Cowle v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 119
•25 February 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Cowle v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 119 |
| CLAIMANT: | Michael Cowle |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Michael McGlynn |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 25 February 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 22 February 2021; claimant suffered various soft-tissue injuries and skin abrasion to left ankle; development of cheek infection; the dispute related to whether the injury was a threshold injury; claimant re-examined; no signs of past or present radiculopathy; radicular pain not radiculopathy; claimant developed cheek infection three weeks post-accident; facial soft tissue injury probably caused bleeding at old injury site where there was facial hardware; intra-oral incision to drain infection and removal of facial hardware; surgery did not involve injury to nerves, ligaments, menisci or cartilage; suggestion that surgery necessarily involves injury to nerves, ligaments, menisci or cartilage incorrect; observations of Court of Appeal in Mandoukas v Allianz Australia Insurance Ltd on subsequent surgery and whether this fell within the meaning of injury; left ankle skin abrasion; Supreme Court decision in Allianz Australia Insurance Ltd v The Estate of the Late Summer Abawi applied; binding precedent Favelle Mort Ltd v Murray; superficial skin abrasion to left ankle constitutes a non-threshold injury; Held – claimant suffered a skin abrasion which was not a threshold injury; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold Injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 17 June 2024 and certifies that the motor accident caused a skin injury which is not a threshold injury within the meaning of the Motor Accidents Injuries Act, 2017. |
REASONS
BACKGROUND
Mr Michael Cowle (the claimant) suffered injury in a motor accident on 22 February 2021. The claimant stated in the claim form that the insured vehicle ran a red light and collided head on with the claimant’s vehicle as he was turning right at a set of traffic lights.[1]
[1] Claimant’s bundle, p 31.
The insurer is liable to pay to Mr Cowle any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether the injuries are classified as a “threshold injury” within the meaning of the MAI Act. 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. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[3]
[3] Section 4.4 of the MAI Act.
STATUTORY AMENDMENT
The Motor Accident Injuries Amendment Act 2022 (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.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
MEDICAL ASSESSMENT
The medical dispute was referred to Medical Assessor Bowler who issued a Medical Assessment Certificate dated 17 June 2024 (the medical assessment certificate).[4]
[4] Claimant’s bundle, p 10.
The Medical Assessor noted that the claimant sustained a heavy blow to his face requiring plate fixation in 1996 when he was struck in the face with a golf club sustaining an injury to the right zygomatic and maxillary complex requiring plate and screw fixation.
The Medical Assessor noted that the claimant was subsequently admitted to hospital on 16 March 2021 with a right-sided cheek abscess which required drainage and removal of infected hardware from the right maxilla.
In respect of diagnosis the Medical Assessor stated:[5]
“It would appear that amongst other injuries, Michael sustained an injury to the right side of his face during the motor vehicle accident that occurred on 22 February 2021. There were initially no findings but several weeks later he attended hospital with an infected right buccal sulcus. I suspect that he may have had a haematoma that had subsequently become infected.”
[5] Claimant’s bundle, p 13.
The Medical Assessor concluded, without any explanation, that this was a threshold injury.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the medical assessment certificate.
The President’s delegate referred the medical assessment to the Review Panel (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.[6]
[6] Section 7.26(5) of the MAI Act.
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 review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[7] 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.[8]
[8] 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.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
On 6 November 2024 the Panel issued the following directions:
“The Panel would be assisted by a complete set of the notes (as opposed to the brief records in the bundles) for the hospital admission commencing on 16 March 2021.”
Neither party responded to our request for the complete hospital records.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[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 soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
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 MIA Act. Version 9.2 of the Guidelines commenced on 10 November 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 minor 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 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.”
Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[11]
[11] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12] In Raina v CIC Allianz Insurance Ltd[13] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[12] See s 3B(2) of the Civil Liability Act 2002.
[13] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
SUBMISSIONS
Claimant’s submissions dated 1 May 2024[14]
[14] Claimant’s bundle, p 21.
The claimant referred to the Campbelltown Hospital discharge referral dated 25 February 2021 which noted various injuries caused by the motor accident.
The claimant asserted that the fact that he underwent surgery meant that the injury was not a threshold injury and that there were at least two prior signs of radiculopathy. The precise signs of radiculopathy were not identified in the submissions.
Claimant’s submissions dated 17 July 2024[15]
[15] Claimant’s bundle, p 1.
The submissions were filed seeking leave to review the medical assessment.
The claimant submitted that the ultimate finding that the injuries are threshold injuries was not a finding open to the Medical Assessor on the evidence and inconsistent with the evidentiary findings within the certificate.
The claimant referred to the clinical records of the Royale Medical Centre dated 9 February 2024 which referred to headache, neck pain, back pain and a swollen face three to four weeks after the accident. It was also noted that the claimant presented with left ankle and left hip pain.
Reference was also made to the Campbelltown Hospital Discharge Referral dated 25 February 2021 which recorded that the claimant presented with head, neck, shoulders, back and left ankle pain following the motor accident.
The submissions did not explain how the various injuries were not a threshold injury within the meaning of the MAI Act.
The claimant also referred to the decision of Saleh v Insurance Australia Ltd[16] where it was held that subsequent surgery which involved damage to the nerves, ligaments, menisci or cartilage created a non-threshold injury.
[16] [2024] NSWPICMP 14 (Saleh).
The claimant submitted that the removal of infected hardware from the maxilla was caused by the accident and caused a non-threshold injury.
The claimant also submitted that the medical evidence “confirms that upon examination with his treating doctors, the claimant presented with at least two clinical signs of radiculopathy”. Reference was made to the decision of David v Allianz Australia Insurance Ltd[17]as support for the proposition that previous signs establish that the injury was not a threshold injury
[17] [2021] NSWPICMP 227 (David).
The claimant submitted that there was a “glaring incomplete analysis” of the right shoulder MRI scan dated 21 September 2022.
Insurer’s submission dated 20 May 2024[18]
[18] Insurer’s bundle, p 13.
These submissions referred to the contemporaneous evidence. The insurer submitted that “the available medical information demonstrated no evidence to indicate Mr Cowle had been diagnosed with a nerve injury, complete or partial rupture of tendons, ligaments, menisci or cartilage”.[19]
[19] Insurer’s bundle, p 17.
Insurer’s submission dated 6 August 2024[20]
[20] Insurer’s bundle, p 2.
These submissions were filed opposing leave to review the medical assessment.
The insurer referred to the following pre-accident health issues:
- heavy blow to face in 1996 requiring plate fixation;
- struck in the face with a golf club in 2008 requiring plate and screw fixation;
- infection to the left side of the face in October 2016 requiring drainage, and
- tumour of the left buttock in 2018 requiring surgery and radiotherapy.
The insurer noted the attendances at hospital on 24 February 2021 and the return on 16 March 2021 for treatment of the facial abscess.
The insurer noted the absence of general practitioner (GP) treatment from July 2021 to April 2023.
The insurer submitted that the operation report only showed that existing hardware was removed and submitted that “no drilling too place” and there was no indication of damage to nerves, ligaments, menisci or cartilage from the operation.
The insurer referred to the first instance decision in Mandoukos v Allianz Australia Insurance Ltd[21] where it was held that surgery following an injury is not a separate injury nor a consequential one. It noted the preliminary view of Stern JA in Mandoukos v Allianz Australia Insurance Ltd[22] assuming an operation was a personal injury, a question it was unnecessary to decide, that would be a different injury from the injury sustained at the time of the motor accident.
[21] [2023] NSWSC 1023.
[22] [2024] NSWCA 71 at [91] (Leeming and Kirk JJA agreeing).
The insurer submitted that the claimant has failed to highlight within the medical records the presence of radiculopathy is defined under the Act [sic Guidelines].
The insurer emphasised that there was a lack of evidence of any facial trauma in the motor accident which would support a facial injury resulting in infection and that the claimant otherwise had previous infections of the facial hardware without any trauma.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The pre-accident clinical records of the general practitioner show:
- infection and drainage of the left side of the face in October 2016;[23] and
- infection on the right side of the face in August 2018.[24]
[23] Insurer’s bundle, p 75.
[24] Insurer’s bundle, p 72.
Post-accident medical records
The ambulance report refers to a multiple vehicle incident and one person was trapped in a vehicle and no details of any injuries.[25]
[25] Claimant’s bundle, p 103.
The claimant attended Campbelltown Emergency Department for assessment on 24 February 2021 following the recent motor accident complaining of head, neck, shoulders and left ankle pain and lower leg injury.[26] The clinical notes refer to “numbness and tingling sensation in back and left lower limbs”. Lower limb examination was normal as to tone, power, reflexes, coordination and sensation.[27]
[26] Claimant’s bundle, p 87.
[27] Insurer’s bundle, p 97.
The CT scans of the cervical spine, brain and pelvis dated 25 February 2021 were normal.[28]
[28] Claimant’s bundle, pp 89-90.
The claimant was admitted to the Liverpool Hospital on 16 March 2021 and discharged on 20 March 2021. The diagnosis was right cheek abscess secondary to infected hardware. The claimant did not respond to IV antibiotics and underwent removal of infected hardware of the maxilla from previous facial trauma.[29]
[29] Claimant’s bundle, p 93.
The medical imaging showed large cystic collection in association with facial hardware with “no significant change compared to the prior radiograph”.[30]
[30] Insurer’s bundle, p 103.
The operation notes refer to an “incision and drainage facial abscess and removal of infected hardware”.[31]
[31] Insurer’s bundle, p 103.
The claimant attended his GP on 25 March 2021. The GP noted:[32]
“In Feb 22 21 he had MVA and multiple soft tissue injuries
D/C sum in file
After 3-4 weeks of accident his face swollen and attended hospital and Dx. with shifting plate in his jaw from previous operation and hospital removed it with 3 screws to release pressure from lip …
The pt C/O headache, neck pain, back pain (lower part), insomnia and anxiety”.
[32] Claimant’s bundle, p 48.
The Certificate of Capacity dated 25 March 2021 referred to headache, neck pain, lower back pain, insomnia, anxiety and tiredness.[33]
[33] Claimant’s bundle, p 80.
The X-rays of the cervical spine dated 5 April 2021 showed normal alignment with mild spondylotic changes at C5/6, C6/7 and C7/T1.[34] The X-ray of the pelvis and left hip showed no fractures with early hip joint marginal osteophytes. The X-ray of the left ankle showed no fracture.
[34] Claimant’s bundle, p 50.
The X-ray of the facial bones dated 5 April 2021 showed plates and screws transfixed in the right nasal bone, right maxilla, right frontozygomatic suture and right orbit.[35]
[35] Claimant’s bundle, p 50.
The Certificate of Capacity dated 15 April 2021 referred to headache, neck pain, lower back pain, insomnia, anxiety and tiredness.[36] The GP note referred to neck, back, left ankle and left hip pain.[37]
[36] Claimant’s bundle, p 44.
[37] Claimant’s bundle, p 47.
The claim form dated 19 April 2021[38] refers to the motor accident causing injuries to head and face, discal injury to neck, chronic headaches, radiculopathy from neck and shoulders, injury to mid back, discal injury to lower back, radiculopathy into left leg, numbness in left leg, cut and scar to left ankle, injury to left leg, left hip and left ankle and psychiatric disorder.
[38] Insurer’s bundle, p 38.
RE-EXAMINATION
The claimant was examined by Medical Assessor Curtin on 7 February 2025 who provided the following report.
“Pre-accident medical history and relevant personal details.
Mr Cowle is a single man who is no longer working and is on a disability pension following treatment for cancer in 2018. He does not currently take any regular medications. In 1996 he sustained injuries to the right side of his face in an assault and required the insertion of a plate to his right maxilla. In 2008 he was struck by a golf club to the same site and required further surgical treatment.
The claimant’s medical history, where it differs from previous records.
Mr Cowle sustained injuries in a motor vehicle accident on the 22/02/2021. He was the driver of a car involved in a head-on collision at an intersection. Mr Cowle said that the driver of the other car involved in the collision failed to comply with a traffic signal, and that he estimated that the other driver was travelling at around 80 km/h when the impact occurred. Although his car was written off Mr Cowle seemed to have escaped serious injury and was able to make his way home. He said that because of persistent pain in his head, neck, back and left ankle he attended Campbelltown hospital 2 days later and underwent an assessment which included imaging. Apart from some superficial abrasions to his left ankle no serious problem was found, and he was discharged home the same day. The hospital documents made no reference to any complaints of facial pain, nor was there any record of any facial injury.
There were no records of any visits to his GP, Dr Barich, prior to the 16/03/2021, when Mr Cowle attended Liverpool Hospital with a right-sided cheek abscess. The hospital documents indicate that he was treated with intravenous antibiotics, and as the swelling did not settle, he was taken to the operating room on the 19/03/2021 when some infected hardware was removed from the maxilla. An operation report of the procedure on the 19/03/21 states that there was ‘incision and drainage facial abscess and removal of infected hardware’. Mr Cowle was questioned as to whether any incision was made on his face to remove the hardware. He said that the operation to drain the abscess and remove the hardware was made from within his mouth and that there was no incision made on his face.
Mr Cowle said that since that time he had attended the emergency Department at Liverpool Hospital on at least 2 occasions with recurrent right sided facial pain which was treated with oral antibiotics. He said that 2 or 3 months ago he had attended the hospital for removal of a tooth.
Current symptoms
Mr Cowle said that he still gets intermittent pain on the right side of his face and that he now tends to chew his food on the left side of his mouth. He said there has been no discharge of purulent material onto his face.
He said that following the accident, his neck now feels stiff and sometimes clicks. He said that his right shoulder and mid back also feel stiff, and that his left hip tends to be sore from time to time.
Findings on clinical examination.
Mr Cowle was unaccompanied for the assessment. He was a thin, rather depressed looking Caucasian man of 45 years. He had a fair complexion and a BMI of 21.1 (64 kg and 174 cm).
Examination of his mouth revealed normal jaw opening without chin deviation, and there was no evidence of any TM joint dysfunction. His dentition was complete apart from the loss of 4 upper anterior teeth on the right side (11, 12, 13, 14), and his 3rd molar teeth were either missing or unerupted. His oral hygiene was generally poor and there was some evidence of dental decay. There was no obvious scarring in the upper buccal sulcus on the right side, which would be the usual site for draining a facial abscess via the intraoral route.
There were several scars on the right side of his face. There was a pale depressed scar extending for 4 cm just lateral to the lateral canthus. Immediately adjacent to this, a small bone plate could be palpated along the infra-orbital margin. He had a minor degree of right-sided enopthalmos, but the cheekbone prominence had a relatively normal contour. Just below that prominence, there was a hollowed-out area with a small vertical scar that was not adherent. There was a small area of diminished sensation in the immediate vicinity of this scar, but otherwise facial sensation was unaffected. Normal facial movements were present. There was also a circular scar on the right side of his upper lip where he said he had once been struck with the end of a pipe. This scar was partly hidden by hair growth.
Examination of the neck revealed a symmetrically reduced range of movement to 50% normal on lateral tilt and to 70% normal in other planes. No muscle spasm or guarding was noted. There were no non-verifiable radicular complaints made, and nerve tension signs were negative.
There was a full range of movement in both shoulders, and movements at the other upper extremity joints were symmetrical and within the normal range. There was no evidence of sensory loss or muscle wasting in the upper extremities and reflexes were brisk and symmetrical.
In the thoracic spine there was a moderately and symmetrically reduced range of movement (to 60% normal) in all planes, and no dysmetria. There was no muscle guarding or muscle spasm, and no non-verifiable radicular complaints were made.
In the lumbar spine there was a moderate and symmetrically reduced range of movement (to 70% normal) in all planes, with no dysmetria. No non-verifiable radicular complaints were made, nerve tension signs were negative and there was no muscle spasm or muscle guarding.
There was a full range of movement in both hips, knees and ankles. There was no evidence of sensory loss or wasting in the lower limbs and deep reflexes were brisk and symmetrical. There was no significant scarring on his left lower leg.
Results of any additional investigations since the original Medical Assessment Certificate
There have been no additional investigations.
Comments on the Threshold Injury dispute.
The motor vehicle accident on the 22/02/2021 seems likely to have contributed to the development of an infection around facial hardware used to stabilise an earlier facial fracture. He probably developed a small haematoma in relation to the hardware. The drainage of the abscess on the 19/3/21 did not involve an incision through the skin and there is no evidence that the procedure resulted in any injury to nerve, ligaments, menisci or cartilage.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or not threshold injuries as defined under the MAI Act.
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[39] and Insurance Australia Ltd v Marsh.[40]
[39] [2021] NSWCA 287 at [40], [41] and [45].
[40] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[41] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act. The decision of David has been applied by the Supreme Court in Allianz Australia Insurance Ltd v Susak.[42]
[41] [2021] NSWPICMP 227 at [84]-[104].
[42] [2024] NSWSC 1359 at [91].
We adopt the reasoning in Lynch v AAI Ltd[43] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act. That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2):[44]
“The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty.”
[43] [2022] NSWPICMP 6 at [44]-[62].
[44] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Panel adopts the report of Medical Assessor Curtin and adds the following reasons explaining and supplementing the examination report.
Facial injury and subsequent surgery
There are indications of a head injury in the initial hospital clinical notes as there is reference to head and neck pain[45] and the claimant underwent CT scans of the brain and neck.[46]
[45] Insurer’s bundle, p 95.
[46] Insurer’s bundle, pp 97-98.
In the claim form the claimant otherwise referred to “head and facial injuries”.[47]
[47] Insurer’s bundle, p 39.
We are satisfied, given these histories and the severity of the motor accident, that the claimant probably hit his head during the impact.
The timing of the motor accident and the claimant’s attendance at hospital within four weeks on 16 March 2021 is powerful evidence, in the absence of any other temporal explanation, of a causal relationship between the motor accident and the development of the infection requiring drainage.
The medical explanation for the development of the abscess is that it is more probable than not that the facial soft tissue injury caused some bleeding at the old injury site where the facial hardware was in situ. This is not uncommon. The blood clot becomes infected because it is a focus for bacteria. The timing of the development of the infection is highly suggestive and likely that such a process occurred.
An abscess is an acute inflammation which has become infected, and the infection was drained via intra-oral incision. This was done by a cut at the source of the infection.
The intra-oral incision was not to the “skin” as it was to the inside of the claimant’s mouth. The inside of the mouth is known as the oral mucosa and is not skin. It is not an “organ” of the body. Mucosa is also called mucus membrane. It covers or lines organs and cavities but does not perform physiological functions independently as organs do.
On our reading of the clinical records and Medical Assessor Curtin’s examination, the slight incision to remove the infection did not involve a cut to nerves, ligaments, menisci or cartilage.
The claimant referred to the decision of Saleh as support for the proposition that any surgery must involve injury to the nerves, ligaments, tendons, menisci or cartilage. That proposition does not follow from a finding of causation in a particular matter as findings of factual causation do not create legal precedent: Edwards v Noble.[48]
[48] [1971] HCA 54 at [14] per Barwick CJ.
The surgery in this matter was an incision into the oral mucosa and the removal of hardware. It is unlikely that this minor procedure involved the cutting of nerves, ligaments, tendons, menisci or cartilage.
For these reasons we do not accept that the minor incision undertaken at hospital, would, on balance, have involved an injury to nerves, ligaments, tendons, menisci or cartilage.
We otherwise comment on the insurer’s reliance to Mandoukas v Allianz Australia Insurance Ltd[49] that, as a general proposition, subsequent surgery is not an injury within the meaning of the MAI Act.
[49] [2024] NSWCA 71 (Mandoukas).
The Court of Appeal in Mandoukas held that the general ambit of the medical dispute in that case did not include the allegation that the subsequent surgery involving the removal of bone constituted part of the allegation of injury.[50]
[50] Mandoukas at [95].
Stern JA observed that given the ambit of the medical dispute in that case, it was unnecessary to decide whether the surgery was an injury within the meaning of the MAI Act. Her Honour noted:[51]
“Moreover, given that this is a matter which may ultimately turn upon a detailed factual assessment, it is undesirable for this Court to express any concluded view in circumstances in which there has not been any medical assessment of the impact of the surgery upon Mr Mandoukas.”
[51] Mandoukas at [54].
Mandoukas does not stand for the proposition, frequently suggested by insurers, that any surgery is outside the scope of the extent of the injury caused by the motor accident. In this case the ambit of the dispute identified in the claimant’s submissions dated 1 May 2024[52] clearly articulated that the surgery undertaken four weeks after the motor accident was part of the scope of the medical dispute as to whether this was a non-threshold injury.
[52] Claimant’s bundle, p 21.
We have provided reasons that the minor incision and removal of hardware in this case did not involve injury to nerves, ligaments, tendons, menisci or cartilage. Accordingly, if the surgical procedure was part of the injury caused by the motor accident, it was still a soft tissue injury as defined in the legislation. Accordingly, it is unnecessary to decide if the incision and removal of hardware was part of the injury caused by the motor accident.
Skin injury
The immediate post-accident hospital notes refer “superficial abrasions” of the left lower leg and “slightly swollen of the lateral malleolus and talus”.[53] Elsewhere there is reference to a “L lower leg ankle dry wound”.[54]
[53] Insurer’s bundle, p 96.
[54] Insurer’s bundle, p 96.
The claimant referred to a “cut and scar to left ankle” in the claim form.[55] A subsequent left ankle X-ray was reported as normal.[56]
[55] Insurer’s bundle, p 39.
[56] Claimant’s bundle, p 50.
The claimant reported to Medical Assessor Curtin that the motor accident caused superficial abrasions to the left ankle.
This evidence clearly shows that the motor accident caused a superficial abrasion to the left ankle.
The skin was not mentioned in counsel’s submissions in support of the application to review the medical assessment although the left ankle injury was clearly part of the medical dispute identified by the claimant’s correspondence.
In Allianz Australia Insurance Ltd v the Estate of the Late Summer Abawi[57] the Supreme Court held that an injury to skin is not a soft tissue injury for the purposes of s 1.6 of the MAI Act. As part of those reasons the Court concluded that the decision of a previous Medical Appeal Panel on this issue, Dhupar v AAI Ltd[58] was erroneous.[59]
[57] [2024] NSWSC 1245 (Abawi).
[58] [2023] NSWPICMP 99 (Dhupar).
[59] Abawi at [66].
The issue of binding precedent was considered by the President of the Commission in Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos.[60] The President referred to the judgment of Barwick CJ in Favelle Mort Ltd v Murray[61] where the Chief Judge was discussing the position following the abolition of appeals from the High Court to the Privy Council. Barwick CJ stated:
“... within this body ofprecedent there are decisions or statements of principle which a court will be obliged to follow and apply. The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgement, has laid down that principle as part of the relevant law.”
[60] [2024] NSWPICPD 7.
[61] [1976] HCA 13; 133 CLR 580 (Favelle Mort).
The decision in Abawi is binding on the Panel as it is a decision of the Supreme Court in the same hierarchy directly on this issue.
The left ankle abrasion involves a short-term pathological change to the skin which healed within weeks without any complications. However, it is clearly an “injury” within the meaning of the MAI Act as the abrasion is a “definite or distinct physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’”.[62] This pathological change caused by the motor accident is an injury to an organ. Based on the construction of the meaning of soft tissue injury in Abawi, this is a non-threshold injury.
[62] See Mandoukas at [52] applying Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [75] (Gageler J) and at [45] (French CJ, Kiefel, Nettle and Gordon JJ).
The Panel cannot comment on the legislation and are bound to apply a Superior Court decision. Whilst all the other claimant’s submissions have been unsuccessful, we find that the superficial skin abrasion constitutes a non-threshold injury caused by the motor accident.
Radiculopathy
The claimant‘s legal representatives alleged two signs of radiculopathy without identifying the relevant signs. There is no reference within the medical records of two signs of radiculopathy as defined in the Guidelines There is reference in the material to complaints of radicular pain which is not the same thing as radiculopathy. The radicular pain is described in the Guidelines as “non-verifiable radicular pain”.[63]
[63] See cl 6.140 of the Guidelines.
Whilst we accept that past signs of radiculopathy are sufficient to establish a non-threshold injury, the claimant has not identified, and we could not find any support for the proposition that the claimant had any signs of radiculopathy as defined in the Guidelines.
Other injuries
The scan evidence such as the initial X-rays and CT scan were normal for the claimant’s age with mild degenerative changes. These changes must have preceded the motor accident due to the short time between the accident and the pathology shown on the radiology which was not acute but degenerative changes.
The claimant in his submissions asserted that there was a failure by the original Medical Assessor to explain how the various injuries were not a threshold injury. However, the claimant did not identify which pathology was supposedly caused by the motor accident and how this pathology fell outside the definition of a threshold injury. Whilst involved in a serious accident, the various complaints of pain to several body parts did not reveal pathology which would mean that those injuries fell outside the definition of a threshold injury.
The examination undertaken by Medical Assessor Curtin and the original Medical Assessor otherwise did not support a clinical basis for a finding that there was not a threshold injury. Furthermore, whilst generally referring to the medical evidence in his submissions, the claimant did not identify with any precision and proper basis support for a finding that he suffered a non-threshold injury to the various other body parts.
Right shoulder
The claimant reference the MRI scan of the right shoulder dated 21 September 2022. The right shoulder was not referenced in the hospital records, early complaints or in the claim form.
The claimant did not allege that he suffered a right shoulder injury to Medical Assessor Curtin.
The absence of contemporaneous complaint is relevant but not determinative to the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[64] and AAI Ltd v McGiffen.[65]
[64] [2021] NSWSC 548 (Norrington).
[65] [2016] NSWCA 229 at [64]-[66].
An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[66] Accordingly, the absence of complaint of injury to a body part must also be relevant to the issue of causation. We note that the claim form identified several injuries but was silent on the suggestion that the right shoulder was injured.
[66] [2014] NSWSC 888 at [31]-[32].
For these reasons we are not satisfied that the motor accident caused a right shoulder injury.
CONCLUSION
For these reasons the medical assessment certificate is revoked. A new medical assessment certificiate is attached at the commencement of these Reasons.
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