Ayres v Insurance Australia Limited t/as NRMA Insurance (No 1)
[2022] NSWPICMP 373
•26 September 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ayres v Insurance Australia Limited t/as NRMA Insurance (No 1) [2022] NSWPICMP 373 |
| CLAIMANT: | Danielle Ayres |
| INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Dr David Sykes |
| MEDICAL ASSESSOR: | Dr Geoffrey Curtin |
| DATE OF DECISION: | 26 September 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident 15 June 2018 when the insured vehicle turned across the path of the claimant’s vehicle causing a collision; Ms Ayres’ vehicle then impacted with a telegraph pole sustaining fractures in the cervical spine; the present Panel were constituted only to determine dysfunction of the temporomandibular joint (TMJ) impeding mastication; the claimant suffered a significant head on collision with a telegraph pole causing serious fractures in the cervical spine; TMJ dysfunction established as there were no prior problems; this was a serious neck injury and complaint was made within a short period; observations of the relevance of pain in assessing TMJ dysfunction impeding mastication; the Medical Assessors noted objective symptoms of TMJ dysfunction from tenderness on palpation and crepitus and assessed the claimant’s impairment at the lower end of the range because of the nature of the restriction of diet and the extent of the pain which is reasonably controlled; Held – claimant assessed at 5% impairment for temporomandibular joint impeding mastication. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 2 April 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment of 5% which is NOT GREATER THAN 10%: · Mastication - temporomandibular joint dysfunction. |
REASONS
BACKGROUND
Ms Danielle Ayres (the claimant) suffered injury on 15 June 2018 when the insured vehicle turned across the path of the claimant’s vehicle causing a collision. Ms Ayres’ vehicle then impacted with a telegraph pole sustaining fractures in the cervical spine.
Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Ayres any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The present dispute is whether Ms Ayres “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 clause 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Nichols and dated 2 April 2022. The Medical Assessor assessed the degree of permanent impairment of mastication due to temporomandibular joint (TMJ) dysfunction at 0%. The details of that assessment are set out later in these Reasons.
A different assessment was undertaken by Medical Assessor Rosenthal who issued a certificate dated 17 March 2022 for the cervical spine and both upper extremities. The impairment of those conditions was assessed at 5%. A review of that certificate is before a differently constituted Panel.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
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.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The parties provided bundles of documents in accordance with the initial Direction.
A Direction was issued by the Panel in the following terms.
“The parties have filed respective bundles in matter number R-M10503953/22. Those proceedings are being separately determined from the present proceedings. Accordingly, it is necessary that the parties file respective bundles in these proceedings by close of business, 27 July 2022.
The Panel notes that it would be assisted if the claimant undergo a Cone Beam CT scan of the temporomandibular joints. We cannot direct the insurer to pay but request it consider funding the cost of the investigation noting that it would clarify the nature of the pathology in the temporomandibular joints.”The parties filed respective bundles. The claimant otherwise responded to that part of the Direction requesting a Cone Beam CT scan of the temporomandibular joints that the general practitioner would not provide a referral for the scan as it was not “indicated at this time”.
ASSESSMENT UNDER REVIEW
Medical Assessor provided a medical assessment dated 2 April 2022 determining that the permanent impairment of the injuries was not greater than 10%. The Medical Assessor found no assessable impairment.
The Medical Assessor stated:
“TMJ dysfunction is assessed under Ear, nose and throat, and related structures, paragraph 6.177-6.178 of the Motor Accident Guidelines: Permanent Impairment version 5.1 effective from 17 April 2020 and Chapter 9 of the AMA4 Guides. Chapter 9.3b of the AMA4 Guides provides a method of assessment for mastication and deglutition, the act of eating. The Guides note that dysfunction of the TMJ may impede mastication, affect speech, cause lower facial deformity and produce pain. Table 6, on page 231 AMA4 states that where diet is limited to semisolid or soft foods this produces a permanent impairment assessment of 5- 19%. However, whilst Ms Ayres avoids hard foods due to discomfort, there is no clinical (physical) injury or condition that prevents normal mastication. WPI is therefore assessed at 0%.”
MATERIAL BEFORE THE REVIEW PANEL
The Panel requested and were eventually provided with separate bundle of documents provided by the parties.
Pre-existing records
There is no suggestion of any pre-existing condition.
Contemporaneous records
The ambulance report notes:[8]
“CT MVA OA BELMONT CAR ON SCENE DIRECTED AOS TO 39YOF CO NECK PAIN C1-C5 ACHE NON RADIATING POST 60 KM COLLISION WITH OTHER CAR THEN POWER POLE.”
[8] Claimant’s bundle, page 31.
The discharge records from John Hunter Hospital noted the motor accident which caused Ms Ayres vehicle to swerve into a pole.[9] C2 vertebral fractures were found at hospital and Ms Ayres was placed into a Miami J cervical collar.
[9] Insurer’s bundle, page 43.
The CT scan dated 16 June 2018 reported “mildly displaced fractures of both C2 transverse processes through the transverse foramina and the pedicles”.[10]
Medical records
[10] Insurer’s bundle, page 44.
The claimant suffered a serious neck injury involving bilateral undisplaced fractures of the C2 transverse processes through the transverse foramina and the pedicles.
Ms Ayres was in a neck brace due to her injuries for a lengthy period.On 15 August 2018 Dr Vanessa Lee, general practitioner referred to the history of neck injury in the motor accident and noted that Ms Ayres “has had TMJ pain R TMJ”.[11] Pain was noted whilst chewing “and screeching sound”.
[11] Insurer’s bundle, page 112.
On 12 December 2018 Dr Lee noted ongoing pain in the TMJ when eating, that clicking had been frequent and she was now grinding her teeth at night.[12]
[12] Insurer’s bundle, page 118.
On 28 February 2019 Dr Peter Cameron noted improvement in the condition with conservative treatment. Clicking in the jaw when eating, particularly on the left side, was noted with teeth grinding at night.[13]
[13] Claimant’s bundle, page 40.
Dr John Pickett, pain physician, provided a report dated 14 August 2019.[14] Ms Ayres reported ongoing pain in the cervical region with decreased range of movement and some associated TMJ clicking. Teeth grinding at night was thought to be associated with the stressful situation.
[14] Claimant’s bundle, page 45.
Statement – Ms Ayres
Ms Ayres provided a lengthy statement dated 11 April 2022.[15]
[15] Claimant’s bundle, page 5.
Relevantly Ms Ayres stated that the treatment for her jaw pain was wearing a mouthguard and a bite opening device if she had flare-ups of jaw pain. She continued to experience jaw pain with painful crepitations and clicking in the jaw when opening the mouth wide.
Ms Ayres stated that she had difficulty eating solid foods such as red meat because it triggers symptoms in her jaw. As a result, Ms Ayres has developed iron deficiency and requires supplements.
Qualified opinions
Dr Dias, physician, provided a report dated 10 June 2021.[16] The doctor recorded a history of avoidance of red meat and eating softer foods.
[16] Claimant’s bundle, page 14.
On examination, Dr Dias noted tenderness over the right and left temporomandibular joint. No joint crepitations were noted on opening and closing of the jaw.
Dr Dias diagnosed bilateral temporomandibular joint dysfunction secondary to an acute impaction soft tissue injury. The doctor observed that the impairment was 5% which he assessed at the lower end of the range from 0-19%.
Dr Andrew Keller, physician provided a report dated 3 November 2021.[17] The doctor commented on the cervical fractures but did not assess the impairment of any temporomandibular dysfunction.
[17] Insurer’s bundle, page 157.
SUBMISSIONS
Claimant’s submissions dated 20 April 2022[18]
[18] Claimant’s bundle, page 1.
These submissions were filed seeking leave to review the Medical Assessment.
The claimant submitted that the Medical Assessor erred when stating that pain and discomfort is not to be considered because Dr Dias did not rely on that and, secondly, cl 6.38 provides that it can be considered but not as a separate allowance.
The claimant submitted that pain is a consideration in a number of different assessments including specifically in s 9.3b of the AMA 4.
Insurer’s submissions dated 13 July 2021[19]
[19] Insurer’s bundle, page 4.
The insurer submitted:
“[W]hilst Ms Ayres reported pain and teeth grinding, there is no evidence that her diet has been permanently affected from the TMJ dysfunction. Additionally, it is not evidenced as to whether Ms Ayres TMJ dysfunction treatment is completed.”
The insurer otherwise specified, without reference to any evidence, that there was no assessable impairment due to injury.
Insurer’s submission dated 18 May 2022[20]
[20] Insurer’s bundle, page 3.
These submissions were filed opposing the review.
The insurer submitted that the Medical Assessor found that there was no physical injury that prevents normal mastication. In these circumstances it was open to the Medical Assessor to assess impairment at 0%.
RE-EXAMINATION
Ms Ayres was examined by both Medical Assessors on the Review Panel. Their joint examination report is as follows:
“HISTORY
Ms Ayres attended for examination on 5 September 2022 and was unaccompanied. Dr David Sykes and Dr Geoffrey (Paul) Curtin carried out the examination. Both panel members felt that Ms Ayres was a convincing and genuine historian.
Ms Ayres confirmed that she had been involved in a motor vehicle accident on 15 June, 2018 in which a car hit the claimant’s car on the driver’s side pushing the car into a pole on the passenger’s side. The air bags were deployed.
Ms Ayres could not remember whether her head struck anything during the accident, however, she did remember feeling pain in her neck immediately.
Ms Ayres was helped out of the car by someone and was able to stand. She was taken to the John Hunter Hospital by ambulance where scans were taken and a diagnosis of a fracture of the C2 vertebrae was diagnosed.Along with pain in her neck, Ms Ayres noticed weakness in her legs, but this resolved. Ms Ayres was placed in a neck collar and kept in overnight for observation. She was discharged the next day.
Ms Ayres reported that she first noticed a jaw problem when she was eating lunch about a week after the accident. A sudden, noise occurred as she was opening from the right jaw joint (Tempero-mandibular Joint or TMJ). The noise was accompanied by pain which continued whenever she opened her mouth. She also experienced pain in both ears.
Ms Ayres apparently attended casualty at the hospital who advised that the jaw was misaligned.
Since the first incidence of jaw pain, the noise has only happened on one further occasion and there have been no further sudden noises subsequently. However, the pain in her jaws has continued and Ms Ayres has noticed clicking in both jaw joints which is mostly not painful in itself. Ms Ayres still experiences pain on chewing certain foods in both jaw joints causing her to avoid certain foods such as nuts, red meat, apples (unless they are cut up) and opening wide.
Ms Ayres received treatment for the jaw condition from her dentists who constructed a bite plate (occlusal splint) which she was to wear during sleep. This was worn diligently initially and did help the pain but did not completely resolve the issue. She only wears the plate occasionally now when her jaw pain worsens which it does intermittently.
Ms Ayres’ current symptoms are that she manages the jaw pain by restricting her diet to softer foods that do not require too much chewing. She is able to eat chicken, cooked vegetables and fish. She does try and restrict her mouth opening but she is able to open wide if required. However, this can precipitate pain. She does not feel as though her jaw is locked.
Ms Ayres reported that, if she is careful, she can control the pain completely but there are occasions where the pain can re-appear at a level of 2 on a scale of 0-10.
Ms Ayres advised that her bite feels good. She did notice that she was grinding her teeth (bruxing) immediately after the accident and whilst she was wearing the neck brace but this seems to have resolved or is considerably reduced. She does still experience headaches occasionally at the back of her head or in the frontal region but she feels this is not related to her jaws.
EXAMINATION
Extra-oral examination revealed tenderness on palpation at both TMJ’s. Jaw opening measured at the incisors was measured as 25mm unaided, but it was possible to open wider with some jaw pain to 33mm. There was evidence of crepitus (grinding noise) from the right TMJ which is indicative of joint surface changes.
Intra-oral examination revealed no soft tissues abnormalities. The oral hygiene was good with some supra-gingival calculus around the lower incisors and periodontal pocketing measured at 2-3mm. Overall, the periodontal health was good with some localised mild gingivitis.
Teeth 18, 24,25, 28, 36, 35, 34, 44, 45, 46 and 48 were missing. A lower partial denture was in position. There was a crack on the mesial occlusal of tooth 47 and caries (decay) in tooth 37. Tooth 11 exhibited a crown and Ms Ayres reported that this tooth had presented with an abscess prior to the accident and root canal therapy and crown construction were carried out; also prior to the subject accident.
Moderate bruxofacets (tooth grinding facets) were present on the anterior teeth and there was a degree of erosion (acid wear) of the teeth which Ms Ayres advised was due to significant vomiting during her six pregnancies.
There was a Class III occlusal relationship. Clenching her teeth together caused some pain in both jaw joints. The occlusion was otherwise unremarkable.
DIAGNOSIS
The panel members were of the opinion that a diagnosis of some joint derangement in the right TMJ that is consistent with the history of the subject accident such that it was likely caused by the subject accident. This has left the Claimant with chronic pain in both joints that has not resolved but is being managed by the Claimant by way of care with eating and opening.
There is no evidence of any injury to the dentition.
There is caries in tooth 37 and a crack in tooth 47. Neither of these conditions are related to the subject accident.
CAUSATION
The panel members formed a view that the history and clinical examination were consistent with the Claimant’s TMJ pain being causally related to the subject motor vehicle accident. Especially since the subject accident involved significant force with the claimant’s car first being hit by a car on one side and then striking a pole as a result of the initial impact, on the other side. Significantly, the forces sustained during the accident were sufficient to fracture a vertebra at C2.
WHOLE PERSON IMPAIRMENT (WPI)
WPI for Tempero-mandibular Joint Disorders are covered by Clauses 6.177 and 6.78 of the Guidelines refer to Chapter 9 of AMA 4 for the assessment of permanent impairment of the nose, throat and related structures. Section 9.3b and Table 6 relate to the assessment of WPI due to temporomandibular joint dysfunction affecting mastication.
Ms Ayres has some impairment with respect to chewing function due to her TMJ pain which has been stable for over two years. The panel members are of the view that the degree of WPI in Ms Ayres’ case falls into the first category of Table 6, at section 9.3b of AMA 4 being “Diet is limited to semisolid or soft foods” with justification for rating the WPI at 5%.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[21] The Panel adopts the joint examination findings of the two Medical Assessors[22] and adds the following reasons.
[21] Section 7.26(6) of the Act.
[22] Set out at [43].
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[23] and Insurance Australia Ltd v Marsh.[24]
Causation - legal principles
[23] [2021] NSWCA 287 at [40], [41] and [45].
[24] [2022] NSWCA 31 at [11], [21], [64].
Clauses 6.6 and 6.7 of the Guidelines provide:
“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 non-medical informed judgement.There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The Panel accepts the causative link between the motor accident and the problems with TMJ. There were no prior problems and complaint was made within a short period noting that the claimant suffered a serious neck injury with a collision involving the car impacting head on with a telegraph pole. We accept that TMJ symptoms reported to the general practitioner in August 2018 were caused by the motor accident.
Clauses 6.177 and 6.78 of the Guidelines refer to Chapter 9 of AMA 4 for the assessment of permanent impairment of the nose, throat and related structures. Section 9.3b and Table 6 relate to the assessment due to temporomandibular joint dysfunction affecting mastication.
Section 9.3b of AMA 4 provides:
“The act of eating includes mastication and deglutition. Numerous conditions of non-gastrointestinal origin, singly or in combination, may interfere with these functions.
Dysfunction of the temporomandibular joint may impede mastication, affect speech, cause lower facial deformity and produce pain. In this section, the effect of temporomandibular joint dysfunction on eating is considered; other effects may be considered in conjunction with parts of the Guides that deal with the nervous system or pain.
In accordance with the philosophy of the Guides, when mastication and deglutition are evaluated, the ability to eat should be stable and maximal rehabilitation should have been achieved. When mastication or deglutition is impaired, the imposition of dietary restrictions usually results. Such restrictions are the most objective criteria by which to evaluate permanent impairment of these functions. The relationship of the restrictions to impairments of mastication and deglutition are shown in Table 6.”
Table 6 specifies how impairment is assessed due to the effect of the dysfunction on the diet. For example, diet limited to “semisolid or soft foods” has a range of impairment from 0 to 19%.
Section 9.3b relevantly provides that pain is part of the condition of temporomandibular joint dysfunction. It is incorrect, as Medical Assessor Nicholls and the insurer asserted, that pain is irrelevant to the assessment of impairment from this condition.
That pain or discomfort from TMJ dysfunction is “not be considered” as the Medical Assessor stated is incorrect. This is consistent with cl 6.38 which provides:
“Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, medical assessors must not make separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA4 Guides must not be used. However, each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.”
By way of contrast, assessment of range of motion of the shoulder which is subject to variation because of pain is treated with caution and is not used if there is inconsistency.[25]
[25] Clause 6.50 of the Guidelines.
The insurer’s submissions noted that the Medical Assessor “is prevented from making any separate allowance for WPI due to the claimant's pain”. Whilst that is correct, it is not the same as assessing pain as part of the impairment if the claimant otherwise has temporomandibular dysfunction.
Accordingly, pain and discomfort are considered in assessing an impairment based upon TMJ dysfunction as it is part of the matters to be considered for dietary restriction.
Noting the objective symptoms of TMJ dysfunction from tenderness on palpation and crepitus, the Panel has assessed the claimant’s impairment at the lower end of the range[26] at 5% because of the nature of the restriction of diet and the extent of the pain which is reasonably controlled.
[26] AMA 4, Chapter 9, Table 6, page 231 provides a range of 5-19%. Clause 6.197 of the Guidelines modifies the range in the first category to 0-19%.
CONCLUSIONS
The certificate dated 2 April 2022 is revoked. The new certificate is attached at the commencement of these Reasons.
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