Baldedara v QBE Insurance (Australia) Limited
[2023] NSWPICMP 604
•20 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Baldedara v QBE Insurance (Australia) Limited [2023] NSWPICMP 604 |
| CLAIMANT: | Marivel Baldedara |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Ian Cameron |
| DATE OF DECISION: | 20 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 27 April 2019; Medical Assessor (MA) Grainge found the following injuries were threshold injuries: bilateral dependent atelectasis; Held – bilateral dependent atelectasis is a condition which affects the lungs; it is an injury within the meaning of section 1.4; David v Allianz Australia Insurance Ltd referred to; not necessary to establish threshold injury at the date of assessment; at hospital claimant suffered bilateral dependent atelectasis which is an injury to the organs; injury to organs non-threshold injury; Held – certificate of MA Grainge revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Christopher Grainge dated · bilateral dependent atelectasis. |
STATEMENT OF REASONS
INTRODUCTION
On 27 April 2019 Ms Marivel Baldedara (the claimant) was driving her vehicle to work when the insured vehicle driving in the opposite direction crossed the centre line causing a head-on collision (the accident). Ms Baldedara was wearing a seat belt at the time and the air bags deployed.
Ms Baldedara’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). The MAI Act provides for a scheme of statutory benefits and compensation by way of lump sum common law damages for persons injured in motor vehicle accidents in New South Wales. Under the MAI Act as it pertains to Ms Baldedara’s claim, statutory benefits cease 26 weeks after the accident and there is no entitlement to common law damages if the only injuries sustained by the injured person in the accident are “threshold” injuries.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Baldedara under the MAI Act.
Medical Assessor Grainge assessed the claimant on 6 December 2021 and issued a certificate dated 6 December 2021 in which he certified bilateral dependent atelectasis was a minor (threshold) injury for the purposes of the MAI Act.
As a result, Ms Baldedara has no entitlement to ongoing statutory payments under the MAI Act.
Ms Baldedara has sought a review of the certificate of Medical Assessor Grainge.
BACKGROUND
Ms Baldedara was 45 years of age at the date of accident and is now 49 years of age.
On 4 September 2019 Ms Baldedara lodged an Application for personal injury benefits.
On 11 December 2019 the insurer determined that Ms Baldedara had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
Ms Baldedara sought an internal review of the minor (threshold) injury decision and on
29 January 2020 the insurer affirmed the determination that the claimant’s injuries met the definition of a minor (threshold) injury.Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including whether the injury caused by the motor accident is a threshold injury for the purposes of the Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
DOCUMENTS BEFORE THE REVIEW PANEL
The claimant uploaded to the portal an indexed bundle of documents marked AD1 paginated from pages 1 to 17.
The insurer uploaded to the portal an indexed bundle of documents marked AD2 paginated from pages 1 to 53.
On 5 September 2023 the Panel issued a report and direction to the parties. Adopting the numbering in the report it relevantly stated:
“3. The Review Panel has now been reconstituted with Member McTegg replacing Member Thompson.
4. The Panel proposes to rely upon the following evidence uploaded to the portal by the parties:
· the claimant’s bundle of documents paginated from pages 1 to 17 uploaded to the portal and marked AD1; and
· the insurer’s bundle of documents paginated from pages 1 to 52 uploaded to the portal and marked AD2.
5. The parties agree the bilateral dependent atelectasis was caused by the accident having regard to the findings shown on the CT scan of the chest taken at Westmead Hospital following the accident.
6. The issue in dispute between the parties is whether the bilateral dependent atelectasis is a threshold injury for the purposes of the Motor Accident Injuries Act, 2017.
7. The Panel does not consider a medical examination is required where the only question for determination by the Review Panel is whether bilateral dependent atelectasis is a threshold injury.
8. In order to facilitate the just, quick and cost-effective resolution of the real issues in the Review, the parties are directed, on or before 11 September 2023 to advise the Commission in writing that they have received this report and to confirm that they agree to the Panel proceeding to determining the issue in dispute without re-examination and on the basis set out above.
9. If there is any dispute as to the matters set out in paragraphs 4 to 7 above the parties are directed to advise on or before 11 September 2023.”
On 5 September 2023 the claimant’s lawyer agreed that a re-examination was not required given the discrete issue that is the subject of the review. The claimant also provided further submissions.
On 12 September 2023 uploaded a message to the portal disputing the assertion that the only issue in dispute was whether the bilateral dependent atelectasis is a threshold injury. The insurer disputes the claimant sustained injury to the lung caused by the accident and referred to the original submissions dated 13 March 2020.
On 12 September 2023 the Panel determined a medical examination was required.
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In Briggs v IAG Limited trading as NRMA Insurance[2] his Honour Justice Wright stated at [35]:
[2] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An 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 claims assessor) in considering such issues.
6.6Causation 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.
6.7There 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.”
ASSESSMENT UNDER REVIEW
The threshold injury dispute was referred to Medical Assessor Christopher Grainge.[3] The following injury was referred for assessment:
· bilateral dependent atelectasis.
[3] AD1 p 10.
Medical Assessor Grainge reported Ms Baldedara had never smoked and had no respiratory issues prior to the accident. He reported approximately one month after the accident
Ms Baldedara returned to work, she had no treatment for respiratory symptoms and no problems with her respiratory system.On examination Medical Assessor Grainge reported:
“A respiratory examination revealed normal chest expansion, no cervical lymphadenopathy, central trachea, expansion normal and equal, and breath sounds equal and vesicular. Cardiac examination revealed normal cardiac sounds, no peripheral oedema and no raised JVP.”
Medical Assessor Grainge noted the CT scan of the chest taken at Westmead Hospital showed bilateral dependent atelectasis. He also noted the ambulance record showed nil shortness of breath, lungs clear.
Medical Assessor Grainge found the bilateral dependent atelectasis was caused by the accident “with a high energy transfer from the kinetic energy of the car into Ms Baldedara’s chest as part of the rapid deceleration”.
In concluding that the bilateral dependent atelectasis was a minor (threshold) injury under the terms of the MAI Act, Medical Assessor Grainge stated:
“The assessment of whether an injury is a ‘minor injury’ is not a direct measure of the symptoms or disability. A finding that the injury is a ‘minor injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, the injury satisfies the definition of a minor injury under the Act and the Regulation.”
REVIEW PROCEDURE
The insurer lodged an application for review of the assessment of Medical Assessor Grainge on 16 December 2021 within 28 days of the date on which the certificate of Medical Assessor Grainge was made available to the parties.
On 8 March 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]
[4] AD2 p 9.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission). [5] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
EVIDENCE BEFORE THE PANEL
Treating medical evidence
Ambulance report
The ambulance report states:
“…Informed 2 car accident, van vs car, head on Pt was driving car approx. 40 km/h when a van crossed on to her side of the road hitting head on, at unknown speed, described as ‘fast’. Damage to front right hand side of car and driver’s door, airbags deployed. Pt extricated and mobilised w/ assistance to side of road prior to crew arrival. Pt lying supine on pavement, rescue w/pt. Pt alert, orientated, well perfused, guarding abdomen. O/E airway clear, breathing regular, nil SOB, saturating well, equal bilateral chest rise, lungs clear and equal on auscultation. Strong, bilateral radial pulses, normotensive, PEARL, GCS15, Pt denies LOC, able to recall events, main C/O lower abdominal pain radiating to groin, and central cspine tenderness w/altered sensation to left hand descried an numbness and tingling Head to Toe. Nil obvious sign of head injury, denies headache, dizziness/visual disturbance, nil blood or CSF from ears or nose, nil racoon eyes or battle signs, central cspine tenderness, haematoma t right upper chest from seatbelt and lower left chest, nil flail chest, pain to R arm, nil obvious sign of deformity, graze to left wrist, lower central abdominal pain, radiating to groin, abdomen soft, nil distention, nil obvious injury to abdomen, pt denies possibility of pregnancy, nil hip pain, nil leg pain…”[8]
[8] AD2 p 31.
Westmead Hospital
The clinical summary states:
“BIBA to ED following MVA at moderate to high speed, driver, combined speed more than 100km/hr – was travelling up Church Street Parramatta, head on-collision, impacted onto driver side and her door, significant deformity to vehicle, travelling approximately 50 km/h.
-self extricated, airbags deployed, no LOC
Injuries
-subjective numbness to left upper limb with ambos (hence BAT call), appears to have resolved
-left sided chest pain with seat belt marks
-lower abdominal pain
-left shoulder pain.”[9]
[9] AD1 p 14.
The discharge summary addressed to Dr Tan Nguyen stated the claimant presented to the facility following the accident and concluded:
“She initially complained for chest, abdomen and L wrist pain. She underwent a CT pain scan and a L wrist XR given the mechanism of accident fortunately found no injuries. She was admitted for analgesia titration and discharged home.”
Imaging
The CT chest, Westmead Hospital:
“Nonspecific mosaic pattern is demonstrated bilaterally.
There is bilateral dependent atelectasis.
No pleural effusion or pneumothorax is seen.
No size significant hilar, mediastinal or axillary lymphadenopathy identified.
Within this non dedicated study no large pulmonary embolism seen.
No acute rib, thoracic spine, sternal, clavicular, scapula or proximal humeral fractures seen.”[10]
[10] AD1 p 16.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 16 December 2021. It was submitted the claimant suffered injuries in a head-on collision, she was wearing a seat belt and the airbags deployed. She was taken by ambulance to Westmead Hospital where a CT scan of the chest disclosed bilateral dependent atelectasis (partial collapse of the lungs).
The claimant does not challenge the findings of Medical Assessor Grainge as to causation of the bilateral dependent atelectasis.
The claimant challenges the finding that it is a threshold injury. The claimant refers to the definition of soft tissue injury in s 1.6 of the MAI Act and submits that if the injury is to an organ itself, rather than to the tissue that connects, supports or surrounds the organ, it will not be a threshold injury.
The claimant submits that what is required to resolve the dispute is whether the accident had ever caused a non-threshold injury to the claimant. Subsequent healing is irrelevant to the question of whether the injury is a threshold injury. As an example, the claimant submits a fractured rib is classed as a non-threshold injury even though it is likely to be fully healed by the time of the assessment.
The claimant provided further submissions in a message uploaded to the portal on 5 September 2023. The claimant notes that since the application for review was lodged in December 2021 there have been a series of decision that have determined that if a claimant, has, at any time after an accident, a non-threshold injury then the statutory definition is satisfied regardless of whether the injury has recovered or is in remission. The claimant referred to the decisions of David v Allianz Australia Insurance Ltd[11] and Lynch v AAI Limited trading as AAMI.[12]
[11] David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227.
[12] Lynch v AAI Limited trading as AAMI [2022] NSWPICMP 6.
The claimant submits that as assessor’s opinion that an injury is “not serious” or is “minor” in a medical sense is irrelevant to the statutory test. The claimant suggests a fractured rip is a case in point – all fractures are non-threshold injures even though a full recovery usually eventuates from a rib fracture.
Insurer’s submissions
The insurer provided submissions dated 13 March 2020 in relation to the initial referral for medical assessment of non-threshold injury.[13]The insurer submits there is no evidence of injury to the lungs, with no reference to bilateral dependent atelectasis in the contemporaneous records, the claim form, the certificate of capacity or even the claimant’s submissions which accompanied the application for assessment.
[13] AD2 p 8.
The insurer provided submissions in response to the review application dated
12 January 2022.[14][14] AD2 p 50.
The insurer submits that a bilateral dependent atelectasis is a condition where the alveoli (lung sacs) are unable to inflate properly. The insurer submits that alveoli are considered tissues that support lung function. Where there is no evidence which suggests an injury to the nerves of a complete or partial rupture of tendons, ligaments menisci or cartilage the insurer submits a bilateral dependent atelectasis satisfies the definition of a minor (threshold) injury.
THE MEDICAL EXAMINATION
Ms Baldedara was re-examined by Medical Assessor Cameron at Ultimo on
14 November 2023. Ms Baldedara attended unaccompanied.
History of injury
On 27 August 2019, early in the morning while driving to work, Ms Baldedara was injured in a head-on collision with another vehicle. She was wearing her seatbelt and the airbags deployed.
An ambulance attended and she was taken to Westmead Hospital. She had assessments and was discharged the next day. Investigations were reported as showing bilateral dependent atelectasis affecting her lungs.
Ms Baldedara reports having had bruising to multiple parts to her body and a painful left forearm.
Ms Baldedara had approximately a month away from work on sick leave and then returned to work following suitable duties. It took several months to get back to usual duties.
Background
Ms Baldedara is living at Plumpton with her two children who are aged 20 and 13.
Ms Baldedara has worked as a cook in a nursing home for about 15 years.
Ms Baldedara reported that her past health was generally good. She had hypertension diagnosed in 2022. She is a non-smoker and had not experienced respiratory problems prior to the accident.
Current status
Ms Baldedara said that she was generally reasonably recovered. She occasionally has pain from her left wrist. She has no respiratory or chest symptoms. Current medication is Twynsta.
Clinical examination
Ms Baldedara was right handed, 155cm in height and weighed 61 kg.
Ms Baldedara was co-operative and provided a clear history.
There was a full range of motion at the cervical spine, thoracic and lumbar spinal regions.
There was a full range of motion in the upper extremities including both shoulders and the left wrist.
No respiratory or chest abnormality was detected.
Ms Baldedara walked unaided.
There were no imaging studies to review.
Comment
Ms Baldedara has generally recovered well from the injuries sustained in the accident on
27 August 2019. She has no evidence of residual respiratory system injury.
PANEL REASONS
Injury
The first question is whether bilateral dependent atelectasis is an injury. “Injury” is defined in s 1.4 of the MAI Act and means personal or bodily injury.
Atelectasis is a condition where alveoli in the lung or part of the lung deflates, causing a partial or complete collapse of the lung. It can occur as a result of a chest injury when fluid, air or blood pushes against the lung causing a collapse.
The insurer submits bilateral dependent atelectasis occurs where the alveoli (lung sacs) are unable to inflate properly and therefore alveoli are considered tissues that support the function of the lungs. However, the definition of atelectasis is a partial collapse of the lung which is what occurs when the alveoli fail to inflate. As a result of this, the organ (the lung) does not function normally and is injured. The Panel is satisfied bilateral dependent atelectasis is a condition which affects the lungs.
Atelectasis is diagnosed by chest imaging and most cases get better without treatment as occurred in this case. Often atelectasis is reversible with no longer lasting effects. However, on occasion further treatment can be required and severe cases of atelectasis can cause respiratory failure, which is life threatening.
The Panel is satisfied that bilateral dependent atelectasis is an injury within the meaning of
s 1.4 of the MAI Act.
Causation
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[15] His Honour stated at [70 – 72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71.The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72.Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
[15] Briggs [2022] NSWSC 372.
“Motor accident” is also defined in s 1.4 of the MAI Act and includes an accident involving the operation of a motor vehicle that causes injury to a person where the injury is as a result of and is caused during, inter alia, the driving of the vehicle or as occurred here, during a collision.
Ms Baldedara was involved in a high impact head on collision which caused the air bags in her vehicle to inflate. The Panel notes Westmead Hospital reported left sided chest pain with seat belt marks and Ms Baldedara reported bruising to multiple parts of her body.
The Panel discounts the submissions of the insurer that there is no evidence whatsoever to indicate Ms Baldedara sustained an injury to the lungs. The Panel finds the chest CT scan undergone at Westmead Hospital is evidence of injury sustained to the lungs, that is bilateral dependent atelectasis.
Noting the legal test of causation does not require scientific certainty and in the absence of any history of respiratory symptoms or other possible cause the Panel is satisfied the force of impact resulting from the head-on collision was sufficient to cause the bilateral dependent atelectasis.
Having regard to the left sided chest pain with seat belt marks reported at Westmead Hospital, the findings of bilateral dependent atelectasis shown on the CT scan and noting the temporal connection with the accident the Panel finds Ms Baldedara did suffer bilateral dependent atelectasis caused by the accident.
Threshold injury
The Panel respectfully disagrees with the conclusion of Medical Assessor Grainge that a finding of minor (threshold) injury requires not only an injury caused by the motor accident but also that there may be continuing symptoms.
In David v Allianz Australia Insurance Ltd[16] a Review Panel concluded that whilst the extent of permanent impairment is determined at the date of assessment it is not necessary to establish a finding of minor (threshold) injury at the date of assessment. In David it was held that radiculopathy can be present at any time to satisfy the concept that the injury is not a minor (threshold) injury for the purposes of the MAI Act.
[16] David v Allianz Australia Insurance Ltd[16][2021] NSWPICMP 227.
In David the Panel concluded that the requirement in s 1.4 of the MAI Act that the death or injury “is as a result of and is caused” by circumstances such as the driving of a vehicle refers to the motor accident rather than to the time of the assessment.
Whilst Ms Baldedara has no ongoing symptoms the Panel finds immediately following the accident, as shown by the chest CT scan undergone at Westmead Hospital she suffered bilateral dependent atelectasis caused by the accident.
Bilateral dependent atelectasis is the partial or complete collapse of the lungs. The lungs are organs and therefore the injury sustained by the claimant is not an injury to tissue that connects, supports or surrounds other structures or organs of the body but an injury to the organs themselves. The Panel finds the claimant has sustained a non-threshold injury.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Christopher Grainge dated
6 December 2021 and determines that the following injury caused by the motor accident is a non-threshold injury:· bilateral dependent atelectasis.
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