AAI Limited t/as AAMI v Johns
[2024] NSWPICMP 345
•28 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as AAMI v Johns [2024] NSWPICMP 345 |
| CLAIMANT: | Mohini Johns |
| INSURER: | AAMI |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Paul Curtin |
| DATE OF DECISION: | 28 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant was driving her vehicle just after midnight; the collision was severe, causing the claimant’s vehicle to spin around and come to a halt some 100 metres away from the location of the accident; claimant says that she hit her head on her vehicle’s window during the course of the collision; claimant feels that she may have lost consciousness; ambulance attended and conveyed the claimant to hospital where she was assessed and discharged; claimant sustained numerous injuries; medical dispute as to whether injury to jaw and teeth is a threshold injury; Held – Review Panel finds injury to jaw and teeth not caused by motor accident; certificate of Medical Assessor Nichols revoked. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel revokes the amended certificate dated 15 August 2023 and issues a new certificate determining that: The following injuries referred to the Review Panel for assessment have been assessed and determined to be not caused by the motor accident: · injury to teeth and jaw. A decision as to whether these injuries are a threshold injury is not required for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Mohini Johns (the claimant) was driving her vehicle just after midnight. It was in the process of turning right when the driver at fault failed to stop at a red light and collided with the claimant’s vehicle (T-Bone collision) at high speed. The collision was severe, causing the claimant’s vehicle to spin around and come to a halt some 100m away from the location of the accident. Airbags in the claimant’s vehicle deployed. The claimant says that she hit her head on her vehicle’s window during the course of the collision. She feels that she may have lost consciousness although she has clear memories of the accident. An ambulance attended and conveyed the claimant to Blacktown Hospital where she was assessed and discharged. The claimant sustained numerous injuries.
AAMI (the insurer) insured the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant damages under the Motor Accident Injuries Act 2017 (the MAI Act).
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer about whether the injuries caused by the motor accident are threshold injuris under Schedule 2, cl 2(e) of the MAI Act, the claimant was referred for assessment by Medical Assessor Paul Nichols, who issued an amended certificate under s 7.23(1) of the MAI Act on 15 August 2023 as follows:
The following injury caused by the motor accident:
- Injury to teeth and jaw
is a not a MINOR INJURY for the purposes of the Act.
Medical Assessor Nichols was not required to assess whole person impairment.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Part 3.4 of the Motor Accidents Compensation Act 1999 (MAC Act). The matter is determined at first instance by a Medical Assessor pursuant to s 63 of the MAC Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“(A)n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membrane), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci, or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft-tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
a.comprehensive accurate history, including pre-accident history and pre-existing conditions;
b.a review of all relevant records available at the assessment;
c.a comprehensive description of the injured person’s current symptoms;
d.a careful and thorough physical and/or psychological examination;
e.diagnostic tests available at the assessment.
Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
THE REVIEW
The insurer sought a review of Medical Assessor Nichols’ certificate on the basis that the assessment is incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relies on the particulars set out in the application and supporting documentation.
The insurer asserts that there is more than a reasonable cause for suspicion that Medical Assessor Nichols’ assessment was vitiated by the following material jurisdictional error:
(a) failure to provide sufficient reasons, and
(b) incorrect application of the meaning of “threshold injury” in respect of the fractured filling.
The insurer notes that, upon examination, Medical Assessor Nichols found symptoms of failure to heal of an undisplaced fractured right mandible and a fractured filling at tooth 37. Medical Assessor Nichols was satisfied that the motor accident most likely caused the aggravation of an undisplaced fracture of the mandible and tooth 37.
The insurer submitted that there was no evidence of the claimant’s having suffered any head strike, or physical injury to the head, in the motor accident. Further, that diagnostics scans taken after the accident revealed no mandibular fracture.
The insurer referred to Medical Assessor Nichols’ comment, at the conclusion of his stated reasons, that the claimant required referral to a specialist surgeon for assessment (diagnosis) of the ongoing pain in her jaw and opinion as to causation. The insurer says that is, in itself, evidence that Medical Assessor Nichols did not properly turn his mind to the question of causation, nor provide a sufficient path of reasoning. The same submission is made in relation to the tooth 37 fracture and lost filling most likely caused by the motor accident.
The insurer’s application for review was opposed by the claimant. The claimant submitted that Medical Assessor Nichols’ assessment was correct, in all respects, and does not contain any errors. The claimant submitted that Medical Assessor Nichols provided sufficient reasons with respect to causation and gives particulars of those reasons. The claimant referred to decided authority in relation to the causation issue generally. The claimant noted that Medical Assessor Nichols made reference to the material provided, the pre-existing conditions, radiological evidence, clinical records and the parties’ submissions.
The claimant submitted that it was up to the clinical discretion of Medical Assessor Nichols to conclude that the fracture of the right mandible, and/or aggravation thereof, was caused by the motor accident, in the absence of previous radiology confirming that the claimant sustained a fractured right mandible, prior to the motor accident.
In relation to the fracture of tooth 37, the claimant submitted that Medical Assessor Nichols diagnosed a fracture of the tooth itself, rather than only the filling. The claimant submitted that the fracture of a tooth is not a soft tissue injury and, as such, it satisfies the criteria for it to be considered a non-threshold injury.
President’s delegate Catherine Freeman issued a Determination of an Application for Review of a Medical Assessment on 27 October 2023 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that Medical Assessor Nichols’ assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Nichols’ failure to provide sufficient reasons for his finding that the motor accident most likely caused the aggravation of an undisplaced fracture of the mandible and tooth 37. Accordingly, the application for review was accepted.
The Review Panel indicated to the parties it wished to view the original hard copy radiograph taken on 6 August 2019, and the CT scans of the temporal bones performed on 7 July 2021 and 30 March 2022, to which the insurer referred in its submissions. To fully confirm or exclude a fracture, an antero-posterior X-ray view would be of assistance. Notwithstanding that indication, the specified diagnostic studies were not provided, as noted in the re-examination report.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
(a) Claimant’s submissions dated 11 July 2022.
The claimant submitted that there is sufficient evidence to confirm that the injury to her teeth and jaw, sustained in the motor accident on 11 July 2019, fall outside the meaning of minor injury and/or are non-minor injuries for the purposes of the MAI Act. Apart from stating that the claimant reported to her general practitioner symptoms in her jaws and teeth, the claimant did not identify any evidence to support the submission that those injuries are non-minor.
(b) Certificate of Medical Assessor Nichols dated 15 August 2023.
Previously summarised.
(c) Claimant’s submissions in reply dated 22 September 2023.
The claimant submitted that the matter should not be referred to a review, as Medical Assessor Nichols’ assessment is correct in all respects, and does not contain any errors. It was submitted that the Medical Assessor specifically noted that:
(a)there are no formal dental clinical records available;
(b)there was a mention of possible dental/jaw injuries in the clinical records of the Blacktown Hospital, and
(c)dental/jaw injury is also referred to in the clinical records of Kildare Road Medical Centre without any specific diagnosis.
The claimant submitted that Medical Assessor Nichols considered and rejected the submissions and material relied upon by the insurer alleging pre-existing injury to the jaw. It was said that Medical Assessor Nichols made reference to all entries relating to previous complaints of the claimant involving her jaw and/or teeth, including but not limited to the ultrasound dated 25 January 2018 pre-dating the subject accident. It was submitted that Medical Assessor Nichols ruled out, based on perusal of the evidence before him, that the fracture of the tooth and the right mandible pre-date the subject motor accident.
It was submitted that Medical Assessor Nichols conducted an examination of the claimant’s jaw and teeth. He confirmed which teeth were missing prior to the subject accident and noted that tooth 37 is fractured with loss of a restoration. It was submitted that, following his clinical examination, Medical Assessor Nichols was satisfied that the claimant sustained a frank injury, during the course of the subject collision, the force of which was sufficient to cause the claimant’s dental and jaw injuries.
It was then submitted that for a diagnosis of a fracture of tooth 37, no radiology is required to identify the injury, which is visible through observation. It was submitted that, furthermore, Medical Assessor Nichols diagnosed symptoms of failure to heal an undisplaced fracture of the right mandible and concluded that the motor accident caused aggravation of same. It was submitted that either of those two injuries are sufficient for an injury to be considered not a threshold injury. It was then submitted that, given there is no previous radiology confirming that the claimant sustained a fracture to her right mandible prior to the subject accident, it was up to the discretion of the Medical Assessor to conclude that the fracture of the right mandible and/or aggravation thereof was caused by the subject accident.
Finally, it was submitted that Medical Assessor Nichols correctly stated that the fracture of a tooth is not a soft tissue injury and as such, it satisfies the criteria for it to be -considered a non-minor, or not a threshold injury.(d) Nirimba Family Practice – clinical notes and imaging reports.
(e) Internal review decision and certificate of determination dated 5 July 2022.
The decision to deny liability for benefits after 26 weeks was affirmed on the basis that all injuries sustained by the claimant fall under the definition of “minor injury’ as prescribed by the MAI Act. In relation to the jaw and teeth, the Statement of Reasons was as follows:
“Your GP diagnosed you with soft tissue pain in Jaw and Teeth. Your physiotherapist diagnosed you with Right Jaw pain and documented tenderness over the joint with slight clicking upon opening. The orthopantomogram revealed no obvious mandibular fracture. The temporomandibular joints and maxillary sinuses appeared normal. Therefore, taking into account the clinical findings by your GP, physiotherapists and radiology findings, (the insurer) concludes the following: the evidence discussed above demonstrates you meet the definition of a minor injury for the Jaw and Teeth. You were diagnosed with soft tissue pain to your Jaw and Teeth by your GP with no evidence of a fracture and no evidence of a complete or partial rapture of tendons, ligaments or cartilage in the Jaw and Teeth. As such, your Jaw and Teeth injury therefore falls under the definition of “minor” per the Act, the Guidelines and the Regulations.”(f) Stanhope Physio Care clinical notes.
(g) Dashcam footage.
The insurer relied upon the following material:
(a) Insurer’s submissions dated 4 September 2023 seeking review of Medical Assessor Cameron’s certificate (previously summarised).
(b) Insurer’s submissions dated 5 October 2022 as to minor injury.
The insurer submits that the evidence of any injury to the head, teeth, jaw and ears indicates only soft tissue injuries which are minor injuries as defined in s 1.6 of the MAI Act.
(c) Ultrasound temporomandibular joint reported on 25 January 2018 by Dr Mathew Lee.
Findings: the temporomandibular joints appear within normal limits and symmetrical. There is no evidence of effusion. There is no collection. No abnormality detected.
(d) MRI scan of the brain reported on 5 August 2019 by Dr Tony Lu.
Comment: No evidence of intracranial pathology to account or unexplained headaches. There is no evidence of intracranial haemorrhage, ischemia or mass lesion.
(e) CT of the petrous temporal bones reported on 7 July 2021 by Dr Lee.
Findings: The middle and inner ears bilaterally are within normal limits. There is no fluid in the mastoid air cells. The external auditory canals are widely patent. The posterior fossa is within normal limits. No pareptide calcification or massine and the periauricular soft tissues appear within normal limits. The temporomandibular joints are within normal limits. No cause for the pain demonstrated.
(f) CT of the right temporal bone and cervical spine reported on 30 March 2022 by
Dr Sherif.Conclusion: No focal pathology identified to account for severe pain. Periapical abyss of the 21 teeth.
(g) Records of Nirimba Family Practice.
(h) Kildare Road Medical Centre records.
(i) Blacktown Hospital records.
RE-EXAMINATION
The claimant was assessed on 26 April 2024 by Medical Assessor Paul Curtin whose report is as follows:
“REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBERS OF THE APPEAL PANEL
Matter No: R-M10535268/22-02-2
Appellant: Mohini JOHNS
Respondent: AAMI
Examination Conducted By: Dr Paul Curtin
Date of Examination: 26 April 2024
1. The workers medical history, where it differs from previous records.
Ms Johns was asked some questions with regard to her pre-accident medical history. In view of her current symptoms of right sided jaw pain, she was asked if she had ever had any similar symptoms prior to the accident . She denied any such prior symptoms. It was brought to her attention that there were multiple references in her general practitioner’s files between 2015 and 2018 with regard to symptoms of pain on the right side of her face, neck and jaw. Ms Johns was unable to provide any explanation as to these references. Her answers to questions were rambling and somewhat confused . These responses were somewhat at odds with reports in the documents which noted that Ms Johns had university qualifications in information technology and also in accounting and business management. She apparently retired from the workforce in 2005, financially secure after many years working as an IT specialist.
Ms Johns was also asked about her recollections of the motor vehicle accident. She said she did not have a clear memory of the accident. She was able to remember bright lights shining on her and that during the accident, she lost a boot from her right foot, and that this boot was never recovered. She was unable to say whether or not she hit her head in the course of the accident. She did say that she remembered being helped out of her car by a bystander, who apparently reported that Ms Johns was unconscious when she first came to Ms Johns assistance. The ambulance record reported that Ms Johns was fully alert when they arrived, with a GCS of 15 and no signs of any head trauma.
The MAC of assessor Nichols at one point states ‘there was mention of possible dental/jaw injuries in the Blacktown Hospital notes and Kildare Road Medical Centre, but no description of diagnosis’. Possibly this statement included a typo because elsewhere in the MAC he states ‘the clinical records are Blacktown Hospital note all the injuries complained of at the time and there is no reference to any jaw pain’. I reviewed the Blacktown Hospital notes and was unable to find any reference to a dental or jaw injury. The hospital records appear fairly complete and noted Ms Johns complaints of a very painful and lacerated right knee, tenderness on the left side of her chest and tenderness of both shoulders and right elbow. She was assessed in the Emergency Department and discharged home the same day. During that time she underwent extensive imaging, which included a CT trauma series, and x-rays of her chest, right knee, and pelvis. She did not have any imaging of her jaw.
The following week however she consulted her GP Dr Hameed, at the Nirimba Medical Centre, and among multiple complaints, she mentioned pain in her right jaw and ear. An OPG x-ray was ordered and this was carried out, together with other x-rays, at Blacktown Medical Imaging on the 06/08/2019. The OPG report stated: “previous dental extraction and restoration. 38 is medially angulated and impacted. Previous endodontic treatment at 11. No obvious mandibular fracture. Temporomandibular joints and maxillary sinuses appear normal”.
Assessor Nichols reference to the Kildare Road Medical Centre does not relate to the motor vehicle accident. The reference is in regard to a GP record dated 25/01/2018 when Ms Johns reported that her husband had squeezed her jaw and pushed her against a wall. The record further stated there was no bruising to be seen inside the mouth or on her face. There was some question that she may have suffered a soft tissue injury to her TM joints, but an ultrasound of the TM joints, carried out the same day, reported no abnormality detected. There were no further records from Kildare Road, but four days later on the 29/01/2018 she saw Dr Hameed at Nirimba MC, when there was no mention of any jaw injury.
Following the accident there have been multiple visits to her GP which have resulted in an impressive list of imaging reports, none of which have accounted for her chronic pain problem :
05/08/2019 MRI brain
06/08/2019: OPG x-ray; x-rays and ultrasounds of both knees; ultrasound of both shoulders and x-rays of both ankles
21/08/2019 x-rays of chest, sternum, lumbar spine, pelvis, hips, bilateral forearms/wrist/hands
15/09/2020 ultrasound abdomen
18/09/2020 x-ray chest and abdomen
18/01/2021 x-ray chest and abdomen
22/01/21 ultrasound abdomen
06/07/2021 CT petrous temporal bones, which reported no abnormality TM joints.
Current symptoms
Ms Johns said that she experienced pain every day . She reported pain on the right side of her jaw and right ear radiating to the right side of her head . She said that at night she was unable to lie on her right side too long, but that she had no problems with the left side of her face and head. She also reported pain in her right shoulder radiating into the right arm and hand. She said she experienced pain in her spine and hips particularly on the right side. She said that she has trouble sleeping and that her pain and discomfort could be so severe that sometimes she was unable to get out of bed by herself.2. Additional history since the original Medical Assessment Certificate was performed
None.3. Findings on clinical examination.
Ms Johns was unaccompanied for the assessment. She was originally from Fiji, and her appearance suggested that she was of Southeast Asian extraction. She is 66 years old, was well-groomed but had a BMI of 35.1 (92 kg and 162 cm), which is well inside the obese range. She was not a good historian, being somewhat confused at times and with a tendency to ramble on with issues unrelated to the matter at hand. Her movements were slow and unsteady. She said that she takes narcotic analgesics regularly.
There was no obvious facial deformity. Although she required some prompting, she had a full range of jaw opening, but she complained of some restriction of chin deviation to the right. There was no restriction of deviation to the left. There was no evidence of any significant crepitus from either TM joint, although she complained of some tenderness around the right TM joint. There was no similar tenderness on the left side . There was no tenderness along the body of the mandible on either side.
Her dentition appeared to be in reasonably good condition. She was missing her lower first molar teeth (36 and 46). Tooth 37 (lower left second molar) had an occlusal amalgam filling, the distal portion of which appeared to have fallen out, with part of the tooth missing at that point There was no evidence of any tooth fracture apart from that which was associated with the dental restoration. None of the teeth on the right side of her lower jaw appeared to be tender or loose. There was no clinical evidence of a fractured mandible.
There was no evidence of any cervical lymphadenopathy and she appeared to have a full range of neck movement.4. Results of any additional investigations since the original Medical Assessment Certificate
There have been no additional investigations. The review panel report dated 7 February 2024 made a request that an antero-posterior x-ray view of the mandible be carried out prior to the examination detailed above, and that Ms Johns should bring it with her when she attended the examination. Ms Johns does not appear to have understood the need for any further x-ray examination, and insisted that she thought she had already undergone all the necessary investigations.
5. Comments on whether the injury to teeth and jaw was a minor injury
There is no evidence that Ms Johns sustained any injury to the teeth or jaw in the motor vehicle accident on the 10/07/2019. There is evidence that this lady suffered from intermittent facial discomfort or symptoms as far back as 2004. An entry dated 24/05/2004 in the GP record of the Nirimba practice described pain in the right half of the body on an off, including numbness on the right side of the face, symptoms for which she was prescribed Panadeine forte regularly as well as pethidine injections through 2004-2006. In 2011 there was an entry referring to dental pain/neuralgia. In January 2015 there were reports of persistent headache and pain of the right side of the face for which a CT scan was ordered, and which apparently showed no abnormality. These symptoms were again reported in September 2015, February and August in 2016 and June 2017. She was apparently seen by a dentist in 2016 and no problem was found. The only history of any trauma was in January 2018 when she was attacked by her husband. At the time it was suspected that she might have sustained a possible soft tissue injury to the right TM joint, but an ultrasound revealed no abnormality. Any undisplaced jaw fracture at that time would have been quite painful for a couple of weeks, and there was no clinical suggestion that an injury of that type had occurred.
One could speculate as to the nature of her chronic facial pain. She has been investigated in various ways over the years without any conclusion having been reached. Perhaps at some point there was an initial episode of facial pain which has precipitated continuing symptoms . Her current symptoms seem to be part of a more global problem affecting the right side of her body.
The request for an antero-posterior mandibular x-ray was made because following the accident, only lateral x-ray views of the mandible were made, views which were insufficient to radiologically exclude the possibility of fracture . It seems likely that there would be some difficulty in obtaining further x-rays, and having examined this lady and reviewed the documentation once again, in my view, additional x-rays would not be essential in reaching the conclusions detailed above .Signed: Paul Curtin
Date: 26 April 2024”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel adopts the examination findings and reasons of Medical Assessor Curtin with which Medical Assessor Moloney concurs.
[5] Section 7.26(6) of the MAI Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the basis of their assessment which is different to those provided by Medical Assessor Nichols.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel is not satisfied that the motor accident caused an injury to the claimant’s teeth and jaw, as a matter of medical determination, and as a matter of factual non-medical determination, for the reasons stated.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the amended certificate issued by Medical Assessor Paul Nichols on 15 August 2023 should be revoked. The new certificate appears at the commencement of these reasons.
0
2
0