Allianz Australia Insurance Limited v DeMartino
[2023] NSWPICMP 384
•10 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v DeMartino [2023] NSWPICMP 384 |
| CLAIMANT: | Massimo De Martino |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW Panel | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Sophia Lahz |
| DATE OF DECISION: | 10 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about minor injury and review of assessment under section 7.26; Medical Assessor (MA) Ian Cameron diagnosed a significant injury to the claimant’s right hip with a labral tear which was not minor; MA determined that causation was established; Held – claimant suffered a labral tear of the right hip being a non-minor injury (now a ‘non-threshold injury’). |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Ian Cameron. 2. The Review Panel certifies that the claimant’s injury is not a threshold injury for the purposes of the Act.. |
STATEMENT OF REASONS
INTRODUCTION
Claim and dispute summary
Massimo De Martino (Mr De Martino/the claimant) was injured in a motor vehicle accident on 30 April 2021.
Mr De Martino was driving his 1994 BMW, when another vehicle, travelling at significant speed, collided with the rear of the BMW.
Mr De Martino made a claim against Allianz Australia Insurance Limited ACN 000 122 850 (Allianz), the third-party insurer of the said vehicle. Allianz has accepted that the driver of the vehicle was at fault.
A medical dispute has arisen in connection with the claim, as to whether or not Mr De Martino’s injuries are threshold injuries within the statutory definition.
Mr De Martino referred that medical dispute to the Personal Injury Commission (the Commission) for determination in relation to whether or not a soft tissue injury to the Claimant’s right hip with labral tear was a threshold injury.
On 1 March 2023, Medical Assessor Ian Cameron determined the dispute by assessing the injury as a non-threshold injury.
Allianz was dissatisfied with this result and lodged an application seeking a review. A delegate of the President of the Commission has determined that there was reasonable cause to suspect material error in the decision, and the President convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
JURISDICTION
Mr De Martino’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (MAI Act). This legislation provides a scheme of compulsory third-party insurance for all motor vehicles registered in New South Wales and a scheme of statutory benefits and compensation by way of lump sum damages for persons injured in motor accidents in New South Wales.
A ‘threshold injury’ is defined in the MAI Act ss 1.6(1)(a) and 1.6(2):
“(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
(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.”
The insurer’s application for review is made under s 7.26 of the MAI Act. Pursuant to s 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original Medical Assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
Causation
Guidelines
With respect to causation, the MAI Guidelines provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
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: 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 nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where Allsop P explained the tests of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
ASSESSMENT UNDER REVIEW
Medical Assessor Cameron was asked to assess whether a soft-tissue injury to the right hip with labral tear was a minor injury (now called ‘threshold injury’) for the purposes of the MAI Act.
Mr De Martino gave a history to Medical Assessor Cameron, which is set out at [9]:
“On 30 April 2021, Mr DeMartino was the driver of a motor vehicle. He was hit from behind by a vehicle travelling at significant speed. He said his vehicle then spun. He noted there was extensive damage to his vehicle. Mr DeMartino said he was helped by bystanders to exit his vehicle. He said that he hit his right knee on the glove box of his vehicle. He said the knee was bruised and the glove box was broken. An ambulance attended and noted there was pain, including pain from the right knee. Mr DeMartino was taken to Nepean Hospital, where there [were] apparently abnormal neurological signs. He was transferred to Prince of Wales Hospital for spinal assessment. He was discharged on 1 May 2021.”
Further, Mr De Martino gave Medical Assessor Cameron a history of symptoms which included:
“...continuing problems with the right hip, there was a consultation with Dr Rooney, orthopaedic surgeon. He said there had been a right labral tear at the right hip…”
Mr De Martino gave a history of his current symptoms at [12]:
“…He said that he often felt dazed. He thought his right hip problems were getting worse…”
Clinical examination by Medical Assessor Cameron
The Medical Assessor noted at [14]:
“…There was pain on movement of the right hip. Maximal movements noted were flexion to 90°, extension to 0°, abduction and adduction both to 20°, internal rotation and external rotation both to 10°. There was a full range of motion at both knees. There was no crepitus or instability. There was a full range of motion at other lower extremity joints. There were no neurological abnormalities in the lower extremities. Circumferences of the lower extremities were46cm on the right with varicose veins, 45cm on the left. Mr DeMartino walked slowly…”
The Medical Assessor’s review of documentation
The Medical Assessor referred to the report of Dr Rooney of 14 April 2022, who took a history that there had been no prior symptoms from the right hip. The Medical Assessor referred to what Dr Rooney said:
“…that injury to the right hip was not a minor injury because there had been a full thickness labral tear. He discussed possible mechanisms of injury to the right hip...”
The Medical Assessor’s determination, diagnosis and reasons
The Medical Assessor relevantly stated:
“…There is evidence that Mr DeMartino did also sustain a significant injury to his right hip with labral tear. In view of this, that injury is not minor because the labrum is composed of cartilage…”
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer made submissions to the President’s delegate on 27 March 2023.
The Panel briefly summarises the submission by reference to the relevant paragraph numbers:
[6] (a) Assessor Cameron failed to properly engage with material and substantive arguments.
(b) He failed to provide adequate Reasons.
With respect to error, the insurer submits:
[8] With respect to the Insurer’s evidence, Assessor Cameron merely noted the Insurer’s documents.
[9] At paragraph 17, he stated there were no imaging studies to review.
[10] The Insurer submits that there were a number of relevant radiological investigations which were referred to the Assessor, and in particular, the MRI of the right hip dated 22 July 2023.
[11] The said MRI of the right hip revealed significant degenerative changes/pathologies, including CAM deformity, coxa magna deformities grade 3, osteoarthritis to the right hip and complex degenerative tear of the acetabular labrum…
[12] The tear related to degeneration in the right hip, as opposed to trauma.
[13] Dr Winder reviewed the MRI of the hip at [R29], this was consistent with the Insurer’s Submission that the significant changes coincided with the findings documented in the MRI Report.
[14] The Insurer criticised the opinion of Dr Winder who, it submitted, failed to Assess the correlation and causal relationship between the degenerative changes and the pathologies of the right hips, and how they were caused in the accident.
[15] It was the Insurer’s argument that the right hip full thickness tear was not caused by the accident, but rather by significant pre-existing degenerative change.
[16] Assessor Cameron did not reference the MRI Report at all.
[17] Assessor Cameron did not engage with the Insurer’s primary argument, that the findings on the MRI were pre-existing and degenerative in nature.
[18] The Assessor did not engage with the evidence regarding the primary dispute. It is not up to the Parties to assume or speculate as to how the Assessor made use of the evidence regarding the primary dispute. The Assessor did not provide a clear path or Reasons, as was required.
[19] The issue of causation was explicitly raised. It was incumbent upon the Assessor to consider that issue.
[20] The Assessor was required to give a more expansive explanation and express consideration revealing the use he made of the information.
[21] This did not occur.
Error 2: failure to provide adequate reasons
[22] Failed to provide adequate Reasons with respect to findings on Causation.
[23] Failed to comply with section 7.23(7) of the Act.
[24] – [25] Failed to comply with the Common Law by failing to disclose the actual path of reasoning.
[27] Failed to explain why he reached the conclusion on causation.
[28] The Assessor’s explanation for causation is limited to two lines, namely ‘causation for the injuries issued below is established based on the available clinical record and the information provided by Mr De Martino.’
[29] His findings are completely absent reasons for those conclusions.
[30] Such failure is material.
[31] The Insurer should not have to fill in the gaps.
[32] The failure to provide adequate Reasons is a material error.
[35] The Assessor failed to properly engage with material and substantive arguments.
Submissions for the claimant of 4 April 2023
The Panel briefly summarises the submissions by reference to paragraph numbers:
[2] At the examination by Assessor Cameron on 14 February 2023, the Assessor is alleged to have told the Claimant that he had read all of the imaging reports.
[3] Relevant imaging reports were lodged in both the Application and the Reply on the portal. Assessor Cameron, at [16], refers to the report of Dr Rooney of 14 April 2022.
[4] Dr Rooney refers to the MRI of 20 July 2021 and the grade 3 changes to the right hip and a full thickness labral tear.
[5] The MRI of the right hip of 20 July 2021 was lodged in the Application, at pages 89-90.
[6] Dr Rooney’s report is quoted at [6]:
“At the same time we know that Mr De Martino had not complained of any symptoms previously in his right hip and there had also been no previous imaging on record of the right hip. The amount of energy that may have been imparted to the articular cartilage cells of the right hip joint, which could lead in itself to a full rapid degenerative process, such as chondrolysis, a degenerative process within the chondrocytes, will lead to post traumatic osteoarthritis.”
[7] Assessor Cameron ([1] - [6]) stated he had noted details of the past claim, and these were summarised in significant detail. Assessor Cameron had noted the old clinical records, which were extensive. He also noted the Insurer’s Submissions.
[10] Dr Rooney had provided a clear interpretation of the findings of the MRI scan. Although the Insurer’s Submissions uses the word ‘significant’ with respect to the degenerative changes/pathologies of the right hip, the MRI report itself does not contain the work ‘significant.’
THE EVIDENCE BEFORE THE REVIEW PANEL
The Panel had all of the material which was available to Medical Assessor Cameron and considered all such material.
Re-examination of the claimant
Medical Assessor Lahz examined the claimant, on behalf of the Panel, on 25 July 2023 at 11.00am, with the interview and examination lasting one hour.
Medical Assessor Lahz noted that:
“…[Mr De Martino] is aged 47 and right-handed. He came with a dossier of documents concerning his accident and multiple photographs of the extensively damaged vehicle…:”
Medical Assessor Lahz told Mr De Martino that she did not need to see his dossier, or the photographs, as she had already seen the material, as it had been provided to the Panel. Medical Assessor Lahz did not look at the contents of the dossier.
The claimant was anxious that Medical Assessor Lahz understood that he had been physically fit before the accident, without any symptoms at the right hip. He told her that he had been physically active in his work role as an automotive engineer and had also been involved in sports training/drills.
He said he assumed that he hit his right knee on the glove box although he had no memory of this. He reported however that both knees displayed visible bruising immediately after the accident, which he assumed was documented at the Hospital.
At Nepean Hospital, the major initial concern was whether he had suffered a spinal cord injury. He reported weakness and numbness of the left-sided upper and lower limbs. He was transferred to Prince of Wales Hospital for spinal scans. He was cleared of a spinal cord injury and permitted discharge.
Medical Assessor Lahz noted that the Hospital records did refer to right hip pain, although, the focus was more strongly on the neck and left-sided limb symptoms due to (more pressing) concerns about a potential spinal cord injury.
Medical Assessor Lahz took a history that Mr De Martino went home after a couple of days.
Mr De Martino told her that he had been troubled by constant “catching” pain in the right medial groin, made worse by abduction, and also by hip flexion. He reported being unable to lift his leg while supine, nor could he lift his thigh while seated. While walking, he experiences groin pain. There was also buttock pain to a lesser degree. He told her that the pain was highly positional. Sometimes he had to move in order to “disengage” the joint for relief. He could walk slowly for up to one kilometre on the level, before groin pain stops him in his tracks. As a result, he did not walk often or far. At time the groin pain he had was so severe that he was unable to stand. The hip pain often builds, before finally releasing. He has a constant limp favouring his right leg. He is unable to kneel or squat. His wife helps him don trousers and footwear, due to hip pain, which is not relieved by lying down. At night, he can experience significant hip pain, depending on his position. He had undergone plain X-rays and scans of the right hip and had been diagnosed with “torn cartilage” and arthritis. He had two steroid injections to the right hip, with only transient beneficial effects. Dr Rooney had foreshadowed a right total hip replacement in the future. At present, there is no particular treatment which can be helpful. He has been unable to return to work after the accident (an automotive engineer who had been running his own business, which was liquidated in 2021).
On clinical examination, Mr De Martino demonstrated an antalgic gait, favouring the right leg. He could not easily balance on either heels or toes due to transmitted right hip pain. He could not stand on his right leg, nor could he easily stand on the left. The right hip was extremely irritable clinically with all movements painful; especially flexion, abduction and internal rotation.
The claimant’s statement
The Panel refers to the relevant sections of the claimant’s statement:
[3] Claimant described the impact as being “like an explosion.”
[4]Refers to a witness’ estimate of the speed of the Ford Ranger vehicle driven by Scott Merio as being 100 km/h.
[5]The Claimant states that he immediately felt severe pain in his right hip. The Claimant says that his vehicle spun several 360 degree turns.
The police report
The police report contains photographs of the claimant’s vehicle (commencing at page 6) which depict what appears to be significant rear end damage, particularly, the photograph at [32].
Report of Dr John Rooney 14 April 2022
The claimant’s solicitor specifically asked Dr Rooney to consider whether the claimant’s injuries were minor or non-minor.
The Panel refers to the relevant part of that report:
“(Page 2)] The MRI of the right hip also showed decreased right centre edge angle implying mild acetabular dysplasia in association with coxa magna/‘CAM’ deformity and a complex degenerative tear of the labrum.”
Later in the report, Dr Rooney stated:
“In summary, I do believe that Mr De Martino’s injury to his right hip is not a ‘minor injury’ but a ‘non-minor injury’. Pursuant to section 1.6 of the Motor Accidents Injuries Act, a non-minor injury correlates to a partial rupture of a tendon, ligament, menisci, or cartilage. In Mr De Martino’s case, a full thickness labral tear which functions to seal the joint and allows the joint to be mechanically stable and function efficiently is not dissimilar to a meniscus/ligament construct.
One could perhaps appreciate that a motor vehicle accident where there is a force, front to back, such as a dashboard injury where one would strike their knee joint onto the dashboard, would lead to a forced vector back into the hip and vice-versa so a labral tear as a result of that kind of a high-energy rear-ended motor vehicle accident would be quite possible.
Further… we know that Mr De Martino had not complained of any symptoms previously to his right hip and there had also been no previous imaging on record of the right hip. The amount of energy that may have been impacted to the articular cartilage cells of the right hip joint, which can lead in itself to a more rapid degenerative process such as chondrolysis, a degenerative process within the chondrocytes will lead to post-traumatic osteoarthritis.”
The Panel notes that in this accident, the claimant struck the dashboard with his right knee.
Dr Mark Winder’s report to Associate Professor John Gullotta 14 July 2021
Dr Winder described the history of the accident as a:
“…significant high-speed accident…”
Ambulance report
The ambulance report records:
“Pain on movement to (R) hip”
Report of Dr James Lee of 5 July 2021
In a report to Associate Professor John Gullotta, Dr James Lee, consultant neurologist, noted:
“Rear-ended by another driver at speed. He showed me photos of the accident which show that his car was totalled from behind with significant damage to the internal structures and the collapse of the driver’s seat attesting to the impact.”
Prince of Wales Discharge Referral
The Discharge Referral of 1 May 2021 from the Emergency Department of Prince of Wales Hospital refers to “Right hip pain.” The Progress Notes refer to “right hip & knee pain”, which the Panel notes is consistent with the claimant’s allegation that he struck his right knee on the glovebox.
Consistency
Medical Assessor Lahz did not identify any inconsistency.
Determinations
Diagnosis and reasons
The Panel was of the opinion that there was no evidence that Mr De Martino had any hip symptoms before the accident. With respect to the general practitioner’s records, on page 602/737 of the bundle, there was a single reference to right hip pain during 2020, preceding the 2021 accident. However, there was not any other mention of preceding right hip symptoms and when Medical Assessor Lahz took the history, Mr De Martino emphatically denied preceding right hip symptoms.
The Panel considered that labral tears do not usually result from a single event, but rather, generally develop slowly due to repetitive twisting, and pivoting over time. Posterior labral tears are usually caused by traumatic injuries such as falls, or sporting activities/accidents associated with high impact.
They noted that structural problems at the hip can also lead to a labral tear, and this can include an acetabulum that does not fully cover the ball portion of the femur, and this is called dysplasia, a shallow socket, that puts more stress on the labrum. The Panel notes that Mr De Martino does have some hip dysplasia which is a developmental condition.
It considered that Mr De Martino’s complaints as to his right hip were brought on by the accident and are genuine.
The Panel noted that this was a significant accident and noted that Mr De Martino’s right knee and hip were sore immediately after the accident, so that his account of hitting the glove box was credible.
FINDINGS OF THE PANEL
The Panel acknowledged that the Review is a new assessment of all matters with which the medical assessment is concerned. The original assessment related to whether the injury to the right hip was a minor injury (now called a threshold injury) as defined under the MAI Act.
The Panel included two specialist medical practitioners, and was not required to choose between competing medical opinions, but rather is required to form its own opinion (Insurance Australia Group Limited v Keen [2021] NSWCA 287; Insurance Australia Group Limited v Marsh [2022] NSWCA 31).
The Panel adopts the reasoning in Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6, that Mr De Martino bears the onus of proof in establishing that any injury is not a threshold injury. The Panel adopts the findings on re-examination by Medical Assessor Lahz.
The Panel’s findings on causation
The Panel refers to page 316 of the AMA4 Guides and has formed the view that the motor vehicle accident, a rear-ender involving significant speed, could have caused or contributed to the labral tear, or the worsening of the labral tear of the right hip and did, in fact, cause or contribute to the said labral tear or the worsening of the labral tear of the right hip.
The Panel notes that Dr Rooney (7 September 2022), treating orthopaedic surgeon and Chairman of the Department of Orthopaedic Surgery at St Vincent’s General Hospital took a history which caused him to describe the subject accident as “high-speed” and “severe.” Under opinion, Dr Rooney noted:
“Painful right hip that was not painful prior to the MVA. There is no history of trauma to the right hip in the past…”
The evidence as a whole strongly suggests that this accident did cause that claimant’s right hip labral tear. The Panel takes into account the significance of the accident, the extent of the damage to the claimant’s vehicle, the evidence of striking his knee on the dashboard at the time of impact, the opinion of Dr Winder referred to at [44] above, the opinion of Dr Rooney referred to at [40] above, the fact that the right hip pain was referred to almost immediately and is noted in the ambulance records and the reference to right hip pain in the Emergency Department notes. All of this leads the Panel to the conclusion that there was a significant injury to the right hip, sufficient at least to cause the labral tear.
The Panel has determined that the collision did cause or contribute to the worsening of the condition of the labrum, and that the labral tear was caused or materially contributed to by the accident. It was, at least, a contributing cause which was more than negligible.
The Panel’s conclusion
The Panel is satisfied that Medical Assessor Cameron did have all the relevant material, including the relevant diagnostic investigations, that he did consider them and take them into account, that he did more than simply note the Insurer’s documents, but carefully considered them, that he specifically took into account the MRI of the right hip of 22 July 2021, and its findings, that he considered the pre-existing degenerative changes including the CAM deformity and the coxa magna deformity grade 3, that he considered the pre-existing osteoarthritis in the right hip joint, and the other findings of the investigation, but that he came to the conclusion that the accident, which the Panel notes was a significant accident at significant speed, resulted in a traumatic injury to the labrum and, consequently, justified the conclusion that it was not a minor injury (to use the terminology then used) but that it is, as Panel holds, a non-threshold injury.
For these reasons, the Panel finds that the certificate issued by Medical Assessor Cameron is confirmed.
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