Ghaznawi v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Ghaznawi v Allianz Australia Insurance Limited [2023] NSWPICMP 603
CLAIMANT:	Fareshta Ghaznawi
INSURER:	Allianz
REVIEW PANEL
MEMBER:	Maurice Castagnet
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	20 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 3 September 2019 when the rear doors of the insured bus closed on her; dispute relating to the assessment of threshold injury; whether the claimant sustained right sided rib fractures; where the claimant underwent a plain chest X-ray at Westmead Hospital on 7 September 2019 that was not definitive for rib fractures; claimant pregnant at the time and could not undergo a CT scan of the chest; diagnosis of rib fractures made by multiple clinicians who examined the claimant at Westmead Hospital; Held – original assessment of threshold injury revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under ss 7.26 (7) and (9) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injury caused by the motor accident is a threshold injury. Determination The Review Panel: 1. Revokes the certificate of Medical Assessor Woo dated 10 December 2022. 2. Certifies that the injury to the right chest – rib fractures caused by the motor accident is NOT a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

The claimant, Farestha Ghaznawi, suffered injury in a motor accident on 3 September 2019 when she was boarding a bus in Auburn, insured by the insurer, Allianz.
As the claimant was entering the bus via the back doors, they suddenly closed, causing the claimant to be thrown onto her right side and hitting the side of the bus. The claimant then fell backwards and was caught by a passenger who was standing behind her.
As a result of the accident, the claimant claimed that she sustained injuries to her right ribs, right shoulder, right knee, cervical spine, thoracic spine and lumbar spine.
The insurer accepted liability to pay the claimant statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) for the first 26 weeks.
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 threshold injuries”.[i] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[ii]
The issue in dispute is whether the claimant’s injuries resulting from the accident were threshold injuries for the purposes of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be medical assessment matters 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[iii] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.

MEDICAL ASSESSMENT UNDER REVIEW

The dispute was referred at first instance to Medical Assessor Alexander Woo who issued a Medical Assessment Certificate dated 10 December 2022 (the medical assessment). Medical Assessor Woo determined that the claimant’s injuries resulting from the accident were “minor injuries”.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
In the medical assessment, Medical Assessor Woo determined that the following injuries were minor injuries for the purposes of the MAI Act:
·        cervical spine – soft tissue injury;
·        lumbar spine – soft tissue injury;
·        thoracic spine – soft tissue injury;
·        right shoulder – soft tissue injury;
·        right knee – soft tissue injury, and
·        right chest – soft tissue injury.
In his reasons, Medical Assessor Woo concluded that the injury to the right chest was a minor injury because there were “no confirmed rib fractures”.

THE REVIEW APPLICATION

On 23 December 2022, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Personal Injury Commission (Commission) to refer the medical assessment of the Medical Assessor to a review panel for review. The application was made within the time prescribed by
s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being 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.

CONDUCT OF THE REVIEW

According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Margaret Gibson, Medical Assessor Michael Couch and Member Maurice Castagnet (the Panel).
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.[iv]
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[v]
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[vi]
In submissions to the Panel on 30 June 2023, the claimant confirmed that the only injury to be assessed by the Panel is “the right chest – rib fractures”.
The Panel therefore proceeds on the basis that the claimant accepts Medical Assessor’s Woo’s findings that all other referred injuries were threshold injuries and assess the right chest – soft tissue injury – rib fractures and will assess the right chest injury - rib fractures.
On 18 July 2023, the Panel advised the parties of its intention to proceed to assess the right chest injury on the papers. On the same date, the Panel issued a direction to the parties inviting them to make submissions by 28 July 2023, if they had any objections to the matter proceeding on that basis. The panel did not receive any submissions to that effect.
The Panel has therefore proceeded to determine the matter on the papers.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The MAI Act

A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue 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 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.

The Motor Accident Guidelines

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 Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a 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.”
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 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.[vii]

MATERIAL BEFORE THE REVIEW PANEL

The Panel has considered the respective bundles of documents filed by the parties.

SUBMISSIONS

Claimant’s submissions

The claimant says that at the time of the motor accident, she was pregnant and therefore could not undergo a ‘gold standard’ CT scan which would have definitely revealed whether she had suffered fractures to her ribs. The doctors who examined her at Westmead Hospital clinically diagnosed her with rib fractures.
The claimant says the diagnosis of rib fractures was based on clinical examination. The fact that they could not be “confirmed” does not lead to a conclusion on the balance of probabilities that the rib fractures did not exist.
The claimant refers in support of her submissions to clauses 5.4 and 5.6 of the Guidelines. Diagnostic imaging is not considered necessary to assess threshold injury. The diagnosis for the purpose of a threshold injury must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
In this case, the clinical diagnosis was made by doctors at Westmead Hospital following the accident. Accordingly, the claimant submits that this falls within the wording of clause 5.5 and should be taken as a diagnosis of a rib fracture and therefore a non-threshold injury.

Insurer’s submissions

The insurer submits that the claimant’s rib injury meets the definition of threshold injury pursuant to s 1.6 of the MAI Act.
The insurer relies on the X-ray of the chest conducted four days after the accident to submit that the claimant has not demonstrated a rib fracture. The X-ray confirmed that there “no rib deformity seen” and that no bruising or abrasions were observed surrounding the chest wall.
The insurer acknowledges the provision of cl 5.4 of the Guidelines that diagnostic imaging is not considered necessary to assess threshold injury. However, the insurer says that diagnostic imaging is necessary in this case, noting the claimant’s pre-existing chest and abdominal pain.

EVIDENCE BEFORE THE REVIEW PANEL

The evidence relating to the injury being assessed may be conveniently summarised as follows.

The claimant’s description of her injuries

In answer to a question in her personal injury claim form asking the claimant to describe the injuries she sustained in the accident, the claimant stated:
“I felt bad pain to my hand and I was dizzy. When I arrived home from middnight [sic] felt pain to right side. I couldn’t normal breath [sic], slept [sic], stand and sat [sic]. everyday the pain was worse then I visited my GP and she sent me the hospital and hospital admitted me. After they checked and scan the result showed that I had two crack [sic] in right rib they then kept me the [sic] hospital and gave me strong painkiller. I am also pregnant.”[viii]

Westmead Hospital

The claimant attended Westmead Hospital on 7 September 2019 and was admitted at 12.34pm.
On 7 September 2019 at 12.48pm, the clinical notes of the hospital recorded the following entry:
“Triage WE
Triage Presenting Information: was hit by closing bus door 5/7ago hit to the right flank since has had worsening pain currently 13/40 gestation g2p0 not seen LMO and advised to present to ED pt taking Panadol with nil relief worse on movement
nkda pmhx – chronic abdo pain.” [ix]
X-rays of the chest, the left humerus and the right knee were performed on that day.
The chest X-ray report of 7 September 2019 at 3:21pm recorded the following:
“Cardiac size normal. Trachea midline. No widening of mediastinum. No pheumothorax. No pulmonary contusion. No free gas below diaphragm. Cardiac size normal. Pulmonary vessels normal. No rib deformity seen”.[x]
The progress notes of Dr H. D. Detaram on 7 September 2019 at 8.46pm recorded the following:
“ED to Ward Transfer (Medical)
Main issues: 24-yo pregnant woman (13 weeks) presenting with R sided chest pain
1. Admitted under trauma to poorly controlled pain”. [xi]
The progress notes of Dr Shrenik Hegde on 7 September 2019 at 9.13pm recorded the following:
“Progress noted
Right rib fractures < 3
13 weeks pregnant
On review:
Unable to deep breath or cough due to pain
ED has given fentanyl analgesia
Nausea/ vomiting since” [xii]
The progress notes on 8 September 2019 at 7.22am recorded the following:
“PROGRESS
Overnight pain in R. chest well improved
Pain in abdomen improved with morphine
Able to deeply inspire/cough”[xiii]
The progress notes of Matthew Vukasovic, Staff Specialist, on 8 September 2019 at 10.17am recorded the following:
“Bus door closed on her 2/7 ago and hit her R side of flank/chest
Nil head strike
Sudden worsening of RUQ/R flank pain last night
Pain radiating to the back
Nil pain in neck/arms/legs” [xiv]
On examination, the following was recorded:
“…
R side chest with tenderness
R lateral posterior anterior tenderness
…
Tenderness from mid thoracic spine onwards
…
CXR – Nil obvious fractures
CT chest/abdo not performed due to pregnancy.” [xv]
On assessment in the ward, Dr A. Abdullah referred to the claimant as a 24-year-old patient, 13 weeks pregnant “with rib fractures post incident with bus door” [xvi]. His impression was “Rib fractures secondary to trauma.”[xvii]
The general progress notes of the hospital on 8 September 2019 recorded the following:
“…
CHEST
-R sided chest wall on anterolateral region over floating ribs
-Nil L sided chest tenderness
-Sternal tenderness over manubrium”.
…
IMPRESSION/INJURIES:
-Right sided # <3 on chest x-ray – no other risk factors
-Abdominal and pelvic pain likely secondary to muscular pain
-Should have L humerus and R knee x-ray to rule out fracture – D/W trauma fellow Dr Lee who agrees
PLAN
Trial analgesia
If able to deep breath and pain adequately controlled then for discharge on oral analgesia…”[xviii]

Dr Demi Beneru

The report of Dr Demi Beneru, Resident Medical Officer of Westmead Hospital dated
30 September 2019, stated the following:
“Fareshta Ghaznawi … is a 24 female who presented to Westmead Hospital on 07 September 2019. On 5 September, Ms Ghaznawi states a bus door closed on the right side of her flank and chest.
Ms. Ghaznawi’s clinical exam supported a diagnosis of rib fractures. She underwent a Chest Xray that was not definitive for rib fractures. Due to her pregnancy, Ms. Ghaznawi was unable to under [sic] the gold standard test for Rib Fractures which is a CT Chest (due to radiation exposure to the foetus).
The patient is clinically suspected to have rib fractures.” [xix]

Dr Fatemah S Nazaran

On Monday 16 September 2019, the clinical notes of general practitioner, Dr Nazaran, recorded the following:
“History:
2 weeks ago on 3/9/2019, she was getting on the bus from the back, in Auburn, when doors closed on her left side of flank/chest and she was thrown on her right side and backwards where she hit the side of the bus with an impact, she was caught by a passenger behind her.
on 7/9/2019 She was in a lot of pain, she went to westmead hospital where chest, right shoulder and right knee xray was done. she was 12 weeks pregnant at the time.
she has chronic pain on her right side and lower back.” [xx]
On Monday 16 December 2019, the clinical notes recorded the following:
“History:
Patient has a certificate of capacity for CTP insurance regarding her accident in a bus which has caused ribs fracture
Reasons for contact:
Certificate supplied
Insurance report”[xxi]
On Monday 23 December 2019, the clinical notes recorded the following:
“History:
She c/o increased Rt ribs pain, she usually has to go to ED and get morphine injection: for PRN Endone
Reason for contact:
Prescription added: ENDONE TABLET 5mg 1 daily”[xxii]
On Wednesday 5 February 2020, the clinical notes recorded the following:
“History:
Fareshta still needs to take analgesics most days due to ribs pain: Physiotherapy arranged
Certificate given
Reason for contact:
Right Fracture – Rib”[xxiii]
On Thursday 9 April 2020 the clinical notes recorded the following:
“Diagnostic imaging requested: CT – Right ribs – Trauma to Right side of chest during pregnancy, posterior ribs fracture suspected”[xxiv]

FINDINGS

There is clear contemporaneous evidence from Westmead Hospital that the claimant sustained a significant and painful injury to the right chest wall in this accident.
The severe pain, the need for strong opiate analgesia, and signs on clinical examination signs, led all examining doctors to diagnose rib fractures.
Undisplaced rib factures may be difficult to see on a plain chest X-ray. Because the claimant was pregnant at the time, it was not appropriate to perform CT scan to confirm the diagnosis.
The evidence that the claimant continued to experience persistent severe pain after discharge and that she required further hospital visits for opiate analgesia, further supports the diagnosis of fractures rather than soft tissue injuries.

The Panel accepts the diagnosis of multiple clinicians (including a Staff Specialist) who examined the claimant at Westmead Hospital.

CONCLUSION

The Panel accepts the diagnosis of Westmead Hospital of right-sided rib fractures. This is not a threshold injury.
For these reasons the Panel concludes that the certificate issued by Medical Assessor Woo is revoked and issues a replacement certificate.

[i] Sections 3.11 and 3.28 of the MAI Act.

[ii] Section 4.4 of the MAI Act.

[iii] Section 7.20 of the MAI Act.

[iv] Section 41(2) of the PIC Act.

[v] Rule 128 of the PIC Rules.

[vi] Section 7.26(6) of the MAI Act.

[vii] Clause 5.9 of the Guidelines.

[viii] Insurer’s bundle – Page 19.

[ix] Claimant’s bundle – Page 49.

[x] Claimant’s bundle – Page 41.

[xi] Claimant’s bundle – Page 47.

[xii] Claimant’s bundle – Page 55.

[xiii] Claimant’s bundle – Page 54.

[xiv] Claimant’s bundle – Page 45.

[xv] Claimant’s bundle – Pages 46-47.

[xvi] Claimant’s bundle – Page 48.

[xvii] Claimant’s bundle – Page 49.

[xviii] Claimant’s bundle – Page 53.

[xix] Claimant’s bundle – Page 124.

[xx] Claimant’s bundle – Page 207.

[xxi] Claimant’s bundle – Page 209.

[xxii] Claimant’s bundle – Page 210.

[xxiii] Claimant’s bundle – Page 211.

[xxiv] Claimant’s bundle – Page 214.

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Citations

Ghaznawi v Allianz Australia Insurance Limited [2023] NSWPICMP 603

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[2023] NSWPICMP 603

20 November 2023