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austlii:nsw/NSWPICMP/2026/141
General information, not legal advice.
NSWPICMP
2026-02-25
Original judgment source is linked above.
Nesa v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 141
MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA); claimant injured in motor vehicle accident when the vehicle she was driving was hit from behind; claimant sustained both physical and psychiatric injury; dispute arose as to the claimant's WPI as a result of physical injury; MA determined the claimant's WPI at 7%; claimant sought a review of the assessment under section 7.26; Review Panel re-examined the claimant; Held - Review Panel revoked certificate of MA; substituted determination of 6% WPI.
Issued under Division 7.5 of the Motor Accident Injuries Act 2017
"6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
This, therefore, involves a medical decision and a non-medical informed judgement."
"There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."
"The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment."
40-year-old who immigrated to Australia from Bangladesh in 2015 and resides with her husband and their young daughter in Campbelltown. In Bangladesh, she obtained formal qualifications as a structural engineer. At the time of the accident, Ms Nesa was employed casually at a supermarket, working three to four days per week. She ceased work immediately following the accident and has not returned to paid employment since. She reported that prior to the incident, she had been preparing to re-enter her professional field in engineering or planning. She described herself as independent and physically active prior to the incident, with no limitations in her ability to perform household tasks or work activities. 5. Ms Nesa has a history of hypothyroidism, which she managed with Oroxine. She developed gestational diabetes during her pregnancy in 2022. 6. On 20 March 2018, she consulted Dr Choudhury, with symptoms described in the clinical notes as "acute on chronic" knee pain. Examination findings documented "very tender medial and lateral joint line". An X-ray of the left knee was reported to be normal. She was not provided with any specific treatment. When she was asked about this presentation. She explained that she had experienced occasional "clicking" sensations in the knee without any identifiable cause. A second GP entry dated 29 June 2021 noted "left knee pain for last few months." There was no associated trauma, and no imaging, or treatment undertaken. During this period, she was employed in physically demanding work as a night filler at a supermarket, involving heavy lifting and crouching. She reported experiencing occasional clicking sensations in the knee during these duties but specifically stated that the symptoms were minor and did not limit her function or require time off work. When these prior presentations were brought to her attention, she minimised the significance of those earlier symptoms. She stated that her 2021 GP visit was not due to knee pain but part of a comprehensive pre-IVF medical check 7. At [9], Medical Assessor Assem took a history of the accident, reporting that Ms Nesa was a front seat passenger in her husband's Suzuki Ignis vehicle when it was involved in a rear-end collision on 18 December 2021. They had come to a stop behind a car that was improperly parked in a "no stopping" zone. While stationary, a vehicle travelling behind them at speed failed to brake in time and collided with the rear of their car. The force of the impact pushed their vehicle forward approximately two metres, causing it to collide with the stationary vehicle in front. 8. Ms Nesa recalls that she was leaning slightly to the right and gripping the door handle. She immediately experienced pain in the right side of her chest and felt an internal rotation through her upper body. Her husband exited the vehicle and assisted her out. She noted that upon standing, she experienced a "clicking" sensation in her ribs. She also recalls feeling disoriented and in shock. She reported no immediate pain elsewhere but later described bruising over multiple regions including the lower abdomen, left flank, and left knee, attributed to the seatbelt and impact against the door. The vehicle was towed and written off. 9. The ambulance attended the scene and noted that they had been "braking heavily before making contact with the stationary vehicle." There was no airbag deployment and no cabin intrusion. The ambulance assessment recorded "nil c-spine pain, nil thoracic & lumbar pain," and stated that she ambulated a short distance with a normal gait. She declined further transport to hospital at that time and opted instead to seek imaging from her general practitioner. 10. Ms Nesa later attended Shoalhaven District Memorial Hospital where she reported right-sided rib pain. On examination, tenderness was recorded over the 9th and 10th ribs. However, neck examination was documented as non-tender and full range of motion was preserved. Limbs were noted as normal. A chest X-ray performed that day showed a "possible fracture of the right 9th rib." No injuries or complaints relating to the cervical spine, lumbar spine, shoulders or knees were documented. During the interview, Ms Nesa reiterated her initial focus on rib pain. She stated that at the time, she did not fully appreciate the extent of her other injuries due to the adrenaline and psychological distress she experienced. She reported that once she ceased taking analgesics approximately a month after the accident, she began to experience additional symptoms, including back pain, neck pain, and left knee pain. She attributed the emergence of neck and right shoulder pain in part to altered sleeping posture as a consequence of her rib injuries. She also stated that her left knee struck the interior door at the time of the accident, causing bruising. While this was not documented in the hospital or ambulance records, she claims to have photographs of bruising to her lower abdomen and left knee. 11. Medical Assessor Assem then took an extensive history of the symptoms and treatment following the accident at [10], recording that Ms Nesa first presented to her general practitioner, Dr Dipayan Malakar, on 24 December 2021, nearly one week following the accident. At this initial consultation, she reported a rib fracture and was prescribed Endone. No documentation of neck, shoulder, lumbar spine, or knee pain was made at this time. Subsequent consultations on 31 December 2021, she was documented to have chest pain as the only complaint following the MVA. A chest X-ray was performed on 4 January 2022 and confirmed "mildly displaced fractures of the eighth and ninth right ribs laterally". 12. On 14 January 2022, she reported experiencing neck pain. The following week, both her neck and chest pain showed signs of improvement. On 25 January 2022, her shoulder complaints were also noted but improving. Her left knee complaints were not documented until 8 February 2022. 13. During the interview, she stated that although rib pain was the primary initial symptom, once she ceased regular analgesics such as Endone and paracetamol approximately one month post accident, she began experiencing emerging pain in the neck, back and left knee. She described this delayed symptom onset as becoming apparent when she attempted to resume ordinary movement and activity. 14. In relation to her shoulder symptoms, she claimed that pain in the right shoulder was present immediately after the accident, though this was not recorded in the contemporaneous ambulance or hospital documentation. She attributed the shoulder and neck pain, in part, to prolonged supine positioning required for sleep due to right-sided rib fractures, explaining that she was unable to change position in bed and developed stiffness and pain in the upper body, particularly in the neck and right shoulder region. These explanations were noted as inconsistent and developed over time. When challenged on the absence of shoulder complaints in early medical records, she referenced her physiotherapy consultations as evidence that these symptoms had been reported. 15. Ms Nesa commenced physiotherapy with BaiMed Physiotherapy on 7 February 2022. Her chief complaints on that date were neck pain (rated 3-4/10), right rib pain, and left knee pain. She also reported stiffness and reduced mobility in the right shoulder, which affected her ability to drive. 16. A rehabilitation needs assessment conducted by iPar Rehabilitation on 9 February 2022 similarly documented complaints involving the neck, right-sided ribs, and right shoulder. On 3 March 2022, a left knee X-ray was performed, which reported "no fracture" but noted degenerative changes. The patellofemoral alignment was within normal limits, and no joint effusion was seen. A CT scan performed on 1 April 2022 identified "subacute fractures of the 8th, 9th and 10th right ribs" which were near union at the time of imaging. 17. Physiotherapy notes from a review on 20 April 2022 confirmed ongoing left knee pain with limitations in squatting and stair climbing. Physical examination demonstrated joint line tenderness, a mild effusion, and limited flexion to 110 degrees. 18. On 5 May 2022, Mrs Nesa was assessed by Dr Chad Todhunter (orthopaedic surgeon). She denied any previous history of knee injury. Clinical assessment noted mild effusion, medial joint line tenderness, full extension, and flexion to 130 degrees. Ligament stability was preserved, and McMurray's test was negative. He interpreted the X-ray as showing "very early arthritis only". An MRI was suggested but deferred due to her pregnancy. 19. On 29 November 2022, she presented to Dr Ying Lan at MediCentral. She reported persistent left knee pain and crepitus. Physical examination revealed localised tenderness and full range of motion. Tenderness was also recorded at the right eighth and left seventh ribs. 20. An MRI of her left knee on 18 May 2023 revealed "full-thickness cartilage stripping at the weightbearing surface of the distal medial femoral condyle and tibial plateau", medial meniscal extrusion, low-grade strains of the MCL and LCL, patellar tendinosis, and partial-thickness chondromalacia of the lateral compartment. 21. She was reviewed by Dr Gavin Soo (orthopaedic surgeon) on 30 October 2023. She described an "18-month history of left knee pain", reporting daily anterior pain that worsened with walking, stair climbing, and lifting her child. Physical examination revealed a positive patellar grind test and tenderness over the patellar facets, with full range of motion preserved. Dr Soo noted "near full thickness area of cartilage damage to the lateral facet". She subsequently participated in a structured rehabilitation program through Guardian Exercise Rehabilitation from January to February 2024, completing 14 sessions. 22. The Medical Assessor noted at [11] that there had been no other injuries sustained post-accident. 23. At [12]-[13], Medical Assessor Assem set out Ms Nesa's current symptoms and current/proposed treatment, noting that she describes her most persistent and troubling symptoms as left knee pain and lower back pain. She states that her symptoms have not improved and are worse with activity. She reports that the left knee pain has become constant and progressively worse over time. She currently rated her left knee pain at 5-6/10 on the pain scale. The pain is primarily localised to the patellofemoral compartment and is associated with a sensation of instability, especially when walking on uneven surfaces. She described walking 300 metres to the appointment as provoking not only pain but also numbness around the left knee. 24. With respect to the neck, Mrs Nesa reported that her symptoms have largely improved. She occasionally experiences neck discomfort and stiffness but does not consider it constant or significantly disabling. 25. Her right shoulder is currently pain-free. She clarified that there was no direct impact to the shoulder during the collision. She attributes any past discomfort to altered sleeping postures necessitated by her rib injuries. Specifically, she explained that she had to lie in a supine position for extended periods, which occasionally caused soreness in the right shoulder area. 26. Her rib pain has largely settled but she recalled episodes of residual discomfort persisting into late 2022. She attributed early underreporting of symptoms to emotional distress and concern for her husband's wellbeing following the accident. 27. She noted that her back feels stiff and painful when maintaining static positions for too long and that she must frequently shift or move to manage symptoms. She also described new onset of right knee discomfort, which she attributes to compensatory overuse secondary to the limitations in her left knee. She remarked, "now my right knee is starting pain because all the time I'm trying to use my right knee." 28. In terms of daily function, she was initially provided assistance with household cleaning for a few months. That service ceased after approximately three months. Despite ongoing symptoms, she continues to perform housework including cooking, cleaning, and vacuuming. Her husband now assists with most domestic tasks. 29. She takes Panadol Osteo when needed. 30. Medical Assessor Assem undertook a clinical examination at [14]-[18] which is reproduced in part by the Panel:
"She maintained normal cervical posture. There was tenderness over the right upper trapezius and paracervical musculature. Cervical spine movements were full in flexion, extension, and rotation. Lateral flexion to the right was slightly reduced to 4/5 of normal range compared to the left indicating asymmetry of cervical movement and spinal dysmetria. Her upper limb reflexes were symmetrically reduced. Muscle power, tone, and sensation were within normal limits bilaterally. There was no significant measurable difference in circumference of her upper arms or forearms."
"She reported tenderness on palpation over the lower lumbar region. However, there was no evidence of muscle guarding or spasm. She demonstrated a normal range of lumbar spine flexion, extension, lateral flexion, and rotation. No asymmetry of movement or spinal dysmetria was observed. Lower limb reflexes were brisk and symmetrical. Power, tone, and sensation were normal bilaterally. Upper extremity There was no tenderness reported over the right or left shoulder joints. Some limitations in shoulder movement were reported to originate from the cervical spine rather than intrinsic shoulder pathology. Active range of motion was assessed and repeated several times using a goniometer. The following measurements were recorded:
I noted that the range of motion observed today were inconsistent with the findings of other medical examiners. Ms Nesa reiterated that her right shoulder becomes uncomfortable when sleeping in a supine position."
"On flexion and extension of the knees, occasional audible crepitus was noted. She demonstrated full active range of motion in both knees from 0° to 130°, and there was no evidence of instability. Thigh circumference was measured 10 cm above the patella and revealed a 1 cm reduction on the left compared to the right. Similarly, the left calf circumference was also 1 cm smaller than the right."
"I note that other medical examiners have documented a normal range of shoulder motion. The inconsistency was put to her attention and her response noted."
"Orthopaedic Review - Dr Gavin Soo dated 30/10/2023
18-month history of left knee pain. Described daily anterior pain aggravated by stairs, walking, and lifting. Denied pre-injury knee issues. Clinical findings: patellar grind test positive; mild patellar tracking abnormality; full ROM; stable ligaments. MRI showed near full-thickness chondral loss in lateral patellar facet and significant medial cartilage loss. Management: physiotherapy, long-term arthritis monitoring.
In his assessment, Dr Bodel documented Ms Nesa's reported symptoms of pain involving the chest, left shoulder, both hips, and left knee. On examination, he noted a 5° loss of extension in the left knee with full flexion preserved. Cervical spine rotation was restricted to the right, and there was tenderness with guarding over the left trapezius. Lumbar spine assessment revealed restricted lateral bending. He assessed the cervical and lumbar spine as falling within DRE Category II, assigning 5% Whole Person Impairment (WPI) to each. A further 4% WPI was allocated to the left knee. No impairment ratings were assigned to other body regions. At the time of my examination, however, Ms Nesa demonstrated a normal range of motion in the left knee without evidence of instability. In contrast to Dr Bodel's findings, there was a degree of hyperextension (genu recurvatum) observed.
She described anterior left knee pain with clicking, but denied instability or swelling. Clinical exam: normal gait, full ROM (0-135°), no effusion, tenderness, or instability. No imaging reviewed. Clinical notes confirmed prior GP attendances for left knee pain in 2018 and 2021. Diagnosed resolved soft tissue injury; no cervical or lumbar findings; 0% WPI assigned. Recommended physiotherapy cease and stated no further treatment required.
No fracture. Early osteoarthritic changes noted - pointing of tibial spines and marginal bony spurring on the medial joint line. Patellofemoral joint alignment normal. No effusion or loose bodies.
AMA4 Guides/ Guidelines References (chapter/ page/table)
AMA4, 3/104; AMA4, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45
[1] Ms Nesa was born in Bangladesh, completed schooling equivalent to Year 12, obtained a Civil Engineering degree, worked for six years as a construction engineer, married in 2014, and migrated to Australia in 2015, where her husband works for the Royal Australian Navy.
[2] In early 2016 she commenced unpaid employment as an apprentice Town Planner with Plan Arch Australia and, in October/November 2017, obtained casual employment as a night packer with Coles.
[3] Ms Nesa notes that in 2018 she sought counselling for anxiety and low mood arising from an abusive relationship but did not proceed with psychiatric or psychological treatment.
[4] Ms Nesa completed her town planning apprenticeship in 2018 but deferred full-time work while pursuing IVF, continuing employment at Coles.
[5] She enrolled in a Diploma of Building Construction and Design at TAFE Ultimo in June 2021, which she likely would have completed in late 2022 but for the accident.
[6] The accident occurred on 18 December 2021 while she was a passenger in a vehicle driven by her husband, which was rear-ended on Five Islands Road near Wollongong and pushed into the vehicle in front. Due to the severity of the impact, she was thrown against the inside passenger door.
[7] Ms Nesa submits that liability for damages was admitted by the insurer by Liability Notice dated 16 February 2024.
[8] Ms Nesa was treated by ambulance paramedics at the scene but did not initially attend hospital, later attending Shoalhaven District Hospital with severe rib pain where X-rays and MRI identified fractures of the 8th, 9th and 10th ribs on the right side. She submits that she also sustained neck pain, bruising consistent with seatbelt injury, abdominal and hip bruising, back injury, and left knee injury.
[9] Following discharge, she attended her GP, was prescribed analgesia including Endone and Paracetamol, and commenced physiotherapy on 7 February 2022, with contemporaneous records identifying left knee injury.
[10] Ms Nesa was referred to Dr Todhunter, orthopaedic surgeon, and later to Dr Gavin Soo, knee specialist, underwent MRI, and was advised of possible arthroscopy and eventual knee replacement.
[11] Ms Nesa submits that she continues GP care, pain medication and home exercises.
[12] Ms Nesa submits that she sustained multiple physical injuries including cervical spine, lumbar spine, chest, rib fractures, respiratory injury, shoulder injury and left knee injury.
[13] Her left knee injury includes full thickness cartilage damage and/or aggravation of underlying osteoarthritis, as well as general bruising and abrasions.
[14] Ms Nesa submits that she suffers from chronic pain, restricted movement, headaches, chest pain, breathlessness, impaired mobility, and sleep disturbance.
[15] She also reports significant left knee disability including pain, instability, crepitus, impaired walking, standing and weight bearing, and right knee and leg impairment due to overreliance.
[16] Ms Nesa submits that she has impaired shoulder function affecting daily activities and childcare.
[17] She further submits that she has an ongoing need for treatment and attendant care, has suffered impaired earning capacity and loss of vocational career, and that her pre-accident domestic, leisure and work activities have been significantly reduced.
[18] Dr Soo identified near full-thickness cartilage damage to the lateral facet of the left knee on MRI and opined that the accident-related trauma will progress to arthritis and ultimately require knee replacement.
[19] Dr Bodel examined Ms Nesa on 19 March 2024, diagnosed accident-related injuries to the cervical spine, lumbar spine and left knee, and considered these to be frank injuries caused by the accident.
[20] Dr Rimmer examined Ms Nesa on 29 January 2024, accepted that the accident caused a left knee soft tissue injury, but opined that the injury resolved, which opinion is disputed by Dr Bodel and Dr Soo.
Submissions Regarding Left Knee Injury - Causation
[21] Ms Nesa submits that all medical practitioners agree the accident caused injury to the left knee and that physiotherapy records dated 7 February 2022 provide contemporaneous evidence of left knee injury. She further submits that she followed medical advice to rest, did nothing to injure her knee post-accident, and that there is no evidence of any intervening injury.
[22] Ms Nesa submits that the dispute concerns only the extent of ongoing impairment.
[23] Ms Nesa submits that prior knee complaints in 2015 and 2021 were isolated, minor, six years apart, do not establish pre-existing impairment, and that she was fully functional and leading a busy life prior to the accident.
[24] Dr Rimmer's finding of a "normal" left knee is rejected by Dr Bodel and Dr Soo. Ms Nesa submits that even if the injury were an aggravation, the resulting impairment remains assessable under Nguyen, that medical evidence confirms new impairments causally related to the accident, and that left knee impairments must be included in whole person impairment assessment. Dr Bodel expressly disagreed with Dr Rimmer and assessed 14% WPI.
Insurer's reply submissions dated 23 January 2025
[1] The insurer provides a background to the accident and dispute.
[2] On 13 January 2025 Ms Nesa lodged a PIC medical dispute seeking assessment of WPI for multiple alleged physical and psychological injuries. The insurer submits that Ms Nesa's accident-related injuries do not give rise to permanent impairment exceeding the 10% threshold. The insurer submits that the psychiatric/psychological WPI dispute was refused due to insufficient evidence and only physical injuries are for assessment.
[3.1] The insurer notes that pre-accident records show left knee pain in 2018 and 2021. It further notes that imaging prior to the accident demonstrated early osteoarthritis of the left knee, including joint space loss, osteophytes and effusion.
[3.2] NSW Ambulance attended the accident and recorded abdominal pain only, with no hospital transfer. Ms Nesa self-presented to hospital on 18 December 2021 with right rib pain and a possible fracture. The insurer submits that initial imaging showed no fracture, with rib fractures identified on imaging dated 4 January 2022.
The insurer submits that neck pain was first reported on 14 January 2022 and left knee pain on 8 February 2022. Subsequent imaging showed degenerative left knee changes consistent with osteoarthritis. The insurer notes that multiple treating specialists recorded incorrect histories denying pre-accident knee issues.
The insurer submits that rehabilitation providers closed the file as goals were achieved and Ms Nesa was fit for work, but not working due to carer duties.
The insurer submits that later medical attendances reflected unrelated injuries and domestic incidents.
[3.3] Dr Stephen Rimmer assessed Ms Nesa on 31 January 2024. The insurer notes that Dr Rimmer identified inconsistencies in Ms Nesa's denial of pre-accident left knee symptoms.
Ms Nesa reported minimal rib pain and left knee symptoms only, with no complaints involving other body parts. The insurer submits that examination of the left knee was essentially normal. Dr Rimmer diagnosed a resolved soft tissue injury to the left knee and assessed 0% WPI.
[4.1] The insurer submits that contemporaneous records show no cervical spine injury. Neck symptoms were first reported 27 days post-accident and resolved by April 2022.
The insurer notes that no cervical complaints were made to Dr Rimmer and submits that no cervical spine injury was sustained, or alternatively, any injury sustained was minor, resolved and non-assessable.
[4.2] The insurer submits that there were no lumbar complaints at the time of the accident or hospital presentation. Low back pain was first reported three months post-accident and later resolved. The insurer notes that no lumbar complaints were made to Dr Rimmer and submits that no lumbar spine injury was sustained, or alternatively any injury was minor, resolved and non-assessable.
[4.3] The insurer submits that Ms Nesa had documented pre-accident left knee pain and radiological evidence of osteoarthritis. The insurer notes that there were no contemporaneous left knee complaints following the accident and submits that later reports of bruising and pain were inconsistent with early records. The insurer submits that imaging post-accident shows degenerative changes consistent with disease progression. Dr Rimmer assessed the left knee as normal with a resolved soft tissue injury and 0% WPI. The insurer submits that no left knee injury was sustained, or alternatively any injury was a minor exacerbation of a pre-existing condition that resolved.
[4.4] The insurer submits that there is no medical evidence of a right knee injury or over-compensation injury and that no right knee symptoms were reported to Dr Rimmer. The insurer submits that no right knee injury was sustained, or alternatively, any injury sustained was minor, resolved and non-assessable.
[4.5] The insurer submits that there were no contemporaneous right shoulder complaints and notes that right shoulder symptoms were first reported in January 2022 and resolved by April 2022. It further notes that no right shoulder complaints were made to Dr Rimmer and submits that no right shoulder injury was sustained, or alternatively, any injury sustained was minor, resolved and non-assessable.
[4.6] The insurer submits that there is no treating evidence of a left shoulder injury.
The insurer submits that no left shoulder symptoms were reported to Dr Rimmer.
The insurer submits that no left shoulder injury was sustained, or alternatively, any injury sustained was minor, resolved and non-assessable.
[4.7] The insurer submits that Ms Nesa had chest symptoms prior to the accident. The insurer notes that post-accident imaging confirmed right rib fractures which subsequently healed and submits that later chest pain was attributable to a domestic activity. The insurer notes that no chest symptoms were reported to Dr Rimmer and submits that any chest or rib injury has resolved and does not result in assessable impairment.
[4.8] The insurer submits that there is no medical evidence of lung injury and notes that no lung symptoms were reported to Dr Rimmer. The insurer submits that no lung injury was sustained, or alternatively, any injury sustained was minor, resolved and non-assessable.
[4.9] The insurer submits that there is no evidence of a left leg injury distinct from the left knee. The insurer notes that no left leg symptoms were reported to Dr Rimmer and submits that no left leg injury was sustained, or alternatively, any injury sustained was minor, resolved and non-assessable.
[4.10] The insurer submits that there is no medical evidence or particularisation of a clavicle injury. The insurer notes that no clavicle symptoms were reported to Dr Rimmer and submits that no clavicle injury was sustained, or alternatively, any injury sustained was minor, resolved and non-assessable.
[3] Ms Nesa submits that, pursuant to s 7.26 of the Motor Accident Injuries Act 2017, she seeks review of the medical assessment.
[4]-[5] Ms Nesa submits that there is reasonable cause to suspect the assessment of permanent impairment is incorrect in a material respect because:
(a) the Medical Assessor treated the absence of contemporaneous evidence as determinative of causation;
(b) the Medical Assessor's conclusions are contrary to the evidence, and
(c) the Medical Assessor failed to provide a requisite path of reasoning.
[6] The following injuries were referred for assessment of permanent impairment: cervical spine with radiculopathy; lumbar spine with radiculopathy; left knee; right knee; right shoulder; left shoulder; chest soft tissue injuries; left leg; clavicle; ribs (right 8th-10th), and chest.
[7]-[8] The Medical Assessor determined the accident caused fractures of the right 8th-10th ribs and a cervical spine soft tissue injury with secondary shoulder limitation. Ms Nesa does not dispute those findings.
[9] The Medical Assessor determined the remaining injuries, including the left knee, right knee and lumbar spine, were not caused by the accident.
[10]-[12] Ms Nesa submits that the Medical Assessor excluded those injuries due to insufficient contemporaneous evidence and reliance on delayed reporting and pre-accident left knee history. She further submits that, in doing so, the Medical Assessor treated the absence of contemporaneous evidence as determinative of causation and that this constituted error.
[13] Ms Nesa submits that appellate authority cautions against determinative reliance on contemporaneous material, as explained by Basten JA in Mason v Demasi [2009] NSWCA 227.
[14] Ms Nesa submits that Campbell J in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 confirmed that focusing solely on whether early records documented symptoms involves identification of the wrong issue and constitutes jurisdictional error.
[15] Ms Nesa submits that Bugat v Fox [2014] NSWSC 888 confirms that contemporaneous evidence is relevant but not determinative where other evidence exists.
[16]-[17] Ms Nesa accordingly submits that Medical Assessor Assem's sole reason for excluding the lumbar spine and bilateral knee injuries was the perceived absence of contemporaneous evidence. She further submits that this error gives rise to reasonable cause to suspect the assessment is materially incorrect and warrants referral for medical review.
[20]-[21] Ms Nesa sustained displaced fractures of the right 8th-10th ribs as a result of the accident, causing extreme pain. She submits that the severity of the rib fractures, combined with the Christmas period, explains the initial focus on chest and neck pain.
[22] Ms Nesa had physiotherapy on 7 February 2022. The physiotherapist recorded neck, right rib and left knee pain.
[23]-[24] Ms Nesa submits that as rib pain improved, she became aware of left knee pain and limitations. She further submits that a seven-week gap before left knee physiotherapy is consistent with the injury being caused by the accident.
[25] Ms Nesa submits that there was no intervening event causing or aggravating the left knee injury.
[26] Dr Soo confirmed full-thickness cartilage damage to the left knee.
[27] Ms Nesa submits that although she may have previously had problems with her left knee, it does not exclude her left knee from being injured in the accident.
[28]-[29] The Medical Assessor reported: "Pain and impairment to right knee and leg as a consequence of overreliance and additional weight bearing on that lower limb due to the injury and impairments to Ms Nesa's left lower limb (as per "The Nguyen Principle")". Ms Nesa submits that no direct injury to the right knee is alleged.
[30]-[31] She submits that contemporaneous records cannot exist for injuries that developed gradually over time and that the onset of right knee symptoms is consistent with overreliance caused by the left knee injury.
[32] Ms Nesa submits that the Medical Assessor's conclusions are contrary to the evidence and ignore gradual post-accident symptom development.
[33] Ms Nesa submits that lumbar spine impairment arose either directly from the accident or from altered gait due to the left knee injury.
[34] She further submits that contemporaneous notes are not expected where impairments arise indirectly over time.
[35]-[37] Ms Nesa submits that the post-accident emergence of right knee and back impairments indicates they were not caused by prior left knee issues. She further submits that the Medical Assessor failed to apply the correct causation test of material contribution and failed to provide a reasoning path for the right knee and lumbar spine findings.
Medical Assessor's Failure to Provide Requisite Path of Reasoning
[38]-[40] Ms Nesa relies on Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, which requires explanation of the actual path of reasoning. Ms Nesa submits that while reasons need not be extensive, they must permit identification of legal error. She further submits that failure to provide such reasoning itself establishes reasonable cause for review.
[41]-[42] Ms Nesa submits that Medical Assessor Assem's reasoning is deficient. She submits that it was incorrect to rely solely on absence of contemporaneous evidence.
[43]-[44] Ms Nesa submits that no alternative reasoning was provided and no reasoning was provided regarding right knee and lumbar spine causation.
[45]-[46] Ms Nesa submits that the Medical Assessor failed to meet the Wingfoot standard and that this gives rise to reasonable cause to suspect material error.
[47]-[49] Ms Nesa submits that Meeuwissen v Boden requires referral once reasonable grounds of significant error exist and that fairness requires review where such grounds are established. She submits that referral is mandatory, not discretionary, once reasonable cause is shown.
[1] The insurer provides a background to the dispute. It notes that Ms Nesa asserts there is reasonable cause to suspect the assessment is incorrect in a material respect. The insurer disputes that the assessment is incorrect in a material respect.
[2] The Review application was lodged more than 28 days after the Certificate was issued. The insurer does not oppose the granting of an extension of time.
[3] Ms Nesa submits that the assessment was incorrect in a material respect on the basis that:
(a) the Medical Assessor treated the absence of contemporaneous evidence as determinative of causation;
(b) the Medical Assessor's conclusions were contrary to the evidence, and
(c) the Medical Assessor failed to provide a requisite path of reasoning.
The insurer disputes that the assessment was incorrect in a material respect.
Grounds one and two - Failure to properly assess causation and conclusions allegedly contrary to the evidence
[5.1] The insurer submits that Grounds one and two are interwoven and should be addressed together. Ms Nesa alleges the Medical Assessor treated the absence of contemporaneous evidence as determinative of causation in relation to the lumbar spine and bilateral knees, including by reference to an alleged altered gait.
The insurer submits that the objective evidence does not support the existence of an altered gait.
The insurer submits that Medical Assessor Assem correctly assessed causation based on Ms Nesa's history, clinical examination, and contemporaneous medical evidence. The Medical Assessor expressly confirmed consideration of all documents and submissions and conducted a thorough examination.
The Medical Assessor recorded that Ms Nesa ambulated with a normal gait and provided a detailed summary of medical, radiological and investigative material. The Medical Assessor concluded there was insufficient contemporaneous evidence to support a causal link between the accident and complaints relating to the lumbar spine and knees, noting delayed reporting and pre-accident knee symptoms.
(a) Ms Nesa did not provide a history to the Medical Assessor of lumbar spine symptoms or injury immediately following the accident;
(b) the Medical Assessor acknowledged the importance of the ambulance assessment which recorded 'nil lumbar pain';
(c) the Medical Assessor noted Ms Nesa attended Shoalhaven District Memorial Hospital and there was no reference to injuries or complaints to the lumbar spine;
(d) the Medical Assessor noted that there was no complaint of lumbar spine pain when Ms Nesa presented to her GP on 24 December 2021;
(e) the Medical Assessor noted Ms Nesa commenced physiotherapy in February 2022 and her chief complaints did not include lumbar back pain;
(f) the Medical Assessor took a history from Ms Nesa as to when her low back pain commenced and the reasons why she then realised the pain;
(g) the Medical Assessor acknowledged Ms Nesa's alleged persistent and troubling symptom of low back pain at the assessment;
(h) the Medical Assessor conducted a thorough clinical examination of the lumbar spine which revealed no abnormalities - no evidence of muscle guarding or spasm and normal range of lumbar spine flexion, extension, lateral flexion and rotation, and
(i) whilst Ms Nesa in her submissions alleges she had an altered gait, the clinical examination noted that Ms Nesa 'ambulated with a normal gait'. The contemporaneous documentation also suggests that Ms Nesa has a normal gait (Ambulance report, report of Dr Rimmer, clinical note of Bailmed dated 13/04/2022).
The insurer notes in relation to the bilateral knees:
(j) the Medical Assessor noted Ms Nesa's pre-accident knee complaints and the fact that Ms Nesa minimised the significance of the earlier symptoms;
(k) Ms Nesa did not provide a history to the Medical Assessor of knee symptoms or injury immediately following the accident. She later described bruising over the left knee;
(l) the Medical Assessor acknowledged the importance of the ambulance assessment which noted Ms Nesa ambulated a short distance with a normal gait;
(m) the Medical Assessor noted Ms Nesa attended Shoalhaven District Memorial Hospital and the limbs were normal. He noted that there was no injury or complaints relating to the knees documented;
(n) the Medical Assessor took a history of Ms Nesa's left knee striking the interior door at the time of the accident, causing bruising;
(o) the Medical Assessor noted that there was no complaint of knee pain when Ms Nesa presented to her GP on 24 December 2021;
(p) the Medical Assessor took a history from Ms Nesa as to when her knee pain commenced;
(q) the Medical Assessor acknowledged Ms Nesa's alleged persistent and troubling symptom of left knee pain at the assessment;
(r) the Medical Assessor conducted a thorough clinical examination of the bilateral knees which revealed no abnormalities - full active range of motion in both knees and no evidence of instability;
(s) whilst Ms Nesa in her submissions alleges she had an altered gait, the clinical examination noted that Ms Nesa 'ambulated with a normal gait'. The contemporaneous documentation also suggests that Ms Nesa has a normal gait (Ambulance report, report of Dr Rimmer, clinical note of Bailmed dated 13/04/2022), and
(t) in relation to the left knee, the Medical Assessor reasons included insufficient contemporaneous evidence (post accident) as well as a documented pre-accident history of intermittent left knee symptoms.
The insurer submits that this demonstrates the Medical Assessor did not rely solely on the absence of contemporaneous evidence when determining causation. It further submits that the Medical Assessor provided detailed reasons, addressed each injury referred, and demonstrated a clear pathway of reasoning.
The insurer submits that the Medical Assessor considered and addressed Ms Nesa's submissions and was entitled to conclude that the lumbar spine and bilateral knee injuries (as well as shoulder, clavicle and left leg injuries) were not causally related to the accident.
The insurer relies on Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079, submitting that a Medical Assessor is required to consider material only insofar as it assists in forming their own expert opinion.
The insurer submits that Assessor Assem provided sufficient reasons consistent with Rahman and Wingfoot and was not required to further detail why Ms Nesa's arguments were rejected.
The insurer submits that the only available conclusion on the evidence was that the alleged lumbar spine and bilateral knee injuries were not caused by the subject accident.
Ground Three - The Medical Assessor has failed to provide the requisite path of reasoning
[5.2] Ms Nesa alleges the Medical Assessor failed to provide an adequate path of reasoning and relied solely on the absence of contemporaneous evidence. The insurer submits that this argument is misconceived, as the Medical Assessor provided adequate and sufficient reasons.
The insurer submits that Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 requires a Medical Assessor to explain the actual path of reasoning, but not to provide comprehensive or extensive reasons. The insurer submits that Medical Assessor Assem fulfilled this obligation by taking a detailed history, conducting a clinical examination, analysing objective medical evidence, and clearly explaining his conclusions.
The insurer submits that disagreement with the outcome does not render the reasons inadequate and submits the Medical Assessor's reasons are clear, logical, and demonstrate proper clinical judgment. The insurer submits that the assessment is not incorrect in a material respect.
[2] I was born in Bangladesh on 18 May 1984. I completed the Australian equivalent of the High School Certificate and subsequently obtained a civil engineering degree. I worked for six years as a structural engineer in Bangladesh.
[3] I was married in 2014 and migrated to Australia with my husband in 2015. My husband is employed by the Royal Australian Navy.
[11] Prior to the accident, I lived an active and busy life. Not only did I attend to my own personal needs, but I also did all of the housework. In that regard, I washed, cooked, ironed, cleaned, did the laundry and did the shopping.
[12] As my husband is employed by the Navy, he can often be away for months at a time on ships working. This means that I would be the sole person having to do chores at home when he was away.
[16] On 18 December 2021, I was a passenger in my husband's car which he was then driving along Five Island Roads at Wollongong. Suddenly and without warning, that vehicle was hit from behind by another car.
[17] The impact of the collision was so great that it forced my husband's car to be pushed forward into the vehicle in front of it
[18] As a consequence of the impact, I was thrown around the car and my entire left side - including, in particular, my left knee - heavily impacted against the front passenger side door, next to which I was seated.
[19] Following the accident, I was mainly in shock. I recall being treated by ambulance paramedics at the scene of the accident. However, I declined being transported by them to hospital.
[20] About half an hour later, I was in severe pain - particularly, in the right side of my chest and ribcage. I was driven to Shoalhaven District Hospital where an x-ray was taken that I was told identified two fractured ribs. After a period of observation, I was discharged home.
[21] I subsequently attended upon my general practitioner, who prescribed analgesic medication and Endone for some relief from the very severe pain that I was experiencing.
[22] My general practitioner also referred me for specialist care. I also underwent an MRI scan that I have been informed revealed the existence of not two, but rather three broken ribs.
[23] In addition to those chest and rib injuries, I also sustained injuries to my neck, left shoulder, chest, the lower part of my abdomen and both hips, together with my left knee, as aforesaid.
[24] I also was referred for physiotherapy. In that regard, I attended Jess Stoll, physiotherapist, on 7 February 2022. I have seen his records for that day's attendance and can confirm that he recorded that I had complained of having injured my left knee in the accident and that it required physiotherapy.
[26] I also was referred to Dr Gavin Soo, who is an orthopaedic specialist who specialises in the treatment of knees. Dr Soo referred me for an MRI scan of my left knee. He told me I had cartilage damage. He also has discussed with me the possibility of undergoing an arthroscopy of my left knee. Moreover, in recent times, Dr Soo has discussed the eventual necessity of a total knee replacement.
[31] My left knee is often still and swollen. Because of that knee injury, my entire mobility has been impaired. I am limited in my ability to weight bear on my left leg and I also experience a feeling of weakness in my left knee.
[32] I also am impaired in my ability to run and jog. I have further impaired ability to lay down on my back. My sitting tolerance has also been reduced since I was injured in the accident.
[33] I often experience pins and needles (numbness) in my left leg. Both my standing tolerance and walking tolerance have been significantly diminished since the accident.
[34] Since the accident, I also have been impaired in my ability to walk up and down stairs. I also have difficulty walking on uneven ground. In that regard, I have to be careful with my balance when I walk up and down slopes.
[36] Further, since the accident, I have even been impaired in my ability to go to the beach. Not only do I have difficulty walking on soft sand, I also have difficulty with swimming. The injuries to my neck, right shoulder and back also are not conducive to swimming.
[37] I also can no longer run or jog. As referred to above, my walking tolerance has been significantly reduced.
[38] I often feel as if my left knee will give way. That makes me feel extremely anxious and I have a fear of falling.
[39] I also am experiencing right knee and leg pain due to weight bearing and relying predominantly on that right side because of the injury to my left knee and leg.
[41] From my discussions with Dr Soo, it is my understanding that I am going to require a knee replacement at some time in the future.
[42] In addition to my ongoing left knee pain, I also continue to experience neck pain. The neck pain is often associated with headaches and when they occur, I also find it difficult to concentrate.
[46] Since the accident, I have also had occasions where I have experienced pain and restricted movement in my right shoulder. That shoulder also is often stiff. I feel that I also have pain in my collarbone.
Application for Personal Injury Benefits fated 8 January 2022
PIC Certificate of Medical Assessor Grainge dated 14 March 2025
Pre-accident medical history and relevant personal details
pre-IVF medical check-up and was not initiated as a result of knee pain. 9. X-ray of the left knee on 28 July 2021 was normal. 10. She went on to have courses of IVF three times, which failed to result in pregnancy.
History of symptoms and treatment following the motor accident
7 February 2022 and the pictogram had shaded sections of the neck to the right trapezius and shoulder with bruising, right elbow, left knee and right side of chest. 5. She attended physiotherapy for more than 10 sessions over a couple of months, but did not obtain any relief. 6. As she tried to become more mobile physically, she realised there was a big problem with her left knee and it had "shut down". She can't recall having left shoulder pain as mentioned in the AHRR dated 7 March 2022. 7. Note: This is the first mention in the contemporaneous records of left shoulder. 8. She was referred to Dr Todhunter on account of her left knee and rib pain. She saw him on 5 May 2022. A CT scan of the chest showed healing rib fractures. Knee X-ray showed early osteoarthritis. He suggested an MRI scan, but this was deferred because of the possibility of her being pregnant. 9. She saw a GP, Dr Lam, on 29/11/2022 in Sydney CBD regarding right rib pain and left knee pain. The history was that the left knee was slightly painful before the motor vehicle accident but had become much worse after the motor vehicle accident. 10. She had an MRI scan of the left knee on 18 May 2023. 11. In the meantime, her daughter was born on 26 December 2022. Thereafter, her husband was transferred in the Navy from HMAS Albatross, Nowra, to HMAS Kuttabul at Kings Cross. 12. She saw Dr Soo, Darlinghurst, on 19 June 2023 and he found a positive patellar grind test and there was full-thickness cartilage loss of the medial compartment. In hindsight, she thinks that her left knee hit the door rather than the dashboard. She was angled towards her right side, so her left knee was close to the door at the time of the impact. 13. Dr Soo advised physiotherapy and to review in three months, but in the meantime they moved back to Nowra, as her husband had a further transfer with the Navy. She did not have any further orthopaedic review. She was taking Panadol Osteo. 14. Her psychological condition was not good, so she did not pursue further medical options at the time. She did have some further physiotherapy at BaiMed, Nowra, from early February 2022 and was given exercises for her chest and knee with Therabands, but no other body part was treated. She had no other leg injuries, but had referred pain from the lower back down into both legs. 15. There was no injury to the clavicle that she knows of. There was no separate injury to either leg, apart from to the left knee. 16. She had started studies in Civil Construction and Engineering Certificate in February 2023, but stopped after one month because of pain in the ribs and the left knee. 17. She also attempted two Advanced Diploma courses but had difficulty sitting to do the examinations because of left chest wall discomfort.
Details of any relevant injuries or conditions sustained since the motor accident
7 February 2022 and the GP record of 8 February 2022. 2. There is a plausible mechanism for injuring the left knee, as explained by Ms Nesa, when at the time of impact because of her leaning to her right side in the vehicle, her left knee was close to the door and could have conceivably struck the door on impact.
Nesa
Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 141;
(2013) 252 CLR 480