AAI Limited t/as GIO v Worth
[2024] NSWPICMP 599
•23 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Worth [2024] NSWPICMP 599 |
CLAIMANT: | Christian Worth |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Michael McGlynn |
MEDICAL ASSESSOR: | Brian Williams |
DATE OF DECISION: | 23 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; threshold injury; nose and air passage impairment; deviation of nasal septum; facial lacerations; air passage defects; nasal trauma; caused by the motor vehicle accident; substantial contributing factor to this condition; multiple medical assessments; Held – Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical Assessment – Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Kenneth Howison’s dated 14 November 2023 and issues a new certificate determining that: · Nose and Air passage Impairment and Deviation of the Nasal Septum The claimant has suffered a whole person impairment of 3%. |
STATEMENT OF REASONS
INTRODUCTION
Christian Worth (the claimant) is a 40-year-old man who was injured in a motor vehicle accident on 14 August 2021. The claimant suffered non-threshold injuries and thereafter the claimant sought a concession from the insurer that the injuries sustained in the subject motor vehicle accident exceed 10% whole person impairment (WPI).
The insurer did not make this concession and, on 2 December 2022, following an internal review by the insurer (GIO), the claimant was advised that the insurer did not consider that the physical injuries sustained in the subject motor vehicle accident to be greater than 10%.
Thereafter the claimant sought an assessment of WPI noting injuries to the cervical spine, head, buttocks, thigh, psychiatric condition, eyes, nose and air passage, leg, hip, ankle, ribs, lumbar spine, right arm, and thoracic spine.
The claimant was examined by Medical Assessor Michael Steiner who, in a certificate dated 1 November 2023, determined that the injury “eyes – blurred vision” has resolved and accordingly there was a 0% whole person impairment.
In a certificate of Medical Assessor Alan Home dated 8 November 2023 the claimant was found to have sustained a 5% WPI consequent on the injuries sustained to his spine.
Most importantly the claimant was examined by Medical Assessor Kenneth Howison on
3 November 2023 who, in a certificate dated 14 November 2023 determined as a consequence of the injury, described as “nose and air passage – broken nose and difficulty breathing” had sustained a 15% WPI consequent on these injuries.The claimant was examined by Medical Assessor Ahamed Veerabangsa who, in a certificate dated 3 January 2024, determined that the permanent impairment in relation to the head injury – closed head injury, was 0%.
Accordingly, the certificate of lead of Medical Assessor Alan Home dated 10 January 2024 determined that the claimant had sustained a combined permanent impairment of 19%.
The applicant had sought a review of the assessment of Medical Assessor Kenneth Howison on 3 November 2023. President’s delegate Rachel Brittliff certified that there is a reasonable cause to suspect that the medical assessment was incorrect in a material way. This was primarily on the basis that Medical Assessor Howison did not provide reasons for finding that the claimant had sustained a broken nose because of the car accident, did not refer to the evidence he relied on to make this finding and did not refer to any specific documents or supporting evidence when making the findings under the heading causation and reasons.
Thereafter the matter was referred to the Panel. At a conference on 20 May 2024 the Panel noted that the additional material requested by the Panel had been provided and thereafter, following a consideration of all the material, determined that it would be appropriate to examine the claimant particularly so as to conduct a clinical examination in respect to the degree of airway obstruction, examine all the material and diagnostic investigations and clarify aspects of the claimant’s history in so far as they relate to the allegation of a broken nose sustained in the motor vehicle accident.
REVIEW PANEL REPORT
Medical Assessor Kenneth Howison’s report dated 14 November 2023. The Medical Assessor found the claimant had sustained nose and air passage impairment and deviation of the nasal septum and that the claimant has suffered a WPI of 15%.
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with a certificate for the medical assessment for which the review is sought.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A (1) of the 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.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a medical assessor.
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 matter solely based on the written application.
17.The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
REASONS
Details of who attended the assessment.
The claimant attended for re-examination by Medical Assessor Brian Williams on 21 June 2024 at Chatswood as arranged.
Permanent impairment disputes to be assessed.
The following injuries were referred by the Commission for assessment:
· Nose and Air Passage – broken nose and difficulty breathing.
HISTORY
Pre-accident medical history and relevant personal details
He gave no history of nose surgery. He said he stopped smoking two years ago and said he had smoked on and off all his adult life.
Occupational History
He said he runs a charter boat, called “Romanda,” since 2022. He said it is a timber fishing boat. He said he does day trips out of Cronulla. He stated he is a Mechanic, in a workshop, qualified for 10 years. Plant Operator. His trade is a Mechanic.
History of the motor accident
He said on 14 August 2021 at about 4.00pm he was driving a car, a 1962 Morris Major Elite (historic vehicle) with no seatbelt and no airbags, on Woronora Bridge in Sutherland. He said he was driving the car along the road and a courier van rear ended his car. He said he cannot remember the accident but woke up sitting in the car and another driver stopped to help and helped him out of the vehicle. He said the Police came. He said the Ambulance took him to hospital.
The claimant said he said he broke his nose. He said he does not remember how it happened. He said at the scene he had bleeding from his nose. He said he cannot remember if one or both nostrils. He said at the hospital he told them his nose was sore, but they never came back to it. He said he was wearing a mask. He said he stayed overnight and left the next day. He said he had no X-Rays of his nose.
The claimant said he had lacerations/ bruises on his face and both eyebrows. I put it to him the right forehead laceration was before the accident as stated in St George Hospital notes. He agreed it was caused by something falling off a shelf before the accident, but said it was present after the accident. He said he had a laceration through the left eyebrow treated with glue. He said he had a left black eye and right black eye. He said he had swelling on his forehead at the hairline. There were no lacerations on his nose. There was no bruising or swelling on his nose in hospital.
He said he cannot remember when he saw his GP. He then said he saw his GP, Dr Emmanuel, about two weeks after the motor vehicle accident (MVA). He said there was something wrong with his nose. He said he had difficulty breathing but is not sure which side is blocked but generally he cannot breathe through it. He gave no history of prior airway problem. He said, regarding the appearance of his nose, it has always been the same shape but is not 100% and the accident made it worse.
He said after the MVA, he had difficulty breathing through his nose at night with onset about two to three months after the MVA with dry mouth at night.
I said there is no record of a nasal injury by the ambulance records or St George Hospital records.
He said he had no reason why there was no record of nasal trauma in the ambulance or St George Hospital reports, and said he was surprised there is no record. He said he always had a mask on at the hospital as it was during the Covid pandemic.
History of symptoms and treatment following the motor accident
Air Passage Defect
The claimant was questioned, specifically on his nasal airways. He gave no history of nasal obstruction prior to the MVA. He said he noted nasal obstruction straight away after the MVA and it was not getting better. He said he cannot remember what treatment was recommended but he said he can remember talking to his GP about it. He gave no history of prior nasal obstruction, prior nasal treatment, hay fever, nasal polyps, or chronic rhinosinusitis. He said he had asthma at age 16 years and was treated with Ventolin. He said he has not planned future treatment but was open to surgery.
Nasal Trauma
He said he had no prior facial trauma before the MVA. I said on 2 June 2018 in an MVA an airbag hit him in the face. He agreed but could not remember any injuries to the nose. He said it did not affect his breathing through the nose. He said his nasal appearance is the same as prior to that MVA. I asked if the appearance of his nose has changed from before the MVA ( 14 August 2021) to after the MVA. He said he is not sure. I asked him, that Dr Emmanuel states you injured your nose in the MVA, can he help explain why no X-Rays were done or why he was not referred for further treatment. He said he hated seeing doctors. I asked him if he could help explain if he had bleeding from his nose at the scene of the accident, it was not recorded by the Ambulance. He said the passerby who helped him out of the car cleared the blood.
Details of any relevant injuries or conditions sustained since the motor accident.
Nil known.
Current symptoms
Please see above.
Current and proposed treatment
He said he has no future treatment planned for his nasal deformity. He said his GP recommended X-ray of his nose, but he did not have it. He said his GP discussed referral to a specialist, but Mr Worth said, “let’s see how it goes.”
EXAMINATION
General presentation
Nasal Airway
Both right and left nasal airways are patent. Anterior rhinoscopy showed a deviated nasal septum to the right caudally causing nasal obstruction.
Nose
There is no depression of nasal bones. There is no palpable fracture of the nasal bones. There is mild deviation of the nasal dorsum to the right.
RADIOLOGICAL INVESTIGATIONS
He said he did not want any X-ray of his nose although his GP has recommended it.
DETERMINATIONS
The Panel notes the clinical notes of Dr Emmanuel dated 1 September 2021 which reports nasal injury with the only clinical finding reported re the nose under the heading “MVA” is “nasal septum deviation”. Whilst this is the only material, other than the claimant, supports a contention of a nose injury in the panels view it is sufficient to establish, on the balance of probabilities, some impaired breathing through his nose and deviation of the nasal septum which were either caused by the motor vehicle accident or the motor vehicle accident was a substantial contributing factor to this condition.
Diagnosis, causation, and reasons
Nasal deformity can be assessed using Table 4, page 230 of AMA4 with a range of 0%-5%WPI for “nasal distortion in physical appearance” and AMA4 on p 229 “Criteria for Facial Impairment Class 2” allows 5-10 % WPI for “A patient belongs to class 2 when there is loss of supporting structure of part of the face, with or without a cutaneous disorder. Depressed cheek, nasal, or frontal bones constitute class 2 impairments.”
The Panel can find no evidence of diagnosis of a nasal bone fracture or depressed nasal bones in the ambulance report, St George Hospital clinical notes, or the clinical notes of Dr Emmanuel. The Panel notes there is no radiological evidence of a nasal bone fracture or depressed nasal bones. The Panel examination found no sign of nasal bone fracture or nasal bone depression. The Panel notes his history of:
(a) pre-existing nasal distortion;
(b) his history that his nasal appearance is the same as prior to the MVA on 2 June 2018, and
(c) his history that he is unsure if the appearance of his nose has changed from before the MVA on 14 August 2021 to after the MVA on 14 August 2021.
The Panel finds on the balance of probabilities, there is no nasal bone fracture, no nasal bone depression and no nasal distortion in physical appearance caused by the MVA on
14 August 2021.In this instance there is no nasal bone fracture, no nasal bone depression and no nasal distortion in physical appearance caused by the MVA on 14 August 2021. Thus, there is 0%WPI due to nasal bone fracture, nasal bone depression or nasal distortion in physical appearance.
In assessing the nasal airway MAA Guidelines Version 9.1, paragraph 6.199 states
“When Table 5 (page 231, AMA4 Guides) is used for the evaluation of air passage defects, these Guidelines allow 0-5% WPI where there is significant difficulty in breathing through the nose and examination reveals significant partial obstruction of the right and/or left nasal cavity or nasopharynx, or significant septal perforation.”
In this instance the Panel finds the above criteria due to the MVA on 14 August 2021 are met. There is a history of significant difficulty breathing through the nose and examination reveals significant partial obstruction of the nasal cavity due to a nasal septal deviation. The Panel’s clinical judgement has assessed the impairment in the middle of the range and assigns 3%WPI (rounded).
Impairment
Degree of Permanent Impairment caused by injury to the nose sustained in the motor vehicle accident is 3%.
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0
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