power to interfere with the certificate issued by Medical Assessor Bodel about the medical assessment matter concerning s 3.28(3). Schedule 2(2)(c) of the MAI Act has been repealed with no saving provision or mechanism for any assessment by this Panel.