Insurance Australia Limited t/as NRMA Insurance v Al-Khameesi
[2024] NSWPICMP 699
•8 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Al-Khameesi [2024] NSWPICMP 699 |
CLAIMANT: | Sam Al-Khameesi |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Ray Plibersek |
MEDICAL ASSESSOR: | Paul Curtin |
MEDICAL ASSESSOR: | Michael Couch |
DATE OF DECISION: | 8 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was driving a car and wearing a seatbelt when his car was rear-ended by another car; Held – original medical certificate regarding threshold injuries caused by the motor accident to claimant’s broken tooth revoked; on review, the Medical Review Panel (Panel) found that the injuries to the claimant’s tooth 13 with Ellis Class I fracture were not caused by the motor accident; Panel relied upon evidence of another previous motor accident showing that the claimant had previously reported a broken tooth; Panel found that the broken tooth was not caused, exacerbated or become symptomatic as a result of the subject motor vehicle accident. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Paul Nichols dated · tooth 13 with Ellis Class I fracture. |
STATEMENT OF REASONS
INTRODUCTION
On 18 October 2021, Mr Sam Al-Khameesi (the claimant) was driving a car on the Hume Highway that was hit from behind. He says his face hit the steering wheel.
After the accident the claimant did not attend hospital but went home and then saw his general practitioner (GP) Dr Haloob on 19 October 2021.
The claimant made an Application for Personal Injury Benefits dated 15 November 2021.[1] The reported injuries included face, head, back, neck, shoulders/arms, teeth and psychological sequelae.
[1] Claimant’s bundle pp 4-9.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Al-Khameesi under the Motor Accident Injuries Act 2017 (MAI Act).
By letter dated 9 December 2021 the insurer wrote to the claimant accepting liability for the payment of statutory benefits for 26 weeks and after 26 weeks from the date of the motor accident.[2]
[2] Insurer’s reply bundle R 2 p 4.
On 9 February 2022 the insurer wrote to the claimant declining the claim for statutory benefits after 26 weeks from the date of the motor accident.[3]
[3] Insurer’s reply bundle R 2 p 4.
In an email dated 15 February 2022 the claimant sought an internal review of this decision. The insurer determined its internal review decision on 14 March 2022.[4] The outcome of the internal review was that the minor injury determination was confirmed.
[4] Insurer’s reply bundle R 2 p 4.
The claimant sought a medical assessment of his broken tooth. The claimant was medically assessed by Medical Assessor Nichols who issued a certificate dated 27 August 2022.[5]
[5] Claimant’s bundle pp 6-14.
Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “(e) 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 by a Medical Assessor.[6]
[6] Section 7.20 of the MAI Act.
On 16 September 2022 the claimant’s solicitors filed an application with the Personal Injury Commission (Commission) seeking a Panel review of the certificate of Medical Assessor Nichols.
This Panel has been constituted to review the certificate of Medical Assessor Nichols dated 27 August 2022.
ASSESSMENT UNDER REVIEW
The dispute was initially referred to Medical Assessor Nichols who assessed the tooth 13 injury as caused by the accident and a non-minor (non-threshold) injury for the purposes of the MAI Act.
Medical Assessor Nichols medically examined the claimant on 12 August 2022.
In his decision he referred to the history of the motor accident, the history of symptoms and treatment following the motor accident and detailed the current symptoms.
Medical Assessor Nichols noted that there were no pre motor vehicle accident dental records. The claimant says his teeth were normal. Medical Assessor Nichols also notes that “…there were no dental records or reports. He did not go to hospital. He did not see a dentist.”
In his certificate and reasons dated 27 August 2022 Medical Assessor Nichols’s diagnosis of the claimant’s injuries and causation included the following comments:
“There were no dental documents and no mention of a dental injury in any of the reports…. There were no dental records or x-rays. On the evidence, tooth 13 with Ellis Class I fracture.
Causation and reasons There were no dental records or reports or x-rays. It is possible the MVA caused the dental injury….The following injuries WERE caused by the motor accident: • Broken tooth (13).”
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Nichols was lodged on 16 September 2022 which is within 28 days of the date on which the certificate was made available to the parties.
On 28 October 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that she accepted the submission that the Medical Assessor failed to consider relevant material and/or failed to address relevant material in relation to a pre-existing dental injury in the reasons of the Certificate.
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 new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[7] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[7] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued Directions to the parties dated 2 February and 6 March 2023 directing parties to each file a bundle of relevant documents that it intended to rely upon. The Panel also gave notice that it would re-examine the claimant on 16 June 2023.
In its Directions dated 6 March 2023 the Panel also directed as follows:
“2.The claimant is directed to bring with him originals of all records, medical reports or x-rays in his possession of his tooth injuries to the medical re-examination on 16 June 2023.
3. The claimant is also directed to bring with him originals or copies of any and all: records, police reports, records of drivers or witnesses to the second accident, notes and photographs of the accident or damage or any other evidence or material describing or relating to the second motor vehicle accident which is reported to have taken place on 18 October 2022 to the medical re-examination on 16 June 2023.”
The Panel notes that the claimant attended the re-examination but did not bring any of the requested records, medical reports or X-rays to the re-examination.
THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS
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.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act as follows:
“1.6 Meaning of ‘threshold injury’
(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.
(2) A soft tissue injury is (subject to this section) an 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.
(3) (Repealed)
(4) The regulations may—
(a) exclude a specified injury from being a threshold injury for the purposes of this Act, or
(b) include a specified injury as a threshold injury for the purposes of this Act.
(5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act.
(6) Subsection (5) does not enable the Motor Accident Guidelines to make provision for or with respect to the resolution of disputes by the Commission or medical assessor.”
Section 1.6 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) 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 MAI 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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”
ASSESSING THE CAUSATION OF INJURIES
The difficult issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[10] his Honour Justice Wright stated at [35]:
[10] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 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.
6.6Causation 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.
6.7There 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.’”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[11] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cls 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
[11] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41].
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[12] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73. The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74. For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
[12] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].
EVIDENCE BEFORE THE REVIEW PANEL
Application for Personal Injury Benefits
The Application for Personal Injury Benefits dated 15 November 2021 [13] listed the reported injuries as face, head, back, neck, shoulders/arms, teeth and psychological sequelae.
[13] Claimant’s bundle pp 4-9.
The claimant also refers to a previous motor vehicle accident on 28 June 2020 where he states that he received injury to the neck and left shoulder.
Police and ambulance reports
The NSW ambulance did attend at the subject motor accident. There were no ambulance or police reports included in the parties bundles of documents. There is a police event number referred to in the Application for Personal Injury Benefits.[14] The police event number is E 868 44486. No police report was produced by either party.
[14] Claimant’s bundle p 6.
There is a NSW ambulance report for the first accident on 28 June 2020.[15] This report describes a car with three occupants hitting a power pole. The claimant was reported to be the driver. The claimant complained of pain to the chest, abdomen and pelvis. The notes referred to seat belt abrasions to the left-hand side clavicle, tenderness to lower abdomen pelvis and left femur, laceration to left eyelid.
[15] Claimant’s bundle pp 26-31.
Hospital reports
There are no hospital notes related to the subject motor accident.
Rehabilitation reports
There is a Benchmark Rehabilitation report dated 24 December 2021 entitled Initial Needs & Activities of Daily Living Assessment Report. [16]
[16] Insurer’s reply bundle R15 p 321
Mr Al-Khameesi gave the following account of the accident and its immediate aftermath to
Mr Daniel Brewer from Benchmark Rehabilitation.[17] The claimant said he recalled an ambulance arriving and police car, though could not recall whom had called them. He reported dizziness following the motor vehicle accident for approximately one hour and left shoulder pain. He stated he was eventually able to drive home following the motor vehicle accident. He first sought medical treatment the following day with GP Dr Haloob on19 October 2021.[17] Insurer’s reply bundle R15 p 322.
The report described the injuries as cervical spine sprain and weakness of the left arm. Lumbar spine sprain. Dizziness and unsteadiness as per the certificate of fitness dated
20 December 2021 by Dr Saad Haloob.The report recorded Mr Al-Khameesi described his current symptoms as:
“· Neuropathic pain in all 4 limbs and lower back, with the left upper limb reportedly the most prominent – pain was noted not to follow median nerve pathway or dermatome pathways · Intermittent dizziness and nausea. Mr Al-Khameesi reported his dizziness to be debilitating in nature, and significantly impacts his functional ability · Reduced sensation in left upper limb · Non-specific bladder/bowl problems – Mr Al-Khameesi declined to elaborate on symptoms · Mildly reduced upper limb co-ordination // ataxia in left upper limb observed · Reduced proprioception evident in left upper limb on assessment · Dysdiadochokinesia evident in both hands observed · Dysmetria evident when reaching for objects on table · Functional active range of motion evident, though reported dropping items in left hand due to decreased grip · Writing with right hand, reported non-dominant hand due to reduced grip in left hand reported · Sitting tolerance 2 hours, with visible adjustments in position after 15 minutes and overt pain behaviours · Walking approximately 5m with ataxic gait with right hip externally rotated– reported dizzy when attempting this during ADL assessment. Mr Al-Khameesi was observed to walk with his right hip externally rotated at the GP practice for up to 25m, however with no ataxia in his gait – He reported he did not feel dizzy during the GP visit.”
Nowhere in the report is a broken tooth mentioned by either Mr Al-Khameesi or the author of the report as resulting from or caused by the subject accident.
Treating medical evidence
Pre-accident treating records
There were voluminous medical records available for the claimant’s medical history prior to motor vehicle accident.
There are almost 300 pages of clinical notes and medical records produced by Dr Saad Haloob which contain many blood tests, X-rays and MRI scan results.[18] Apart from a few Certificates of Capacity from 2020 none of these records refer to a broken tooth.
[18] Insurer’s reply bundle R 13 – R14.
There are a number of Certificates of Capacity and clinical records available from the claimant’s treating GP Dr Ehsan Maha Mikhail and Dr Saad Haloob from 4 August 2020 until 4 September 2020.[19] These certificates refer to injuries sustained by the claimant from the first accident on 28 June 2020. The injuries listed include to the shoulders, cervical spine, lumbar spine, pelvis, both hips, right knee, left elbow, wrist chipped tooth and acute stress reaction.
[19] Claimant’s bundle pp 10-25.
In the Certificate of Capacity dated 4 August 2020 Dr Saad Haloob makes a diagnosis including bleeding gums and pain.[20] The certificate lists the injuries as follows, “lower lumber spine pain fracture left clavicle neck pain with disc prolapse PTSD also he has had 1. epistaxis 2. bleeding gums and pain 3. shortness of breath 4.tremor 5.hip pain and bruises 6. healed R upper lid skin laceration 7. R knee pain.” Dr Haloob notes that the claimant said “..he will see dentist for broken tooth.” [21]
[20] Insurer’s reply bundle R 20 p 345.
[21] Insurer’s reply bundle R 21 p 356.
In the Certificate of Capacity dated 4 September 2020 there is a diagnosis including “chipped tooth”. [22] The diagnosis is noted as “soft tissue injury both shoulders c spine thoracolumbar spine pelvis both hips rt knee left elbow & wrist chipped tooth /acute stress reaction fracture left clavicle.”
[22] Insurer’s reply bundle R 21 p 349.
In bundles of documents the parties produced clinical and treating medical records for the claimant prior to and after the subject motor vehicle accident. The Panel has reviewed all the treating medical records produced by both the claimant and the insurer.
The medical history given by the claimant in his Application for Personal Injury Benefits prior to the subject motor accident is that he had no previous history of injury to the teeth but was in a previous motor vehicle accident on 28 June 2020.
Post-accident treating records
There are a number of Certificates of Capacity and clinical records available from the claimant’s GP Dr Saad Haloob.
In a Certificate of Capacity dated 29 October 2021[23] Dr Haloob refers to a number of injuries including nose pain, bruise nose and epistaxis, no septal hematoma. There is no mention or record of a broken tooth.
[23] Insurer’s reply bundle R 14 p 320.
In a Certificate of Capacity dated 1 November 2021[24] Dr Haloob refers to a number of injuries including nose pain, bruise nose and epistaxis, no septal hematoma and broken tooth.
Dr Haloob noted that the motor vehicle accident hit from the back with the claimant hitting his head on the front screen. The previous motor vehicle accident resulted in back pain which settled before the new motor vehicle accident.
REVIEW OF THE RADIOLOGY
[24] Insurer’s reply bundle R 8 p 35.
There are a two MRIs reporting on the claimant’s thoracic spine, lumbar spine, pelvis and hips.[25]
SUBMISSIONS
[25] Claimant’s bundle pp 13- 14.
Claimant’s submissions
The claimant’s solicitors provided written submissions dated 7 October 2022.[26]
[26] Claimant’s bundle pp 1-3.
In submissions dated 7 October 2022 the claimant’s solicitors submits that the application for review ought to be dismissed because there was no relevant pre-existing dental injury to consider. Therefore, there is no material error in the original Medical Assessor's findings.
The claimant further submits he was involved in a prior motor vehicle accident on
28 June 2020 where there was an impact to the claimant’s teeth. This resulted in some tooth sensitivity. However, no fracture was found and his dental issues resolved.The claimant’s solicitors note that the claimant gave a history to Medical Assessor Nichols of hitting his head on the steering wheel in the subject motor accident on 18 October 2021. The claimant submits that this is what caused an injury to tooth 13. The claimant also told the Medical Assessor that his teeth were normal prior to the subject accident which is consistent with his prior dental injuries resolving.
The claimant’s solicitors contend that Medical Assessor Nichols was aware of the allegedly broken tooth sustained in the prior accident as it was referred to in a medical certificate before Medical Assessor Nichols. The Medical Assessor expressly stated that he considered these materials before making his decision.
The Medical Assessor was satisfied that the fractured tooth 13 was not a pre-existing injury or condition.
Insurer’s submissions
The insurer has provided written submissions dated 8 March 2023 and 3 May 2020.[27]
[27] Insurer’s bundle pp 2-3 and pp 6-11.
In the submissions dated 8 March 2023 the insurer’s solicitors responded:
“1. The Insurer acknowledges receipt of the 06.03.2023 directions from the Review Panel as requested under Direction 1.
2. The Insurer notes the request for various imaging records in addition to property damage and other relevant information pertaining to the subject accident.
3. The Insurer would like to highlight the Review Panel may also benefit from photos of the claimant’s face displaying the claimant’s tooth 13 including the area of injury at the following relevant times if available: (1) Just before 28.06.2020 MVA (2) Just after 28.06.2020 MVA (3) Just before 18.10.2021 MVA (4) Just after 18.10.2021 MVA.”
MEDICAL EXAMINATION
Details of who attended the assessment
Mr Al-Khameesi attended on 2 August 2024 for re-examination by Medical Assessor Curtin.
Mr Al-Khameesi arrived three hours early for his appointment and indicated that he was keen to be seen quickly. Fortunately he was able to be accommodated.
HISTORY
Mr Al-Khameesi confirmed the circumstances of the subject accident which occurred on
18 October 2021. He confirmed that he was the driver of a car that was struck from behind. He said that his face hit the steering wheel despite the fact he was wearing a seatbelt. There do not appear to be any ambulance or police reports, and he did not attend hospital after the accident. He said that airbags did not deploy. He said that he thought there was some blood in his mouth after the accident and that he had damaged one of his upper front teeth on the right side (upper right canine tooth, tooth 13).Mr Al-Khameesi said that he saw his doctor the following day at Campbelltown, but there is no record of this in the documents. The documents include about 300 pages of records from his GP, but these consist almost completely of various investigations carried out between 2016 and 2022. There are no records of consultations following the accident in October 2021. There was a certificate dated 29 October 2021 from Dr Saad Haloob listing injuries sustained in a motor vehicle accident on 18 October 2021. These injuries included neck pain, back pain, pelvic pain, bruised nose and epistaxis, but no mention of any dental injury. There is another certificate dated 1 November 2021 from Dr Haloob which referred to the same motor vehicle accident and listing the same injuries once again, but also including “broken tooth”.
The second certificate did not provide any details regarding a management plan. He also said that he had seen a dentist after the accident, but was unable to provide details as to when and where that occurred. Mr Al-Khameesi completed a CTP green slip claim form on 15 November 2021 in which he described injuries to the face, head, back, neck, shoulders/arms, and teeth and psychological sequelae.
Mr Al-Khameesi was asked about an earlier accident on the 28 June 2020 when he was the driver of a car which struck a power pole. Documents in his file refer to his subsequent admission overnight to Liverpool Hospital where he was diagnosed with an undisplaced fracture of the left clavicle together with pelvic injuries. A subsequent medical certificate dated 4 August 2020 from Dr Haloob made a diagnosis of a chipped tooth and stated that
Mr Al-Khameesi “will see a dentist for broken tooth”. Mr Al-Khameesi denied that he had injured his teeth in this accident and said it could not have happened because he had his arm across his face protecting it when the accident occurred.
Current symptoms
Mr Al-Khameesi said that his injured tooth still caused him some discomfort and was sensitive to hot and cold. He said that he occasionally noted bleeding coming from his gums. He was not aware of any disturbance to his diet.
Findings on clinical examination
Mr Al-Khameesi was a fit looking Arabic man of 27 years. He had a light olive complexion dark hair and a well-trimmed beard cut short. He spoke reasonable English. His teeth were in generally good condition with no evidence of periodontal disease. There was no evidence of any dental restorations nor was there any evidence of dental decay. His first bicuspid teeth, upper and lower, had been removed and the spaces closed, evidence of previous orthodontic treatment. Mr Al-Khameesi admitted that in his youth he had worn orthodontic braces. His third molar teeth were also missing. Examination of tooth 13 revealed no abnormality to the naked eye. Magnification revealed a small crack in the enamel consistent with the diagnosis of an Ellis class I dental injury. The tooth was not sensitive to percussion.
Results of any additional investigations since the original Medical Assessment Certificate
There have been no additional investigations.
Comments on the threshold Injury dispute
Apart from the claimant’s account, there is no contemporaneous evidence that Mr Al-Khameesi sustained any dental injury in the accident on 18 October 2021. There is no dental records or evidence that he has seen a dentist following either of the two accidents. His GP files contain records of multiple investigations, but strangely no record of any consultation following the last motor vehicle accident in October 2021. There is evidence that he sustained a dental injury in the previous accident on 28 June 2020 although it is not clear whether the tooth involved was number 13.
DIAGNOSIS, CAUSATION AND SUMMARY OF THE PANEL’S OPINION
The claimant was involved in two motor vehicle accidents on 28 June 2020 and
18 October 2021. He claimed to have sustained a number of injuries caused by both accidents.There is evidence recorded by his GP Dr Saad Haloob that the claimant reported sustaining a broken tooth in the first motor accident on 28 June 2020. He also told Dr Haloob that he would get the broken tooth treated by a dentist. In a Certificate of Capacity dated
4 August 2020 Dr Haloob makes a diagnosis including that the claimant had bleeding gums and pain.The accident report from NSW ambulance from the first accident notes the claimant complaining of a bleeding nose.
Regarding the second and subject motor accident the Application for Personal Injury Benefits dated 15 November 2021 lists teeth as an injury.
Mr Al-Khameesi told Medical Assessor Nichols that prior to the subject motor accident his teeth were normal.
In a report dated 24 December 2021 Mr Al-Khameesi gave Mr Daniel Brewer from Benchmark Rehabilitation a detailed list and description of his injuries from the subject motor accident. He did not mention a broken tooth or any tooth injury. Mr Al-Khameesi said he received medical treatment the day following the accident with GP Dr Haloob on
19 October 2021.Unfortunately there was no medical record or certificate produced from Dr Haloob dated
19 October 2021. There is a Certificate of Capacity dated 29 October 2021 by Dr Haloob with no mention of a broken or injured tooth.Based on the records available to the Panel, it appears that the first mention of the claimant complaining of a broken tooth after the subject motor accident is noted in a Certificate of Capacity dated 1 November 2021 by Dr Haloob.
The Panel notes the lack of contemporaneous records showing any complaint of a broken tooth until about two weeks after the subject motor accident. The Panel draws no conclusion nor adverse inference against the claimant for the lack of any contemporaneous record of injury.
The Panel has carefully considered all of the medical evidence and records presented to it by both parties. It has also carefully reviewed the examinations and questions put to the claimant by the Medical Assessors. The Panel has also had regard to the legislation, Guidelines and the common law test of causation in such a case that doesn't require that the accident be a direct cause of the injury only that the accident made a material contribution to the injury. The Panel refers to the decisions in: Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J and AAI Ltd t as AAMI v Ahmed [2023] NSWPICMP 126.
It is the Panel’s view that the broken, cracked or damaged tooth 13 was not caused or exacerbated or became symptomatic as a result of the subject motor vehicle accident. Given the preponderance of evidence referred to above, it is the Panel’s view that the injured tooth 13 was most likely injured or damaged in the first motor accident on 28 June 2020. Based on the available evidence, the Panel is not satisfied that the second or subject motor accident on 18 October 2021 caused, exacerbated or contributed to the injured or damaged tooth 13.
In reaching its conclusions about the causation of the claimant’s injured or damaged tooth 13 the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is not satisfied that the subject motor vehicle accident materially contributed to the claimant’s injured or damaged tooth 13 or caused or exacerbated any such injury.
Accordingly, the Panel finds that Mr Al-Khameesi injured or damaged tooth 13 was not caused by the subject motor accident on 18 October 2021.
CONCLUSION AND CERTIFICATION
The Panel’s opinion is that the accident did not cause the Ellis Class I fracture to the claimant’s tooth 13.
For the above reasons the Panel revokes the certificate of Medical Assessor Nichols dated 27 August 2022 and issues a replacement certificate.
The new certificate is attached at the commencement of these reasons.
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