AAI Limited t/as GIO v Sen [2025] NSWPICMP 196

AAI Limited t/as GIO v Sen [2025] NSWPICMP 196 | Case summary | Zoe

[8]

The claimant, Mr Maden Sen, is a 60-year-old man who was involved in a motor accident on 12 October 2018 whilst the seat-belted driver of a motor vehicle that was rear-ended by another vehicle (the motor accident).
Mr Sen claims that he suffered injuries to his bilateral knees and lumbar spine as a result of the motor accident.
Mr Sen's claim is governed by the provisions of the Motor Accident Injuries Act 2017 (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.
On 29 October 2018, Mr Sen made a claim for personal injury benefits. The relevant compulsory third party insurer is AAI Limited t/as GIO (the insurer).
On 12 October 2020, Mr Sen made an application for damages under common law.
A dispute has arisen between Mr Sen and the insurer as to whether, for the purposes of the MAI Act, the injuries caused by the motor accident were threshold injuries.
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and is a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Alan Home for assessment.
The medical dispute was assessed by Medical Assessor Home, who issued a certificate dated 18 November 2022 wherein he determined that the injuries to the left knee and lumbar spine were caused by the motor accident and certified that they were threshold injuries (formerly minor injuries) for the purposes of the MAI Act. Further, Medical Assessor Home determined that Mr Sen's right knee condition was not caused by the motor accident. Medical Assessor Home was also required to assess the permanent impairment dispute and assessed 0% whole person impairment (WPI) in respect of the left knee and lumbar spine injuries.
Mr Sen lodged an application for a further medical assessment of the threshold injury dispute with the Commission on the basis of new information that would materially change the previous threshold injury assessment.
The Commission assigned the further assessment of the threshold injury dispute to Medical Assessor David McGrath, who issued a certificate dated 20 January 2024 wherein he determined that the injuries to the left knee and lumbar spine were caused by the motor accident. He certified that the injury to the lumbar spine was a threshold injury for the purposes of the MAI Act. Medical Assessor McGrath determined that the left knee injury was a non-threshold injury and that the lumbar spine injury was a threshold injury. Further, he determined that Mr Sen's right knee condition was not caused by the motor accident (the Medical Assessment).

[10]

MAI Act (the Review). 2. On 15 April 2024, the President's delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel). 3. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A "new decision maker" is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply. 4. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President's delegate has convened this Panel to conduct the review of the Medical Assessment. 5. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act. 6. The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment. 7. As Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules. 8. On 19 April 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review. 9. On 24 May 2024, the Panel informed the parties that it considered a re-examination of Mr Sen was required. Arrangements were made for Mr Sen to be re-examined by Medical Assessor Rhys Gray at the Commission's medical suites on 20 June 2024. The Panel also issued the following directions:

[18]

Section 1.4 of the MAI Act defines 'injury' to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Whilst almost all injured persons are entitled to statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are 'threshold' injuries.
The Motor Accidents Injuries Amendment Act 2022 provided for a number of amendments to the scheme of statutory benefits including the payment of statutory benefits on a not at fault or no-fault basis being extended from 26 weeks to 52 weeks and the repeal of s 3.28(3) of the MAI Act, resulting in no statutory benefits being payable after 52 weeks if the injuries are threshold injuries or if the claimant is wholly or mostly at fault. These amendments only apply to a motor accident that occurred after 1 April 2023: Schedule 4, Part 7 of the MAI Act.
Further, s 4.4 of the MAI Act provides that no damages may be awarded to an injured person if the person's only injuries resulting from the motor accident were threshold injuries.
A threshold injury is defined in s 1.6 of the MAI Act and includes a 'soft tissue injury'.
Section 1.6(2) of the MAI Act defines a soft tissue injury to mean an 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.
Section 1.6 of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury.

[49]

Medical Assessor McGrath noted that Mr Sen disclosed he was involved in a second motor accident on 22 July 2019. Mr Sen described it as a minor accident and reported no injury.
The Panel notes that Mr Sen's latter statement was inconsistent with the documents produced by Insurance Australia Limited t/as NRMA Insurance (NRMA).[5] Those documents revealed that Mr Sen made an application for personal injury benefits for chest wall pain, neck pain, headaches, blurred vision and exacerbation of low back pain in respect of the motor accident on 22 July 2019. On 13 December 2019, NRMA determined that Mr Sen had sustained a minor injury (now known as a threshold injury) in the second motor accident and on this basis, declined the claim for statutory benefits beyond 26 weeks following the accident.[6] Such determination was confirmed on review on 22 January 2020.[7]
In respect of current symptoms, Medical Assessor McGrath noted that Mr Sen indicated that he had bilateral knee pains and low back pain which also arose after the surgery on his left knee by Dr Coffey on 24 July 2019.
In respect of current and proposed treatment, Medical Assessor McGrath noted that Mr Sen was not receiving any active exercise treatment and was taking Mobic tablets for inflammation.
In respect of general presentation on clinical examination, Medical Assessor McGrath observed that Mr Sen walked with a walking stick held in the left hand. Gait was uneven and on questioning, he had an antalgic and loss of range of motion gait. He was unable to fully extend the left knee.
On examination of Mr Sen's lumbar spine, Medical Assessor McGrath observed a restricted range of motion in all dimensions. There was no muscle spasm or guarding. There were no non-verifiable radicular complaints. Neurological examination of the lower limbs was normal apart from some wasting of the left leg not associated with the spine, that is, he had normal deep tendon reflexes, power and sensation. Straight leg raising was normal and there was no radiculopathy.
On examination of Mr Sen's knees, Medical Assessor McGrath measured active range of motion of the right knee at 120° on flexion and 0° on extension; and active range of motion of the left knee at 100° on flexion and 5° on extension. The left knee had a restricted range of motion. There was an extension lag to 5°. Flexion was also restricted by discomfort and pain. The right knee had a full range of motion after several trials. There was wasting in the left leg. Upper and lower leg circumference was measured at 51cm/47cm for the right leg and 40cm/39cm for the left leg. Cruciate ligaments appeared intact. There was tenderness over the left kneecap and there were crepitations with passive movement as well as active movement.
Medical Assessor McGrath observed a very long 30cm scar over the anterior aspect of the left knee that had widened to about 1cm thickness in parts. The scar itself was not tethered but there were some trophic signs within the scar.
In respect of consistency on presentation, Medical Assessor McGrath observed:

[71]

In evidence, there is a statement by Ms Sharna Watson dated 2 February 2021 taken by an investigator commissioned by the insurer.[18]
Ms Watson was the driver of the motor vehicle that rear-ended Mr Sen's motor vehicle in the motor accident.
Ms Watson stated that she recalled that the motor accident occurred on 12 October 2018. It had been raining prior to the motor accident but was not raining at the time of the accident. The roadway was clearly wet at the time of the motor accident.
Ms Watson stated that the motor accident occurred on Luxford Road, Lethbridge Park. The speed limit at the location of the motor accident was 60kmph. There were two marked lanes on each side of the roadway.
Ms Watson stated that she was driving her motor vehicle, an SUV, in the right lane on Luxford Road behind the vehicle driven by Mr Sen. She had been travelling at about 55kmph but slowed down as she approached a set of traffic lights. The traffic in front of Mr Sen was quite heavy but flowing. She estimated that she was 2.5 seconds behind Mr Sen's vehicle. She could clearly see the rear end of it. She had only been behind Mr Sen's vehicle for a short distance. She believed that he had been waiting at a red traffic light that had turned green as she approached. The vehicles in front of her had begun to move.
Ms Watson did not provide an estimate of her speed at the time of the collision.
Ms Watson stated that there was no traffic in the left lane as the cars in the left lane had turned into the side street at the traffic lights. She then noticed a car speeding down the left lane. It continued past her and then quickly swerved into the right lane directly in front of Mr Sen's vehicle. The speeding car had a red P plate.
Ms Watson stated that the cars ahead of her slammed on their brakes, as did she. However, she conceded that "I must have reacted a second late".[19] By the time she applied her brakes, she felt her car skidding and she ended up hitting the back of Mr Sen's vehicle. The air bags in her vehicle did not deploy and neither did the airbags in Mr Sen's vehicle.
Ms Watson stated that, following the collision, she noticed a parked car in the left lane and speculated that the red P plater had raced to "beat it and then jumped ahead of us".[20] She recalled that the parked car was that of a real estate agent who got into the car and left.
Ms Watson stated that both she and Mr Sen got out of their vehicles and walked to the back of the latter's vehicle. Mr Sen looked at the back of his vehicle and said, "What the hell"[21] and she apologised to him. She could not see any damage to the rear of Mr Sen's vehicle. She was upset and called her parents who lived nearby. She asked Mr Sen if he had been injured and he responded, "You hit my car. I am fine. My work car".[22]
Ms Watson stated that she and Mr Sen stood around at the scene for about 30 to 40 minutes exchanging details. He also chatted to her parents and she heard her parents ask if he was alright to which he responded that he was fine. Mr Sen seemed fine throughout the period they were standing around and chatting.
Ms Watson stated that neither police nor ambulance attended the accident scene. Both she and Mr Sen were able to drive their vehicles from the accident scene once they had exchanged particulars.
Ms Watson stated that she had seen Mr Sen a few times since the accident outside his home gardening and mowing the lawn. She never had any reason to believe that he had been injured.

[88]

On 13 October 1997, Mr Sen's then general practitioner, Dr Ramesh Dhanji, referred him to Dr Rami Sorial, orthopaedic surgeon.[32]
On 30 October 1997, Dr Sorial reported to Dr Dhanji that Mr Sen provided a history that he had fallen off a truck in Fiji two years earlier and apparently, sustained a fracture of his left patella. He underwent an open reduction and tension band wiring of the patella with two wires. The fracture had gone on to unite but he now complained of pain and discomfort from the wires that were currently subcutaneous. He was experiencing difficulty with his occupation as a carpenter and wanted to have the wires removed. On examination, Dr Sorial observed a complete rupture of the left patella tendon; a high riding patella; and an extensor lag of about 40°. The rest of the left knee joint demonstrated no abnormalities. The collateral and cruciate ligaments were normal. Dr Sorial advised that the removal of the wires would resolve the pain in the subcutaneous region of the wires but would not improve his strength, nor would it resolve the extensor lag. Dr Sorial recommended a reconstruction of the patella tendon but Mr Sen did not wish to undergo a reconstruction at that stage.[33]
On 11 March 1998, Mr Sen consulted Dr Sorial who provided a report to Dr Dhanji. Dr Sorial reported that he discussed the need for the removal of the wires and the need for a reconstruction of the patella tendon with Mr Sen. He noted that Mr Sen's Medicare card had been cancelled and requested him to make contact once he was covered by Medicare again.[34]
The Panel notes that a left chronic patellar tendon rupture had been diagnosed by Dr Sorial since 30 October 1997.
On 21 November 2005, Mr Sen underwent a right knee X-ray by Dr Andrew Li, radiologist, on the referral of Dr Selim. Dr Li concluded that no abnormality was detected.[35]
On 5 June 2010, Mr Sen consulted Dr Maged Selim, general practitioner, of Sydney Street Medical Practice complaining of mild low back pain since the previous day. Left and right flexion was painful. Dr Selim diagnosed mechanical low back pain.[36]
On 26 August 2011, Mr Sen consulted Dr Stephen Lagaida, general practitioner, advising that, on the previous day, he had been hit by a forklift and had fallen to the ground. On examination, Dr Lagaida observed tenderness in the neck, left scapula and sacral area. He prescribed Celebrex 200mg capsules.[37]
On 29 August 2011, Mr Sen consulted Dr Lagaida who noted that he was very tender in the neck, had upper back and lumbar pain, a throbbing headache and tender bilateral elbows. Dr Lagaida also noted tenderness in both knees, a bruise on the right knee and tenderness in both hips. He prescribed Celebrex 200mg capsules and Codalgin Forte 500mg/30mg tablets.[38]
On 29 August 2011, Mr Sen underwent X-rays of his cervical spine, thoracic spine and lumbar spine by Dr Colin Franklin, radiologist, on the referral of Dr Lagaida. The clinical history noted that Mr Sen had been hit by a forklift at work. In respect of the lumbar spine, Dr Franklin concluded that the vertebral bodies were normal without crush fracturing; the discs were normal; the facet joints and pars interarticularis were normal; and the sacroiliac joints were within normal limits.[39]
On 31 August 2011, Mr Sen consulted Dr Selim complaining of headache, neck and low back pain after being struck by a forklift at work six days previously. In the clinical records, Dr Selim noted abdominal tenderness and that Mr Sen may require a CT scan of his abdomen and chest.[40] When questioned about the incident by Medical Assessor Gray on 24 October 2024, Mr Sen could not recall this incident at work.
On 6 September 2011, Mr Sen consulted Dr Lagaida advising that his pain was better and that he wished to return to work the following day.[41]
On 13 September 2011, Mr Sen consulted Dr Lagaida complaining of ongoing back pain but being able to work light duties. He complained of ongoing headache and back pain by the end of the day. Dr Lagaida prescribed Celebrex 200mg capsules.[42]
On 22 September 2012, Mr Sen consulted Dr Selim complaining of recurrent low back pain following an accident the year before (presumably, the forklift incident). Dr Selim diagnosed mechanical low back pain and prescribed Voltaren 50mg tablets. Further, he recommended that Mr Sen apply heat packs.[43]
On 22 October 2012, Mr Sen consulted Dr Selim complaining of recurrent chronic low back pain since the forklift accident one year previously. There was no sciatica. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren 50mg tablets.[44]
On 19 April 2013, Mr Sen consulted Dr Selim complaining of recurrent chronic low back pain. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren 50mg tablets.[45]
On 8 February 2014, Mr Sen consulted Dr Selim complaining of recurrent left knee pain following an injury in Fiji 10 years earlier that resulted in left patella surgery. Dr Selim referred him for blood tests and a left knee X-ray. Mr Sen requested Dr Selim to refer him to Dr Simon Coffey, orthopaedic surgeon.[46]
On 22 February 2014, Mr Sen underwent a left knee X-ray by Dr Anthony Leung, radiologist, on the referral of Dr Selim. Dr Leung noted the history of previous left patella fracture and surgery involving internal fixation with tension wires. Dr Leung reported that the tension wires securing the previous united fracture at the patella were fractured/broken at five sites and there was a suggestion of the presence of loosening. He also observed mild narrowing of the medial compartment of the knee joint.[47] The Panel notes that there was evidence of established degenerative change medial compartment left knee.
On 15 March 2014, Dr Selim, referred Mr Sen back to Dr Sorial.[48]
On 19 April 2014, Mr Sen consulted Dr Lagaida complaining of back pain in the same location as after the forklift incident. Dr Lagaida advised that if the back pain worsened, he should undergo an X-ray of the lumbar spine.[49]
On 12 September 2014, Mr Sen consulted Dr Sorial who provided a report to Dr Selim. Dr Sorial repeated the history Mr Sen had provided him in 1998. Dr Sorial noted that Mr Sen did not attend for follow-up after 1998, having returned to Fiji until about 2009. He was now back in Sydney, working in a factory as a machine operator. Dr Sorial noted that he was struggling with intermittent sharp pains that he localised to the area of the wires; daily instability with the knee giving way once or twice a day; and an inability to negotiate stairs properly. Dr Sorial noted that X-rays confirmed broken tension band wiring, a united patella and a high-riding patella due to the patellar tendon rupture confirmed clinically with an extensor lag still at 40° to 50°. Removal of metal with or without reconstruction was discussed. Once again, Mr Sen did not want a reconstruction and he was placed on the waiting list at Nepean Hospital for removal of wires only.[50]
On 20 September 2014, Mr Sen underwent a left knee MRI scan by Dr Kevin Tay, radiologist, on the referral of Dr Sorial. Dr Tay noted the history as chronic patellar tendon rupture. He noted that there was evidence of previous surgery with susceptibility artefact at the upper pole of the patella in keeping with quadriceps tendon repair. There was a small knee joint effusion and a small popliteal cyst. The collateral ligaments were intact, as were the posterolateral corner structures. The lateral meniscus was intact, as was the lateral compartment articular cartilage. The medial meniscus was intact, as was the medial compartment articular cartilage. There was full-thickness chondral wear centred on the median eminence of the patella measuring about 1.5cm x 1.8cm. Dr Tay concluded that Mr Sen had patella alta and observed that, aside from the inferior most portion of the patella tendon, there was only thin irregular low signal tissue along the expected course of the patella tendon.[51] The Panel notes that Dr Sorial advised of a prior injury to the left knee many years earlier, with a fracture of the patella being tension band wired. However, clinically, there was a complete rupture of the patellar tendon with a high riding patella. Mr Sen did not request reconstruction at that stage. The Panel further notes that, despite significant longstanding mechanical disruption of the extensor mechanism having been documented, Mr Sen insisted that left knee function had returned to "normal".
On 29 November 2014, Mr Sen consulted Dr Selim complaining of having injured his mid-low back after moving a heavy drum at work a week earlier. Dr Selim noted no sciatica. On examination, Dr Selim observed that there was no tenderness of the lumbar spine and that there was a full range of all movements with moderate pain. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50mg tablets.[52]
On 6 March 2015, Mr Sen consulted Dr Selim complaining of recurrent low back pain over the past day. On examination, Dr Selim observed that all movements of the lumbar spine were moderately restricted. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50mg tablets.[53]
On 1 April 2015, Mr Sen underwent the removal of the broken tension band wires in his left knee by Dr Amaranth, surgeon, at Nepean Hospital.[54]
On 2 April 2015, Mr Sen consulted Dr Selim reporting that he had undergone the surgical removal of the left patella tension band wire on the previous day. Dr Selim noted that his blood pressure was high and that Dr Sorial was to review him in two weeks.[55]
On 4 April 2015, Mr Sen consulted Dr Selim complaining of severe left knee pain that was not relieved by Panadeine Forte. Dr Selim prescribed Endone 5mg tablets.[56]
On 15 April 2015, Dr Sorial reported to Dr Selim that he had reviewed Mr Sen following the removal of the broken tension band wires. The wounds had healed and the sutures were removed. Mr Sen was advised to continue with a home exercise program.[57]
On 15 May 2015, Mr Sen consulted Dr Selim reporting minimal pain following left knee surgery six weeks earlier. On examination of the left knee, Dr Selim observed no swelling and mild restrictions in flexion/extension. Mr Sen was issued with a certificate certifying him fit to return to work on 18 May 2015.[58]
On 30 October 2015, Mr Sen consulted Dr Selim complaining of low back pain without sciatica for the past two days. On examination of the lumbar spine, Dr Selim observed mild restrictions in flexion. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50mg tablets.[59]
On 19 January 2016, Mr Sen consulted Dr Selim complaining of low back pain without sciatica for the past day. Dr Selim noted it as a recurrent problem. On examination of the lumbar spine, all movements were severely restricted. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50mg tablets.[60]
On 31 October 2016, Mr Sen consulted Dr Selim complaining of low back pain without sciatica after standing for long periods at work. On examination of the lumbar spine, flexion was limited to 60°. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren Rapid 50 mg tablets.[61]
On 21 January 2017, Mr Sen consulted Dr Lagaida complaining of back pain. On examination, Dr Lagaida observed tender vertebrae, diagnosed a sprain and prescribed Celebrex 200mg capsules.[62]
On 24 February 2017, Mr Sen consulted Dr Selim complaining of, amongst other things, recurrent low back pain. Dr Selim diagnosed mechanical low back pain and prescribed Voltaren 50mg tablets.[63]
On 16 July 2018, Mr Sen consulted Dr Selim complaining of left shin and lower leg pain that had persisted daily for two months. On examination, Dr Selim observed no tenderness in the left lower leg and a full range of movement in the left knee. Dr Selim diagnosed muscle strain, prescribed Voltaren Rapid 50mg tablets and referred Mr Sen for an X-ray.[64]
On 16 July 2018, Mr Sen underwent a left tibia and left fibula X-ray by Dr Mansoor Parker, radiologist. Dr Parker concluded that there was no acute fracture or dislocation; the tibia and fibula had an unremarkable appearance; and there was a moderate to large calcaneal spur.[65]
On 27 July 2018, Mr Sen consulted Dr Lagaida complaining of left knee pain that had been present for one month or more. McMurray's test was negative. On examination, there was left knee crepitus. Dr Lagaida prescribed Celebrex 200mg capsules and referred him for a left knee X-ray.[66]
On 8 August 2018, Mr Sen consulted Dr Lagaida advising that he had no more pain and therefore, had not undergone the recommended left knee X-ray.[67]

[89]

On 12 October 2018, Mr Sen consulted Dr Selim advising that he had been involved in a motor accident one hour earlier whilst the driver of a car that was struck from behind by a four-wheel-drive. On examination of the lumbar spine, Dr Selim observed tenderness in the right paraspinal region of the L4/L5; restricted extension; mild pain on right and left flexion; and a full range of movement on flexion. On examination of the cervical spine, Dr Selim observed mild tenderness on the left side of the C2/3 and mild pain on extension. No complaint of symptoms in the knees was recorded. Dr Selim suggested a review in one week and prescribed Voltaren Rapid 50mg tablets.[68]
On 15 October 2018, Mr Sen consulted Dr Selim complaining of left knee pain and swelling. Low back and neck pain had improved. On examination, Dr Selim observed left knee swelling and painful flexion. Mr Sen was referred for a left knee X-ray.[69] No complaint of right knee symptoms was recorded.
On 15 October 2018, Mr Sen underwent a left knee X-ray by Dr Tinku Kooner, radiologist. Dr Kooner concluded that there were no acute fracture lines visualised; there was a small osteophyte arising from the medial aspect of the patella; the patellofemoral joint space was otherwise intact; there was a patella alta; no evidence of significant joint effusion; and otherwise normal alignment. Dr Kooner noted the history of trauma and that if patella ligament injury was clinically suspected, the next step would be a left knee ultrasound.[70]
On 23 October 2018, Mr Sen consulted Dr Selim and they discussed the outcome of the left knee X-ray. Mr Sen reported that his left knee pain was improving slightly. He was working with pain. Towards the end of the day, the pain was severe. He also continued to experience left-sided low back pain. Dr Selim prescribed Voltaren Rapid 50mg tablets.[71] No complaint of right knee symptoms was recorded.
On 30 October 2018, Mr Sen consulted Dr Selim complaining of moderate to severe neck and low back pain without significant improvement.[72] No complaints of bilateral knee symptoms were recorded.
On 14 November 2018, Mr Sen consulted Dr Selim complaining of persistent left knee pain, being unable to fully weight bear, mild neck pain and low back pain. Dr Selim referred him for physiotherapy.[73] No complaint of right knee symptoms was recorded.
On 17 November 2018, Mr Sen consulted Dr Selim complaining that his left knee pain was not improving and that he was limping. He was only getting partial relief from the Voltaren tablets. Dr Selim prescribed Voltaren Rapid 50mg tablets.[74] No complaints of neck, low back or right knee symptoms were recorded.
On 20 November 2018, Mr Sen consulted Dr Selim advising that there was no improvement in his left knee or low back pain. Dr Selim referred him for physiotherapy.[75] No complaints of neck or right knee symptoms were recorded.
On 15 December 2018, Mr Sen consulted Dr Selim complaining of ongoing low back and left leg pain, no improvement in left knee swelling and walking with a limp. On examination of the left knee, Dr Selim observed swelling and moderate restrictions on extension and flexion. On examination of the lumbar spine, all movements were mildly restricted. Dr Selim recommended a left knee MRI scan and orthopaedic review, noting that Mr Sen continued to work full-time as a machine operator but was struggling.[76] No complaints of neck or right knee symptoms were recorded.
On 18 December 2018, Mr Sen consulted Dr Selim advising that there had been no improvement in his left knee pain (the entry in the clinical records incorrectly referred to the right knee). A prescription of Voltaren Rapid 50mg tablets was provided.[77] Dr Selim referred him to Dr Simon Coffey, orthopaedic surgeon[78] and for a left knee MRI scan.
On 9 February 2019, Mr Sen underwent a left knee MRI scan by Dr Georges Hazan, radiologist. The clinical details provided to Dr Hazan were of swelling and restriction of movement in the left knee. Dr Hazan found that there had been a complete rupture of the patellar tendon and that the patella sat in an elevated position. There was paramagnetic effect suggestive of prior anterior knee surgery and possible prior reattachment surgery. Dr Hazan concluded that there were features of a possible chronic patella tendon tear with fibrosis seen anteriorly at the knee. Close clinical correlation was important since there had been a recent injury and the possibility of acute on chronic injury to that region should be considered. There were degenerative anterior cruciate ligament changes and a leaking popliteal fossa cyst.[79]
On 18 February 2019, Mr Sen consulted Dr Selim and they discussed the left knee MRI scan findings of a complete rupture of the patella tendon. Mr Sen complained that he was unable to weight bear on the left knee and unable to continue working. He complained of ongoing low back pain, neck pain and recurrent headaches.[80] No complaint of right knee symptoms was recorded.
On 7 March 2019, Mr Sen consulted Dr Selim complaining of persistent severe low back pain and upper back pain as well. Dr Selim noted that he was walking with crutches and was unable to weight bear on the left knee. Dr Selim prescribed Voltaren Rapid 50mg tablets.[81] No complaints of neck or right knee symptoms were recorded.
On 12 March 2019, Mr Sen consulted Dr Selim complaining of progressive right knee and right hip pain due to overload. This was the first recorded complaint of right knee symptoms in Dr Selim's clinical records since the motor accident. Dr Selim noted that Mr Sen was to consult Dr Coffey that afternoon.[82]
On 12 March 2019, Mr Sen consulted Dr Coffey, who noted that Mr Sen sustained an injury in a motor accident in October 2018 and added, "It sounds as if there may have been a dashboard injury".[83] Dr Coffey noted that Mr Sen did not return to normal activities and that he had ongoing knee pain and swelling. About four to six weeks before his consultation with Mr Sen, the latter had become unable to independently weight bear and extend his knee. He underwent an MRI scan of the left knee confirming a patella tendon rupture and other

[90]

low-grade degenerative changes. Dr Coffey also noted a past history of surgery to the left knee and a ruptured patella tendon repair whilst living in Fiji over 30 years ago. Thereafter, he returned to normal activity. Subsequently, some internal fixation was removed. 16. On examination of Mr Sen's left knee on 12 March 2019, Dr Coffey observed a marked patella alta and a severe quadriceps lag. Mr Sen was unable to independently elevate his left leg. The knee was otherwise stable and the patella was reducible. Dr Coffey opined that Mr Sen had suffered a subacute patellar tendon rupture of the left knee in the motor accident and that the final few fibres appeared to have given way in the last six weeks or so, rendering him quadriceps deficient. He noted that Mr Sen was mobilising using a crutch. He opined that Mr Sen required a patella tendon repair with augmentation using allograft material.[84] 17. On 12 March 2019, Mr Sen underwent a left knee X-ray by Dr Sanadgol, radiologist, on the referral of Dr Coffey. Dr Sanadgol reported a high riding patella with ill-definition of the patella tendon likely related to the known history of patellar tendon rupture with proximal migration of the patella. He also reported that, elsewhere, there was no recent displaced fracture seen.[85] 18. On 2 May 2019, Dr Coffey diagnosed Mr Sen with a chronic left patellar tendon rupture and recommended an augmented allograft reconstruction of the extensor mechanism of the left knee. On examination, Dr Coffey observed that Mr Sen had a large extension lag. He also observed that gait was remarkably good despite the loss of his extensor mechanism. There was residual swelling and scarring over the anterior aspect of the left knee.[86] 19. On 22 July 2019, Mr Sen consulted Dr Selim advising that he had been involved in a motor accident two hours earlier when the vehicle he was driving was struck on the passenger side by another vehicle. He hit the left side of his head and his chest struck the steering wheel. He exacerbated his low back pain and had a headache. On examination, Dr Selim noted a tender mid sternum and provided a prescription for Voltaren Rapid 50mg tablets.[87] 20. On 24 July 2019, Mr Sen underwent a surgical procedure to the left knee by Dr Coffey, namely, an arthroscopy, partial medial meniscectomy, chondroplasty and reconstruction extensor mechanism with quadriceps tendon allograft. During the surgical procedure, Dr Coffey observed a complete chronic patellar tendon rupture; with the distal two centimetres only present; a displaced medial meniscal tear; moderate retropatellar chondropathy; and trochlear damage (post-traumatic).[88] 21. On 8 August 2019, Dr Coffey provided a progress report to Dr Selim stating that, at operation, he found a complete chronic rupture of Mr Sen's patellar tendon. He confirmed that Mr Sen underwent surgical debridement and extensor tendon reconstruction using a combination of allograft patellar tendon and autograft hamstring tendons. In addition, he underwent an arthroscopy of the left knee were a displaced subligamentous tear of the medial meniscus was debrided. Dr Coffey noted that Mr Sen had made satisfactory progress to date.[89] 22. On 5 September 2019, Dr Coffey reported to Dr Selim that he was happy with Mr Sen's

[91]

post-surgery progress and expected further improvements as his strength improved.[90] 23. On 15 October 2019, Mr Sen underwent a left knee X-ray by Dr Sarah McGlone, radiologist, on the referral of Dr Coffey. Dr McGlone observed mild asymmetrical joint space narrowing in the patellofemoral joints medially. There were no hardware complications following the extensor reconstruction. There was no evidence of effusion at the tibial tuberosity.[91] 24. On 17 October 2019, Dr Coffey reported to Dr Selim that Mr Sen's recent left knee X-rays showed no loss of position of his fixation. Dr Coffey was very happy with Mr Sen's progress. The patella appeared well centred and he had no extensor lag. He opined that Mr Sen could now gradually increase load through his quadricep mechanism to continue his rehabilitation.[92] 25. On 28 November 2019, Dr Coffey reported to Dr Selim that Mr Sen continued to slowly improve. He had no extensor lag and had quite weak quadricep musculature which would take time to recover. Dr Coffey anticipated improvement with the use of anti-inflammatories and prescribed him Mobic.[93] 26. On 6 February 2020, Mr Sen underwent X-rays of his bilateral knees by Dr Robert Ward, radiologist, on the referral of Dr Coffey. Dr Ward reported that, in respect of the left knee on upright position, there was a minor reduction in medial compartment height and corrugation to the retropatellar surface on the medial aspect of the joint. In respect of the right knee, the patellofemoral interval was maintained. There was no significant knee joint effusion in either knee.[94] 27. On 11 February 2020, Dr Coffey reported to Dr Selim that Mr Sen was making quite satisfactory progress. However, he was a little slow to recover strength and therefore, continued to have some weakness and soreness over the anterior aspect of the knee. Dr Coffey prescribed Mobic and advised Mr Sen to continue with physiotherapy and to add hydrotherapy to his rehabilitation program.[95] 28. On 14 May 2020, Dr Coffey reported to Dr Selim that he had seen Mr Sen on that date. He noted that Mr Sen had quite a lot of residual pain, much of which appeared to be emanating from the lumbar spine rather than the left knee. However, the left knee was still weak due to chronic quadricep atrophy. He recommended an MRI scan of the spine and the left knee.[96] 29. On 17 June 2020, Mr Sen underwent a left knee MRI scan by Dr Kevin Tay, radiologist. Dr Tay concluded that the susceptibility artifact affected assessment but that the patellar tendon graft was likely intact with the patella height reduced compared to before. There was a small foci of chondral wear in the patellofemoral compartment but similar to before. The previously demonstrated subchondral oedema had substantially improved. There was attenuation of the posterior horn and body of the medial meniscus and Dr Tay queried whether there had been an interval tear and meniscectomy. He also noted that mild chondral wear in the medial compartment was mildly worse than before.[97] 30. On 16 July 2020, Dr Coffey reported to Dr Selim that the MRI scan of Mr Sen's lumbar spine confirmed lumbosacral degenerative facet joint disease without significant canal or lateral recess stenosis. There was no change in Mr Sen's symptoms. Dr Coffey opined that Mr Sen had residual quadricep and hamstring weakness in the left knee; no core strength; and referred spinal pain. He was unable to offer a further surgical option and advised that Mr Sen would do better with a targeted core strengthening regime and exercise physiology referral.[98] 31. On 24 August 2020, Mr Sen underwent a right knee MRI scan by Dr Hazan on the referral of Dr Selim. The clinical details provided were that of previous surgery to the left knee and progressive right knee pain. Dr Hazan concluded that there were degenerative processes involving all three joint compartments in the right knee, most marked at the patellofemoral joints and medial compartment. There was also a medial meniscal tear without significant displacement.[99] 32. On 10 September 2020, Mr Sen consulted Dr Coffey who, on the same date, reported to Dr Selim. Mr Sen told Dr Coffey that, over the past year or two and since the progressive injury to his left knee, he had developed symptoms in the right knee. He had persistent daily pain equivalent to that in his left knee. There was no specific incident. On examination of the right knee, Dr Coffey did not observe any effusion. There was mild to moderate periarticular tenderness and medial joint line pain. An MRI scan confirmed a posterior horn radial tear adjacent to the meniscal root with some surrounding peri-meniscal cystic change. There was also some retropatellar chondropathy. Dr Coffey opined that Mr Sen had a degenerative posterior horn tear of the medial meniscus with associated retropatellar chondropathy and that symptoms were progressive and persistent and justified surgical intervention. Dr Coffey was of the opinion that it was reasonable to consider such symptoms have progressed as a result of mechanical overload of the right knee due to his left knee symptoms. He concluded that Mr Sen would be a suitable candidate for arthroscopy, partial meniscectomy and chondroplasty.[100] 33. On 6 October 2020, Dr Coffey wrote to the insurer requesting an approval to perform a right total knee replacement on Mr Sen.[101] Such a request was inconsistent with the surgery proposed in Dr Coffey's letter to Dr Selim dated 10 September 2020. On 16 October 2020, the insurer denied the request.[102] 34. On 28 January 2021, Mr Sen consulted Dr Coffey who reported to Dr Selim on the same date. Mr Sen continued to complain of symptoms in both knees, worse in the left knee. He described persistent pain, aching and catching with swelling in the left knee. He continued to complain of symptoms in his right knee and was waiting to undergo surgery (presumably the procedure referred to in Dr Coffey's report dated 20 September 2020). On examination of the left knee, Dr Coffey observed a moderate effusion; irritability; pain on manipulation; pain limited range of motion from 0° to 90°; and no discomfort radiating from the left hip. There was a residual 10°extensor lag that may have been secondary to pain because he previously did not have that lag. Dr Coffey recommended that Mr Sen undergo a left knee arthroscopy, meniscal debridement and chondroplasty and requested the insurer's approval for the procedure.[103] On 8 February 2021, the insurer denied Dr Coffey's request.[104] 35. On 5 February 2021, Mr Sen consulted Dr Selim complaining of no improvement in his bilateral knee pain. He advised that he had consulted Dr Coffey the previous week and that further bilateral knee surgery was planned. Dr Selim noted that Mr Sen was walking with the assistance of one crutch.[105] 36. On 15 February 2021, Mr Sen underwent an arthroscopy of his right knee, partial medial meniscectomy and debridement by Dr Mirrajae Lee at Hawkesbury District Health Service.[106] 37. On 3 April 2021, Mr Sen consulted Dr Selim advising that he had undergone a right knee arthroscopy through the public system in February 2021. He had undergone a post-operative review but still had ongoing bilateral knee pain as well as low back pain.[107] 38. On 18 November 2021, Mr Sen consulted Dr Coffey who reported to Dr Selim. Dr Coffey noted that Mr Sen reported persistent bilateral knee pain which had become more disabling. It had, apparently, been associated with bilateral pitting oedema. Dr Coffey recommended further X-rays of the left knee. Despite having been placed on Dr Coffey's Nepean Hospital waiting list, Mr Sen reported that he had undergone a right knee arthroscopy by a surgeon at Windsor Hospital but had not followed-up the surgeon after the procedure. Dr Coffey stated:

[97]

Dr Bodel noted that Mr Sen failed to respond to physiotherapy and experienced continuing pain, weakness and giving way in the left knee as well as ongoing intermittent back pain and right knee pain. He noted that an MRI scan demonstrated damage to the left quadriceps mechanism and that Mr Sen underwent surgical repair by way of partial meniscectomy and a quadriceps tendon allograft inserted into the distal part of the patella secured with screws and reinforced by staples. The surgery was performed by Dr Coffey on 24 July 2019, at which time, Dr Coffey observed chronic patella tendon rupture of the left knee. Dr Bodel noted that Dr Coffey's surgical repair report was consistent with the history provided by Mr Sen.
Dr Bodel referred to Dr Sorial's report dated 12 September 2014. He noted that Mr Sen had consulted Dr Sorial many years earlier in respect of an injury to his left knee in October 1997. He also noted that, in 2014, Mr Sen complained to Dr Sorial about difficulties ascending and descending stairs because of his left knee problem. He noted that Dr Sorial opined that there was a deficiency in the extensor mechanism and suggested a combination of use of a hamstring tendon and a LARS ligament to perform a reconstruction of the deficient quadriceps tendon but that Mr Sen did not elect to proceed with the surgery at that time.
In respect of past medical history, Dr Bodel noted that Mr Sen sustained a fractured left patella in 1995 that required surgical repair. Mr Sen reported that he recovered very well from the surgery and that his left knee was normal before the motor accident.
Dr Bodel noted a second motor accident in July 2019, two days prior to the surgery referred to above, wherein Mr Sen injured his chest and neck in a head-on collision. He opined that those injuries had not yet stabilised.
Mr Sen reported to Dr Bodel that his current complaints consisted of a constant dull aching pain across the lower part of the back; left knee pain and instability aggravated by attempting to kneel, squat, climb or go up and down stairs; intermittent pain in the right knee; and improved stability in the left knee.
Dr Bodel noted that Mr Sen was taking Endone and Mobic; used a Canadian crutch to mobilise; and underwent physiotherapy once per week.
Dr Bodel reported that there were no X-rays or other tests available for review at the time of the examination.
On examination, Dr Bodel observed that Mr Sen was comfortable when sitting on a chair and had difficulty rising from the sitting position because of pain in both knees. He also observed that Mr Sen walked with a left-sided limp.
On examination of Mr Sen's lower back, Dr Bodel observed tenderness on palpation of the lumbosacral junction and left-sided guarding. Mr Sen reached forward in flexion with his hands to the knees, which produced backache. Extension also produced backache. There was asymmetry of movement. Straight leg raising was 70° on both sides.
On examination of Mr Sen's lower limbs, Dr Bodel observed gross wasting of the left thigh, being about 2.4cm smaller than the right thigh when measured 10cm above the superior pole of the left patella. There was a restricted range of knee movement on the left. Active range of movement of the left knee was 100° on flexion and -5° on extension. Active range of movement of the right knee was 130° on flexion and 0° on extension. The medial and lateral ligaments were stable. The anterior cruciate ligament in the left knee was mildly lax and there was quite severe retropatellar crepitus in the left knee and weakness in the quadriceps. There was grade IV strength on resisted knee extension and an extension lag of 5°. There was passive extension to 0° but no active extension past -5°. There were no clinical signs of radiculopathy.
Dr Bodel described Mr Sen's injuries caused by the motor accident as an injury to the lower back and an injury to both knees.

[101]

On the basis referred to above, Associate Professor Shatwell recorded a detailed history.[119]
Associate Professor Shatwell noted that Mr Sen's English was rather poor and that a friend, who had attended with him, provided assistance in this regard. Further, when taking a history from Mr Sen, Associate Professor Shatwell realised it was difficult to take an accurate history and noted that some of the detail in his report had been gathered from the documents provided by the insurer's lawyers. Further, it had been difficult to assess Mr Sen because of his recent right knee surgery.
In respect of Mr Sen's present situation, Associate Professor Shatwell noted that Mr Sen had significant problems with both knees. He still had instability in the left knee with loss of power and extension of the joint and degenerative change in the patellofemoral and medial compartments. There were similar changes in the right knee, though muscular control was much better. Mr Sen relied on his right knee for climbing steps and stairs. He relied on Mobic and occasional Endone for the control of pain in his knees.
On examination, Associate Professor Shatwell observed that Mr Sen was mobilising with two elbow crutches with a compression bandage on his right knee, having undergone surgery on it two weeks earlier. He was just able to walk without crutches and was partial weight-bearing on his right leg and limping heavily. There was a long scar over the front of the left knee from the surgical repair of the patella fracture in 1995, the removal of wires in 2015 and the repair of his left patella tendon in 2019. There was no sign of effusion or synovitis in the left knee. There was wasting of the left quadriceps in comparison with the right. The right knee could not be examined because of local discomfort and a compression bandage on the joint. The left knee had 20° loss of active extension, though there was no passive extension. Flexion was possible to 100° only. Back movements could not be assessed.
Associate Professor Shatwell opined as follows in respect of any motor accident related injuries:

[126]

Medical Assessor Home took a history of Mr Sen's post-accident treatment.[127]
Medical Assessor Home reported on the outcome of his clinical examination of Mr Sen's lumbosacral spine, right knee and left knee.[128]
Medical Assessor Home provided summaries of relevant pre-accident medical reports and medical imaging.[129] He also provided summaries of relevant post-accident medical reports and medical imaging.[130]
In respect of the left knee, Medical Assessor Home observed that Mr Sen had a long history of left knee complaints having suffered a patella fracture in 1995 which required open reduction and internal fixation with tension band wiring. He consulted Dr Sorial in 1997, who noted patella alta with a high riding patella and extensor lag at the knee of about 40°. Although later there was a removal of wire from the patella, the complete rupture of the patella tendon was not performed. He again consulted Dr Sorial in 2014, who noted a 40° extension lag, performed a removal of the broken tension band wires in April 2015 and noted that Mr Sen did not undergo a patella reconstruction. The left knee remained symptomatic and there were documented attendances on his general practitioner in the months leading up to the motor accident, which indicated persisting symptoms.
Medical Assessor Home was satisfied that Mr Sen likely sustained a contusion to his left knee leading to post-accident swelling as documented by Dr Selim three days after the motor accident. X-rays of the left knee demonstrated no additional acute trauma but, rather, the pre-existent patella alta. Subsequent MRI scans demonstrated the pre-accident pathology of a complete patella tendon rupture. Such diagnosis was previously established in 1997 and 2014 by Dr Sorial and the pre-accident medical imaging. The subsequent left knee surgery performed by Dr Coffey did not arise as a consequence of the motor accident but was due to the progression of the pre-accident condition. The progression of symptoms in February 2019 and the requirement for treatment of the left patella tendon rupture was due to a progression of the pre-existing chronic rupture of the left patella tendon and not from the effects of the motor accident. However, Medical Assessor Home was satisfied that Mr Sen could have sustained a low velocity dashboard injury but that such injury was not sufficient to cause a patella tendon injury.
In respect of the lumbar spine, Medical Assessor Home, notwithstanding the opinion expressed by Dr McIntosh in his collision and biomechanics report, opined that the mechanism of the motor accident could cause a lumbar spine soft tissue injury in a person with a vulnerable back. He was satisfied that Mr Sen sustained a soft tissue injury to the lumbar spine, aggravating a pre-existing symptomatic lumbar spondylosis.
In respect of the right knee, Medical Assessor Home noted that Mr Sen had a history of a symptomatic right knee condition prior to the motor accident. The right knee became more symptomatic in 2020, leading to further medical attendances and ultimately, a partial medial meniscectomy. It was not apparent that the right knee sustained a direct injury in the motor accident. Nor was it apparent that Mr Sen suffered a consequential medial meniscus tear of the right knee. He opined that the onset of the right knee condition reflected preferential loading of the right knee over a long period of time. The injury suffered to the left knee in the motor accident was not of such a nature as to lead to additional loading of the right knee. Medical Assessor Home opined that the motor accident was not more than a negligible cause of the right knee condition.
Medical Assessor Home certified that the following injuries were not caused by the motor accident:

[135]

"Of note, in 1995 he fell off a truck in Fiji and sustained a fracture of his patella, which was treated with an open reduction internal fixation with tension band and wiring. Unfortunately, it was found that he also ruptured his patella tendon. In 2005 he saw Dr Lagaida because he had back pain from limping. On 26 August 2011 he was hit by a forklift at work and fell to the floor and had a painful neck, left scapula and both knees. He had a bruise on his right knee. He continues to have right knee and hip pain on 10 November 2011 and on 08 February 2014 Dr Selim noted a recurrent pain and visible scar on the left patella as a result of the surgery in Fiji. X-ray of the left knee on 22 February 2014 showed tension band wiring securing the previous fracture was broken and at five sites. He eventually saw Dr Sorial on 12 September 2014, who he had not seen since 1998 and he removed the broken wires. Unfortunately he was still left with an extensor lag of 40 degrees, and he eventually used a combination of hamstring tendon and ligaments to reconstruct the patellar tendon in the left knee on 01 April 2015. On 29 May 2015, he had some right knee pain, which he thought was a consequential injury to his left knee condition, and this persisted even after the motor vehicle accident. Although he complained predominantly of left knee pain following the motor vehicle accident. Two months later on 08 December 2018 he started complaining of right knee pain. He was however undergoing rehabilitation, seeing a physiotherapist and undergoing surgery on his left knee on 24 July 2019. However, on 12 March 2019 Dr Selim did note that his right knee pain was progressing. Eventually on 24 August 2020, an MRI scan of his right knee was performed which showed tricompartmental degenerative changes, but most marked in the patellofemoral compartment. Dr Coffey suggested this was overload from the left knee injury. It was recommended that a right total knee replacement would be performed. This was not approved however, a request for a knee arthroscopy was performed in February 2021 and he had the surgery on 15 February 2021."[131]

[143]

In evidence, there is a surveillance report from Verifact dated 10 March 2021 together with surveillance video footage commissioned by the insurer.[137] The insurer relied on the report and surveillance video footage to support its submission that Mr Sen had not been genuine in his presentation.
The surveillance report stated that surveillance of Mr Sen was conducted over three weekdays and that he was observed on two occasions during that period. It was stated that he was observed driving a vehicle on two occasions; attending a scheduled medical appointment on one occasion; and attending three residential properties over the course of two days. He was not observed engaging in any activity associated with gainful employment.
During the surveillance period, about 20 minutes and 19 seconds of surveillance video was captured.
In its submissions dated 1 March 2022, the insurer reproduced two photographs from the surveillance video footage depicting Mr Sen standing and walking without using any walking aid.[138] The Panel notes, however, that in other parts of the surveillance video footage, Mr Sen did use his walking stick. The insurer noted that the only time Mr Sen utilised two crutches was immediately prior to and following his appointment with Associate Professor Shatwell, which suggested a manufactured presentation and exaggeration of symptoms for the purposes of the assessment.
In its submissions dated 1 March 2022, the insurer reproduced a photograph from the surveillance video footage which it alleged depicted Mr Sen being able to bend 90° despite his reports of lumbar spine pain.[139]
In its submissions dated 1 March 2022, the insurer submitted that the surveillance footage also raised questions as to Mr Sen's alleged level of incapacity caused by the motor accident.
The Panel observed Mr Sen bending on a few occasions in his front yard whilst watering and pulling plants out of the ground on 3 March 2021. He appeared to use his walking stick as support whilst bending. He did not use his walking stick in the brief video clip of him standing and waiting by his car for a child to be seated in the vehicle. However, on his return from wherever he had taken the child, he had a walking stick in his hand as he alighted from the vehicle. The video clip ended just after he alighted from the vehicle which was partially blocked by a real estate agent's blue "for lease" sign. The video exposed on 4 March 2021 disclosed Mr Sen carrying a pair of axillary crutches crossing the road from his car at 8.59am and again at 2.28pm. At 2.39pm, he was observed leaving a residence and returning to his vehicle without crutches.
Associate Professor Shatwell reported that Mr Sen was just able to walk without crutches and was partial weight-bearing on his right leg and limping heavily. Medical Assessor Herald observed that Mr Sen used Canadian crutches due to weakness in his left leg as a result of a lag, he had difficulty walking and had a limp. Medical Assessor Home reported that Mr Sen used a walking stick in his left hand to mobilise. Dr Bodel noted that Mr Sen used a Canadian crutch to mobilise. Medical Assessor Home was of the opinion that Mr Sen was consistent in his presentation. Medical Assessor Herald observed no evidence of exaggeration.
The Panel gave little weight to the insurer's submissions in circumstances where the total period of video surveillance was brief (20 minutes and 19 seconds over three days). Further, in such circumstances, the allegation of a manufactured presentation and exaggeration of symptoms for the purposes of the assessment with Associate Professor Shatwell was little more than speculative.

[147]

Mr Sen's lawyers provided written submissions dated 6 March 2024 in respect of the Review.[141] A brief outline of the submissions is provided below.
The insurer's submission that Medical Assessor McGrath made little or no reference to Mr Sen's pre-accident history should be rejected. Medical Assessor McGrath not only clearly noted Mr Sen's pre-accident complaints, but detailed the treatment undertaken and the radiological findings with respect to his pre-accident knee condition. He provided a thorough assessment and history of the pre and post medical evidence.
In its submissions, the insurer took issue with the way in which Medical Assessor McGrath interpreted its position in relation to the need for the 2019 left knee surgery. That is, that the insurer agreed that the need for the left knee surgery was ultimately necessary as a result of the motor accident. Medical Assessor McGrath's Certificate included a direct quote from the insurer's written submissions in respect of that assessment.[142]
Contrary to the insurer's submissions, nowhere in Medical Assessor McGrath's Certificate did he say that his reasoning for accepting the left knee injury as a non-threshold injury was because the insurer agreed the left knee surgery was related. Medical Assessor McGrath's reasoning came from undertaking a critical analysis of the pre and post-accident records and making a determination accordingly.
Medical Assessor McGrath noted that Dr Coffey diagnosed Mr Sen with a sub-acute patella tendon rupture, which implied that it was mostly ruptured prior to the motor accident. He also noted that Dr Coffey believed that the final rupture of the remaining fibres in the weeks following the motor accident, implied that the vast majority of the damage was already present, which was supported by the pre-accident records.
The definition of a non-threshold injury is one of a complete or partial rupture of tendons, ligaments, menisci or cartilage. The evidence clearly confirms that, although there was a

[152]

Mr Sen described his general health being compromised by hypertension and hyperlipidaemia requiring medications. He also takes Nexium regularly and Panadol as necessary.
Regarding former surgeries, Mr Sen said that he had the first operation on his left knee in Fiji after a work injury and said he was, "OK after that" but could not recall the year. There have been two subsequent operations to the left knee and an arthroscopy to the right knee. However, despite close questioning, Mr Sen was unable to recall the details surrounding those former surgeries. He had a second arthroscopy to the right knee two to three months ago under Dr Coffey.
Mr Sen was asked in detail about his left knee injury in Fiji. He initially advised that there was a left kneecap injury on falling down. He said he was walking on a wet floor after rain and he slipped and fell. He was advised there was some documentation that referred to an injury involving a truck but he said that information was not right. He described stepping up on a wet step on getting into a van and that his left knee hit an object when his left leg slipped. He said that he required surgical "clips" for the left knee as a result and implied that the left knee settled.
The Panel notes that it proved difficult to obtain a consistent history of injury and treatment in respect of Mr Sen's left knee in Fiji. He was unable to recall how long he was off work. Mr Sen said that he subsequently attended Dr Sorial in Australia who removed the clips/wires, but he was still working. He described that before the motor accident there were no problems with the left knee and he was fit, well and working. He said he had no symptoms in respect of the low back before the motor accident. It was drawn to Mr Sen's attention that there was some documentation in his general practitioners' notes of intermittent back pain over the years, but Mr Sen said he could not recall any such symptoms.
Mr Sen was asked about the left knee surgery in 2014. He said that he had an operation after an injury to his knee at that stage, saying he was satisfactory after that procedure with no ongoing concerns. He said that he was able to work subsequently. Mr Sen was referred to the findings of Dr Sorial, who had documented a significant long standing extensor lag left knee. However, Mr Sen did not acknowledge or recall any concerns with his left knee, reiterating that his left knee had been quite satisfactory at that stage and thereafter until the motor accident.
Mr Sen was asked about his symptoms before the motor accident. He said that his knees were fine and that he had been working for 18 years with no concerns about any problems with his bilateral knees, apart from requiring some wires taken out of the left knee some years earlier. He was adamant there were no symptoms in either knee prior to the motor accident.
It was drawn to Mr Sen's attention that there was an entry on 16 July 2018 in his general practitioner notes referring to left shin/lower leg pain, but he was unable to recall any such symptoms.

[155]

Mr Sen said that, soon after the motor accident, he attended his usual general practitioner, Dr Selim. He said he advised Dr Selim that his knees were sore and swollen and recalled some low back pain after the collision. It was drawn to Mr Sen's attention that, in his first consultation with Dr Selim following the motor accident, the doctor's clinical records did not reveal any complaint or involvement of his knees in the motor accident. Mr Sen said that this was wrong and he was adamant that he had advised Dr Selim of the knee injury on the day of the accident, but that it must not have been recorded. However, after some discussion, Mr Sen said he did not feel any issue with regard to his knees, at the time of the motor accident. He said that it was only when the knees started to swell up some two to three days later that he noticed symptoms. He was adamant that the right knee was injured as well.
Mr Sen said that, after the motor accident, he was unable to work for several weeks. Mr Sen's attention was drawn to the general practitioner's entries in his notes on 23 October 2018 and 30 October 2018, noting he was working soon after the motor accident. Mr Sen said that he was on light duties for one to two weeks post-accident, then had no further work. Subsequently, he has been on a Centrelink disability support pension and has had no ongoing gainful employment.
It was drawn to Mr Sen's attention that there was documentation dated 15 October 2018 recording left knee pain and swelling and he agreed and said that an X-ray was organised. Mr Sen said there was no treatment given and he stopped working for three to four days and sometime later, he was referred to Dr Coffey and underwent left knee surgery at Nepean Private Hospital in 2019. He reported no improvement after that surgery, with no subsequent surgery to the left knee.
In respect of the right knee, Mr Sen said that he was unable to lift the left knee effectively and that his right knee had become symptomatic requiring surgery that he thought took place at Windsor Hospital.
In terms of sport/recreation, Mr Sen said he plays no sport currently. He does attend the Temple intermittently. He could not recall when he last played sport, although he said he had been playing football with friends before the motor accident.
Mr Sen described ongoing problems with his back, with intermittent localised pain in the low back, describing it as a "pinch". He said this comes on after he stands or sits for lengthy periods. There is no specific radiation of pain from the back, although he feels a tightness in both thighs generally, but with no specific lumbar radicular complaints. He emphasised that, if he sits or stands for too lengthy a period, pain in the low back comes on and then there is some global "tightness" in both thighs. He also described paraesthesia localised over the lumbar spine. He described generalised pain in both legs, the left more than the right, with no specific pattern to the pain. He said he has had no specific treatment for the back or leg, apart from using heat balm, Mobic and Panadol. He also uses a walking stick in the right hand, saying that he initially used the stick in the left hand but, since the recent second arthroscopy to the right knee, he uses the stick in the right hand. He said that both knees "slip" requiring the use of a walking stick for support.
Mr Sen was unable to recall any upcoming surgery, apart from having a possible MRI in the future to check the low back.
Mr Sen said that, at present, he has general pain about the left knee and stiffness in both knees, the left more than the right. He has some instability and swelling in both knees. He said the right knee was "sensitive" because of the recent arthroscopy. He has been noticing knee stiffness at night and that, on mobilising to urinate, he had fallen on several occasions. He said both knees are affected by night pain that recurrently awakens him.
Mr Sen re-emphasised that, after the original left knee injury in Fiji, his left knee was completely "fixed up" and he was able to work subsequently with no treatment.

[167]

However, considering the mechanism of the motor accident, the Panel finds that Mr Sen could have and did suffer a mild soft tissue contusion to the left knee caused by the motor accident, resulting in a threshold injury within the meaning of the MAI Act. Three days after the motor accident (15 October 2018), Dr Selim's clinical records noted Mr Sen complaining of left knee pain and swelling. There were no injuries to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage caused by the motor accident. A complete chronic left patellar tendon rupture was well documented by Dr Sorial over many years. There was no evidence of an acute meniscal tear for the reasons already stated in [294] above.
The Panel finds that the motor accident could have and did cause a soft tissue injury to Mr Sen's lumbar spine resulting in a threshold injury within the meaning of the MAI Act. There were no radicular symptoms or signs, no dysmetria and no guarding. There were no injuries to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage caused by the motor accident. There was medical evidence of pre-existing lower back symptoms and a second motor vehicle accident in July 2019, after which he complained to Dr Selim of an exacerbation of his low back pain.
The Panel finds no evidence of injury to Mr Sen's right knee in the motor accident or injury resulting as a consequence of favouring his left knee condition. On 12 March 2019, Mr Sen consulted Dr Selim complaining of progressive right knee and right hip pain due to overload. This was the first recorded complaint of right knee symptoms in Dr Selim's clinical records since the motor accident. There were references in the medical records of pre-accident right knee symptoms (see [100] and [103] above). Established degenerative osteoarthritic changes in the right knee had been documented on MRI and at arthroscopy, reflecting the natural increase in constitutional degenerative arthritic changes with time, more probably than not, caused by longstanding (greater than 25 years) gait derangement from his pre-existing and significant left knee condition. A degenerative meniscal tear would typically be present on MRI in any case as part of general intra-articular degeneration from long standing left knee pathology.
The Panel notes that Dr McIntosh's collision and biomechanical report was prepared in the absence of available objective information that could assist in determining the road speeds of both vehicles at the time of the collision. Dr McIntosh noted that he had not been provided with an itemised repair estimate or damage assessment in respect of Ms Watson's vehicle, nor had he been provided with photographs of it or the damage to it. He had not inspected the accident location, nor had he inspected either vehicle. Dr McIntosh conceded that there were no witness marks, such as skid marks, with which to estimate the pre-collision speeds of either motor vehicle. That is, there was no available objective information that could assist in determining the road speeds of both vehicles at the time of the collision. He noted that no vehicle crash event data was available in respect of either motor vehicle. Further, he conceded that his opinion was qualified by the absence of property damage information on Ms Watson's vehicle and the absence of the full details of her vehicle. Accordingly, the Panel has considered Dr McIntosh's evidence with caution.
The preponderance of the medical evidence supported that Mr Sen could have and probably did suffer, at least, minor injuries to his left knee and lumbar spine.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (281 paragraphs)

AAI Limited t/as GIO v Sen [2025] NSWPICMP 196 (24 March 2025)

Parties

Legislation Cited (5)