Andrevski v AAI Limited t/as GIO
[2023] NSWPICMP 325
•12 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Andrevski v AAI Limited t/as GIO [2023] NSWPICMP 325 |
| CLAIMANT: | Vlado Andrevski |
INSURER: | AAI Limited t/as GIO acting for the Nominal Defendant |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Paul Curtin |
| MEDICAL ASSESSOR: | David Sykes |
| DATE OF DECISION: | 12 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of treatment dispute and claimant’s application for review under section 7.26; claimant injured when he was knocked off his scooter and fell to the roadway; claimant alleged he sustained face, jaw and teeth injuries in the accident and made a claim for $55,000.00 in dental treatment provided or to be provided; Medical Assessor (MA) Nichols found the treatment provided to tooth 12 and 37 did not relate to the injuries sustained in the accident and was not reasonable and necessary in the circumstances; issue of causation and previous treatment and lack of complaint about face, jaw or tooth pain for six months after the accident; Held – claimant’s evidence not reliable; claimant had previous dental conditions; claimant did not report dental injury for six months; claimant did not injure tooth 12 and 37 in the accident; while treatment was reasonable and necessary to those teeth, it was not related to the injuries caused by the accident; certificate of MA revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Nichols dated 20 May 2022. 2. Certifies that the dental treatment provided by Dr Shah to Mr Andrevski’s teeth 12 and 37 is reasonable and necessary in the circumstances but is not related to the injuries caused by the motor accident. |
STATEMENT OF REASONS
INTRODUCTION
Vlado Andrevski was involved in a motor accident on 14 December 2020. Mr Andrevski was riding his scooter along Newbridge Road at Moorebank, in the far-right lane, when a vehicle merged into his lane and struck his scooter causing Mr Andrevski to fall to the roadway.
The vehicle apparently stopped but departed the scene shortly afterwards. Mr Andrevski made a claim for statutory benefits with the Nominal Defendant as the vehicle that
Mr Andrevski said caused the accident could not be identified. The Nominal Defendant allocated the claim to GIO for management in accordance with s 2.36(1) of the Motor Accident Injuries Act 2017 (the MAI Act).
On 11 August 2021 Mr Andrevski’s dentist, Dr Shah provided a quote in the sum of $58,500 for dental work said to be related to the injuries caused by the accident. On 19 August 2021, GIO (for the Nominal Defendant) advised it would not be paying for the work on the basis there was “insufficient clinical justification and medical information” to support a finding that the treatment was related to the accident or reasonable and necessary.
The claimant sought an internal review and on 2 September 2021, GIO issued a decision to the parties affirming the original decision.
The claimant referred the dispute to the Personal Injury Commission (the Commission) for determination. On 20 May 2022 Medical Assessor Nichols determined the treatment was not related to the injuries caused by the accident and was not reasonable and necessary in the circumstances. The claimant lodged an application for review with the Commission.
On 26 September 2022, the President’s delegate determined there was reasonable cause to suspect a material error in the assessment and on 11 October 2022 the President of the Commission convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Andrevski’s claim is governed by the provisions of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits payable by the “relevant insurer”[1] in accordance with Part 3 include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Section 3.24 in Part 3 of the MAI Act provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(c)the reasonable cost of treatment and care,
…
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Unlike the previous motor accident injury scheme, damages for treatment cannot be recovered by a claimant against the insurer. The mechanism for a claimant to recover the cost of treatment and care caused by the accident is through a statutory benefits claim.
Dispute resolution
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Nichols’, further medical assessments and the Review of medical assessments by this Panel.[2]
[2] Sections 7.20, 7.24 and 7.26 of the MAI Act.
At the time Mr Andrevski referred his dispute about dental treatment to the Commission, Schedule 2, cl 2(b) of the MAI Act only gave power to a Medical Assessor to determine treatment and care that had been provided to the injured person. On 5 April 2022, the Review Panel in the matter of Obeid v AAI Ltd t/as AAMI[3] found there was no power for the Commission to assess treatment proposed or planned but not yet provided.
[3] [2022] NSWPICMP 76.
On 10 June 2022, following gazettal of the Motor Accident Injuries Amendment Regulation 2022, the wording of Schedule 2, cl 2(b) of the MAI Act was amended to enable the Commission to determine disputes about treatment and care “to be provided”.
Tooth numbering
The tooth numbering system of the Fédération Dentaire Internationale (FDI) is used throughout this report[4] and the chart is set out below.
[image unable to render]
[4] Other practitioners have not used the FDI system. Where this is the case, the Panel will refer to FDI tooth number in square brackets.
A two-digit system is used to identify individual teeth. The first number refers to the quadrant and second number refers to the actual tooth. The quadrants are numbered this way:
(a) upper right (quadrant 1);
(b) upper left (quadrant 2);
(c) lower left (quadrant 3), and
(d) lower right (quadrant 4).
Each individual tooth is numbered from the midline to the back of the mouth. For example, tooth 26 (pronounced two six) refers to the upper left (quadrant 2), sixth tooth from the midline. Tooth 43 (pronounced four three) refers to the lower right quadrant (quadrant 4), third tooth from the midline.
ASSESSMENTMENT UNDER REVIEW
Medical Assessor Nichols examined the claimant on 17 May 2022 and issued his determination on 20 May 2022 during the period when the Commission had no power to determine disputes about treatment “to be provided”.
Medical Assessor Nichols was therefore asked to assess:
(a) whether dental treatment provided by Dr Shah to teeth 12 and 37 is treatment that is related to the motor accident, and
(b) whether that treatment is reasonable and necessary and will improve the recovery of the dental injury sustained.
Medical Assessor Nichols noted there were no pre-accident dental records but there was an available history in the general practitioner (GP) notes of previous dental issues.
He notes the claimant was riding his motorbike, was hit by a car and fell onto his right side and that there was no mention of head, face or dental injuries in the hospital notes. Medical Assessor Nichols also noted there was no mention of teeth or jaw injuries in the claim form or the GP’s notes.
Medical Assessor Nichols states that six months after the accident, the claimant’s GP diagnosed an injury to the claimant’s front teeth and that in August 2021, Dr Shah recorded pain, sensitivity and an inability to brush his teeth due to Mr Andrevski’s pain.
Medical Assessor Nichols says, “he is an emotional patient who cannot accurately describe his symptoms. He says all of his teeth and jaw hurts”.
Medical Assessor Nichols attempted to examine the claimant’s mouth however Mr Andrevski could not open his mount more than 20mm which therefore limited the examination.
Dr Nichols noted the “general presentation is a debilitated dentition with missing teeth (some unrelated), unsatisfactory crown and bridgework (from Macedonia), active decay and fracturing filling”.
Medical Assessor Nichols says there was a “serious pre-existing condition” and the claimant could not identify which teeth were damaged in the accident saying it was all of them and that his teeth were “good” before the accident.
Medical Assessor Nichols notes that teeth 12 and 37 which Dr Shah had treated had evidence of decay and there was no evidence to suggest injury in the accident and that the six-month gap was not explained.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant submits that the claimant’s entitlement to treatment and care under the Act and the Guidelines requires the treatment to be related to the accident, reasonable and necessary and improve the claimant’s condition.
The claimant relied on an email from Dr Anticevich dated 19 August 2021 which says the claimant was examined on 4 March 2020 and the claimant’s mouth was “dentally fit and not required any treatment”.
The claimant says his head hit the ground and he was in and out of consciousness and the discharge summary says there was no “obvious sign of trauma” at the time.
The claimant relies on Dr Shah’s proposal for treatment which he says is reasonable and necessary and will assist / improve recovery of the claimant’s dental injuries.
The claimant said he has requested updated clinical notes from Dr Tomka, Dr Anticevich and Dr Shah.
Additional submissions were filed on 18 May 2022 referring to the case of Obeid and noting that the claimant had some of the disputed detail treatment, invoices had been issued but not yet paid by the claimant. The claimant asserted that the Commission has jurisdiction to hear the matter.
Insurer’s submissions
The insurer submits that the Medical Assessor read all the documentation and noted there were no pre-accident dental records but GP records which the Medical Assessor had considered.
The insurer further notes the Medical Assessor took account of the mechanism of injury noting the claimant fell onto his right side, there was no immediate complaint of head or jaw or tooth pain but complaints six months later.
The insurer maintains that the records and the examination by Medical Assessor Nichols reveal significant pre-accident dental problems. The insurer says the Medical Assessor has provided reasons for his decision.
Procedural matters
The Panel issued directions to the parties on 14 October 2022 for bundles of documents. The claimant provided a bundle comprising 112 pages.[5]
[5] The claimant’s bundle is document AD1 in the Commission’s file with a separate index being document AD2.
The Panel met on 14 November and reported to the parties on 17 November 2022.
The Panel noted that while Dr Shah’s quote included dental work done and work to be done, because of the decision in Obeid, Medical Assessor Nichols was only ever asked to assess the past treatment, that is the dental work that had been done to teeth 12 and 37. The Panel advised the parties that the Panel could only consider and review the treatment that had been assessed by Medical Assessor Nichols.
The Panel then noted that the decision of the Obeid case had been overcome by legislation passed in June 2022 and that a Medical Assessor could now determine both past treatment and future treatment. The Panel queried whether steps had been taken by the parties to ask the Commission to now assess the future treatment which had been part of the original application for assessment. The Panel also questioned whether a separate application (for further assessment) was going to be made in respect of the dental treatment noting the additional documentation that had been requested and was likely to be provided.
The Panel requested the following additional documents:
(a) copies of the records of Dr Anticevich and in particular copies of all dental X-rays, teeth charts, notes and invoices relating to any dental treatment of the claimant at any time (before or after the accident);
(b) copies of the records of Dr Shah and in particular copies of all dental X-rays, teeth charts, notes and invoices relating to any dental treatment provided to the claimant at any time (before or after the accident), and
(c) a full copy of the claimant’s hospital notes (not limited to the discharge summary already provided) for the admission at the time of the accident.
On 11 April 2023 Member Cassidy conducted a teleconferencewith representatives of the parties (Ms Allen for the insurer and Ms Galuzzo for the claimant).
The claimant’s solicitor advised Member Cassidy that the claimant had taken no steps to have the dispute about the future dental treatment referred for asssessment. The claimant’s solicitor said she would take instructions on whether the Panel should defer their decision until after any dispute about the future treatment had been determined.
The claimant subsequently advised the Panel that the claimant wished to pursue the current review application and would then consider a further application for the other treatment depending upon the outcome.
The Panel issued directions on 13 April 2023 for the production of documents and advised the parties of the medical examination date.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claimant is now 36 years of age and was 33 at the time of the accident.
In his application for personal injury benefits[6] declared as true and correct and dated
21 January 2021, Mr Andrevski provides this description of the accident:
“I was traveling at a speed of 60 km/hr in the furthest right lane (lane 4) when a vehicle merged into my lane and struck my scooter on the left side. The impact caused[me] to fall on my right side and slide approximately 10-15 meters. The vehicle stopped but fled the scene shortly after.”
[6] R2 insurer’s bundle page 14.
Mr Andrevski lists his injuries:
(a) pain in the neck, lower back, right shoulder, right biceps, right upper limb, right elbow, right hip, right knee, right lower limb;
(b) tingling and numbness feeling on the right side of my whole body;
(c) psychological including flashbacks and anxiety;
(d) headaches, and
(e) arm punctures / skin tearing.
The claimant says he was taken to Liverpool Hospital and was discharged two days later.
The certificate of capacity and fitness was completed by Dr Tomasevic of Liverpool and dated 21 January 2021. He says he first saw the claimant on 18 December 2020 and listed Mr Andrevski’s injuries as “headaches, pain in the neck, lower back, right shoulder, right biceps, right upper limb, right elbow, right hip, right knee, right lower limb paraesthesia right elbow, anxiety”. Lifting, sitting and standing restrictions were imposed and the claimant was to return on 4 February 2021. In the meantime, physiotherapy and referral to a pain specialist and an orthopaedic surgeon would occur.
A certificate of capacity was also completed by Dr Tomka from a different medical practice in Liverpool and dated 1 February 2021.[7] This document notes the injuries as right elbow, right leg and right knee, brain concussion, injury to neck, both shoulders, upper and lower back injury. The claimant was referred for pain management and physiotherapy and work restrictions were imposed.
[7] R2 insurer’s bundle page 31.
Claimant’s statement
The claimant’s statement[8] says at [7] that he was travelling at 50 – 60 kmph when he was knocked off his bike and that he slid for 10 – 15 m.
[8] Document A7 in the claimant’s bundle.
He says at [8] that while on the ground he was “coming in and out of consciousness due to the impact to my head with the ground”. He says he urinated into his pants due to being in agony and in shock [9] and he was attended to by someone who spoke no English and
Mr Andrevski could not tell him he needed to call the police and ambulance.
The claimant says at [10] that his phone broke so he could not call his wife. He says he drove to where he was meeting his wife and she took him to hospital calling the police on the way. Again, he says at [11] he was “in and out of consciousness” while his wife was driving.
At [16] he lists injuries to those parts of the body identified in his claim form as well as the right groin, and an “injury to my jaw (both upper and lower)” and to his teeth.
The claimant says at [19] after leaving hospital he was treated by his GP Dr Tomka and at [20] he was referred to Professor Murrell who performed rotator cuff surgery to the right shoulder on 13 April 2021.
The claimant had further treatment including physiotherapy with Mr Daher, counselling with Dr Hyde and a consultation with orthopaedic surgeon Dr Walker [26], [27] and [29].
The claimant says at [28] the insurer approved a dental consultation with Dr Shah which took place on 8 June 2021 and Dr Shah noted a number of dental fractures, teeth sensitivity and pain from his teeth [32].
The claimant says at [34]:
“Previously, I have never had any issues with my teeth. I have consulted with Dr John Anticevich … on 4 March 2020 and he confirmed that I was examined to be dentally fit and not requiring any treatment. Dr Anticevich has been my only dentist up until the subject motor vehicle accident.”
Mr Andrevski also says at [36e] that he experiences:
“ongoing symptoms of pain, stiffness and discomfort throughout my body, including but not limited to the following:
(a) since the accident, I have experienced pain and sensitivity to my teeth;
(b) upon examination my treating specialist indicated that I have sustained fractures to my teeth as a result of the subject accident;
(c) I am scared to brush my teeth as it feels like my teeth will break apart;
(d) prior to the accident, I did not experience any pain to my teeth or jaws. In fact my teeth and jaw were completely normal and did not require any treatment at all;
(e) as mentioned above, Dr Shah has recommended that I need urgent treatment to my teeth without delay, and
(f) I now have difficulty opening my mouth to a full capacity and often resort to soft food that are [sic] easy to bite.”
Treating medical records and reports
Liverpool Hospital
The discharge summary from Liverpool Hospital[9] noted the claimant’s presenting problem as a trauma from a motorbike accident at 50 kmph and that the principal diagnosis as right shoulder pain.
[9] Insurer’s bundle R2, page 22.
The claimant was not taken to hospital by ambulance but was driven there by his wife. He reported to the triage team two “syncopal episodes before hospital” and complained of “pain to his right shoulder and right lower leg”.
A “secondary survey” indicated there was no obvious external signs of trauma to the head, face, eyes, ears, nose and throat. There were no lacerations or bruising to the head and the cranial nerves were “grossly intact”.
No fractures were seen, and the claimant was “neurovascularly intact bilaterally” in both the upper and lower limbs with “superficial bruise knee + shin bilaterally; tender right thigh”.
The complete hospital records have been produced[10] which include:
(a) one of the issues at triage was a reported loss of consciousness (page 5). The claimant passed a post-traumatic amnesia test in emergency;
(b) the following history at page 18 was given, “P[atient] states was riding [approximately] 40 km /h when another car hit [patient] sending him sliding across ground about 20m on his right side. Helmet worn, and all appropriate riding gear worn… Patient then drove a few blocks to his mate’s place where he had a syncope episode. Friend told patient to present to ED”;
(c) the claimant was first seen in triage at 6.25pm on 14 December 2020 (page 18) and discharged on 16 December 2020 at about 10.00am (page 28), and
(d) the nursing notes indicate the claimant was on a “full diet” (see for example page 82) which suggests to the Panel there were no issues with the claimant’s ability to chew and swallow at that time.
[10] Document AD13 in the Commission’s file.
The hospital notes record multiple interactions with nurses and doctors at the hospital but there is no complaint of facial pain, jaw pain, teeth pain or any injury to Mr Andrevski’s mouth. The notes do reveal that there was concern about a head injury due to the claimant’s history of having two syncopal episodes before presentation and therefore significant attention was paid to the claimant’s head, neck and neurological status.
Treating dentists
Dr Bechara, dental surgeon has provided a report to the insurer’s solicitors dated
20 April 2023.[11] This details the following attendances “as per the treatment card”:
(a) 18 July 2016 – the claimant presented with pain on the right upper side of his face. He had multiple fillings, six missing teeth and two bridges. His upper right tooth 4 [14] was tender and sore and the claimant needed root canal therapy (RCT) and a crown, and the preparatory work was done for this;
(b) 6 September 2016 the claimant returned for his upper right tooth 4 [14] treatment. The canals were widened the RCT was completed and a temporary filling was inserted “advised again on a crown”, and
(c) 18 March 2019 – the claimant attended to replace the temporary filling with composite resin and advised he had not yet decided on a crown “advised patient on importance of a crown”.
[11] Page 3 of AD12 in the Commission’s file.
Dr Bechara provided a report to the claimant’s solicitor dated 17 February 2023 advising that the OPG radiograph he had taken in 2016 revealed:
(a) left upper quadrant, teeth 4 and 5 [24 and 25] were missing and a fixed bridge over teeth 3 [13] to 7 [17];
(b) right upper quadrant, tooth 6 [16] was missing;
(c) right lower quadrant the first molar [46] was missing and a 3-unit fixed bridge was in place from tooth 5 [45] to 7 [47], and
(d) left lower quadrant second and third molars [37] and [38] were missing.
Dr Anticevich, dental surgeon has provided a clinical record[12] of his treatment as follows:
(a) 17 November 2004 – tooth 25, root canal therapy;
(b) 22 November 2004 – further treatment to tooth 25;
(c) 1 December 2004 - tooth 12 root canal treatment;
(d) 20 May 2013 – pericoronitis in tooth 28 and fill 46 and check OPG;
(e) 4 February 2020 – 14 check and root filled OK;
(f) 8 September 2020 – failed to attend;
(g) 19 August 2021, “patient rang and email sent to say examined on 4 March 2020. Had MVA in Dec 2020”, and
(h) 27 September 2021 – copy of records sent to State Law Group.
[12] Document AD 14 in the Commission’s file.
Dr Anticevich sent an email to the claimant on 19 August 2021[13] addressed “to whom it may concern” saying that:
“Mr Andrevski attended the surgery for a consultation on Thursday 4 March 2020. At the appointment he was examined to be dentally fit and not requiring any treatment.”
[13] Page 45 of the claimant’s bundle AD1.
The email from the claimant to Dr Anticevich has not been provided and therefore the Panel does not know precisely what he was asked to write. The Panel notes the date in the email of 4 March 2020 is different from the date 4 February 2020 in his records. Dr Anticevich has also said the consultation was on a Thursday however 4 March 2020 was a Wednesday and 4 February was a Tuesday.
Dr Shah’s letter of 11 August 2021 refers to the oral examination and the claimant’s complaints of:
(a) sensitivity in some teeth (not identified);
(b) pain from some teeth (not identified);
(c) fractures on his natural teeth, restored teeth and bridges, and
(d) inability to brush his teeth due to pain and fear of teeth breaking apart.
On examination he records:
(a) gingivitis with calculus and bleeding gums;
(b) tooth 17 – decay;
(c) restorations on teeth 12, 15, 16, 22, 36 and “multiple other restorations in the anterior teeth;
(d) root canal on tooth 14 with no crown;
(e) deep bite;
(f) fractures / wear pattern of upper and lower;
(g) missing teeth 24, 25, 46, 16, 37 and 38, and
(h) bridges on 23, 26, 27, 24, 25, 45 and 47 with signs of fractures.
He says, “when we are restoring his mouth to optimum function, we cannot ignore the dental status of some of his teeth and his bite”. The Panel interprets this to mean there is some accident-related damage but that to get the claimant’s mouth to maximum function other work on other teeth, not injured in the accident, needs to be done.
His quote for work is made up of the following:
·hygiene $300
·removal old bridges $2,000
·orthodontics $8,500
·restoring upper bridge and crowns $22,500
·restoring lower bridge $7,500
·lower veneers $10,000
Total $50,800
In addition, Dr Shah suggests additional work should be considered including the following:
·upper teeth restored $7,500
·decay of tooth 17 $250
A second letter dated 30 September 2021 from Dr Shah includes all of the above but appears to amend the claim to note the following were related to the accident “and his inability to have good oral hygiene”:
(a) fractured upper restorations on 12 and 22;
(b) chips on teeth 11, 12, 21, 22, 31, 32 and 41, and
(c) porcelain fractures on the bridges on the upper left side and lower right side.
Dr Shah suggests these are the result of possible trauma to his face and having force placed on his teeth. Gingivitis was said to be due to pain when brushing and preventing him from adequately looking after this teeth.
He does acknowledge that the dental status of some the claimant’s teeth and issues with
Mr Andrevski’s bite were a pre-existing condition.
Dr Shah then amended his estimate of fees omitting the orthodontics and suggests this reduced the cost to $50,800 however the items claimed total only $42,300. Additional work totalling $7,750 was mentioned but does not appear to be related to the accident such as restoring the decay on tooth 17.
There is an email dated 18 May 2022 from Dr Shah to the claimant’s solicitor[14] advising that the claimant has had tooth 12 and the lower left second molar 37 “restored with temporary fillings due to fracture”. The claimant had not been charged for this work, pending the additional work to be done. It is this email that formed the basis of the referral to Medical Assessor Nichols, and it is this email which has limited what he was asked to assess.
Treating medical practitioners
[14] Document AD3 in the Commission’s file.
Dr Tomasevic
The records of Dr Tomasevic, the claimant’s pre-accident GP[15] note the following attendances:
(a) on 18 April 2016[16] the claimant complained of pain in the upper gums on both sides. Examination showed gingivitis in both upper gums, no gingivitis in the lower gums and no pus in oral cavity. The diagnosis was gingivitis and if not improved Mr Andrevski would require dental review. The Panel notes the claimant saw Dr Bechara in July 2016;
(b) on 17 January 2018 the claimant had left upper dental pain on examination there was pain but no redness or swelling. The claimant was advised to have a review with his dentist, and
(c) the claimant returned on 17 August 2018 (in the company of his wife and five-year-old child) with the claimant reporting he had seen a dentist the day before regarding infection in his right upper bridge. He had been informed that the whole bridge had an underlying infection and will require revision. The dentist apparently recommended antibiotics first, and time to allow the infection to settle. The claimant said he had a box of antibiotics from work however requested a further script from Dr Anticevich. The claimant also required Endone for analgesia as paracetamol and ibuprofen was insufficient for his pain. The GP (after ringing Dr Tomasevic) refused to prescribe Endone and advised the claimant to go to hospital for strong pain relief if necessary. The Panel notes there is no note of any treatment by Dr Bechara or Dr Anticevich in 2018 and is of the view that if this history is correct, the claimant may have a third dentist whose records are not before the Panel.
[15] Dr Tomasevic practices at the Health Check Family Medical Practice and their records are at page 34 of the insurer’s R2 bundle.
[16] Page 313 insurer’s bundle
The claimant saw Dr Tomasevic on 18 December 2020 after the accident. Dr Tomasevic has a consistent history of the accident and says that just before the accident he was riding at 59kmph. The claimant reported a loss of consciousness but that he walked to a friend’s place and that they, and his wife, drove him to hospital. The doctor examined the claimant noting a headache, pain in the right shoulder, right elbow and right thigh. Tramadol was prescribed. Two further attendances occurred with Dr Tomasevic on 22 and 23 December 2023 with similar complaints made. The medical certificate was completed, Panadol Osteo was prescribed and a referral given for physiotherapy.
On 14 January 2021 the claimant attended Dr Tomasevic with similar complaints and Tramadol was prescribed and on 21 January 2021 identical complaints were made and the claimant was referred to Dr Giblin for orthopaedic review and Dr Hou for pain management.
Dr Tomka
Dr Tomka’s first medical certificate from February 2021 did not mention jaw or teeth problems (see paragraph 55 above).
Dr Tomka wrote a medical certificate on 18 May 2021[17] saying:
“I highly recommend that Mr Andrevski is provided with dental treatment, as his teeth were also impact [sic] in his accident and have been previously noted by me in writing within Mr Andrevski’s certificates of capacity and fitness.”
[17] Page 108 of the insurer’s bundle R2.
Dr Tomka provided a certificate of capacity dated 14 May 2021[18] which refers to insomnia, back and front teeth injury, injuries to the neck, both shoulders, upper and lower back and psychological injuries. Further similar certificates were issued on 9 June and 7 July 2021. A medical certificate dated 26 August 2021 was completed referring to the previous injuries and adding “upper and lower jaw, top and bottom teeth”. Similar certificates dated
22 September and 18 October 2021 have been provided.
[18] Page 104 of the insurer’s bundle R2.
Dr Tomka’s records commence on 1 February 2021 and refer to the accident and multiple injuries including brain injury, concussion, neck, upper and lower back and both shoulder injuries. Tramal was prescribed. Further attendances occurred on 23 February, 3 March,
12 March, 16 March, 22 March and 31 March 2021 for pain in the lower back, neck and upper back. Tramal was prescribed on each occasion.
Further attendances for back pain, a request for a mobility parking permit and insomnia and migraine occurred during April 2021.
Further consultations occurred in May and June 2021 with all attendances for “pain - back – lumbo – sacral”.
Other doctors
Within the GP records are a number of letters from Dr Tsang who the claimant consulted due to his ‘morbid obesity”. In a letter dated 19 April 2017 the claimant is reported [page 199 in R2] to have said:
“His main problem is that when he starts eating, he usually cannot stop, and he just keeps on eating until all the food is finished. On a normal day he usually has a large amount of cereal or bars for breakfast, for lunch he usually has takeaway food and fast food and dinner he may have meat, vegetables and some bread and in the evening, he usually has junk food which consists of chocolate, bread, chips, etc.”
The claimant had gastric surgery in June 2017 and his weight reduced.
Insurer’s records
The insurer arranged for a rehabilitation consultation with Ms Caryl Quito of IPAR Rehabilitation Pty Limited. Her report dated 14 December 2020[19] includes a list of injuries reported by Mr Andrevski including to his right shoulder and hand, migraines, neck, right hip, lower back and left knee.
[19] Page 92 of R2, the insurer’s bundle.
The claimant complained about this report to the insurer and therefore the Panel will not consider the balance of this report.
RE-EXAMINATION FINDINGS
Mr Andrevski attended the re-assessment with Medical Assessor Sykes on 17 May 2023 accompanied by his wife.
History
Mr Andrevski advised that he was riding a scooter on 14 December 2020 on the outside lane of a four-lane highway. A utility vehicle changed lanes into his lane and hit him on the left side. The blow tipped his scooter over to the right and he slid down the road with his scooter.
Mr Andrevski says he was concussed and lost consciousness for an unknown period of time. When he regained consciousness, he noted blood on his arm from stones which had got under his jacket. He was wearing a full-face helmet and gloves.
Mr Andrevski reported that the accident occurred during COVID-19 and so no-one came to his assistance. Eventually a car stopped, and the driver helped him to his feet and helped him get his scooter off the road. As his phone was cracked, he could not call an ambulance. He rode the scooter to where he was meeting his wife. His wife drove him from there to Liverpool Hospital.
Mr Andrevski said he asked his wife to go to the local police station and get them to obtain video footage of the accident from the security camera of the nearby petrol station.
Mr Andrevski advised that his wife called the police on the way to the hospital, but they could not go the accident site due to COVID-19. She was told that Mr Andrevski would have to attend the police station to file a report.
Mr Andrevski remembered he had bleeding from his gums and that he had crunched something in his mouth during the accident. His main injury, however, was to his hip.
He said Liverpool Hospital was short staffed due to COVID-19. Mr Andrevski advised that he could not remember if his mouth was examined when in Liverpool Hospital. He said the hospital did not do much for him. The Panel notes he stayed in hospital for two nights and
X-rays were taken. Mr Andrevski said he remembered while in hospital noticing that his dental bridge felt loose on biting and that he could detect some sharp edges.
Mr Andrevski reported that he always looked after his teeth. He said that the dental bridge in the upper left quadrant has been placed four or five years previously. He had been to his dentist, Dr Anticevich before the accident on 4 March 2020 (Mr Andrevski was questioned about this but was certain of this date). He did not remember having root canal treatment with Dr Bechara before the accident.
Mr Andrevski was taken to the notes of his GP, Dr Tomasevic. In April 2016 and January 2018, he had attended for jaw and tooth pain. He remembered this and said he was given antibiotics that settled the pain for a while. Mr Andrevski was asked about the clinical note made by Dr Tomasevic in August 2018 which said that Mr Andrevski had advised
Dr Tomasevic about seeing a dentist the day before regarding an infection in his dental bridge. Mr Andrevski denied that this happened saying that he would have gone to his dentist straight away if there was a problem with his teeth and had the issue treated.
Mr Andrevski was adamant that this note was wrong.
Mr Andrevski advised that after the accident he did not go to a dentist immediately as his other injuries were a priority and he was on strong pain killers for his back pain which suppressed his dental pain. He was certain that the bridge was not loose before the accident.
Mr Andrevski reported that his current dental symptoms were pain across the bridge in his upper jaw on the left side but there was also some pain on the lower right side. He has pain in his jaw on the left cheek and he has to put his jaw into an unusual position to be comfortable. He says he holds his jaw to the right to prevent him biting on his bridge.
The jaw and tooth pain are a constant throbbing ache around the bridge on the upper left which is made worse if he clenches. Hot and cold stimuli also increase the pain.
Mr Andrevski did not experience any jaw joint noises (crepitus).
Mr Andrevski had very limited bodily movement and sat in the dental chair with difficulty reporting back pain.
Mr Andrevski advised that he went to a dentist, Dr Shah, in the same year as the accident. Dr Shah has done a few fillings in the meantime.
Mr Andrevski reported that he had some relief from his dental pain if he ground his teeth which he did not believe he did before the accident. He finds it difficult to brush his teeth due to his other injuries and his wife does this for him sometimes. However, brushing makes his gums sore, especially if toothpaste gets under his bridge.
Mr Andrevski advised that, if he takes medication, he can eat 60% of normal food such as chicken, vegetables, soups and shakes. He cannot eat nuts and some other foods which get under his teeth causing irritation. Mr Andrevski advised that his main concern is the bridge on the left side, but he is aware that he needs other dental treatment in addition to the bridge.
Examination
Examination of jaw and mouth
Extra oral examination revealed tenderness in the masticatory muscles, temporalis and masseter, on both sides of the mouth. There was also tenderness on the left zygoma and above teeth 21 and 22. There were no jaw joint noises. Maximum jaw opening was measured as 26mm at the incisors. Attempts to stretch open further caused complaints of pain in the left temporomandibular joint (TMJ) and right angle of the mandible.
Intra-oral examination revealed no soft tissue abnormalities and good salivary flow and volume.
The oral hygiene was generally poor with a generalised gingival (gum) inflammation. Periodontal pocketing was between 2-4mm and there were deposits of supra gingival calculus. The periodontal diagnosis was of generalised chronic gingivitis.
There was a class I occlusal relationship with a posterior open bite on both sides (a gap between the back teeth on biting on both sides). The only functional chewing contacts were between teeth 11 to 24 and their lower opposing teeth. Caries (decay) was present at teeth 36 and 44 with a large carious cavity on tooth 28.
A dental bridge was present in the upper left quadrant between teeth 23 to 26/27. This bridge had de-bonded (come loose from the underlying supporting tooth) on tooth 23. It is likely that there is significant caries in this tooth under the crown of the bridge. The bridge was firmly held on the posterior supporting teeth at teeth 26, 27.
There was a dental bridge in the lower right quadrant at teeth 44 to 46 which was firm and clinically satisfactory. Slight attrition (tooth wear) was noted on the incisal edges of the upper and lower anterior teeth.
Two peri-apical X-rays were taken at the assessment which confirmed caries (decay) at tooth 28 and no apical pathology at tooth 23.
In summary, Mr Andrevski exhibits:
(a) restricted jaw opening due to myofascial pain from Mr Andrevski’s habit of holding his jaw in an unusual position;
(b) generalised chronic gingivitis due to poor oral hygiene;
(c) significant caries at tooth 28 and also caries at teeth 36 and 44;
(d) a loose bridge in the upper left quadrant that has de-bonded at the front supporting tooth being tooth 23, and
(e)
a non-ideal bite such that the posterior teeth do not connect on biting forcing
Mr Andrevski to chew on his front teeth only.
CONSIDERATION OF THE ISSUES
Is the claimant’s evidence reliable?
Mr Andrevski says in his statement (paragraph 34) that Dr Anticevich was his only dentist before the accident. This is, on the information before the Panel, not correct. Dr Bechara has provided records to show he had provided dental treatment to the claimant before the accident. The claimant told Medical Assessor Sykes he did not remember this treatment.
Mr Andrevski says in his statement that before the accident he did not have any issues with his teeth (paragraph 34). This also appears to be incorrect when the records of Dr Tomasevic from April 2016 and January 2018 are considered along with Dr Bechara’s notes of 18 July 2016.
The claimant denied the accuracy of the entry in Dr Tomasevic’s records of a previous issue with a bridge in August 2018. This particular record from Dr Hartley is extraordinarily detailed for a GP note. The claimant was prescribed an antibiotic and a prescription for Endone was refused. This refusal may have been the reason for such a thorough note. The claimant was advised to attend emergency if strong pain relief was required. The record of this attendance also includes a note that Dr Harvey rang Dr Tomasevic to discuss the matter. It is highly unlikely in the clinical experience of the Medical Assessors that this comprehensive note would relate to a patient other than Mr Andrevski or contain information about an incorrect medical condition (dental infection and tooth pain) in the correct patient.
Mr Andrevski says in his statement (paragraph 36e) that before the accident his teeth and jaw were completely normal and required no treatment. Dr Bechara’s notes and the OPG radiograph shows a mouth, the Panel considers not normal for a 36 year old man, with six missing teeth, two bridges and “multiple” fillings.
The claimant told Medical Assessor Sykes that his left upper bridge was placed four to five years previously. If that was four to five years before the accident, that would suggest in 2015 or 2016. There is no record in Dr Anticevich or Dr Bechara’s records to suggest that dental work on a bridge was done at that time. If the bridge was placed four to five years before Medical Assessor Sykes’ examination, this would suggest the dental work was done in 2018 or 2019 but again there is no record of that work being done at that time. In fact, there is no record of Dr Anticevich or Dr Bechara working on the left upper bridge at any time and Dr Bechara’s report confirms the presence of the left upper bridge when he consulted th claimant in September 2016.
The Panel is of the view that the claimant’s evidence is unreliable and will look to the documentary material for support of the allegations and claims he is making.
The Panel accepts the evidence of Dr Bechara and Dr Anticevich in terms of the pre-accident dental history.
The Panel does not accept the “report” from Dr Anticevich that the claimant was “dentally fit” on 4 March 2020 because there was not attendance on 4 March 2020. As to whether the claimant was “dentally fit” on 4 February 2020 when examined, the Medical Assessors note this is not a dental or medical term and has no specific meaning within the dental profession. It is not clear to the Panel what Dr Anticevich means when he uses the term “dentally fit”.
Did the claimant injure his jaw and teeth in the accident?
The Court of Appeal decision in AAI Ltd v McGiffen[20] said that the existence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. There are a number of authorities which provided that “busy doctors sometimes misunderstand or mis-record histories of accidents” (for example Davis v Council of the City of Wagga Wagga[21]]) and there may be other evidence such as the injured person’s statement and the claim form to explain why there is no contemporaneous record (Bugat v Fox]).
[20] [2016] NSWCA 229 at [64]-[66] (McGiffen).
[21] [2004] NSWCA 34 at [35] (Davis).
The claimant did not remember whether his mouth was examined at Liverpool Hospital but says to Medical Assessor Sykes that he recalls his gums were bleeding. Bleeding gums could be a result of an injury to the mouth or it could be a result of gingivitis. Gingivitis is common and is often caused by poor oral hygiene. The claimant has had gingivitis in the past and did have gingivitis when examined by Medical Assessor Sykes.
In the two days Mr Andrevski was at the hospital there is no record of any jaw pain, mouth pain, tooth pain or bleeding gums. The claimant also told Medical Assessor Sykes that the hospital did not do much for him. The Panel notes that in emergency, medical practitioners examined his head, neck, mouth and throat and found no evidence of injury in those areas of the body.
The claimant was admitted for nearly two days with concerns over a head injury due to his complaints of syncope. He was examined in emergency and monitored in the ward.
The Panel accepts that if the claimant had a loose bridge this is unlikely to have been observed by the medical practitioners in emergency or on the ward but there is certainly no complaint of any dental issue in the hospital records.
The Panel is of the view that if the claimant was experiencing gum bleeding or had jaw pain or teeth pain there would be a record of it and in particular a record of any bleeding when his mouth was examined.
There is no mention of jaw, mouth or tooth pain in the records of Dr Tomasevic.
Dr Tomasevic appears to have undertaken a number of comprehensive examinations of the claimant and included detailed results in his notes. The Panel would have expected complaints of jaw, mouth or tooth pain in the notes if Mr Andrevski was experiencing symptoms.
The first mention of teeth and jaw pain is not until May 2021, six months after the accident. Mr Andrevski’s explanation was that he was more concerned with his hip. In the six attendances between 18 December 2020 and 21 January 2021, Dr Tomasevic took a history of all of the claimant’s injuries and symptoms to all parts of his body not just his hip. The first few attendances on Dr Tomka also include reports of multiple body parts being injured but no dental or jaw injuries. The claimant has complained to Dr Tomasevic of all of his injuries on many occasions and the Panel does not accept he would have held back in respect of his dental injuries if he was experiencing them.
The claimant reported to Medical Assessor Sykes that he felt something crunch in his mouth at the time of the accident and that he noticed the bridge was loose with some sharp edges while he was in the hospital. The claimant also told Medical Assessor Sykes (when discussing Dr Tomasevic’s report from November 2018 of upper tooth and bridge problems) that if he had a dental problem, he would do something about it straight away. The absence of any attendance on a doctor or dentist for six months after the accident is not behaviour consistent with there being a problem that needed addressing.
Of significance to the Panel is that the claimant did not list jaw, mouth or teeth injuries in his claim form. Even if the claimant was focussed on his hip injury and did not mention to his doctor jaw pain, mouth pain or teeth pain as a result, his claim form lists many injuries other than the hip and it does not mention jaw, mouth or teeth injuries. This supports, in the Panel’s view, the emergence of jaw, mouth and teeth symptoms six months after the accident.
The Panel does not accept the claimant’s evidence as reliable and there is no contemporaneous report in the hospital, GP or dental records of any jaw or tooth symptoms for the first six months after the accident and no plausible explanation for the absence of such complaint.
The Panel is not therefore satisfied that the claimant injured tooth 12 or tooth 37 in the accident.
CONCLUSION
The only treatment that is before the Panel is the treatment that Medical Assessor Nichols assessed in May 2022 which was the only treatment that Dr Shah had provided at that time. That treatment is the temporary filling of tooth 12 and tooth 37 due to tooth fractures.
While that treatment is reasonable and necessary in the circumstances, in that it is appropriate treatment to repair two damaged teeth, the Panel is not satisfied that the treatment relates to the injuries caused by the accident because the Panel has found that the claimant did not damage teeth 12 and 37 in the accident.
While the Panel has arrived at the same outcome as Medical Assessor Nichols, the Panel is of the view that the certificate of Medical Assessor Nichols should be revoked due to the finding concerning the reasonableness and necessity of the treatment.
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