Dhupar v AAI Limited t/as GIO
[2023] NSWPICMP 99
•20 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dhupar v AAI Limited t/as GIO [2023] NSWPICMP 99 |
| CLAIMANT: | Reena Dhupar |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 20 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act2017; the claimant suffered injury whilst riding a scooter whit hit by the insured; the claimant suffered soft tissue injuries and multiple abrasions with residual scarring; the dispute related to whether the injury was a minor injury; claimant re-examined; discussion of interpretation of minor injury with reference to skin injury; Nazari v AAI Ltd not followed as the words of the section cannot be construed solely by reference to purpose; The Queen v A2 applied; Al- Khafaji v Insurance Australia Ltd not followed as the fact that skin is an organ does not answer that part of the definition concerning whether the soft tissue injury surrounds structures; discussion of structures; a skin injury satisfies the definition of a soft tissue injury and is encompassed within the concept of a minor injury subject to whether there is an injury to a nerve which would then take the injury outside the definition; Held – claimant did not suffer an injury to a nerve from the various skin injuries; original Medical Assessment Certificate confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Minor injury Review Panel Assessment of Minor Injury The Review Panel confirms the certificate dated 16 September 2022. |
REASONS
BACKGROUND
Ms Reena Dhupar (the claimant) suffered injury in a motor accident on 8 January 2022 (the motor accident) when the insured vehicle pulled out from the kerb striking the claimant who was riding on a scooter.[1]
[1] Claimant’s bundle, p 10.
The insurer is liable to pay to Ms Dhupar 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 Ms Dhupar’s injury is classified as a “minor 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 minor 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 minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[3]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
MEDICAL ASSESSMENT
The medical dispute was referred to Medical Assessor Home who issued a Medical Assessment Certificate dated 16 September 2022.[5] Medical Assessor Home concluded that Ms Dhupar sustained injuries which were a minor injury within the meaning of the MAI Act.
[5] Insurer’s review bundle, p 6.
The Medical Assessor found no evidence of radicular elements or verifiable radiculopathy and diagnosed a soft tissue injury to the cervical spine, soft tissue injuries to the chest and lumbar spine, contusions to the knees with fine crepitus and multiple abrasions with residual scarring.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by
Ms Dhupar within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.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; Claimant’s bundle, p 4.
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 Personal Injury Commission (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 (the 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 Panel called for further submissions after it issued a Direction to the parties in the following terms:
“The Panel understands that the following material is before it:
- Claimant’s bundle – A1 (141 pages);
- Claimant’s further submissions – A1 (9 pages);
- Insurer’s bundle – R1 (149 pages);
- Insurer’s further submissions – (17 pages);
- Direction – Eftikari v AAI Ltd, 9 September 2022.
The parties are to immediately advise the Panel if our understanding is incorrect.
The Panel notes the following matters:1. The direction issued in Eftikari is expressed as a preliminary view and cannot be considered a reasoned decision.
2. The Panel acknowledges the submissions and considers that it can determine questions of causation on the papers and using the examination findings of Medical Assessor Home.
3. In relation to the issue of whether injury to the skin falls within the meaning of ‘minor injury’ the parties are on notice about the following matters:
A.Section 1.6 of the MAI Act defines a soft tissue injury as ‘an injury to tissue that connects, supports or surrounds other structures or organs’. Consideration should be given to whether a skin injury falls within the former, that is ‘an injury to tissue that connects, supports or surrounds other structures’ as opposed to ‘an injury to tissue that connects, supports or surrounds … organs’.
B.That skin is an organ as commonly understood by the medical profession and referred to in cl 6.263 of the Motor Accident Guidelines and AMA 4 (page 280) which provides:
‘If impairment from a skin disorder is to be considered along with a component based on any other organ system, both components first must be expressed as whole person impairment and then combined using the Combined Values Chart (p 322).’ (emphasis added)
C.‘Body structures’ is defined by the World Health Organisation as ‘anatomical parts of the body such as organs, limbs and their components’ - ( The Panel is considering referring to that definition in its Reasons.”
A further direction was issued on 2 March 2023 which advised the parties of details for the claimant’s medical examination and further advised the parties as follows:
“The Panel otherwise requires responses to our previous direction on the statutory construction of the meaning of minor injury with respect to a skin injury.
For the avoidance of any doubt, the Panel requests the parties to address whether a skin injury would fall within that part of the minor injury definition of ‘an injury to tissue that connects, supports or surrounds other structures’ unless the injury otherwise involved ‘an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage’.”The claimant subsequently filed a further bundle of documents on 7 March 2023 which did not respond to either the second and/or third direction. That bundle repeated the documents previously filed and added a further 300 plus pages.
No further submissions were included in this bundle which had not been included in the previous documents and no submissions were filed referring to the relevance of the further material. The Panel were left to guess how the further materials were relevant to the issues for determination in the absence of further submission.
We otherwise note that the further documents contained photographs of the claimant’s scars. That material was of assistance although the Panel ultimately determined that it would examine the claimant and we have the benefit of the subsequent examination findings made by Medical Assessor Cameron.
The claimant then filed submissions in response to these directions.[11] The claimant submitted that:
· The skin is an organ of the body on any plain reading of the legislation and the Guidelines including cl 6.263 of the Guidelines.
· There was no doubt that a skin injury fell outside the definition of minor injury.
· The statutory definition of a soft tissue injury does not relate to injury to organs of the body but “only to tissue that connects, supports and surrounds other organs of the body”.
· The injury is traumatic scarring which is injury to the skin. Scars are defined in American Medical Association Guides to the Evaluation of Permanent Impairment, 4th ed (AMA 4) as “cutaneous abnormalities that result from the healing of burned, traumatized, or diseased tissue”[12] and are assessed based on dimensions, shape, colour, location evidence of ulceration, depression or elevation (atrophic or hypertrophic), texture and attachment to underlying tissue or bones.
[11] Submissions dated 9 March 2023.
[12] AMA 4, p 279.
The claimant filed a further submission on 13 March 2023 referring to the Medical Review Panel decision in Al-Khafaji v Insurance Australia Ltd[13] as supporting its construction of minor injury.
[13] [2022] NSWPICMP 519 (Al-Khafaji).
On 16 March 2023 the Insurer advised the Panel that it did not wish to make any further submissions.
STATUTORY PROVISIONS
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 minor injury for the purposes of the Act. Version 9 of the Guidelines 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 minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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.”
Clauses 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 minor injury. An injury resulting in radiculopathy will not be classified as a minor 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 minor injury.[14]
[14] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[15]
SUBMISSIONS
Claimant’s submissions dated 17 July 2022[16]
[15] See s 3B(2) of the Civil Liability Act 2002.
[16] Claimant’s bundle, p 2.
The claimant alleged that the motor accident caused the following injuries:
(a) injury to the cervical spine – soft tissue injury with radiculopathy;
(b) injury to right shoulder - rotator cuff injury;
(c) injury to chest – soft tissue injury;
(d) injury to right arm – soft tissue injury;
(e) injury to the lumbar spine – soft tissue injury with radiculopathy;
(f) injury to left leg – soft tissue injury;
(g) bilateral knees – soft tissue injury;
(h) both feet – soft tissue injury, and
(i) psychological injuries (anxiety, depression and post-traumatic stress disorder).
The claimant referred to the certificates of capacity and the report of Dr Ford dated
1 March 2022, physiotherapy report of Mr Shirazi and clinical notes of Central to Health and submitted that the “physical injuries do not meet the criteria of ‘minor injury’ under the [MAI] Act”.
Claimant’s submissions dated 14 October 2022[17]
[17] Claimant’s review submissions.
These submissions were filed seeking a review of the Medical Certificate.
The claimant noted that the Medical Assessor found scarring to multiple areas of the body. It noted that skin is an organ of the body and submitted:[18]
“17. The Claimant submits that the clear meaning of the text is that a ‘soft tissue injury’ does not relate to organs of the body but only to tissue that connects, supports and surrounds organs of the body. Thus, a laceration or abrasion to the skin fall within one of the exceptions to the first phrase of the definition, that is, it does not constitute an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
18. The Claimant submits that whilst regulations may be made pursuant to section 1.6 of the MAI Act to exclude or include a specified injury from being a soft tissue injury, the regulations do not refer to the skin.”
[18] Claimant’s review submissions, [17].
The claimant referred to a report and direction issued by another Panel in Eftikhari v AAI Ltd as supporting this submission.
The claimant submitted that the radiculopathy could occur at any time referring to David v Allianz Australia Insurance Ltd.[19] It submitted that the claimant presented with at least two signs of radiculopathy which were:
(a) record by Medical Assessor Home of early complaints of paraesthesia in the ulnar three digits;
(b) symptoms of restricted movement and mild weakness in the right shoulder;
(c) slight muscle wasting of the left vastus medialis muscle in the left thigh, and
(d) mild patellofemoral joint crepitus.
[19] [2021] NSWPICMP227 (David).
The claimant submitted that she received a rotator cuff tear referring to the certificates of capacity, referral to and treatment by a physiotherapist, chiropractor notes and clinical notes of the general practitioner (GP).
Insurer’s submissions dated 10 August 2022[20]
[20] Insurer’s bundle, p 1.
The insurer submitted that the claimant sustained minor injuries to the right shoulder, chest, right arm, left leg and both knees. The claimant did not sustain injuries to the neck and back given the absence of contemporaneous evidence in support of those body parts (first report being 1 March 2022 and 28 April 2022).
Insurer’s submissions dated 2 November 2022[21]
[21] Insurer’s review submissions, [11].
These submissions were filed in respect of the review application.
The insurer doubted the relevance of the preliminary review expressed in Eftikhari, did not concede that scarring is considered a non-minor injury but conceded that the Medical Assessor provided no reasons on the issue.
The insurer submitted that the claimant misconceived the reference to radiculopathy as she referred to symptoms in the shoulders and the lower extremities as “radiculopathy only relates to the neck and spine”.[22]
[22] Insurer’s review submissions, [17].
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
In March 2021 the GP noted that the claimant had chronic low back pain and was seeing a chiropractor “with good effect”.[23]
[23] Insurer’s bundle, p 23.
An X-ray of the left knee dated 12 August 2021 was normal.
Ambulance report
The ambulance report relevantly provides:[24]
“CT 37 YOF motor scooter MVA. OA pt mobile, GCS 15, well perfused. NSWPF ONS. Pt states she was travelling approx. 40-50 km/h when a parked pulled in front of her without indicating. This caused pt to swerve, scooter slid out from under pt and his vehicle, pt slid along road. Pt has grazes to both knees, ankles and R elbow, as well as pain to R shoulder. Pt denies head impact. Nil c-spine tenderness. O/E pt obs WNL. Nil loss of mobility. Nil loss of movement, good ROM in all limbs nil deformities present.”
[24] Insurer’s bundle, p 139.
Radiology
An ultrasound of the right shoulder dated 10 January 2022 showed bursitis with moderate bunching of the bursa. The AC joint was normal, and the supraspinatus and subscapularis were intact.[25]
[25] Insurer’s bundle, p 64.
The X-ray of the right shoulder and left knee dated 10 January 2022 was normal.[26]
Clinical notes
[26] Insurer’s bundle, p 65.
The clinical notes in January 2022 refer to pain and restriction of movement in the right shoulder and abrasions in both knees and feet.[27] On 12 January 2022 Dr Sahade noted:[28]
[27] Insurer’s bundle, p 13.
[28] Insurer’s bundle, p 12.
“states some weakness R arm
o/e – neuro examination-
BR reflex – unable to be elicited bilaterally
Biceps reflex N
Sensation intact
Power – N 5/5/ - all mm groups
Tone N
c-spine – non tender and full ROM
imp – swelling/soft tissue injury – related.”
The doctor also noted sharp pain in the left knee anteriorly on standing.
On 14 January 2022, Dr Sahade noted:[29]
“R shoulder –
Painful arc – abduction to 50 deg then pain 50 – 130 deg
Feels weak in the painful part of the arc
Still swelling and bruising
Scans- bursitis only
Wakes with paraesthesia 4/5 fingers, R hand – likely some ulnar n compression from swelling at the elbow
C-spine – non tender and pain – free ROM.”
[29] Insurer’s bundle, p 12.
A certificate of capacity dated 17 January 2022 referred to the following injuries:[30]
“MBA: Rotator cuff injury to R shoulder, soft tissue injuries: both knees and feet. Extensive bruising – R upper arm, R lateral chest wall, L lower leg, behind both knees.”
[30] Claimant’s bundle, p 29.
Subsequent certificates repeated the above diagnosis.
The notes of the GP dated 8 February 2022 record:[31]
“Hit knees, top of feet hard - R shoulder (bruising around and under shoulder blade, Jaw pushed to left.
R shoulder pain on lifting and reaching
….
supraspinatus, teres major and post/mid delt and wrist flexion pain and weakness on testing.
positive R painful arc on active ROM
restricted right cervical LF, mid cervical segmental PA and bilateral ROM (no acute pain, but relief with PA segmental)
poor Left hip flexor strength - restricted BL ankle dorsiflexion, decreased BL glut activation and R SL prone (RPI pelvis with a LAS) decreased L S1 reflex.”
[31] Claimant’s bundle, p 102.
On 12 April 2022 the GP noted there was “hypersensitivity to touch B/L knees”.[32]
[32] Claimant’s bundle, p 103.
The Allied health recovery request dated 1 March 2022 referred to a right rotator cuff injury affecting the sternoclavicular and acromioclavicular joints and whiplash injury.[33]
[33] Claimant’s bundle, p 45.
The physiotherapy report of Mr Shirazi dated 8 March 2022 provided a diagnosis of “non specific back pain, bilateral anterior knee pain – R (greater than) L, kinesiophobia”. The physiotherapist noted the following symptoms:[34]
“LBP AFTER PROLONGED SITTING + FLEXION INTOLERANT - L4,5,S1- VAS = 4/10 ANTERIOR KNEE PAIN WALKING, GOING UP STAIR AND DURING PROLONGED SITTING - KNEE FLEXION - L = 150°, R = 145° REDUCED LOWER LIMB STRENGTH - INABILITY TO ACHIEVE A SINGLE LEG SQUAT OFF A CHAIR KINESIOPHOBIA - TAMPA SCALE = 37.”
[34] Claimant’s bundle, p 48.
Claim form
Ms Dhupar completed a claim form dated 3 February 2022.[35] After referring to the motor accident, Ms Dhupar stated that she received injuries including a painful right shoulder with an inability to lift her arm, painful right wrist, bruising to parts of the body, cuts and grazes to both knees and feet and anxiety.
[35] Claimant’s bundle, p 8.
RE-EXAMINATION
The claimant was examined by Medical Assessor Cameron on 14 March 2023. The examination report is as follows:
“Current Status
Ms Dhupar said that there had been no major changes since her previous assessment.
Ms Dhupar said that she was concerned about the scarring. She said that she covers the scars therefore she is reluctant to wear swimwear or dresses.
Ms Dhupar said that she has difficulty kneeling due to knee pain. There is sometimes ankle pain.
There are no regular medications. She on occasions takes analgesics. She said she applies silicone ointment to the scars on her knees.
Ms Dhupar has reported seeing a psychologist every two to three weeks. She consults her usual General Practitioner Dr Sohardi as required. Ms Dhupar said that she has a treatment from a chiropractor about each three weeks.
Ms Dhupar is trying to be active and attends a Pilates session about twice weekly.
Ms Dhupar is working full-time as a project manager. She is not driving or riding but travels by public transport. She is living in a shared house at Marrickville.
Examination
Ms Dhupar is right handed, 164 cm in height and weighs 65 kg.
Ms Dhupar was co-operative and provided a clear history.
At the cervical spine there was a full range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders.
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
Circumferences of the upper extremities were right 23cm and left 23cm.
At the thoracic spine there was a full range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was a full range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both knees. There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities were right 35cm and left 35cm.
Ms Dhupar walked with a normal gait.
There were multiple small scars. Some were hyperpigmented, some were hypopigmented.
Ms Dhupar said that the scars were more sensitive to touch than the surrounding skin.
On the anterior aspect of the right knee there was a 1 cm circular scar and adjacent to the right tibial tuberosity there was a 2.5 cm x 1 cm pigmented scar. Also on the right lower leg on the anterior aspect of the ankle there is a 1 cm pigmented scar.
On the right foot there was a scar on the medial aspect of the big toe which was difficult to see and three small hypopigmented scars at the base of the toes.
On the left leg there was a 1 cm circular scar anteriorly, there was 0.5 cm scar adjacent to the tibial tuberosity. There was a 7 cm x 1 cm discoloured area over the proximal and lateral aspect of the right leg below the knee.
There were several small circular scars on the left foot.
At the right elbow there were two small scars adjacent to the olecranon and slightly more distally. These were not prominent.
Diagnosis and Prognosis
Ms Dhupar sustained soft tissue injuries in the motor scooter incident. There is residual scarring which is significant. There is no evidence of radiculopathy.”
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 minor or non-minor 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[36] and Insurance Australia Ltd v Marsh.[37]
[36] [2021] NSWCA 287 at [40], [41] and [45].
[37] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[38] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[38] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[39] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[39] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Cameron and adds the following reasons.
Lumbar spine injury
We do not accept that the lumbar spine was injured in the motor accident.
The pre-accident clinical notes refer to a chronic history of low back problems.
There is an absence of record of complaint of low back problems in the various clinical records following the motor accident.
The claimant did not refer to the back being injured in the claim form. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[40] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.
[40] [2014] NSWSC 888 (Bugat) at [31]-[32].
We otherwise observe that there are no recorded signs of radiculopathy for the low back in the various clinical notes and in Medical Assessor Cameron’s examination. Whilst the insurer’s submission about the existence of signs being limited to the spine is simply wrong, the symptoms referenced in the lower leg are due to the soft tissue bilateral knee injuries.
Right shoulder
The claimant injured her right shoulder in the motor accident with contemporaneous complaints of pain described by medical practitioners as a rotator cuff injury.
The ultrasound of the right shoulder showed bursitis with moderate bunching of the bursa, the AC joint was normal, and the supraspinatus and subscapularis were intact.[41]
[41] Insurer’s bundle, p 64.
Bursitis is inflammation of the joint and is evidence of recent injury. The claimant clearly sustained an injury to the AC joint which is comprised of soft tissue. However, the scan does not show any relevant tear and there were no clinical examination findings supporting such a diagnosis.
The claimant sustained a soft tissue injury to the right shoulder which is a minor injury as defined in the MAI Act.
Upper limb radiculopathy
The claimant referred to hand symptoms as evidencing radiculopathy from the cervical spine. However, the findings of the GP on 14 January 2022 described these symptoms specifically. The GP stated:
“Wakes with paraesthesia 4/5 fingers, R hand – likely some ulnar n compression from swelling at the elbow.”
The doctor otherwise recorded nil spine tenderness and full range of movement on
12 January 2022 consistent with an absence of neck injury noted by the ambulance officer.There is no contemporaneous complaint of cervical spine injury, and that body part is not mentioned in the claim form. There are otherwise positive findings of an absence of injury, specifically no tenderness and full range of motion in the cervical spine.
We do not accept that the cervical spine was injured in the motor accident.
We do not accept that there were findings of radiculopathy from the cervical spine recorded by the GP, any other medical practitioner or the Medical Assessor. The clearest summary of the arm/hand symptoms are recorded above at [72] and are likely caused by the soft tissue to the right elbow compressing the nerve and producing symptoms in the right hand.
ISSUE OF MINOR INJURY INVOLVING AN INJURY TO SKIN
Principles of statutory interpretation
As the plurality stated in Military Rehabilitation and Compensation Commission v May[42] the “question of construction is determined by reference to the text, context and purpose of the Act” citing Project Blue Sky Inc v Australian Broadcasting Authority[43] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[44]
[42] [2016] HCA 19 (May) at [10].
[43] [1998] HCA 28 [69]-[71].
[44] [2009] HCA 41 (Alcan) at [47].
In Grain Growers Limited v Chief Commissioner of State Revenue (NSW)[45] Beazley P stated (with whom Bathurst CJ and Leeming JA agreed) that “the starting point and end point is with the text of the provision”, citing the comments of the High Court in Alcan at [47] when the plurality stated:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (footnotes omitted)
79.The suggestion in Alcan that the task of statutory construction must begin with the text does not ignore considerations of context and purpose. In SZTAL v Minister for Immigration and Border Protection[46] the High Court stated:
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (footnotes omitted)
[45] [2016] NSWCA 359 at [108].
[46] [2017] HCA 34 at [14].
Similar observations were made by Kiefel CJ and Keane J in the Queen v A2[47] when their Honours stated:[48]
“The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. ‘Mischief’ is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.” (footnotes omitted)[47] [2019] HCA 35.
[48] At [32]-[33].
Their Honours cited Heydon’s Case[49] as authority for the proposition that “‘mischief’” was an “old expression”. In Heydon’s Case the Court of Exchequer referred to a relevant consideration of construction of the statute being the “mischief and defect for which the common law did not provide”.
[49] [1584] EngR 9; (1584) 76 ER 637 at 638.
The MAI Act limits an entitlement to bring a claim for common law damages “if the person’s only injuries resulting from the accident were minor injuries” (s 4.4). Statutory benefits otherwise cease after six months based upon the same test (s 3.28(1)(b)).
If any injury resulting from the motor accident is determined to be non-minor, then the injured person has both an entitlement to bring a claim for common law damages and, subject to other restrictions, receive statutory benefits after the six-month period.
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Within these reasons we have referred to either a soft tissue injury or minor injury interchangeably, although the latter is a wider concept as it also includes a minor psychological or psychiatric injury.
Section 1.6(2) of the 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 minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor 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.
Section 1.6(3) provides an acknowledgement in the application and administration of the MAI Act that:
“[P]articipants in the third-party insurance scheme have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable and of promoting the recovery and return to work or other activities of those injured in motor accidents.”
Section 1.3(4) of the MAI Act provides that in an interpretation of a provision of the Act or the regulations, a construction that would promote the objects of the MAI Act is to be preferred over a construction that would not promote those objects. Keeping premiums affordable in the context of “limiting benefits payable for minor injuries” is one of the objects of the MAI Act (s 1.3(2)(d)).
These provisions create a clear general purpose in the MAI Act to limit entitlements for a person whose only injuries resulting from the motor accident were minor injuries.[50]
[50] The Minister’s second reading speech on the introduction of the Bill for the MAI Act does not add anything to the construction of soft tissue injury that is otherwise evident form the various provisions of the MAI Act (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2017).
We could not find any authorities from other jurisdictions as the relevant provisions in the MAI Act have not been adopted in other jurisdictions.
The principle of reading legislation in accordance with its purpose was discussed in All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd[51] when Leeming and Payne JJA observed:[52]
“42. The applicant repeatedly invoked in support of its construction the legislative purpose, which was to benefit subcontractors in its position. But Gleeson CJ observed in Carr v Western Australia(2007) 232 CLR 138; [2007] HCA 47 at [6] that:
‘[T]he underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose.’
43. In Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd[53] it was said, by reference to Carr, that:
‘Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem’.”
[51] [2017] NSWCA 289.
[52] At [42]-[43], White JA agreeing.
[53] (2013) 248 CLR 619; [2013] HCA 36 at [40].
We accept that the purpose of defining minor injuries is to limit a claimant’s entitlements, consistent with the objective of limiting benefits payable for minor injuries and minimising premiums (s 1.3(2)(d)). However, that purpose does not mean that plain words are not read in accordance with their natural meaning. As Kiefel CJ and Keane J stated in The Queen v A2:[54]
“These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words.”
[54] [2019] HCA 35 at [36].
Consistent with the above authorities we do not agree with the reasoning in Nazari v AAI Ltd[55] that a purpose is identified, and the section construed to limit the entitlement and exclude an injury to skin without analysing the words of the section. We do not agree that a relevant consideration in the construction is that an interpretation favouring skin from being accepted as a non-minor injury is that it could lead to compensation being awarded for an “exaggerated claim”.[56]
[55] [2023] NSWPICMP 62 (Nazari).
[56] Nazari at [82].
Some skin injuries can be insignificant whilst others can be either serious and/or psychologically disturbing, particularly when the effect is visible. The removal of a general type of injury (such as skin) from the meaning of minor injury, as was suggested in Nazari, means that the decision maker is determining what general types of injuries are considered minor and non-minor based on keeping premiums at a minimum because of the concern of exaggerated claims.
We otherwise do not agree as was suggested in Nazari that defining any skin injury as non-minor is absurd. As we noted, some skin injuries may be serious.
The definition of what constitutes a soft tissue (minor) injury is not dependent upon the seriousness of the injury and is wholly directed to the nature of the pathology caused by the motor accident. A broken bone is clearly not a minor injury, and it may heal within a short period and result in no longstanding effects. However, there are many back and neck injuries caused by motor vehicle accidents where the ongoing effects are unremitting but would fall within the definition of a soft tissue injury.
The language used in the section is problematic as the legislature has used a short form definition to potentially cover the classification of any physical injury to the body. That a variety of injuries are defined as “minor” reflects the application of the words of the provision rather than the seriousness of the injury.
We make some observations on the interpretation of the definition of a soft tissue injury.
First, the words appearing in the parentheses, “such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes” are examples that relate back to the meaning of “tissue” and do not relate to the preceding words (“organs”). This is because the examples in the parentheses are not organs and fit within both a lay and medical meaning of “soft tissue”. That the parentheses appear later in the provision is not an indicator that they relate to something appearing later in the definition as it is simply a convenient drafting method.
The words in the parentheses provide examples but are not exhaustive of what is meant by “soft tissue”.
Secondly, the words at the end of the definition, “but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage” are an exception to what would fall within the meaning of a “soft tissue injury” that appears in the first part of the definition. We observe that there is a mistaken tendency to go to the exclusion at the end of the provision, find that this is not satisfied, and then conclude that the injury is a soft tissue injury.
It is still necessary for an injury to satisfy the first part of the sentence for it to be classified as a minor injury and then determine whether it is otherwise excluded by the latter part of the definition.
Thirdly, the definition refers to injury to tissue that connects, supports or surrounds “other structures or organs of the body” (emphasis added). It is our view that an injury is minor if it is an injury to tissue that:
· connects, supports or surrounds other structures, or
· connects, supports or surrounds organs of the body.
That construction gives effect to the normal meaning of “or” and is otherwise consistent with the general purpose provided by s 1.6(4) of the MAI Act. It otherwise strives to “give meaning to every word of the provision”.[57] Contextually and considering the evident purpose of the provision, the physical injury is a soft tissue injury if either concept from the previous paragraph is satisfied.
[57] Project Blue Sky at 1998 HCA 28 at [71].
There is no doubt that “skin” is an organ. That proposition is otherwise confirmed by cl 6.263 of the Guidelines and AMA 4.[58] That those provisions apply to the assessment of permanent impairment does not detract from basic medical knowledge that skin is an organ of the human body.
[58] AMA 4, p 280: “If impairment from a skin disorder is to be considered along with a component on any other organ system …”.
We agree with the claimant’s submission on this point although that does not dispose of the question of construction.
In its further submissions the claimant referred to the reasons of another Review Panel of Al-Khafaji v Insurance Australia Ltd[59] where the Panel stated:[60]
“The claimant’s surgery might also involve the cutting of tendons, ligaments or other tissue impinging the nerve root. The surgery certainly involves an incision into the skin which is considered an organ of the body elsewhere in the Guidelines. An injury to the skin is, in the view of the Panel not a minor injury because it is an injury to an organ not ‘an injury to tissue that connects, supports or surrounds [an organ] of the body’.”
[59] [2022] NSWPICMP 519 (Al-Khafaji).
[60] Al-Khafaji at [98].
The claimant’s submission is that because skin is an organ it cannot be an injury to tissue “that connect, supports or surrounds an organ of the body”.
We agree that it is non-sensical that an injury to an organ could fall within the scope of an injury to “tissue that connects, supports or surrounds” itself. However, it is plausible that the injury could be to tissue that connects, supports or surrounds other organs.
There were no submissions on whether the injury to skin as an organ may be an injury to tissue that connects, supports or surrounds other organs. That was not considered by the claimant nor in Al-Khafaji. For the reason set out below, it is unnecessary to decide that alternative construction.
We are satisfied that an injury to skin is an injury to soft tissue that “connects, supports or surrounds other structures”. This interpretation was raised with the parties, particularly in the direction dated 2 March 2023.
In Coleman v Power[61] Kirby J stated:
“It is not the judicial obligation to put specifically to parties … every rule of statutory construction relevant to the performance of the judicial task. Subject to considerations of procedural fairness, this Court may adopt a construction of legislation that has not been argued by the parties, and a fortiori it is not restricted to the interpretive principles argued by their representatives.”
[61] [2004] HCA 39 at [243].
No relevant submissions were received on the construction of “structures” and this was otherwise not considered by the Review Panel in Al-Khafaji.
We do not agree that the claimant’s submission and the brief reasoning in Al-Khafaji is correct because it focused on the word “organs”, did not discuss whether an injury to skin is a soft tissue injury and failed to consider the issue on a proper construction of s 1.6(2).
It is necessary to make some observations of what comprises the skin. These observations are not controversial and are derived from the specialist medical knowledge on the Panel which includes a plastic surgeon.
The skin is an organ which covers the external surface of the body, except for the eyes and body orifices. It provides the individual with protection from physical injury, assists in the maintenance of the internal environment, and being sensate, allows the individual to interact with the external environment.
The skin is essentially composed of two layers, an outer thin layer, the epidermis, and an inner thick layer, the dermis.
The epidermis is composed of specialised cells, which are continually replaced and shed, allowing the layer to quickly counteract the effects of wear and tear. The epidermis is waterproof, and although quite thin, prevents the skin from drying out.
The dermis by contrast is a thick, strong fibrous layer of non-specialised cells whose function is to support the epidermis. Where the skin is under a lot of tension, such as on the back, the dermis may be 3 - 4mm thick. (This is why the skin of animals can be used for footballs.) In the eyelids however, the dermis will be less than a millimetre in thickness.
The skin also includes microscopic structures to assist its function. It has a blood circulation for nutrition and temperature regulation and a nerve supply for sensation. Sweat glands also regulate temperature and sebaceous glands oil the skin surface. Pigment cells provide sun protection, and hair, which can also provide sun protection and plays a role in social interactions.
The fact that the skin is an organ does not mean that the definition is not otherwise analysed in determining whether an injury to skin falls within the meaning of a soft tissue injury.
As we noted, the definition requires the satisfaction of discrete concepts.
The skin is comprised of tissue as defined in s 1.6(2). Accordingly, an injury to skin is an injury involving the cutting of fibrous tissues, fat and blood vessels.
It is also necessary to consider whether the injury is to tissue that “connects, supports or surrounds other structures”.
The meaning of “other structures” is not defined in the MAI Act. The legislature did not use the word “systems”, which has a clear medical meaning such as the skeletal, nervous or cardiovascular systems. The meaning of “other structures” is clearly not limited to those examples and is probably wider than “organs”.
The Panel referred the parties to the World Health Organisation definition of “body structures” which provides that it is “anatomical parts of the body such as organs, limbs and their components”. Whilst that definition could not provide a definition of “structures” within the MAI Act, it provides some understanding of the scope of “structures”.
Clearly some bodily features fall within the meaning of structures such as the skeletal and muscular systems as these fit within both a lay and medical definition of “structures” within the body.
The skin otherwise “supports or surrounds” other structures such as the skeletal and muscular structures of the body. That medical proposition is self-evident.
Based on these findings, the Panel is satisfied that a skin injury satisfies the definition and constitutes a soft tissue injury which is encompassed within the concept of a minor injury subject to what is set out below.
The Panel previously observed that the skin also comprises nerve supply for sensation. A small cut will unlikely involve an injury to nerves. Each injury is obviously fact sensitive.
However, a proper medical examination is required to determine whether the skin injury involves an injury to a nerve and falls outside the definition of a soft tissue injury.
This does not mean that the severity of the skin injury and whether the injury is a minor injury should be based on some subjective measure such as the application of the TEMSKI scale for assessing impairment but rather, based on medical examination and other matters. The nature of the pathology of the injury with particular regard to whether there is an injury to nerves will determine whether the injury is a soft tissue injury, and by definition, a minor injury.
Skin injury
Ms Dhupar clearly sustained multiple lacerations to various parts of the body. These lacerations have resulted in scarring described in the examination findings of Medical Assessor Cameron.
Based on the examination findings of Medical Assessor Cameron and the expert medical opinion within the Panel, we are not satisfied that the various scars caused any injury to nerves. Some of the scars were reported as being hypersensitive which is probably due to the scarring given their size rather than any injury to a nerve.
The Panel accepts that an assessment of the scarring under the TEMSKI scale would result in a small percentage of permanent impairment. However, given the definition and the reasons on interpretation, we cannot make a finding that the claimant sustained a non-minor injury.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor Home is confirmed.
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