Abawi v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Abawi v Allianz Australia Insurance Limited [2024] NSWPICMP 158
CLAIMANT:	Summer Abawi
INSURER:	Allianz
REVIEW PANEL
MEMBER:	Bridie Nolan
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	20 March 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Review Panel assessment of threshold Injury for the purposes of schedule 2, clause 2 and section 7.23(1); lacerations to skin; whether non-threshold injury; consideration of the definition of “soft-tissue injury” under section 1.6(2); evidently concerned with the exclusion of soft tissue injuries sustained to the connective tissues of the musculoskeletal system, which do not involve injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage; Held – Review Panel concluded that lacerations to the skin would not be a threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 5 October 2022 and certifies that: 1. The following injuries caused by the motor accident: · lacerations to the left wrist, and · lacerations to right wrist; are not THRESHOLD INJURIES for the purposes of the Act. 2. The following injuries caused by the motor accident: · cervical spine, soft tissue injury; · lumbar spine, soft tissue injury; · right shoulder ,soft tissue injury; · left shoulder, soft tissue injury; · right wrist, soft tissue injury, and · left wrist, soft tissue injury. are THRESHOLD INJURIES for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Summer Abawi (the claimant), now deceased, was injured in a motor accident on 8 December 2017.
The insurer is liable to pay the claimant’s estate any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the Act) for the motor accident.
The issue presently in dispute is whether the claimant’s injury is classified as a “threshold injury” within the meaning of the Act.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matter including whether “(e) the injury caused by the motor accident is a threshold for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the Act, on review, by a review panel.

ASSESSMENT UNDER REVIEW

On 5 October 2022, following an assessment on the papers, the original assessor, Medical Assessor Home, issued a certificate certifying that the injuries caused by the motor accident were minor (viz. threshold) injuries for the purposes of the Act and Motor Accident Guidelines (Guidelines). The Review Panel has been constituted to review that certificate pursuant to s 7.26 of the Act.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment to Medical Assessor Home:
(a)   whether the injury to the neck – muscular ligamentous injury; aggravation of prior neck injury caused by the motor accident is a minor injury for the purposes of the Act.
(b)   Whether the injury to the back – aggravation of prior low back condition, caused by the accident, is a minor injury for the purposes of the Act.
(c)   Whether the injury to the right shoulder caused by the matter, accident is a minor injury for the purposes of the Act.
(d)   Whether the injury to the left shoulder caused by the motor accident is a minor injury for the purposes of the Act.
(e)   Whether the injury to the right wrist caused by the motor accident is a minor injury for the purposes of the Act.
(f)    Whether the injury to the left wrist caused by the motor accident is a minor [viz. threshold] injury for the purposes of the Act.
(g)   Whether the laceration to the left wrist caused by the motor accident is a minor [viz. threshold] injury for the purposes of the Act.
Medical Assessor Home was satisfied that the claimant was involved in the motor vehicle accident, wherein she sustained an aggravation of her existing neck condition and pre-existing low back condition. He was also satisfied that she sustained a soft tissue injury to the right and left shoulders and right and left wrists. Each of these injuries sustained were soft tissue injuries and were certified to be minor injuries.
The Medical Assessor was not satisfied that the claimant suffered lacerations to her left wrist due to a perceived insufficiency of evidence linking the injuries to the accident.
The claimant submits the alleged laceration to the left wrist was caused by the accident and should be considered a non-minor (viz. non-threshold) injury. The insurer accepts the claimant sustained a laceration to the left wrist, however, submits it was minor in nature as the claimant refused additional treatment from the ambulance personnel or transportation to hospital, and ultimately a lack of evidence of an injury to the nerves.

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Home was lodged within 28 days of the date on which the certificate was made available to the parties.
On 28 November 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel. The delegate’s reasons were that the Medical Assessor’s reliance on the absence of evidence, contemporaneous to the accident of lacerations to the left wrist was potentially controverted by the record made by Dr Yee 12 months after the motor accident. The President’s delegate found that reliance only on the absence of corroborating contemporary documentation can be a material error in the face of other evidence, to the contrary. Because the Medical Assessor accepted that the lacerations could have been caused by an airbag injury, and there was photographic evidence illustrating that the left wrist lacerations which, although undated, were consistent with such an injury. And, because the claimant is not able to be able to confirm this history, the evidence was supportive of a reasonable cause to suspect that the Medical Assessor’s finding on causation was incorrect in a material respect.
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 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 provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Review Panel to assess.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor^.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the Act provides that the review of a medical assessment can be made based on any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment. In this proceeding, it was agreed by the parties that the only issue before the Review Panel is the causation of the lacerations to the left wrist. It follows that if causation is determined, positively, the Review Panel will proceed to determine whether those lacerations are a non-threshold injury.
The Review Panel issued a Direction to the parties dated 29 March 2023 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer and claimant both filed a bundle of documents. A further direction as issued on 14 July 2023 which required a joint paginated bundle to be filed. This direction was also complied with.
Following the first preliminary teleconference in the matter on 1 August 2023, directions were issued to the claimant to provide 19 September 2023, any submissions in reply to those of the insurer. Due to a clerical error within the Commission, this direction was not issued to the parties, but it was reissued on 23 November 2023, and required those submissions be provided by no later than 15 December 2023. No submissions were received by that date or at the date of publishing these reasons.

EVIDENCE BEFORE THE REVIEW PANEL

The claimant relies on the newly obtained NSW Ambulance Report dated 8 December 2017 that reported, “3CM SUPERFICIAL LACERATION TO R WRIST AND 3CM SUPERFICIAL LAC TO LEFT WRIST WITH ABRASION AND SWELLING. DRESSING APPLIED TO LEFT WRIST.”
After the complaint reported in the NSW Ambulance Report, the next mention of the claimant’s wrist lacerations is found within the report of Dr Yee dated 12 December 2018, more than 12 months post-accident, that recorded, “She had some healed lacerations on that area”.
Attached to a statement from the claimant’s older sister appear photographs of the injury to the claimant’s wrists and arms. In her statement, the claimant’s older sister says that the photographs were taken days following the accident. She says that she recalls seeing the photographs after they were taken, and that they accurately depicted the extent of the lacerations and injuries to her sister’s wrist and arms following the accident.

SUBMISSIONS
Insurer’s submissions

The insurer submits the lacerations to the left wrist were minor in nature as no surgery was required and the lacerations healed without any further treatment. It notes there was no referral to a plastic surgeon for the alleged lacerations or no further complaints were made following the accident in the available treating clinical notes.
The insurer accepts there has been an injury to the layers of the tissue of the skin which caused the laceration. It refers to s 1.6(2) of the Act and submits there has been no fracture, or an injury to the nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The insurer submits that as the injuries sustained were only minor lacerations not requiring surgery or a follow up, it would meet the definition of a threshold injury pursuant to s 1.6(2) of the Act.
It submits that as the claimant is now deceased (due to reasons unrelated to the accident), there is no ongoing impairment. Nor is there evidence that the scars required any further treatment, nor any evidence of additional damage to underlying organs or nerves.
It submits that whilst in medical terms the skin is an organ, any abrasion to the skin would render an injury non-threshold, which would lead to increased claims and defeat the intended purpose of the Act.
The insurer submits that on a reasonable construction of the Act such a laceration should be described as a threshold injury. It submits that this is consistent with the objects of the Act and the information provided by the Minister in the second reading speech. It would be unreasonable to regard a laceration as a non-threshold injury as it would not promote the purpose or object of the Act and could lead to an interpretation that is manifestly absurd or unreasonable.

Claimant’s submissions

The claimant has not provided any submissions despite the direction to do so dated 23 November 2023.

MEDICAL EXAMINATION

The claimant is deceased and cannot be re-examined. The assessment proceeded on the papers as it is essentially one of statutory construction.

REVIEW PANEL DELIBERATIONS

Diagnosis and causation

The insurer has conceded causation of the claimant’s wrist lacerations, such that causation is not in dispute. What remains in dispute is whether the lacerations to the wrist are a non-threshold injury. The parties agree that this is the only issue before the Review Panel.

THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the Amendment Act) was assented to on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the 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 constitutes a “threshold injury” was not amended.
“Injury” is defined in s 1.4 of the Act to mean personal or bodily injury and includes—
(a)   pre-natal injury;
(b)   psychological or psychiatric injury, and
(c)   damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
“Threshold injury” is defined by s 1.6 of the Act, which provides:
1. “(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a)a soft tissue injury,
(b)a psychological or psychiatric injury that is not a recognised psychiatric illness.
(2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Section 1.6(4) of the Act 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 Regulations) further defines “threshold injury” to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and “acute stress disorder” and “adjustment disorder”.
Section 1.6(5) of the Act provides that the Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of the Act. Relevantly, Part 5 of the Guidelines, made pursuant to s 1.6(5) of the Act, contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the 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    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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)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.”
The Guidelines relevantly go on to make provision for soft tissue assessment – injury to a spinal nerve root and psychological or psychiatric injury assessment.
The determination of whether an injury is a “threshold injury” has two functions in the Act: they are both in the nature of statutory precondition. A “threshold injury” is a statutory precondition for:
(a) disentitlement to the payment of statutory benefits after 52 weeks if the injured person’s only injuries resulting from the motor accident were threshold injuries (ss 3.11 and 3.28 of the Act), and
(b) disentitlement to the award of common law damages if the injured person’s only injuries resulting from the motor accident were threshold injuries (s 4.4 of the Act).
In its submissions, the insurer referred to Dhupar v AAI Limited t/as GIO [2023] NSWPICMP 99 (Dhupar) which considered whether an injury to the skin was a “minor injury”. The Review Panel there considered the purposive approach to statutory construction and rejected the reasoning in Nazari v AAI Limited t/as GIO (No 2) (Nazari) [2023] NSWPICMP 62, which, without analysing the words used, adopted the purposive approach to construe the provision so as to limit the entitlement to exclude an injury to the skin. The Review Panel in Nazari reasoned that s 1.3 (3)(c)(iii) of the Act acknowledges that the setting of appropriate premiums requires a considerable measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place. That stability and predictability require the consistent and stable application of the law not to include what it described as an “expanded meaning of ‘skin’” to be considered a non-minor injury, as this could potentially lead to compensation being awarded for an “exaggerated claim”, which is not supported by the objects of the Act. This approach was plainly influenced by what the Review Panel considered should be the appropriate scope of s 1.6(2) of the Act than by the legislative purpose as it is to be derived from the text, context, and purpose of the legislation. See also Eftikhari v AAI Limited t/as AAMI [2023] NSWPICMP 93 at [116] – [124] and Saleh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 14 at [186]. Approaching the task of statutory construction by reference to what a decision maker might regard as desirable policy, imputing that to the legislation and then characterising that as the purpose of the legislation is precisely what the High Court has warned against as the incorrect approach to statutory construction: see e.g. Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22] and Deal v Kodakkathanath [2016] HCA 31; 258 CLR 281 at [36]-[39].
The Review Panel in Dhupar accepted that the skin is an organ and referred to cl 6.263 of the Guidelines and American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) to this effect but reasoned that the fact that the skin is an organ does not mean that the definition of “soft tissue injury” is not otherwise to be analysed to determine whether an injury to skin falls within the meaning of a soft tissue injury.
It referred to the reasons of another Review Panel in Al-Khafaji v Insurance Australia Ltd [2022] NSWPICMP 519, where that Review Panel stated at [98]:
“The claimant’s surgery might also involve the cutting of tendons, ligaments or other tissue impinging the nerve root. The surgery certainly involves an incision into the skin which is considered an organ of the body elsewhere in the Guidelines. An injury to the skin is, in the view of the Panel not a minor injury because it is an injury to an organ not ‘an injury to tissue that connects, supports or surrounds [an organ] of the body’.”

The Review Panel in Dhupar agreed with the submission put to it that because skin is an organ it cannot be an injury to tissue “that connects, supports or surrounds an organ of the body” and agreed that it is non-sensical that an injury to an organ could fall within the scope of an injury to “tissue that connects, supports or surrounds” itself. However, it reasoned that it is plausible that the injury could be to tissue that connects, supports, or surrounds other organs. However, it considered it is unnecessary to decide what it considered to be an alternative construction.
The Review Panel in Dhupar concluded that an injury to skin is an injury to soft tissue that “connects, supports or surrounds other structures” on the basis that the skin is an organ, which covers the external surface of the body, except for the eyes and body orifices, which provides the individual with protection from physical injury, assists in the maintenance of the internal environment, and being sensate, allows the individual to interact with the external environment. The Review Panel accepted that some skin injuries can be insignificant, while others can be serious, and or psychologically disturbing, particularly when the injury is disfiguring. It went on to reason that the skin is comprised of tissue as defined in s 1.6(2) of the Act. Accordingly, it concluded that an injury to skin is an injury involving the cutting of fibrous tissues, fat, and blood vessels and was thereby a soft tissue injury, however, is the injury involves one to nerves it is excluded from the definition of “soft tissue injury” in s 1.6(2) of the Act. See also Al-Samer AAI Limited t/as GIO [2023] NSWPICMP 115 to like effect.

Consideration

It is well established that the starting point for ascertaining the meaning of a statutory provision is the text of the statute having regard to its context and purpose: see e.g. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (Alcan) at [4] and [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] and [37]-[38]. Certainly, a construction of a statutory provision that would promote the purpose or objects underlying the Act will be preferred to a construction that would not promote that purpose or object. Indeed, this is the directive of s 1.3(4) of the Act. However, legislation does not always pursue its purposes at all costs.
The problem with the insurer’s submission and the approach taken by the Review Panel in Nazari is that the objects of the Act as articulated in s 1.3 of the Act are numerous. Focussing upon the legislative purpose as contained in s 1.3(2)(d) or 1.3 (3)(c)(iii) of the Act, which are among many purposes stated in the Objects provision, without having regard to those ostensibly competing legislative purposes, is a distraction to resolving properly questions of construction in respect of speciﬁc provisions in the legislation: see e.g. Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]-[6] per Gleeson CJ.
The Second Reading speech introducing the Motor Accident Injuries Bill 2017 (NSW, Parliamentary Debates, Legislative Assembly, 9 March 2017, Victor Dominello, MLA) referred to a “broken system” in need of reform. It is plain from the Minister’s speech introducing the Bill that the predominant purpose of reform to the Compulsory Third Party scheme was to provide early and ongoing financial support for persons injured in motor accidents. The issue of reduction in costs of the scheme, while certainly a basis for the legislative reform, was spoken of in generic terms, specifically by limiting access to ongoing statutory benefits and common law damages for soft tissue and minor psychological and psychiatric injuries. The Minister mentioned that these injuries had contributed to a large spike in scheme costs and reduced the proportion of benefits going to those with more serious injuries.
While the statutory intent is a relevant aid to construction, it cannot be used to override unambiguous language. The overriding task is to give meaning to the text of a statute approved by the Legislature by assuming the Legislature means exactly what it says. A pre-occupation with the legislative purpose carries with it the danger that the text does not “receive the attention it deserves”: Alcan at [51].
Two further matters are important in approaching the constructional choice to be taken in ascribing meaning to the text of s 1.6(2) of the Act:
(a) because the Act is beneficial legislation that provides a tortious common law compensation scheme, which deviates from the common law, the approach to be taken to these deviations, such as limiting access to common law remedies for tortious acts, warrants a constructional choice more exacting than liberal: see e.g. New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232 at [32] quoting IW v City of Perth [1997] HCA 30; 191 CLR 1, 12, 39; and ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [29], and
(b) the material change in the language of the statutory precondition occasioned by the Amendment Act to s 1.6 of the Act, altering the statutory language from “minor injury” to “threshold injury”, is presumed to reflect a change in legislative purpose and an intent to have a real and substantial effect. The legislative choice to remove the phrase “minor” and instead substitute it with “threshold” was intended to calibrate the interpretive focus from the severity of the injury to its function as a statutory precondition.
Section 1.6 (2) of the Act is ostensibly a non-exhaustive reference to a category of injury “to tissue that connects, supports or surrounds other structures or organs of the body”. But on closer scrutiny it is clearly intended to be limited in its scope to injuries to the connective tissues of the musculoskeletal system.
The parenthetical statutory exemplars “(such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes)” are qualifying words and phrases that refer to the last antecedent phrase – “an injury to tissue that connects, supports or surrounds other structures or organs of the body”. These exemplars are all connective tissue (connective proper – muscles, ligaments, and tendons – menisci, cartilage, synovial membranes, adipose tissue, and blood) which connect, support, and help bind structures together, form a framework and support for organs and the body as a whole, store fat, transport substances, protect against disease, and help repair tissue damage. They occur throughout the body.
The meaning of the antecedent phrase “an injury to tissue that connects, supports or surrounds other structures or organs of the body” is intended to be indicated or controlled by these qualifiers with which they are associated. The common trait of each of these connective tissues is the role they uniquely play in orthopaedic injuries. The repetition of the exemplars “tendons, ligaments, menisci or cartilage” in the final exception clause, which operates to provide exceptions to the statutory threshold for injuries to nerves and complete or partial ruptures to tendons, ligaments, menisci or cartilage, distils this qualification.
This qualification is repeated and expanded upon in the subordinate legislation and Guidelines, which unambiguously focus on the clinical features of injury to these qualifying connective tissues typical of musculoskeletal injury, e.g. injury to spinal nerve root as determined by the presence of radicular signs or radiculopathy.
The phrase “other structure” in s 1.6(2) of the Act is important. The human body is a single organism, but it is made up of billions of smaller structures of four major kinds: cells, tissues, organs, and systems. A tissue is a group of many similar cells (though sometimes composed of a few related types) that work together to perform a specific function. An organ is an anatomically distinct structure of the body composed of two or more tissue types so arranged that together they can perform a special function. A system is an organisation of varying numbers and kinds of organs so arranged that together they can perform complex functions for the body. Major systems include the skeletal, muscular, nervous, endocrine, cardiovascular, lymphatic, respiratory, digestive, urinary, and the reproductive system. The relevant type of injury constituting the subject of s 1.6(2) is to a tissue that connects, supports, or surrounds other structures or organs of the body. The use of the word “other” suggests that “structure” in this statutory threshold definition is of the type earlier referred to in the definitional phrase, being its subject, “a tissue”. Otherwise, the adjective “other” would be redundant. Hence, “organs”, meriting separate mention in the statutory threshold definition, is to be understood as distinct from the “other structures” (viz., tissues), being the subject of the statutory threshold definition. Thereby, an organ is not “a tissue” for the purposes of the statutory threshold definitional phrase in s 1.6(2) of the Act.
A notable anomaly is a muscle. Because a whole skeletal muscle consists of skeletal muscle tissue, connective tissue, nerve tissue, and blood or vascular tissue, it is considered an organ/ structure of the muscular system. However, “muscle” is explicitly included among the structural tissue exemplars to which statutory threshold definition is directed.
This anomaly is an important indication of the legislative intention to create a bespoke class or type of soft tissue injury for the purposes of the statutory threshold provision (viz. a soft tissue injury to the connective tissue of the musculoskeletal system) and not a working definition against which each soft tissue comprising the human anatomy is to be assessed.
In this context, the phrase “an injury to tissue that connects, supports or surrounds other structures or organs of the body” is not amenable to the disjunctive reading of “or” employed by the Review Panel in Dhupar. There the Review Panel construed “or”, in our view, incorrectly, as creating alternative elements or functionally separate categories of tissue, that is, (a) tissue that connects, supports, or surrounds other structures, or (b) tissue that connects, supports or surrounds organs. The use of the co-ordinating conjunction “or” does not connote alternative categories of tissue. The relevant element of the tissue to which s 1.6(2) of the Act is directed is the function it fulfils: the connection, support or surrounding of other structures or organs of the body. The use of “or” in this context, works to connect one or more possible types of this tissue, rather than creating disparate ways of fulfilling the elements of the “tissue”. In this way, “or” is used to connect the subjects of the definitional clause, “other structures or organs of the body”, which are supported, connected, or surrounded by the same type of connective tissues qualified by the exemplars.
To explain, by analogy: a shoe. Consider the definitional phrase “a shoe is a covering for the foot, made of leather or suede, having a sturdy sole and not reaching above the ankle”. “Or” in this context is not used in the “either” ... “or” sense to create two categories of shoe – leather shoes or suede shoes; rather, it is used to offer possibilities for the material out of which is a shoe is made. There is only one type of footwear – a shoe. Similarly, “or” in the relevant clause in s 1.6(2) of the Act refers to only one type of tissue – that which surrounds, connects or supports two possible parts of the anatomy – “other structures” or “organs” of the body.
To read the provision, as did the Review Panel in Dhupar, divorcing it from the context shaped by the exemplars and exceptions, impermissibly expands the type of tissue injury beyond the statutory warrant, such that it, relevantly, works to include organs. For example, the heart is an organ, but also a muscle, which contains blood vessels, fat, and fibrous tissues, and which supports other structures and organs in the body. Nonetheless, an injury to the heart bears no obvious relationship to the exceptions in the final clause of the sub-section. That is, an injury to the heart is not readily compatible with restoration to a non-threshold injury by the exception “but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”. Likewise, the gastrointestinal tract, an organ which supports, surrounds other structures and organs, is comprised of blood vessels, fat, and fibrous tissue. An injury to the gastrointestinal tract occasioned by non-steroidal anti-inflammatory drugs, is not readily compatible with the statutory threshold definitional exceptions. So too is the case with skin. As the Review Panel in Dhupar states, skin is comprised of fat, fibrous tissue, and blood vessels. But skin is not readily capable of meeting statutory threshold definitional exceptions, (although an injury to skin invariably involves an injury to nerves, lest the injury not cause pain).
The need for the application of the exceptions to befit the nature of the injury is an integral feature of the constructional choice necessary to promote and achieve the harmonious and coherent construction of the statutory provision. A threshold injury, formerly a minor injury, is a less severe musculoskeletal injury to that which is more serious. A serious musculoskeletal injury is one which occasions injury to nerves, or ruptured tendons, ligaments, menisci, or cartilage. The clear legislative intention of the statutory definitional provision was to limit access to ongoing statutory benefits and claims for common law damages for musculoskeletal injuries, which did not occasion this class of injury. A musculoskeletal injury is capable of meeting the statutory threshold exceptions so as to preserve an entitlement to ongoing benefits and damages. But an injury to an organ which invariably will be a soft tissue injury will not always be capable of satisfying this exception, such that several types of injury, most, serious, will be excluded. As the Minister’s second reading speech reveals, that is not the intention of the scheme.
In our view, consistent with the directive in s 1.3(4) of the Act, this construction is consistent with the Act’s objects. It is uncontroversial that the most common injuries arising out of motor accidents are orthopaedic: soft tissue strains/sprains to the neck, back and shoulders (or “whiplash”), which typically resolve within a matter of months with appropriate treatment. The fact that the statutory benefits scheme of weekly payments and treatment is available unrestricted to all persons injured in a motor accident for 52 weeks meets the legislative object of encouraging early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities. In this context, the statutory precondition of having sustained a non-threshold injury to receive ongoing statutory benefits or the award of damages aligns with the scheme’s purpose of providing ongoing compensation for the more serious of these common injuries, which involve radiculopathy, a clinical condition which involves one or more nerves resulting in impaired function (a neuropathy) resulting is pain (known as radicular pain along a dermatomal pathway), weakness in limbs, numbness/paresthesia, and difficulty in controlling specific muscles.
It is entirely plausible that an actuarial analysis of past losses under the former CTP scheme provided for by the Motor Accidents Compensation Act 1999 (NSW) and its predecessors, has determined that the ongoing performance and affordability of the State CTP-insurance scheme required a particular focus on early provision of treatment to these injuries to ensure their optimum resolution, thereby, fairly permitting the statutory restriction on treatment benefits and compensation for these common types of soft tissue musculoskeletal injuries, beyond these 52 weeks.
This approach to the construction of the provision does not produce an absurd or dissonant result when viewed in the context of “injury” as defined in the Act. “Injury” is an expression of broad meaning and includes, for example, damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses. Plainly, injuries of this type are not capable of being excluded by the operation of s 1.6(2) of the Act. Indeed, to permit a claimant to pursue a claim for damages for mere broken spectacles is seemingly contrary to the purpose of maintaining affordable premiums, but it is plainly permitted by the statutory language, and therefore ostensibly not contrary to the legislative purpose. That is most likely because it is not the concern or intent of the statutory threshold condition. In any event, it is not the role of the Commission or indeed the court to emancipate the statutory language from its contextual constraints so that it is apt to grapple with a perceived unfairness. As the High Court has stated unequivocally on more than one occasion, “[t]he province of statutory construction is not speculation, and it is not repair”, it is the attribution of meaning to the enacted statutory text, “not the remediation of perceived legislative oversight”: see e.g. H Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4; 96 ALJR 208 at [63], referring to Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 556-557 [65].
As the Review Panel acknowledged in Dhupar the skin is the largest organ in the body. While it “connects, supports or surrounds other structures” by separating the body’s internal environment from the external environment, it is not a connective tissue, per se. Skin has two principal layers: the epidermis, which is the epithelial tissue layer of skin comprised of hair follicles, sebaceous glands, and sweat glands; and the dermis, which is the connective tissue layer of skin. Embedded within the dermis are blood vessels and sensory nerve endings as well as epidermal invaginations of hair follicles and sweat glands. Beneath the skin lies the hypodermis - connective tissue which may be adipose or fibrous, depending on the location.
Beyond connecting, supporting, or surrounding other structures, the skin has many other diverse roles. It acts as a channel of communication with the outside world; protects the body from water loss; uses specialised pigment cells, (melanocytes), to protect the body from ultraviolet radiation; it participates in calcium homeostasis by contributing to the body's supply of vitamin D; and helps regulate body temperature and metabolism.
To exclude an injury to the skin because it “connects, supports or surrounds other structures” is inconsistent with the meaning intended to be ascribed to this threshold’s provision’s phraseology when read in the statutory context, which is evidently concerned with the exclusion of soft tissue injuries sustained to the connective tissues of the musculoskeletal system, which do not involve injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Accordingly, lacerations to the skin would not be a threshold injury.

CONCLUSION AND CERTIFICATION

For the above reasons the Review Panel revokes the certificate issued by Medical Assessor Home. In the Review Panel’s opinion, the injury to the claimant’s skin (lacerations to the left and right wrists) sustained in in the motor vehicle accident are not threshold injuries.
The new certificate is attached at the commencement of these Reasons.

[2024] NSWPICMP 158

20 March 2024