Insurance Australia Limited t/as NRMA Insurance Limited v McCabe
[2022] NSWPICMP 25
•17 February 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance Limited v McCabe [2022] NSWPICMP 25 |
| CLAIMANT: | Christine McCabe |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance Limited |
| REVIEW PANEL: | Member Belinda Cassidy Medical Assessor Neil Berry Medical Assessor Michael McGlynn |
| DATE OF DECISION: | 17 February 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Medical Review Panel matter; claimant sustained injuries to neck, lower back, both shoulders and chest; claimant and insurer in dispute about claimant’s entitlement to non-economic loss; degree of whole person impairment assessed at greater than 10% by three Assessors and a combined certificate issued; insurer applied and was granted review under section 7.26 of the Motor Accident Injuries Act2017 in respect of two of the three assessments; Panel determined it would determine both matters together; claimant’s chest injury included the rupture of a breast implant leading to extrusion of silicone into the breast tissue and lymph nodes; both implants removed 10 months after the accident; claimant developed granulomas in the injured breast due to the extruded silicone and development of granulomas; granulomas difficult to distinguish from malignancy and mastectomy recommended and undertaken with insertion of new implant and reduction of uninjured breast to achieve symmetry; insurer did not concede degree of impairment and queried whether the claimant has the total loss of a ‘mammary gland’ in circumstances where her left breast had been ‘restored to a substantially similar state’; Held - distinction between ‘mammary gland’ and ‘breast’ discussed; nature of surgery undertaken reviewed and clauses 6.256 and 6.257 of the Motor Accident Guidelines (the MA Guidelines). considered and applied; surgical removal of nipple, aureole, ducts, lobules, ligaments and fatty tissue down to the pectoral muscle on the chest was total loss of mammary gland within the meaning of clause 6.256 of the MA Guidelines; claimant deemed to have a whole person impairment of greater than 10%. |
CERTIFICATE OF DETERMINATION
Issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel:
Revokes the combined certificate issued by Assessor Dixon dated 5 May 2021.
Revokes the certificate of Assessor Curtin dated 30 November 2020.
Neither revokes nor confirms the certificate of Assessor Dixon dated 15 April 2018.
Certifies that Christine McCabe’s degree of permanent impairment resulting from the injuries caused by the motor accident on 13 January 2018 is greater than 10% based on:
(a) the Panel’s assessment of the injury to her left breast, and
(b) the certificate of Assessor Grainge dated 16 March 2021.
STATEMENT OF REASONS
INTRODUCTION
Christine McCabe (the claimant) was involved in an accident on 13 January 2018. She was travelling along Northern Road, Penrith when the insured turned right in front of her.
The claimant is currently 68 years of age.
Ms McCabe seeks damages for non-economic loss. The insurer denied her entitlement to these damages and a medical dispute was referred to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA). Assessor Curtin determined on 30 November 2020 that the claimant had a whole person impairment of 8% (for her breast injury) and on 15 April 2021, Assessor Dixon determined the claimant had a whole person impairment of 16% (for her other physical injuries) and issued a combined certificate certifying the claimant’s whole person impairment as being greater than 10%.
The Insurer has lodged a single application for review however two files have been opened, one for each Assessor’s decision as follows:
(a) R-M 10455241 (Assessor Curtin), and
(b) R-M 10426332 (Assessor Dixon).
The President’s Delegate issued two separate decisions to allow the review both dated 14 October 2021. The Review Panel (the Panel) has been constituted by the President of the Person Injury Commission (the Commission) to conduct the Review of both medical assessments.
LEGISLATIVE FRAMEWORK
Motor Accident Injuries Act Statutory Provisions
Ms McCabe’s claim for damages is to be determined in accordance with the provisions of the Motor Accident Injuries Act2017 (the MAI Act).
Chapter 4 of the MAI Act governs the award of damages and provides (at section 4.3) that the only damages that may be awarded are damages for economic loss and damages for non-economic loss.
The entitlement to, and quantum of any non-economic loss damages are regulated by Division 4.3 and in particular section 4.11 which says that:
“No damages are to be awarded unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%”.
If there is a dispute about the entitlement to non-economic loss damages, that is the degree of a claimant’s whole person impairment, no damages are to be awarded until a medical assessor has assessed permanent impairment (see section 4.12(1)).
How permanent impairment is to be assessed is found in the Dispute Resolution Chapter of the MAI Act specifically section 7.21(1). The assessment is to be undertaken in accordance with the Motor Accident Guidelines (the MA Guidelines). The relevant chapter is, Chapter 6.
The MA Guidelines are based largely on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA4).
The claimant refers, in her submissions to the Motor Accident Permanent Impairment Guidelines (MAPI Guidelines) which may be relevant to claims made under the Motor Accident Compensation Act 1999 but not claims made under the MAI Act[1].
[1] The content of the two guidelines are similar but the clause INCOMPLETE??
Motor Accident Guidelines provisions – breast and mammary glands
Under the heading “Endocrine System” are the following relevant clauses:
(a) “Clause 6.253 – Chapter 12 (pages 263-275, AMA4 Guides) is used to assess the endocrine system. Each endocrine organ or system is listed separately”.
(b) “Clause 6.256 – Section 12.8 ‘Mammary glands’ (page 275 AMA4 Guides) is replaced by these Guidelines. Total loss of one or both mammary glands is deemed to be an impairment of greater than 10% WPI[2]”.
(c) “Clause 6.257 - Injury to the breast(s) caused by damage to a breast implant(s) must be assessed as class 1, Table 2 (page 280, AMA4 Guides)”.
[2] The section of the AMA4 Guides that is replaced includes this note “A female patient of childrearing age with absence of the breasts … would have 0-5% impairment of the whole person”.
Personal Injury Commission Act and Rules
The Panel notes that section 42(1) of the Personal Injury Commission Act2020 (the PIC Act) provides that the guiding principle of the PIC Act and its rules are “to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings”.
Clause 128(1) of the Personal Injury Commission Rules 2021 provides that the Panel “is to conduct and determine the proceedings in accordance with procedures determined by the panel”.
ASSESSMENTS UNDER REVIEW
In the application for medical assessment, Ms McCabe alleged the following injuries:
(a) Injury to the neck and back – soft tissue whiplash and radiculopathy;
(b) Injury to the shoulders and right arm;
(c) Injury to the breast and scarring the breast region;
(d) Cardiovascular and respiratory, and
(e) Psychological injury – anxiety, depression and stress.
The first two were referred to Assessor Dixon, the third to Assessor Curtin and the fourth to Assessor Christopher Grainge who, on 16 March 2021 determined the claimant had no impairment resulting from any cardiovascular or respiratory disorder.
Assessments of the neck, back, shoulders and finger
Assessor Dixon’s certificate is dated 15 April 2021. He was asked to assess the claimant’s cervical spine and lumbar spine injury, a right shoulder and right arm injury and left shoulder injury.
Assessor Dixon notes Ms McCabe’s past history of L5/S1 back surgery which he says gave a good result for her back pain. There are other conditions mentioned not relevant to this assessment.
The claimant’s current complaints were of persisting pain and stiffness in her neck with bilateral shoulder and trapezial muscle pain more on the left. She complained of pain in the right thumb and locking of her left ring finger, ongoing chest discomfort and pain in the thoracolumbar area. She had a permanent dorsal column stimulator inserted and was bothered by the battery site.
Assessor Dixon undertook an examination of all of the nominated body parts and the claimant’s left ring finger.
He summarised the relevant document including two letters from her spinal surgeon, reports of Drs Hodgkinson and Georgallis (in relation to the breast surgery) and the assessments of Assessors Curtin, Grainge and Samuels. Assessor Dixon then summarised the relevant imaging.
Assessor Dixon considered all the injuries referred to him resulted from the motor accident and diagnosed the following:
(a) whiplash injury to the claimant’s neck with post traumatic stiffness, with dysmetria and bilateral shoulder brachialgia with trapezial muscle pain, more marked on the left with pain extending down her right arm towards the elbow;
(b) post-traumatic stiffness of the right shoulder due to trapezial muscle pain following the seat belt injury with aggravation of her previously quiescent rotator cuff repair and biceps tenodesis and post traumatic stiffness;
(c) post-traumatic stiffness of the left shoulder with trapezial muscle pain following her neck strain injury (Nguyen effect), and
(d) lumbar back strain injury with post-traumatic stiffness with dysmetria on flexion and extension and aggravation of the L4/5 and L3/4 levels above the fusion with disc bulges with radicular complaint with intermittent paraesthesia over the dorsum of her left foot.
He considered the claimant’s de Quervain’s syndrome was not caused by the accident but found the left trigger finger was causally related to the accident and resulted in a 2% impairment. This was not added to his table of impairment because the parties were not on notice of it. He also noted no assessable impairment for the implant of the column stimulator in the thoracic spine.
Of the listed and diagnosed injuries he found:
Body part / system Guides /Guidelines Current WPI Existing WPI WPI due to motor accident Cervical spine Table 73, p 110 5 0 5 Left Shoulder Pie Charts 38, 41 & 44
Pages 43-457 0 7 Right shoulder and arm 4 0 4 Lumbar spine Table 72, Page 110 5 5 0
At paragraph 28 of his reasons under the heading “Pre-existing / subsequent impairment”, Assessor Dixon dealt only with the lumbo-sacral condition noting the claimant had more low back pain after the accident but no change to the previous Diagnostic Related Estimate category of II.
The total whole person impairment was assessed at 16%, 18% if the trigger finger was to be included.
Assessment of the breast
Assessor Curtin undertook his assessment on 27 November 2020. He noted that the claimant had bilateral breast augmentation surgery about 25 years before the accident with silicone implants and that she did not report any previous problems with them.
He records that following Ms McCabe’s admission to hospital she was diagnosed with fractures of the left sixth and seventh ribs and a CT scan suggested the left breast prosthesis had ruptured. Subsequent imaging after discharge confirmed the rupture and the claimant progressed to surgery to have the implants removed but he had no documentation about this. He records that further imaging appeared to have confirmed leakage of silicone.
The claimant complained to Assessor Curtin of sore breasts, lumps in the left breast and a concern about the potential toxicity of the silicone in the left breast.
After review of the documentation and an examination of the claimant he found the claimant’s impairment was unlikely to change substantially and she had an 8% whole person impairment for these reasons:
(a) the accident resulted in the rupture of the left breast implant and its capsule;
(b) the gel in the implant has migrated to the breast tissue;
(c) there was uncertainty about whether the right implant had been damaged and so it was reasonable to remove both implants;
(d) there is impairment due to the deformity of the breast caused by the removal of the implants;
(e) ‘there is also some impairment due to a small risk of complications in the left breast such as further migration of the gel or the development of granulomas’ and the Guidelines and AMA 4 are silent on this matter;
(f) paragraph 6.24 of the Guidelines allows the assessment impairment by analogy to a similar condition;
(g) facial deformities are a similar condition because there are ‘similar cosmetic and emotional’ penalties to facial deformities, and
(h) skin disorder impairment is not appropriate because the claimant has lost ‘bodily contour’ by having the breast implants removed not just scarring. He observed that the scars relevant to the implant removal surgery were in the same place as the original scarring from 25 years ago.
Assessor Curtin’s findings were of an 8% impairment “due to a combination of the breast deformity together with the need for monitoring and risk of complications”.
At page 6 of his report (page 32 of the insurer’s bundle), the assessor says that:
“Central to an estimation of impairment is an assessment of the health risks consequent to the extracapsular rupture of the left breast implant and the subsequent scattering of silicone-gel through the breast tissue.”
Assessor Curtin refers to and quote a number of studies about breast implant rupture and the potential complications associated with this all of which supports what appears to be his assurance to the claimant that the leaked gel is not ‘toxic’.
SUBMISSIONS
Insurer’s submissions
The submissions in support of the application for review dealing with Assessor Dixon’s certificate argue:
(a) the Assessor’s failure to adequately explain his findings in respect of causation of the shoulder injuries as he failed to take into account the insurer’s reply, and
(b) the diagnosis of shoulder injuries related to the accident was incorrect due to the absence of any contemporaneous documentation concerning the shoulder injury, a nine-month delay in complaint of shoulder symptoms and in the presence of a subsequent intervening incident.
In respect of Assessor Curtin’s assessment of 8% whole person impairment for damage to and subsequent removal of the claimant’s breast implants and scarring the insurer says:
(a) the Assessor’s methodology was incorrect in that he used the method of analogy to facial injuries whereas the Guidelines specifically provide for clause 6.257 that injury to the breasts caused by damage to breast implants must be assessed as a skin impairment class 1;
(b) by referring to the prospect of future deterioration the Assessor breached clause 6.21 of the guidelines, and
(c) the Assessor failed to afford procedural fairness by considering four pieces of literature without providing them to the parties first.
Claimant’s submissions
In relation to Assessor Curtin’s assessment, the claimant says:
(a) the Assessor gave reasons for his decision to decide by analogy with facial deformity and says this is part of his clinical judgment;
(b) clause 6.257 is not mandatory because “we are not dealing with an injury to the breast caused by damage to a breast implant … [we are] dealing with injury to the breast caused by … the removal of breast implants.”;
(c) even if bound to use the skin impairment table, this provided a range of 0 – 9% “and he would not have changed that assessment”;
(d) the insurer has not provided specialist opinion to contradict Assessor Curtin’s findings;
(e) the Assessor found there was no significant further deterioration of the injury but was permitted to take into account future complications including the further migration of silicone gel, and
(f) in respect of the procedural fairness point, the claimant noted there was no breach because the Assessor found in favour of the insurer and any procedural unfairness in citing the reference material was to the claimant.
The claimant’s submissions note that the insurer does not contest Assessor Dixon’s assessment of 5% impairment for Ms McCabe’s neck injury or the 0% allowed for her back condition.
In relation to the injury to the claimant’s shoulders it is submitted that:
(a) the test is not whether there is or is not contemporaneous medical evidence. That is relevant but not determinative where there is other evidence;
(b) the claimant says there may be reasons why the claimant does not have contemporaneous records of shoulder complaints. This may be because the doctor has not recorded them properly or the claimant was focussed on other areas of her body. Also possible is that neck pain can mask shoulder pain, and
(c) the insurer concedes she has shoulder conditions. The Assessor was aware of her pre-existing condition, relevant records and submissions and explained his reasons accordingly.
THE REVIEW PROCEEDINGS
In directions dated 17 December 2021 the Panel:
(a) determined it would hear the two matters together;
(b) directed the insurer to upload a bundle of documents and any additional documents and submissions by 11 January 2022, and
(c) directed the claimant to upload a bundle of documents and any additional documents and submissions by 17 January 2022.
Both parties complied with the directions. In the claimant’s bundle were documents not before the original assessor including a report of Dr Darryl Hodgkinson dated 2 March 2021 and photographs of the claimant’s scarring “as a result of the spinal and double mastectomy surgeries” she had undergone since the original medical assessments.
The Panel met and as a result of its discussions issued a report dated 28 January 2022 with further directions to the parties including a direction to the claimant to provide any medical documentation concerning the double mastectomy surgery.
After drawing to the insurer’s attention clause 6.256 of the MA Guidelines, the Panel invited the insurer to consider resolving the dispute about the degree of the claimant’s whole person impairment in the light of the claimant’s mastectomy.
On 9 February 2022, the claimant provided further documentation including reports concerning the claimant’s mastectomy.
Also on 9 February 2022, the insurer provided further submissions in answer to the Panel’s directions advising that the insurer did not concede the claimant had a whole person impairment greater than 10%.
The Panel has decided to determine the issue of Ms McCabe’s whole person impairment due to her breast injury first before determining whether it is necessary to proceed with the remainder of the matters in issue between the parties.
REVIEW OF THE EVIDENCE RELEVANT TO THE CLAIMANT’S BREAST INJURY
The ambulance report[3] noted the accident was “low speed’ 45 – 50 kms”. The Panel notes the airbags of Ms Cabe’s car were deployed. The claimant was attended to having extricated herself from the car and she was “walking and talking”. Amongst other complaints, the claimant had “left sided chest pain”.
[3] Page 56 of the insurer’s bundle of documents.
At Nepean Hospital, in the early hours of the morning on 14 January 2018, the claimant had an X-ray of her chest and later a CT scan of her chest which revealed the “left breast implant rupture”[4]. An ultrasound performed on 15 January 2018 suggested there was “evidence of a contained rupture”[5] however a bilateral breast ultrasound was undertaken on 3 February 2018[6] confirming the rupture of the left prosthesis and suggesting the possible rupture of the right prosthesis.
[4] Page 375 of the insurer’s bundle of documents.
[5] Page 374 of the insurer’s bundle of documents.
[6] Pages 62 and 118 of the insurer’s bundle of documents.
Claim form signed 8 February 2018 says broken sternum, multiple broken ribs, broken left hand, severe whiplash, left breast ruptured implant (also right breast implant ruptured) very painful left leg. Right hand and arm started with pins and needs and then would become quite painful.
An MRI of 14 February 2018[7] reported a “clear cut rupture of the left breast implant with a large amount of free silicone in the soft tissues of the left breast”. The right breast implant was said to be intact.
[7] Page 63 of the insurer’s bundle of documents.
On 15 February 2018 Dr Georgallis (associate surgeon to Dr Hodgkinson) wrote to the St Vincents Public Hospital Plastic’s team enclosing the MRI scan and advising that the claimant required “urgent removal of bilateral breast implants”[8].
[8] Page 129 of the insurer’s bundle.
Further ultrasounds of Ms McCabe’s breasts were undertaken on 25 January 2019[9] showing that the contents of ruptured implant and spread throughout the breast with lymph node involvement.
[9] Pages 73 and 199 of the insurer’s bundle.
On 5 February 2019 the claimant had a bilateral mammogram with 3D tomosynthesis[10] similar findings, “dense lobular opacities … throughout the left breast” and confirming the contents of ruptured implant in the left breast and lymph node.
[10] Pages 75 and 201 of the insurer’s bundle.
Dr Darryl Hodgkinson is the claimant’s cosmetic plastic surgeon and he provided his operative notes dated 18 September 2018.[11] The procedure was described as “Removal of ancient implants, removal of capsules bilaterally, removal of free silicone and biopsy of firm mass in the left breast, likely granulomas from silicone.” In an expert certificate completed for the NSW police force[12], Dr Hodgkinson refers to the pathology as returning a negative result for malignancy put positive for granulomas.
[11] Page 721 of the insurer’s bundle of documents.
[12] Page 766 of the insurer’s bundle. This is a document required for the criminal proceedings against the driver of the motor vehicle that caused Ms McCabe’s accident.
In a report of 2 March 2021[13], Dr Hodgkinson provides a critique of Assessor Curtin’s whole person impairment assessment and suggests that a mastectomy may be required if she continues to get granulomas or other changes in the left breast. He explains this is because the granulomas (caused by the leaked silicone) are difficult to distinguish from malignancies. He noted that if Ms McCabe had a mastectomy, her whole person impairment would increase.
[13] Page 40 of the claimant’s bundle of documents.
On 9 February 2022, the claimant uploaded to the portal the operation report of Dr Paul Chen dated 9 November 2021 concerning the claimant’s left mastectomy, implant and right breast reduction. This document will be further discussed later in these reasons.
On 29 July 2021, Dr Chen reported to the claimant’s general practitioner following his consultation with the claimant. He referred to Dr Hodgkinson’s report of September 2018 and his recommendation of left mastectomy. Dr Chen notes that the claimant had complained of bloody discharge from the left nipple. He documents her history and reports on an examination which suggests the right breast was normal but the left breast had “diffuse tissue thickening … consistent with silicone infiltration”. He refers to a bilateral mammogram and ultrasound from November 2020 and says that due to the presence of the silicone in the left breast it would be difficult to detect any malignancy. Following a further specialised mammogram, he agreed with Dr Hodgkinson that Ms McCabe would be best managed with a left breast mastectomy plus immediate implant based reconstruction along with a right breast reduction in an effort to obtain symmetry.
CONSIDERATION OF THE IMPAIRMENT ASSESSMENT ISSUES
The insurer’s further submissions
The insurer has accepted that the claimant injured her left breast in the accident including a ruptured implant. The insurer notes that the silicone gel from the ruptured implant led to the need for the left breast mastectomy and advises that the insurer had paid for the surgery undertaken by Dr Chen in November 2021 including her left breast mastectomy.
The insurer then states:
“The Guidelines replace the relevant section in the AMA4 Guides in relation to assessing breast injuries. There is uncertainty as to how they should be applied due to the conflict contained in the wording of clauses 6.256 and 6.257.
Clause 6.257 provides injury to the breast(s) caused by damage to a breast implant(s) must be assessed as class 1, Table 2 (page 280, AMA4 Guides) (0 to 9%).
Clause 6.256 provides that total loss of one or both mammary glands is deemed to be an impairment of greater than 10% WPI.
There is no guidance in the Guidelines as to how these clauses should interact. On its face, clause 6.257 must apply where a breast injury, whatever that may be, results from a damaged implant, however the insurer accepts that there is an argument that clause 6.256 should apply.
The situation is further complicated by the fact that the claimant underwent both a mastectomy and reconstruction of the left breast, which had previously undergone surgery for implantation. It may therefore be argued that the claimant has not suffered a total loss of her left mammary gland as a result of the accident, as it has been restored to a substantially similar state to that which existed before the accident. The right breast did not suffer any direct injury in the accident.
In the circumstances the insurer does not concede WPI greater than 10% nor withdraw its application, as the review panel's reasons and decision are required to determine the proper application of the Guidelines.”
What is a breast and what is a mammary gland?
The insurer has raised an issue concerning the reference in clause 6.256 to mammary glands and the reference in clause 6.257 to breasts and queries the significance of this differentiation.
The term “mammary gland” has both a wider meaning and a narrower meaning. In its wider meaning “mammary gland” is the term for that part of a mammal that distinguishes them from other animals, that is the ability to lactate and suckle young.
The breast is the general term used for the mammary glands of primates[14]. The two terms can be and often are, in the Panel’s experience used interchangeably in medical and non-medical literature. Breast is also a general term used for the front of the chest area for example the sternum is in lay terms often referred to as the breastbone.
[14] The mammary glands in horses and cows for example are called “udders”.
The breast is part of the chest area and both men and women have breasts. Anatomically the breast is considered to be all of the tissues overlying the chest (pectoral) muscles and includes the visible parts being the areola and nipple as well as the parts beneath the skin including the ligaments, lobules, ducts and fatty tissue.
The narrower more specific term for a mammary gland is as one example of an exocrine gland[15]. Exocrine glands are distinguished from endocrine glands because they secrete substances externally by way of a duct system. Endocrine glands secrete their substances (including hormones) directly into the bloodstream. Some examples of endocrine glands include the pituitary gland, the pancreas, ovaries, testes and adrenal glands.
[15] Other examples of exocrine glands include sweat glands and salivary glands.
Both men and women have mammary glands but only the mammary glands of women mature to a state where lactation can occur (due to the influence of hormones in puberty and again in pregnancy).
The impairment assessment of the mammary glands is provided for in the endocrine chapter of the AMA4 Guides and in that part of the MA Guidelines also dealing with the endocrine system. It is therefore the Panel’s view that the reference to “mammary glands” in clause 6.256 of the MA Guidelines is a reference to the mammary gland in its glandular and narrow or more specific sense.
The Panel notes the definition of “injury” in the MAI Act[16] means “personal or bodily injury and includes damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses”. This definition might include damage to a prosthetic breast implant.
[16] Section 1.4.
The panel notes that while clause 6.257 is contained in that part of the MA Guidelines concerning the endocrine system of the body, it refers to a table from the skin chapter of the AMA4 Guides. This is understandable when you consider that a breast implant is not natural tissue but a prosthesis or artificial tissue. Damage to a prosthesis would not ordinarily attract a whole person impairment because it is not a part of the body of a person. The Panel is of the view therefore that the reference to a breast injury causing damage to a breast implant in clause 6.257 of the MA Guidelines is a reference to the breast in its wider more general anatomical sense.
What surgery did the claimant have to her breasts?
The claimant’s surgeon, Dr Paul Chen has provided an operation report. The main features of this report are as follows:
(a) Diagnosis left breast siliconoma.
(b) Operation performed:
(i)“Left skin [sparing] mastectomy” - that is a mastectomy which aims to spare as much of the skin as possible to reduce the need for skin grafts and so on.
(ii)“Nipple sacrificing mastectomy” - this indicates the nipple and the areola have not been preserved.
(iii)Excision of silicone lymph node.
(iv)Immediate pre-pectoral implant-based reconstruction with permanent implant.
(v)Right reduction mammoplasty.
(c) Deep margin to deep fascia – means the breast tissue was removed to the pectoral fascia or lining of the pectoral muscle.
(d) Silicone infiltrated tissue and lymph node excised weighing 551gms – the implant was 230 cc and therefore 192.5 grams of right breast tissue was excised in order to provide uniformity or symmetry between the breasts.
In summary while the skin of the claimant’s left breast was preserved, the nipple, the aureole and the whole of the internal parts of the claimant’s left breast were removed down to the pectoral muscles including the ligaments and fatty tissue, the lobules and ducts that form part of the system of lactation in the mammary gland in its narrow sense.
Clause 6.257 of the MA Guidelines
Clause 6.257 provides that an injury to the breast or breasts caused by damage to one or both breast implants must be assessed as class 1, Table 2 (page 280, AMA4 Guides) (0 to 9%). Table 2 at page 280 of the AMA4 Guidelines is found in the skin chapter which is relevant to the evaluation of skin conditions including scarring and deformity of the skin.
Before this accident and for over 25 years the claimant’s breasts had been enhanced with prosthetic implants and there is no dispute that the left implant was ruptured and had to be removed as a result of this accident. Had the claimant’s treatment stopped there and the mastectomy not occurred, the Panel is of the view that clause 6.257 would apply because the accident caused the damage to the implant which led to an injury to the claimant’s body when the implant was removed.
Had the claimant’s ruptured implant been removed more quickly and a new implant immediately inserted, the Panel is of the view that clause 6.257 would continue to apply.
However, the claimant has progressed to a left breast mastectomy which the insurer concedes was reasonable and necessary and causally related to the accident.
Clause 6.256 of the MA Guidelines
Clause 6.256 of the MA Guidelines provides that total loss of one or both mammary glands is deemed to be an impairment of greater than 10%. While the claimant’s skin tissue in the breast area has been preserved, the whole of the claimant’s internal left breast tissue has been removed as summarised in the operation report along with her left nipple and aureole.
The Panel notes clause 6.30 of the MA Guidelines under the heading “Adjustment for the effect of prostheses or assistive devices” says that the impairment assessment should be conducted “without assistive devices, except where these cannot be removed.” Clearly the claimant’s left breast implant cannot be removed.
The Panel notes this submission from the insurer:
“It may therefore be argued that the claimant has not suffered a total loss of her left mammary gland as a result of the accident, as it has been restored to a substantially similar state to that which existed before the accident.”
The Panel notes the claimant had implants inserted more than 25 years ago to enhance her breasts. Those implants were removed in 2018 and the shape and state of her breasts were altered. The implant that has now been inserted into the claimant’s left breast is not a prosthesis enhancing an existing breast but a replacement of an absent breast (removed by surgery). The Panel is of the view that the insurer’s argument that the claimant’s left breast has been restored to a substantially similar state is wrong. The claimant may have a breast that is similar in size to the one she had before the accident[17] or before her recent surgery, but the loss of her natural breast tissue and the replacement with an artificial device is, in the Panel’s view, a substantial difference.
[17] Although this is doubtful noting that the 25 year old implants have been removed, 551 mgs of breast tissue has also been removed and an implant inserted into the left breast with the right breast having close to 200 mgs of breast tissue removed in order to achieve symmetry.
The claimant has lost her left nipple, lobules and ducts and as well as the fatty tissue that surrounds them and her lymph nodes. If the claimant were of childbearing age, she would have no part of the lactation system in place and would be unable to breastfeed. The Panel notes the MA Guidelines do not distinguish between the loss of a mammary gland in a male or female be they pre-pubescent, in their child-bearing years or post-menopausal.
CONCLUSION
The Panel is therefore of the view that the claimant has lost the whole of one of her mammary glands due to the injury to her breast sustained in the accident, the rupture of the implant and the extrusion of the gel into her breast tissue and lymph nodes and the need to have a left breast mastectomy. The MA Guidelines at clause 6.256 deem this injury to be an injury that results in a whole person impairment of greater than 10%.
It follows from the Panel’s decision that the certificate of Assessor Curtin in respect of the claimant’s left breast injury will need to be revoked and a replacement certificate issued.
The assessment of Assessor Dixon and his certification (on 15 April 2021) as to the whole person impairment of the claimant’s other physical injuries including her neck (assessment not challenged) and shoulders (assessment of both challenged) was also the subject of the insurer’s application for review under section 7.26. The Panel is of the view that it cannot revoke the certificate of Assessor Dixon without undertaking its own assessment of at least the claimant’s shoulder injuries. However, the Panel is mindful of the guiding principle in section 42 and is of the view that undertaking an assessment of the claimant’s shoulders would not be promoting the just, quick or cost-effective aims of the PIC Act or the Rules because this will involve delay, as a re-examination would be needed which could take some time due to the covid-19 situation and is unnecessary as the Panel has, in any event, found Ms McCabe’s whole person impairment is greater than 10%.
In terms of the claim generally, the Panel notes the limited damages available to the claimant under Chapter 4 of the MAI Act and that the certificate issued by the Panel entitles the claimant to recover non-economic loss damages but does not determine the amount of those damages. That is a matter for lay and expert evidence. Finally, the Panel also notes the claimant’s accident occurred over four years ago and that one of the objects of the MAI Act is to “encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes”[18].
[18] Section1.3(2)(g).
As the combined certificate includes the assessment of Assessor Curtin it must be revoked. The Panel however notes the difficulty of issuing a fresh “Combined Certificate” where the particular impairment percentage for the left breast mastectomy is not specified in the MA Guidelines. The Panel also notes there is limited utility in issuing a fresh “Combined Certificate” noting that the claimant has been assessed in respect of the breast as having a whole person impairment of greater than 10%. However, section 7.26(8) of the MAI Act requires the Panel to issue “a new combined certificate to take account of the result of the review”.
The Panel has therefore decided to issue the new certificate in terms which revoke the decision of Assessor Curtin, incorporate the decision of Assessor Grainge but which neither confirm nor revoke the assessment of Assessor Dixon.
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