Gilin v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 438
•5 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Gilin v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 438 |
| CLAIMANT: | Germaine Rose Gilin |
INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Sylvester Fernandes |
| DATE OF DECISION: | 5 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insured vehicle collided into house whilst claimant sleeping; claimant inhaled dust particles including asbestos; claimant developed various symptoms associated with dust inhalation held to be threshold injury; short amount of asbestos exposure; claimant unlikely to develop an asbestos related disease; meaning of “injury” in section 1.4; Insurance Australia Ltd v Varghese applied; Military Rehabilitation & Compensation Commission v May applied; possible development of an asbestos related disease is not an injury within the meaning of the Act; Held – claimant suffered threshold injuries; original assessment confirmed. |
| DETERMINATIONS MADE: | Review Panel Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 15 August 2022 and certifies that the claimant suffered threshold injuries. |
REASONS
BACKGROUND
Ms Germaine Rose Gilin (the claimant) suffered injury in a motor accident on 12 February
2021 (the motor accident). The insured vehicle drove into the house where the claimant and family members were sleeping causing exposure to dust. The dust exposure included inhalation of asbestos.The claimant was three years of age at the time of the motor accident. The histories recorded in these Reasons were provided by the claimant’s parents who had first-hand knowledge of the motor accident and the claimant’s symptoms.
The insurer for the motor accident is liable to pay to Ms Gilin any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Mr Gilin’s physical injuries caused by the motor accident are threshold injuries 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 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[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
Medical Assessment
The medical dispute was referred to Medical Assessor Howison who issued a Medical Assessment Certificate dated 15 August 2022.[2] The relevant history recorded by the Medical Assessor was:[3]
“Pre-accident medical history and relevant personal details
There is no family history of allergy. She has a one-year-old brother who was not born at the time of the accident. Germaine Rose’s parents do not have any past history of allergy.
History of the motor accident
I note on 12 February 2021 at about midnight, a car crashed into the home of Germaine Rose where she and her parents were sleeping. The family allege that Germaine Rose inhaled dust contaminated with asbestos. She immediately became aware of the itchiness and irritation of her eyes, nose and throat and of rhinorrhoea and excessive sneezing. She is also aware of nasal obstruction. Her symptoms have persisted since that time. A diagnosis of dust and asbestos inhalation and emotional trauma following the motor vehicle accident on 12 February 2021.
History of symptoms and treatment following the motor accident
Since the time of the accident, Germaine Rose has been aware of itchiness and irritation of her eyes, nose and throat and of rhinorrhoea and excessive sneezing. She is also aware of nasal obstruction. She has had no ear problems however her father feels that her speech development is delayed and is concerned regarding her hearing. I note Germaine Rose has not seen a treating Ear, Nose and Throat Surgeon or a treating Respiratory Physician.”
[2] Insurer’s bundle, p 7.
[3] Insurer’s bundle, pp 8-9.
The Medical Assessor found “no objective evidence of symptoms” at the time of the medical assessment. He concluded:
“… there is no evidence of nasal allergy problems at the time of the examination. Once she is removed from the asbestos inhalation, one would expect any irritation to cease. Inhalation of asbestos does not lead to permanent allergic rhinitis or allergic pharyngitis.”
The Medical Assessor concluded that there was “no evidence of any injury”.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as 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.
The assessment by the Medical Assessor and the parties’ submissions were made prior to
1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days.
The President’s delegate referred the dispute 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.[4]
[4] 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[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
All parties were advised that both medical disputes would be heard together and the evidence in one would be evidence in the other. There was no objection to that course.
All parties filed bundles of documents for the Panel’s consideration.
The Panel issued a further direction in the following terms:
“The Panel is aware of the allegation that the motor accident caused a sinus/nasal passage injury.
This direction relates to the claimant’s allegation of respiratory injury to the lungs (such as asbestosis, mesothelioma, or any asbestos related lung disease) and directs the claimant to provide submissions on the following matters by close of business, 29 June 2023.
1. Is it alleged that the motor accident caused a respiratory injury to the lungs as opposed to a potential future diagnosis?
2. If yes, what is the evidence supporting that contention?
3. If no, is it the claimant’s contention that the allegation of a non-threshold injury is based on the possibility of a respiratory injury to the lungs developing at some future point.
4. Otherwise, the claimant is to articulate the basis for the allegation that any respiratory injury to the lungs is not a threshold injury.”
The claimant’s responses to these questions were:
1. No
2. Not applicable.
3. Yes.
4. Not applicable.
STATUTORY PROVISIONS
“Injury” is defined in s 1.4 of the MAI Act to mean:
“personal or bodily injury and includes--
(a) pre-natal injury, and
(b) psychological or psychiatric injury, and
(c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”
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)”.
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 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.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
SUBMISSIONS
Claimant’s submissions dated 26 July 2021[10]
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] Claimant’s bundle, p 1.
The claimant submitted that the motor accident caused the following injuries:
(a) inhalation of dust and asbestos causing sneezing, coughing and shortness of breath;
(b) psychological.
The claimant referred generally to the attached medical evidence and submitted that there is “abundant evidence that [she] had sustained non minor injury as a result of the subject motor accident”.
Claimant’s submissions dated 8 September 2022[11]
[11] Claimant’s bundle, p 18.
These submissions were filed seeking to review the medical assessment.
The claimant referred to the circumstances of the motor accident and the various symptoms. She submitted that the Medical Assessor made a finding that the claimant suffered no injury in circumstances where that was not in issue and did not consider the various documentation which showed that the claimant had suffered symptoms.
The claimant otherwise submitted that the Medical Assessor did not consider the claim that there was “a risk of cancer in the future”.
The claimant referred to alternative findings by Medical Assessor Williams for the claimant’s father from the same motor accident that he suffered a non-minor injury because there was the “potential to cause a malignant tumour of the nose and air passages in the future”.
Insurer’s internal review dated 28 June 2021[12]
[12] Claimant’s bundle, p 46.
The insurer accepted that the claimant had been diagnosed with an allergic reaction to asbestos dust with reported symptoms of blocked nose, itchy eyes and throat, and coughing. The insurer concluded that symptoms of dust allergy fall within the definition of minor injuries.
Insurer’s submissions dated 5 August 2021[13]
[13] Insurer’s bundle, p 16.
The insurer accepted that the medical evidence supported the finding that the claimant had been diagnosed with an allergic reaction to asbestos dust with symptoms including persistent itchy eyes and throat, runny nose and coughing. The allergic reaction was a minor injury as defined in the MAI Act.
Insurer’s submissions dated 20 September 2022[14]
[14] Insurer’s bundle, p 2.
These submissions opposed the application to review the medical assessment.
The insurer noted that the Medical Assessor accepted that an event took place which caused symptoms and it was open to him to find that no injury had occurred.
The insurer submitted that an increased risk of developing an asbestos related injury in the future was not an injury “until such a risk eventuates”.
The insurer otherwise submitted that an unrealised possible disease is not an injury as defined in the Civil Liability Act 2002 (ss 5 and 11). There is otherwise no entitlement to compensation until a dust disease is diagnosed under the Worker’s Compensation (Dust Diseases) Act 1942 (ss 5(2)(iii) and 8).
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
There was no evidence of prior associated symptoms.
Medical records
A chest X-ray referral dated 14 February 2021 noted parental worry about “future cancer risk” and requested a “base line xray for medicolegal issues”.[15]
[15] Claimant’s bundle, p 43.
On 18 February 2021 the general practitioner (GP) noted the claimant presented with “runny nose, cough and itchy eyes caused by the motor accident. The doctor noted that the claimant inhaled asbestos dust and that “dust inhalation has caused allergic symptoms”.[16]
[16] Claimant’s bundle, p 39.
In an application form dated 20 February 2021 the claimant, through her mother, described the injuries caused by the motor accident as follows:[17]
“Unknowingly inhaled the dust contaminated with asbestos. Germaine got upset and screaming. She developed high fever and jerky movements following the fright of the accident. Germaine also developed sneezing, cough, sore throat, runny nose and shortness of breath.”
[17] Claimant’s bundle, p 12.
The certificate issued by the GP on 20 February 2021[18] referred to “sneezing, coughing and developed fever from fright, did not eat and sleep well for days, jerks at night and very clingy”. The certificate also referred to “dust and asbestos inhalation, emotional trauma following the incident”.
[18] Claimant’s bundle, p 21.
Subsequent certificates were in similar form and referred to ongoing symptoms of “dry cough, runny nose, itchy eye”.[19]
[19] Claimant’s bundle, pp 24 - 38.
On 30 May 2021 the GP prescribed nasal spray.[20]
[20] Claimant’s bundle, p 41.
On 3 June 2021 the GP noted the history of breathing in fraible asbestos wrote:[21]
“Parents are understandably worried about the risk of developing lung cancer, mesothelioma and other types of cancers. It is well known that there is risk of development of above cancers in the future.”
[21] Claimant’s bundle, p 40.
On 6 July 2021 the claimant was referred to Dr Singh for opinion and management of allergic symptoms post asbestos contaminated dust inhalation.[22] The GP noted no past history of allergic symptoms with “persistent dry cough, itchy throat, neezing, runny nose, watery eyes”.
[22] Claimant’s bundle, p 42.
MEDICAL EXAMINATION
The claimant was examined by Medical Assessor Fernandes on 21 August 2023. The examination findings were:
“The external cutaneous, cartilaginous and bony nasal complex is intact.
The nasal mucosa appears normal.
The nasal septum is central.
The nasal turbinates are not enlarged.
There is no significant obstruction of the nasal airway on examination.
The oral cavity appears normal.
The oropharynx appears normal.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The medical assessment related to whether the injuries sustained in the motor accident were minor or non-minor (now threshold or non-threshold) 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[23] and Insurance Australia Ltd v Marsh.[24]
[23] [2021] NSWCA 287 at [40], [41] and [45].
[24] [2022] NSWCA 31 at [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[25] 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.
[25] [2022] NSWPICMP 6 at [44]-[62].
The Panel heard three claims together relating to the exposure by the family. Reasons have been delivered in the other claims with this matter. We adopt the reasoning by this Panel in Insurance Australia Ltd v Varghese[26] when we concluded:
“We do not agree with the claimant’s submission that the ordinary meaning of “injury” in the MAI Act extends to the situation envisaged by the claimant. The plain meaning of “personal or bodily injury” in s 1.4 is consistent with an established physiological change. A future possible physiological change does not satisfy the ordinary meaning of personal or bodily injury.”
[26] Varghese, at [59] – [69].
Breathing in asbestos fibres may cause asbestos related diseases such as asbestosis, lung cancer and mesothelioma. Asbestos related diseases result from inhalation and subsequent deposit of asbestos fibres in the pulmonary parenchyma.
The risk of contracting an asbestos related disease increases with the number and type of fibres inhaled.
Most people are exposed to very small amounts of asbestos throughout their lives and do not develop asbestos related diseases.
Asbestos related diseases may develop over a period of between 10 and 40 years from the date of the first exposure.
The claimant inhaled small amounts of asbestos. We were not advised as to the type of asbestos inhaled and will not speculate. However, given the short duration of exposure, it is very unlikely that the claimant will develop asbestos related diseases.
The claimant accepted that “the allegation of a non-threshold injury is based on the possibility of a respiratory injury to the lungs developing at some future point”. That concession is entirely consistent with both the brief comments by the GP and the medical expertise within the Panel, that is there is only a “possibility”, as opposed to a probability, that the claimant may develop an asbestos related disease due to the inhalation of asbestos from the motor accident.
The medical evidence and the history quoted by the original Medical Assessor which we adopt[27] show that the claimant breathed in dust from the motor accident which caused various symptoms such as sneezing, cough, sore throat, runny nose and shortness of breath.
[27] At [7] herein.
Given the short duration of the asbestos exposure, the chances of the claimant developing an asbestos related disease is very unlikely.
We are not satisfied that a possible development of an asbestos related disease is an injury within the meaning of the MAI Act.
We have summarised the medical evidence in this matter. Both the findings of the original Medical Assessor and Medical Assessor Fernandes show that the claimant’s medical examination was normal.
The claimant suffered an injury when she inhaled dust particles causing various symptoms. The dust inhalation caused a soft tissue injury as defined in s 1.6 of the MAI Act which was injury to “tissue that connects, supports or surrounds other structures or organs of the body”. There is no medical evidence and the examinations of both Medical Assessors did not establish any “injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
CONCLUSION
The certificate issued by Medical Assessor Howison dated 15 August 2022 is confirmed. The certificate attached to these reasons is slightly reworded to reflect the change in terminology to threshold injury.
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