Ginnelly v AAI Limited t/as GIO (No 1 and No 2)
[2023] NSWPICMP 199
•9 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ginnelly v AAI Limited t/as GIO (No 1 and No 2) [2023] NSWPICMP 199 |
| CLAIMANT: | Michael Ginnelly |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 9 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 31 October 2017 when he collided with the insurer vehicle, fell from his bike and was impaled through the abdomen; the dispute related to the assessment of permanent impairment of the teeth and need for dental treatment; claimant re-examined; claimant identified only two teeth injured by the motor accident that were sensitive; dental records showed one tooth had extensive decay 20 months prior to the motor accident; accident may have temporary exacerbated pain due to facial trauma; current persisting symptoms due to chronic infection and abnormal dental occlusion due to loss of other teeth which predated the motor accident; need for dental treatment not caused by the motor accident; no permanent impairment of the teeth; Jarvis v Allianz Australia Insurance Ltd referred to; Held – original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Treatment and Care Review Panel Assessment of Treatment and Care The Review Panel confirms the certificate of Medical Assessor Sykes dated 16 October 2022. MEDICAL ASSESSMENT – PERMANENT IMPAIRMENT The Panel confirms the certificate of Medical Assessor Sykes dated 3 November 2022. |
REASONS
BACKGROUND
Mr Michael Ginnelly (the claimant) was involved in a motor accident on 31 October 2017. Mr Ginnelly was travelling through an amber traffic light when the insured vehicle turned right in front of him resulting in the collision.[1] The claimant fell onto his motorbike pedal which impaled into and causing serious injury to the abdomen.[2]
[1] Claimant’s bundle, p 31.
[2] Claimant’s bundle, p 72.
The insurer is liable to pay Mr Ginnelly any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances”, “whether any such treatment relates to the injury caused by the motor accident” and “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
The disputes before the Panel are:
- whether dental treatment proposed by Dr Shaun Lajevardi is reasonable and necessary in the circumstances;
- whether dental treatment proposed by Dr Shaun Lajevardi relates to the injury caused by the accident, and
- assessment of permanent impairment of the teeth injury.
The dental treatment plan proposed by Dr Lajevardi is extensive, estimated to cost $46,125 over six phases and relates to treatment for 12 teeth.[4]
[4] Claimant’s bundle, p 432.
The medical disputes were referred to Medical Assessor Sykes who issued a Medical Assessment Certificate dated 16 October 2022 and 3 November 2022 (the Medical Assessments).
In the medical assessment dated 16 October 2022, the Medical Assessor noted a history that the left central incisor (tooth 21) and the upper left canine (tooth 23) became sore after the motor accident.
The Medical Assessor’s examination and diagnosis was:
“a. Extra-oral examination revealed a soft, early click from the left TMJ with soreness on wide opening in the masseter muscle area on both sides. Maximal opening was measured at 43mm at the incisors (normal range 40-45mm).
b. Intra-oral examination revealed good saliva volume and no soft tissue pathology. The oral hygiene was fair with periodontal (gum) pocketing between 1-3mm. Slight supragingival calculus was present on the lower anterior teeth and some subgingival calculus around the molars.
c. There was a Class I occlusal relationship with deep overbite, over erupted teeth 25, 26 and a mesial tilt of tooth 47. Many posterior teeth were missing being teeth 18, 16, 15, 14, 24, 27, 28, 38, 36, 35, 46, 47. Thus, there were no functional tooth contacts between the remaining posterior teeth and Mr Ginnelly did not wear dentures to replace these missing teeth. All functional tooth/tooth contacts for chewing were on the remaining anterior teeth.
d. A large carious (decay) lesion was present on the distal of tooth 22 with a smaller carious cavity on the distal of tooth 25. The remaining anterior teeth, other than Page 6 of 11 tooth 22, showed no decay, were entirely unrestored, were intact and showed no sign of tooth fractures or sign of a traumatic injury. There were moderate sized, old amalgam restorations in teeth 17, 26, 45 and 48.
e. Tooth 21 was sensitive to pressure as was tooth 22 but less so. There was mild to moderate attrition (tooth wear) on the lower anterior teeth which was consistent with the Mr Ginnelly’s age and the fact that the anterior teeth were the only teeth that contacted for chewing.
f. A peri-apical x-ray taken at my assessment revealed an apical radiolucency (sign of a tooth abscess and due to nerve death) at the root apex of tooth 22. There was no pathology noticeable on the other anterior teeth and no sign of a traumatic injury such as a root fracture, on any other upper or lower anterior tooth. There was no sign of internal root resorption on any upper anterior teeth.
15. Diagnosis.
a. Reversible pulpitis at tooth 21 and periapical abscess at tooth 22 due to extensive caries (decay) in this tooth.
b. The mouth was partially edentulous with functional tooth contacts restricted to the remaining upper six and lower six anterior teeth. There was a degree of myofascial (masticatory muscle) tenderness due to the limited tooth contacts.
c. I could find no sign of traumatic injury to the teeth.”
The Medical Assessor concluded that there was “no evidence to support a finding that any teeth were injured in the subject accident or that the reported pain and difficulty eating are causally related to the subject accident”.
The findings and conclusions of the Medical Assessor were repeated in the Medical Assessment Certificate dated 3 November 2022 when he declined to assess permanent impairment for the teeth as there had been no relevant injury sustained in the motor accident.
THE REVIEW
The applications for referral of the medical assessments to a review panel were made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[5]
[5] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessments 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 63(2B) of the MAC 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.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] 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 matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered.
STATUTORY PROVISIONS/GUIDELINES
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[10]
[10] Clause 1.2 of the Guidelines.
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[11]. In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[11] See s 3B(2) of the CL Act.
[12] [2021] NSWSC 13 (Raina) at [65].
MATERIAL BEFORE THE REVIEW PANEL
On 10 March 2023 the Panel issued the following direction:
“The Review Panel (the Panel) has been constituted by the President of the Personal Injury Commission (the Commission) to determine the Reviews filed by the claimant. Pursuant to clause 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel ‘is to conduct and determine the proceedings in accordance with procedures determined by the panel’.
The Panel notes that this Review in matter number R-M101548438/22 is solely related to the medical dispute determined by Medical Assessor Sykes on 16 October 2022 (treatment and care for teeth). The Review in matter number R-M10548432/22 is solely related to the medical dispute determined by Medical Assessor Sykes on 3 November 2022 (permanent impairment of teeth)The Commission has now referred both matters to the one Panel which is convening on 4 April 2023.
The Panel has previously issued directions in R-M101548438/22 dated 7 February 2023. No documents have been received by the Panel in response to that direction.
The Panel requires each party to file one bundle in the portal for both matters.” (emphasis in original)The material filed pursuant to this direction should relate to these medical disputes (teeth) and not the other medical disputes.
The parties filed extensive bundles of documents. There was no attempt by either party to limit the material to the medical issues before this Panel.
Pre-accident records
The pre-accident dental records include the following:
- 19 March 2014 – Teeth 26, 47 and 45 – cavities fille- need for a crown in due course;
- 25 August 2015 – Tooth 35 – cement filling – 2-4 year measure;
- 7 January 2016 – Tooth 22 – restoration of tooth 22 was questionable as “caries extends to the bone level, option of Crown length surgery discussed. The tooth needs root canal treatment. Temporary filling in place.
- 6 August 2017 – Tooth 24 extracted.[13]
[13] Claimant’s bundle, p 446.
Initial medical treatment following the motor accident
The ambulance note was in the following terms:[14]
“O/A 47 Y/O supine on footpath O/E Pt well perfused alert and orient, 5 cm laceration just above belly button. Pt stated had been involved in a MVA with his bike colliding with a turning car. Pt stated he was impaled on his bike and when he removed himself something was protruding, Pt pushed on wound and covered while waiting for AO’s, Pt C/O also of pain in neck, right side of face and right shoulder.”
[14] Claimant’s bundle, p 179.
Mr Ginnelly was admitted to Liverpool Hospital immediately following the motor accident for a stay of 12 days. During that period Mr Ginnelly underwent a trauma laparotomy.
The clinical notes of the hospital exceed some 200 pages although some of the notes relate to visits on other occasions.
The notes do not include a reference to teeth injury although there is reference to “FACE tenderness to R zygoma”.[15]
[15] Claimant’s bundle, p 197.
The right zygoma is the cheek bone.
Clinical notes of the general practitioner on 11, 13, 15 and 17 November 2017 relate to the abdomen issue and prescriptions for medication.[16] On 5 December 2017 the GP recorded:[17]
“Says pain in both shoulders, Lt knee & teeth since day of MVA- none been documented in any of the 2 discharge referrals.”
[16] Claimant’s bundle, p 474.
[17] Claimant’s bundle, p 473.
The clinical dental records for 21 November 2017 state:[18]
“Approved for compo claim. Accident on 31 Oct 2017 thinks all front teeth are so painful. He is on strong pain killers. Off work as doctor said will need 6 recovery (sic) to gain abdominal wall strength.”
[18] Claimant’s bundle, p 408.
A report from Dr Lajevardi dated 4 January 2018 noted the claimant attended the surgery “after sustaining injuries to his teeth” and he stated that “all front teeth are so painful and affecting his daily living” and that he was “currently on pain strong killers”.[19] The doctor provided an extensive treatment plan estimated to cost $46,150 over six phases.[20] The treatment relates to a number of teeth including a full crown on tooth 21 and full crown and root canal work on tooth 22.
[19] Claimant’s bundle, p 426.
[20] Claimant’s bundle, p 432.
A medical certificate dated 13 December 2017 referred to various injuries including a “chipped and loose tooth”.[21]
[21] Claimant’s bundle, p 243.
Claim form
The claim form dated 21 December 2017 referred to multiple injuries caused by the motor accident including “teeth”.[22]
Qualified opinions
[22] Claimant’s bundle, p 27.
Dr Nicholls
Dr Paul Nicholls, dental surgeon, was qualified by the insurer and provided a report dated 20 April 2018.[23] His examination was:
“He is partly edentulous with many missing teeth. He has no molars apart from teeth 17, 27 and 47. He did not have a denture. The subject upper front teeth were sensitive to hot, cold and percussion. Pulp test was inconclusive due to severe reaction to testing.
There were multiple internal vertical stress fractures all front teeth due to chronic parafunctional bruxing.
There is a severe anterior closed bite (overjet) due to posterior occlusal collapse. Oral hygiene was barely adequate. He needs interproximal cleaning instruction.”
[23] Insurer’s bundle, p 683.
Dr Nicholls diagnosed a disintegrating dentition due to a long history of neglect. The upper front teeth with reversible pulpitis were sensitive due to aggravation from parafunctional bruxing and closed bite.
The doctor noted that the “the upper front teeth may have been traumatized by the MVA, but there was no fracture.”
Statement
The claimant provided a statement dated 17 January 2019[24] when he stated that he sustained a number of injuries in the motor accident including a dental injury. The claimant stated:[25]
“I have also suffered injury to my teeth. I consulted with Available Dental Care at Suite 3/159 Queen Street Campbelltown in the state of NSW. I was advised that I require treatment to 8 of my teeth by Dr Lajevardi. I believe this is a result of the motor vehicle accident in particular, landing on the front of the offending vehicles car with force causing significant trauma to my face and teeth in particular, the impact caused by landing face first into the pillar of the offending vehicle.”
[24] Claimant’s bundle, p 984.
[25] Claimant’s bundle, p 988.
SUBMISSIONS
Claimant’s submissions dated 1 December 2022[26]
[26] Claimant’s bundle, p 1012.
These submissions sought a review of the Medical Assessments.
The claimant submitted that the Medical Assessor failed to put inconsistencies to him as required by cl 1.41 of the Guidelines. The inconsistencies relied upon but not put by the Medical Assessor were:
- claimant’s history that he attended a dentist three days later when it was 12 days after discharge from hospital;
- Dr Lajevardi made no finding of traumatic injury to the teeth when he examined Mr Ginnelly;
- Mr Ginnelly has not seen Dr Lajevardi since 15 December 2017;
- Mr Ginnelly has not sought any dental treatment which raises the question of the actual intensity of the tooth pain; and
- absence of injury recorded in the ambulance notes, Hospital notes and Sydney Pain and Rehabilitation Centre.
Insurer’s submissions dated 24 February 2021[27]
[27] Insurer’s bundle, p 18.
These submissions addressed the various injuries alleged to be caused by the motor accident. In relation to the present disputes, the insurer referenced the report of Dr Nicholls who opined that the teeth fractures and pain were due to aa long history of neglect.
Insurer’s submissions dated 21 December 2022[28]
[28] Insurer’s bundle, p 3
These submissions were filed opposing the application to receive the medical assessment submitting that the claimant simply disagreed with the Medical Assessor’s clinical findings.
The insurer submitted that the purported inconsistencies raised by the claimant had no bearing on the outcome and otherwise were not inconsistencies within the meaning of cl 1.41 of the Guidelines.
It noted that there was no record in the Liverpool Hospital notes of teeth fractures and teeth pain and submitted:
“Assessor Sykes adequately addresses all the relevant available evidence before him and makes comments in regards to same. In particular he addresses the objective treating records in relation to the absence of reporting regarding dental history injuries following the subject accident, notes the claimant’s subjective assertions, and confirms that his examination was consistent with those of Dr Nichols and Dr Lajevardi.”
RE-EXAMINATION
Mr Ginnelly was examined via audio-visual link by Medical Assessor Curtin and Principal Member Harris on 27 April 2023. The examination report is as follows:
“Mr Ginnelly described the motor accident and that his face was thrown into the windscreen. He was wearing an open face helmet, and that his face struck a windscreen full on. He was not able to point to any part of his face that received the brunt of trauma, but afterwards his mouth was sore, although there was no bleeding. He did not remember precisely what part of his face hit the windscreen. He stated that he received a six-inch hole in his stomach which was the main concern and his priority.
Mr Ginnelly stated that he also sustained a number of other injuries and his mouth was sore from the motor accident but there was no bleeding.
The sore teeth were mentioned at hospital, and he was advised to see a dentist as they did not fix teeth at the hospital. The Panel read out a hospital note that referred to the right cheek bone being injured but not the mouth or teeth. Mr Ginnelly reiterated that he hurt his teeth in the motor accident.
Mr Ginnelly agreed that he was missing a number of teeth prior to the motor accident including one that had been removed some months prior. His health was excellent prior to the motor accident, and he worked out in the gym.
He identified teeth 21 and 22 (upper left front teeth) as the teeth that were injured in the motor accident. The teeth were not loose from the motor accident but were sore and sensitive to hot and cold. The teeth hurt when he was chewing such that he had to eat with the side of his mouth.
Mr Ginnelly agreed that he had a filling in tooth 22 sometime prior to the motor accident. He denied there was ongoing symptoms in that tooth after the filling. He did not agree with the clinical note that the tooth required further work after the filling undertaken in early 2016 and stated that this tooth was fine after that procedure.
Mr Ginnelly was asked about the treatment following the motor accident. It was noted that there was no mention of teeth injury to his general practitioner. Mr Ginnelly agreed that that this could be correct as he saw his doctor for the serious abdomen injury, was on very heavy pain medication (Targin) and otherwise went to the dentist to seek treatment for the teeth injury.
In respect of the dentist treatment Mr Ginnelly agreed he did not have further treatment with Dr Lajevardi as he could not afford the large treatment expense.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decision of the Medical Assessor. 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[29] and Insurance Australia Ltd v Marsh.[30]
[29] [2021] NSWCA 287 at [40], [41] and [45].
[30] [2022] NSWCA 31 at [11], [21], [64].
Teeth injury
The claimant identified that the motor accident caused injury to teeth 21 and 22, which is the upper teeth on the front left side.
This contrasts with the hospital note of pain in the right cheek bone.
The pre-accident clinical notes in January 2016 identified tooth 22 as having developed dental decay beneath a pre-existing restoration. The notes stated that “restoration is questionable since the caries extends to the bone level, the tooth needs root canal therapy”. A restoration was in fact carried out by Dr Lajevardi, but he also noted “patient highly advised that this is not a permanent filling, needs to come back soon to get the proper treatment for the tooth”. Mr Ginnelly did return the following year after the accident for more treatment, and there was no further mention of tooth 22 apart from noting that all the upper front teeth were sensitive to cold testing apart from 22. This suggests that the tooth was nonvital, a development that was consistent with Dr Sykes finding that tooth 22 was sensitive to pressure and that an X-ray showed a periapical radiolucency (chronic abscess) around the tip of the tooth root. The extensive decay of tooth 22 existed in January 2016 and has nothing to do with the motor accident.
Tooth 22 was shown to have extensive caries to the bone in January 2016. In these circumstances it is difficult to accept Mr Ginnelly statement that this tooth was fine prior to the motor accident.
The dental records dating back to 2009 do not mention tooth 21, suggesting that there was no problem with that tooth prior to the accident.
Mr Ginnelly was discharged from hospital on 9 November 2017. On 13 November 2017 he contacted Dr Lajevardi to say that he could not attend for an appointment as he had been a motorbike accident. Mr Ginnelly attended on 21 November 2017 when the record notes that he complained that all his front teeth were painful. Although quite a few notes were made at that time, there is surprisingly no detail as to any possible injury to the upper front teeth.
Dr Sykes identified reversible pulpitis at tooth 21 and periapical abscess at tooth 22 due to extensive caries (decay) in this tooth. These conditions are not caused by trauma. It is not clear why Dr Sykes concluded that tooth 21 was affected by pulpitis as he does not appear to have carried out pulp testing. The sensitivity of both teeth to pressure could be explained by the chronic infection within the bony support of 22 lying immediately alongside 21.
The fact that Mr Ginnelly sought treatment from his dentist so promptly after his discharge from hospital supports his statement that that a bump to the face and the surrounding bone in the accident exacerbated a pre-existing problem.
Mr Ginnelly attended his dentist again on the 15 December 2017, when there was no mention of any continuing acute discomfort associated with teeth 21 and 22. This suggests that any exacerbation was temporary.
The most plausible explanation of his current persistent symptoms is that they are due to a combination of the chronic infection of tooth 22, together with the abnormal dental occlusion due to the loss of posterior teeth as noted by both Dr Sykes and Dr Nichols. These problems clearly predate the motor accident.
We give no weight to the insurer’s submission of the absence of complaint to the general practitioner. We accept the claimant’s evidence that he did not tell his general practitioner because of other more serious injuries. In any event, Mr Ginnelly promptly consulted a dentist.
We accept that the claimant impacted his face which caused a temporary exacerbation of pain. However, there was no direct trauma such as fracturing to the teeth from the motor accident. In these circumstances we conclude that the effects of the motor accident to the teeth were transient. The ongoing problems are due to the severe underlying decay present prior to the motor accident.
Treatment disputes
The dispute is whether the treatment is “reasonable and necessary in relation to the injury sustained in the subject accident”.
(a) reasonable and necessary, and
(b) in relation to the injury.
The issue of reasonable and necessary is distinct from the issue of causation. These principles have been discussed elsewhere by Review Panels.[31] The MAC Act characterises the disputes as separate issues.
[31] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]-[132].
Causation of need for treatment
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[32]
[32] [2018] NSWSC 1710 (Phillips) at [29].
Based on our findings of temporary exacerbation, there is no basis to conclude that the motor accident materially contributed to any portion of the need for treatment.
Reasonable and necessary
The proposed treatment plan, acknowledged by Dr Nicholls,[33] is clearly reasonable and necessary. This is distinct from both the issues of injury and the need for treatment caused by the motor accident.
[33] Insurer’s bundle, p 687.
Permanent impairment
The present condition of teeth 21 and 22 is unrelated to the motor accident. The exacerbation of teeth pain from the motor accident was temporary. Accordingly, there is no permanent impairment of the teeth caused by the motor accident and no requirement to make an assessment.[34]
[34] See Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161 at [48]-[51].
CONCLUSION
The Medical Assessment Certificates dated 16 October 2022 and 3 November 2022 are confirmed.
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