Insurance Australia Limited t/as NRMA Insurance v Coleman
[2023] NSWPICMP 323
•11 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Coleman [2023] NSWPICMP 323 |
| CLAIMANT: | Douglas Coleman |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | David Sykes |
| MEDICAL ASSESSOR: | Paul Curtin |
| DATE OF DECISION: | 11 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of whole personal impairment (WPI) and insurer’s application for review under section 63 of certificate issued by Medical Assessor (MA) Nichols; claimant injured in a fall on a bus in May 2016; claimant alleged musculoskeletal injuries which had been assessed at 10% and this assessment was not challenged; claimant also alleged significant dental injuries assessed at 9% due to difficulty masticating; claimant had given various histories alleging he flew through the air and hit his face and head on a pole in the bus as he fell; CCTV footage from inside bus did not support this; Held – claimant’s evidence unreliable; much of the expert evidence based on the unreliable history and none of the experts (or previous MA) had watched the footage; the claimant had not watched the footage until medical review re-examination; Panel satisfied claimant fell in the bus but that he did not hit his face and did not hit his head with significant force; the Panel accepted that the fall could have damaged tooth 12 and that the claimant reported this to his dentist on the day of the accident; Panel not satisfied other alleged damage to the claimant’s teeth was caused by the accident; claimant’s difficulty masticating due to loss of 10 of his 12 molars and failing bridges and decay, not caused by accident; Certificate of MA revoked; fresh combination certificate issued; claimant did not have a WPI greater than 10%. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Nichols dated 11 December 2021. 2. Revokes the certificate of Medical Assessor Nichols dated 14 February 2022 combining his assessment with the assessment of Medical Assessor Cameron dated 22 January 2022. 3. Certifies that the degree of Mr Coleman’s permanent impairment resulting from the injuries caused by the motor accident on 2 May 2016 is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
On 2 May 2016, Douglas Coleman was involved in a motor accident. He was a passenger on a bus in Sydney and says he fell when the bus stopped suddenly, injuring his back, shoulders, jaw and teeth.
Mr Coleman made a claim for damages against NRMA, the third-party insurer of the vehicle that Mr Coleman says caused his accident and his injuries.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) arose in connection with that claim and Mr Coleman referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 11 December 2021, Medical Assessor Nichols determined that Mr Coleman had a WPI of 9% for his jaw and dental injuries. On 22 January 2022, Medical Assessor Cameron determined the claimant’s spine and shoulder injuries resulted in a WPI of 10%. On
14 February 2022, Medical Assessor Nichols issued a certificate combining the two WPI figures for a total impairment of 18%.
The insurer lodged an application with the Commission seeking a review of Medical Assessor Nichols’ decision.
On 2 May 2022, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and she allowed the Review. On 13 February 2023 the President’s delegate convened this Panel to conduct the Review.
No application for review has been lodged in respect of the determination made by Medical Assessor Cameron.
LEGISLATIVE FRAMEWORK
General
Mr Coleman’s claim and his entitlement to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for and regulated by Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as those undertaken by Medical Assessors Cameron and Nichols, further medical assessment and the review of medical assessments by this Panel.[3]
[3] Sections 61, 62 and 63 of the MAC Act.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Impairment of dental injuries is assessed in accordance with cl 1.195 of the Guidelines as follows:
“Damage to the teeth can only be assessed when there is a permanent impact on mastication and deglutition (page 231, AMA4 Guides) and/or loss of structural integrity of the face (pages 229–230, AMA4 Guides).”
In Mr Coleman’s case, there is no issue raised by the parties of any loss of structural integrity of his face and therefore the assessment of WPI depends on any permanent impairment to Mr Coleman’s ability to chew and swallow.
Tooth numbering
The tooth numbering system of the Fédération Dentaire Internationale (FDI) is used throughout this report.
A two-digit system is used to identify individual teeth. The first number refers to the quadrant and second number refers to the actual tooth. The quadrants are numbered this way:
(a) upper right (quadrant 1);
(b) upper left (quadrant 2);
(c) lower left (quadrant 3), and
(d) lower right (quadrant 4).
Each individual tooth is numbered from the midline to the back. Tooth 26 (pronounced two six) refers to the upper left (quadrant 2), sixth tooth from the midline. Tooth 43 (pronounced four three) refers to the lower right quadrant (quadrant 4), third tooth from the midline.
The tooth numbering chart is reproduced below.
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ASSESSMENT UNDER REVIEW
Medical Assessor Nichols examined the claimant on 10 December 2021 and issued his reasons the next day. He was asked to assess the “multiple loss of teeth”.
Medical Assessor Nichols says:
(a) at [5] that he has not seen the DVD but that he relies on Dr Howe’s report, and
(b) at [8] that the material provided “confirms he was healthy and had a complete and stable dentition” before the car accident.
In terms of a history, Medical Assessor Nichols:
(a) notes the claimant was a physiotherapist. The Panel notes Mr Coleman was retired at the time of the accident;
(b) has a history of the bus having to brake due to a vehicle swerving in front of the bus and “Mr Coleman was thrown into the air landing heavily onto his back. His face struck a metal support causing him to lose a tooth”;
(c) a crown on tooth 22[5] was damaged and repaired by Dr Murray;
(d) “he subsequently lost more crowns and developed decay due to xerostomia caused by medications”;
(e) Dr Howe had viewed the video and noted “violent trauma” to the claimant’s dentition and expressed a view the prognosis was guarded, and
(f) the claimant has lost all his lower molar teeth and many upper teeth as a result of decay and fracture.
[5] This appears to be a reference to the incorrect tooth in that it was tooth 12 not tooth 22 that was re-crowned after the accident.
The claimant reported that he cannot eat most hard foods and some of his remaining teeth are tender when he bites. He cannot afford the treatment which his dentist has estimated at $44,000.
Medical Assessor Nichols examined the claimant’s mouth, his temporomandibular joint (TMJ) test was said to be normal but there was pain when opening wide. He remarks that the claimant’s “oral hygiene is fair” but that he has xerostomia (dry mouth). The Medical Assessor was of the view the claimant’s presentation was consistent with someone who has suffered significant dental trauma and xerostomia induced by medication. He notes Drs Murray, Turner and Howe all refer to “significant trauma, multiple internal stress fractures, crumbling porcelain and decay from xerostomia”.
Medical Assessor Nichols referred to a cone-beam computed tomography scan (CBCT) taken by Dr Howe in 2018 and that Dr Turner reported on a pre-accident orthopantomogram (OPG), but he did not view the films himself.
Medical Assessor Nichols says:
“The evidence (video) confirms the significant trauma to his dentition suffered in the MVA. The medical evidence confirms the prescription of medications (without warnings) with potential to cause Xerostomia. The dental evidence confirms he was not warned by his managing dentists he needed special preventive care due to his medications for pain.”
Medical Assessor Nichols assessed WPI at 9% on the basis of Chapter 9, section 9.3b, table 6, page 231. This allows a WPI of between 5% and 19% when the diet is limited to semisolid or soft foods. No further reasons were provided.
ISSUES FOR DETERMINATION
Insurer’s submissions
In the submissions made to the President’s delegate, the insurer states that Medical Assessor Nichols says he has not viewed the video but relies on a report of a Dr Howe who he says had viewed the video. The insurer suggests Dr Howe’s report did not include a reference to the video which was not available to the parties (or their medical experts) at that time.
The insurer also says the Medical Assessor did not engage with the articulated argument set out in the submissions.
The insurer also submits that the fact that Medical Assessor Nichols[6] provided an opinion to the insurer as an expert witness for the insurer means that he was in a position of conflict and was in breach of the Medical Assessor’s code of conduct.
[6] Dr Nichols has provided a medico-legal report to the insurer in May 2019 and was the medical assessor who undertook the assessment the subject of this review in December 2021. In order to distinguish between his determination in the assessment proceedings and his medico-legal opinion, the Panel will refer to him as Medical Assessor Nichols in the context of the assessment and Dr Nichols in the context of the medico-legal opinion.
In additional submissions dated 27 March 2023, the insurer says that the claimant has given a history in a number of medical examinations that he had fallen backwards and struck his head on a pole before landing on the floor of the bus. The insurer cites the histories given to Dr Assem, Medical Assessor Nichols and Dr Steel. The insurer refers to the CCTV footage which it says does not show the claimant’s striking his head or his face on any poles.
The insurer also refers to the claimant’s attendance on his GP on the afternoon of the accident and notes the claimant did not mention a dental injury.
The insurer refers to the claimant’s current dentist Dr Turner’s report dated 12 April 2018 advising that the claimant’s dental health had deteriorated because of the accident and says there are other reasons for this – his recurrence of cancer, the claimant’s post-traumatic stress disorder and anxiety.
The insurer relies on its own expert, Dr Paul Nichols who found no evidence of trauma and who said in a report dated 21 May 2019 that the claimant’s dental injuries were the result of normal wear and tear and ageing.
Claimant’s submissions
The claimant provides detailed submissions at [7] about the CCTV film and complains about the insurer’s delay in providing it. The claimant says the Medical Assessor has considered all the material in the application and the reply and has not erred.
The claimant says at [8] that the Medical Assessor has given due consideration throughout the assessment to the evidence provided by both parties and conducted a detailed examination and recorded a comprehensive history.
In response to the insurer’s submission that Medical Assessor Nichols was in conflict having previously provided a report to the insurer, the claimant submits at [9] that the only party capable of objecting to the Medical Assessor’s dual role would have been the claimant on the basis that Medical Assessor Nichols “was, and is, firmly in the insurer’s camp”. The claimant says the insurer did not object before the medical assessment and the insurer did not object until after the medical assessment “which is an act of recklessness at best, or malevolence at worst”.
The claimant says there is no evidence that the assessment was undertaken incorrectly, that findings were consistent with the medical records and the histories, and he has provided adequate reasons and explained his path of reasoning.
Procedural matters
The Panel met on 12 April 2023 to discuss the matter and reported to the parties on
14 April 2023 as follows:
(a) the Panel noted that Medical Assessor Cameron had assessed the claimant’s other physical injuries as resulting in a WPI of 10% and that no application for review had been lodged;
(b) a revised combined certificate may be necessary;
(c) the claimant appears to be alleging the following dental injuries:
(i)an injury sustained on the day of the accident resulting in one or more fractured teeth or crown, and
(ii)an injury related to the development of xerostomia (dry mouth) which can be caused or contributed to by medication use and which can lead to a decline in general dental health.
The Panel noted that causation was in issue in respect of the first injury on the basis the insurer says the CCTV shows a mechanism of injury not consistent with the claimant’s histories. The insurer has also placed causation of injury in issue in respect of the second injury saying that the claimant’s dentition has been affected by aging, decay and bruxing (grinding) unrelated to the accident.
The Panel noted the contents of cl 1.195 and that as there was no suggestion of any loss of structural integrity of the face, impairment was to be assessed by way of impact on mastication and deglutition. In other words, permanent impairment is not assessed by reference to the number of teeth damaged or lost but by the impact of the accident-related trauma to the claimant’s ability to chew and swallow.
The Panel advised the parties of the preliminary view that the claimant does not appear to have hit his head on the poles in the bus or the floor of the bus when he fell but that he may have hit his head on a seat, or his head may have come into contact with one of the two seated passengers next to the door where he fell.
The Panel requested additional documents:
(a) Pharmaceutical Benefits Scheme (PBS) records in order to consider the claimant’s pre and post-accident medication use (relevant to the assessment of xerostomia);
(b) Dr Turner and Dr Murray’s records of dental treatment;
(c) the OPG referred to by Dr Turner in his report of 18 April 2018, and
(d) the CBCT Dr Howe included with his report of 4 September 2018.
The claimant provided the PBS records (AD 16) and the records of Drs Murray and Turner (AD17), and that bundle includes two 2018 imaging studies (6 March and 6 November).
REVIEW OF THE EVIDENCE
Claim form and claim documents
Mr Coleman’s claim form was dated 27 October 2016. He lists his injuries as a compression fracture of the lumbar spine, injury to the back and neck, dental injuries and psychological injuries.
He gives the following version of events in his claim form:
“The bus driver jammed on the brakes. At that moment I was moving past an elderly perosn seated on my right. I was thrown in the air and landed very heavily on my back. I did not see the clack car until after I was helped to my feet. The pain in my back was paralysing.”
Mr Coleman provided a statement dated 8 December 2020[7] outlining the state of his teeth and the effect that state has on his inability to eat certain foods. He says he is frustrated because of his injuries.
[7] Page 68 of the claimant’s bundle of documents.
Film from the bus
There are two separate video films.
The first is from the middle camera which is placed over the middle door of the bus. The claimant is out of view to the right, what appears to be two seats back from the middle door on the non-driver’s side of the bus. He is sitting next to the window. The person next to him gets out of his or her seat to let the claimant out, which he does turning to face the back of the bus. It then appears he loses his balance, stumbling backwards past the middle door and landing on his buttocks in the middle of the aisle between two sets of fold-down seats which face each other. Mr Coleman’s body then moves sideways, and he comes to rest between the two sets of fold out seats to the left of the middle doors. At no stage does his head hit the floor of the bus or any poles of the bus. A passenger, and then the driver assist the claimant to his feet within 10 seconds of the fall and other occupants of the bus then move towards the claimant.
The second view is from a camera placed at the front of the bus looking down the aisle of the bus. This shows the claimant getting out from his seat, having his back to the front of the bus and losing his balance stumbling backwards and falling. He puts his left arm out to break his fall and falls backward with his head prevented from hitting the ground by the fold down seats (or the persons sitting in the fold down seats) on the non-driver’s side of the bus. His head does not come into contact with any poles or the floor of the bus. The bus driver is out of his seat within a few second of the claimant falling.
Treating medical records and reports
The claimant has provided a copy of his PBS scheme records from 2 May 2011 to 2022.[8]
[8] Document AD 16 in the file.
In the year before the accident the claimant was prescribed:
(a) Pantoprazole – a proton pump inhibitor;
(b) Temazepam and diazepam – both benzo diazepams;
(c) Antibiotics, and
(d) Piroxicam (a non-steroidal anti-inflammatory) in March 2016 and then May 2016 and 2017.
After the accident, these medications continue along with:
(a) Paracetemol with Codeine, and
(b) Oxycodone on 5 and 10 May 2016 and 31 May 2016.
In the 10 years before the accident, the GP notes do not provide evidence of significant intake of relevant medications (anti-depressants, opiates, benzodiazepines). Mr Coleman took regular opiates in the two months following the accident but after that his intake of opiates and benzodiazepines was quite moderate, although it did gradually increase from 2018 onwards.
The entry in the GP notes for the day of the accident[9] says:
“passenger on bus this am ?11.29am. Bus driver braked suddenly / fell backwards and landed on back. Not [knocked out]. Complains of pain lower back, distressed re pain, generalised tenderness lower back, severe limitation of [lumbar spinal movement in all directions.”
[9] Page 126 of the claimant’s bundle.
There are further attendances thereafter and no mention of jaw or dental issues in the first few months after the accident.
Dr Turner, dentist provided a report to the claimant’s solicitor[10] dated 12 April 2018. He refers to Dr Murray having seen the claimant on 2 May 2016 and that he “prescribed a new crown at site 1.2 as the existing crown was fractured in the accident”.
[10] Page 75 of the claimant’s bundle.
Dr Turner had a history of the claimant “hitting [his] face on the pole used by passengers to steady themselves”. He then says he obtained a more detailed history of Mr Coleman hitting “the back of his head as well”. He assumes the claimant hit his face then fell onto the back of his head.
Dr Turner reviewed the claimant’s OPG from before the accident. He notes a decline in the claimant’s oral hygiene and says he had a “very stable dentition and good oral hygiene prior to the accident.” He says the breakdown in dentition is “out of character”.
Dr Turner had not treated the claimant before the accident, Dr Turner’s partner Dr Murray was the claimant’s treating dentist before the accident.
The notes from Dr Murray and Dr Turner[11] include an account list which shows:
[11] Document AD17 printed as of 26 September 2019.
(a) in August 2000 the claimant attended for a crown on tooth 24;
(b) in January 2001, restoration of tooth 21;
(c) in November 2001 an emergency attendance including radiographs and restoration of teeth 22, 33 and 34 as well as the surgical removal of tooth 47;
(d) in May 2002 general treatments of calculus removal and fluoride application;
(e) in June and July 2002 the claimant had restoration of tooth 46 and 35 and a full crown over tooth 37;
(f) general fluoride treatment and calculus removals in December 2002, May, and August 2003;
(g) in November 2023 the claimant had a full crown on tooth 36;
(h) a gap in treatment until May and June 2011 when the claimant had crowns to teeth 26, 31 and 34, and
(i) in May 2012 the claimant attended for a general check-up.
The account list states the claimant’s full crown and restoration work was done on
4 May 2016 with further work done the day after. There has been no further account rendered to Mr Coleman between May 2016 and September 2019 when the list was printed.
There are two radiographs dated 6 March and 6 November 2018. While there are references throughout the records to periapical, bitewing and panoramic radiographs, these have not been provided and there are no notes provided either in relation to the pre-accident treatment.
Medico-legal reports - Dental
Dr Howe
The claimant relies on a report of Dr Howe, dentist dated 4 September 2018.[12] He has a record of the claimant’s sporting, professional and social history and notes that since the accident the claimant has complained of cervical, thoracic and lumbar spine pain for which he is treated with medications including non-steroidal anti-inflammatories, Tramadol, Somac and Omeprazole for reflux, anti-depressants, sleeping tables and anti-cholesterol medication.
[12] Page 15, document AD7.
The claimant was said to be a smoker consuming 20 cigarettes a day.
The claimant gave a history of the accident saying when the bus he was on stopped suddenly “he lost his footing landing in the isle [sic] on his back”. The claimant felt immediate pain and requested an ambulance. The driver refused so the claimant got off the bus and a passenger took him to his doctor in a taxi.
The claimant said he dislodged a crown from tooth 12 which had a temporary crown fixed that afternoon at his usual dentist.
Dr Howe notes the claimant’s posterior teeth were heavily restored due to pre-fluoride dentition and he had 29 teeth with 11 teeth missing. Teeth 25, 37 and 47 exist as roots only “due to [their] failure since the accident and need to be removed”. A number of teeth had been restored with porcelain fused to metal crowns, porcelain crowns and porcelain veneers. There was a bridge over teeth 44 – 46 with a fracture of tooth 46 and the failure of the bridge.
The claimant reported TMJ pain and pain in the neck and headaches.
Dr Howe considered the claimant had “received a forceful trauma to his teeth and jaws” and attributed the loss of the crown on tooth 12 to the accident as well as the fractured crowns on teeth 15, 16, 26 and 36. Tooth 25 is also said to have been damaged at the root and requires removal and a new crown to replace a lost one. Teeth 47 and 46 are also said to need removal and replacement with implant retained crowns.
Dr Howe notes the claimant’s medications were capable of reducing salivary flow and function.
Dr Howe said he had seen a CBCT radiograph on the day of examination showing good bone support around the surviving teeth other than tooth 37.
Dr Howe notes the claimant as a “regular dental attendee”.
Dr Howe estimated the cost of treatment at approximately $44,000 and assesses WPI at 0%. He refers to severe dental trauma, but this appears to be based on the history given by the claimant. The Panel notes that Dr Howe does not refer to the CCTV footage from the bus and the insurer has said that footage was not available at the time of Dr Howe’s examination.
Dr Nichols
Dr Nichols provided a report to the insurer dated 21 May 2019. He takes a simple history of the claimant falling in the bus, hitting his head and allegedly damaging his teeth.
He noted there was “controversy as to the mechanism and nature of the injury, diagnosis and causation of treatment”. On reviewing the documentation, he noted:
(a) clinical notes from Drs Turner and Murray recorded irregular attendance for preventative care and treatment and that after the accident he required treatment for fractured teeth (not crowns);
(b) Dr Turner’s report was quoted and Dr Nichols comments “Dr Turner is drawing a very long bow claiming that the accident caused a decrease in the standard of oral hygiene leading to decay”. He said the “treatment required was nowhere near the sight [sic] of the original damage and the subsequent treatment was due to normal progression of a history of dental pathology”;
(c) on examination Dr Nichols expressed the view that most of the claimant’s restorations were approaching their “use by date” and were affected by recurrent decay and grinding (bruxism);
(d) while he noted the history of trauma, Dr Nichols said the claimant required treatments “normal for an aging, extensively restored dentition”;
(e) he found no evidence of trauma, and
(f) he considered replacement of failed crowns was appropriate but not related to the car accident and the cost reasonable.
It does not appear Dr Nichols was asked to assess WPI.
Assessments, medico-legal and other reports
Medical Assessor Cameron in October 2017 has a history of the claimant being thrown to the floor and landing on his back and hailing a taxi after getting off the bus to take him to his GP.
Dr Steel, the claimant’s treating neurosurgeon has a history from the claimant in December 2018 of Mr Coleman being thrown violently in the air striking his head and injuring his neck and lower back and fracturing five teeth.
Dr Assem, the claimant’s medico-legal expert had a history from the claimant in July 2020 of him striking his head on a pole before falling heavily and landing on his back.
RE-EXAMINATION FINDINGS
Mr Coleman attended Medical Assessor Sykes’ room on 17 May 2023. Mr Coleman is now 75 years of age.
History of the accident and treatment
Mr Coleman said he was standing on a bus on 2 May 2016 when the bus came to a sudden halt to avoid hitting a car ahead. Mr Coleman advised that he was thrown into the air and then hit the floor of the bus. He said he experienced extreme pain in the lumbar region of his back together with a flash of pain through his legs. Mr Coleman believed a tooth came loose in the fall which he noticed when he was still on the bus.
Whilst on the floor of the bus, Mr Coleman reported that he tried to get the driver to call an ambulance, but the drive would not help him. Mr Coleman believed that friends of his helped him up and off the bus. He could not walk and had to sit on a nearby seat. He apparently wanted to go straight to St Vincent’s Hospital but could not get there so he took a taxi to a medical practitioner in Bondi Junction. The doctor organised an X-ray which apparently showed that he had fractured a lumbar vertebra.
Mr Coleman admitted that he did not mention the injured tooth to the doctor but after seeing his GP he went straight to the dental surgery of Dr Murray who said he had lost a crown and that the tooth would need a new crown. Unfortunately, Dr Murray passed away before this could be completed and Dr Murray’s partner, Dr Turner took over his treatment.
Dr Turner carried out an examination, replaced the loosened crown and then documented many other issues in his mouth. Mr Coleman advised that Dr Turner has not carried out any further treatment but has documented what has occurred to his teeth since the subject accident which has included the fracturing of further teeth.
Mr Coleman reported that he did not experience much dental pain after the accident but the pain from his lumbar spine was intense. Mr Coleman believed that his teeth were in good shape before the accident and that all that has happened to his teeth since the accident has resulted from the accident. When asked on what basis he believed this, he could not provide any argument other than that many further dental issues had occurred after the accident.
Mr Coleman brought with him a failed dental bridge that had fallen out four years ago, three years after the subject accident.
Mr Coleman advised that he was not in any dental pain at present. He is aware that he has a hole in a tooth on the upper left and he cannot use the teeth on the left. As a result, he is only chewing with his front teeth.
Mr Coleman reported that he could open wide without restriction, and he was not aware of any tooth grinding (bruxing) habit. His chewing was compromised by not having many back teeth and he self-restricted his diet to soft food to reduce the forces on his front teeth. He advised that he generally consumed soups and well-cooked stews. He was not aware of having a dry mouth (reduced saliva flow).
Mr Coleman advised that he had been a smoker and had only attempted to stop recently (over the last three months). He confirmed before that he smoked 20 cigarettes a day.
He is now attending another dental surgery, Dental Fresh, but he cannot afford treatment.
Mr Coleman was questioned further regarding the details of his accident, and he provided the following answers:
(a) he was not aware of where he was positioned on the floor of the bus until a friend helped him up;
(b) he was not completely sure what he hit during his fall or if he hit anything at all as he fell. He was only aware that his head hit the floor of the bus hard;
(c) he was certain that he flew through the air, and
(d) he was adamant that he saw Dr Murray on the day of the accident.
Mr Coleman had not seen the video footage from inside the bus. Medical Assessor Sykes sat with him and showed him the footage and he agreed:
(a) he did not fly through the air;
(b) his head did not appear to hit anything on the fall to the floor of the bus, and
(c) the first person on the scene to help Mr Coleman was the bus driver who assisted Mr Coleman onto his feet and off the bus.
At the conclusion of the footage, Mr Coleman admitted that they showed a different scenario to that of his recollection. Mr Coleman was reluctant to admit that he may be suffering a misapprehension or inaccurate beliefs but did admit to understanding, having seen the video footage, that he may have been mistaken in his recollection of the exact circumstances of the accident.
Examination
Extra-oral examination revealed slight tenderness in the TMJ (right jaw) but no masticatory muscle tenderness or jaw joint noises. Maximum jaw opening was measured as 41mm at the incisors. The normal range is between 40 and 45mm.
Intra-oral examination revealed no soft tissues abnormalities. The saliva flow was of reasonable volume and there was no sign of xerostomia.
Mr Coleman’s oral hygiene was fair to good with periodontal pocketing between 2-4mm around the upper anterior teeth. Tooth 12 exhibited 5mm pocketing and tooth 36 exhibited 3-5mm pocketing indicating a degree of periodontal disease around these teeth. A periodontal diagnosis of localised moderate periodontal disease was appropriate.
There was a Class I occlusal relationship with missing teeth at 18, 17, 26, 27, 28, 38, 37, 45, 46, 47, 48. Tooth 45 had fractured at gingival (gum) level and had been the abutment tooth supporting a dental bridge that extended to tooth 46. This is the bridge that Mr Coleman brought with him. The other supporting tooth for the bridge, being tooth 46, appears to have been extracted.
Crowns were in place on all the remaining upper teeth except for teeth 11 and 21 where ceramic veneers had been placed. There was caries (decay) on tooth 11 and fracture of the veneer on the palatal aspect of tooth 21. Crowns at teeth 36, 27 exhibited chipped porcelain.
There was functional tooth contact between only teeth 43-34 against the opposing anterior upper teeth. There was functional tooth wear (normal chewing wear) of the lower anterior teeth caused, in part, by natural teeth chewing against opposing ceramic restorations and not related to the subject accident.
The crown on tooth 12 which was apparently remade by the late Dr Murray or Dr Turner appeared sound.
CONSIDERATION OF THE ISSUES
What evidence is reliable?
Dr Turner’s opinion of the relationship between the treatment required after the accident, to the accident, is based on a history of the claimant “hitting the face on the pole” and hitting the back of his head. Dr Turner has not seen the CCTV footage or provided a supplementary report which has commented upon it.
Dr Howe did not have the CCTV footage and has a history of the claimant landing in the aisle of the bus on his back. Medical Assessor Nichols did not watch it and does not appear to have had it when, as Dr Nichols he undertook the medico-legal assessment for the insurer.
None of their opinions then about the severity of the trauma and causation of any tooth or jaw injury are of much assistance.
The claimant’s evidence about the mechanism of the accident is unreliable on the basis that his memory of it has clearly been affected by the time that has elapsed (over 7 years).
The most reliable evidence about the mechanism of the accident is the CCTV footage.
What injury was caused by the accident?
Causation in the Guidelines
The Panel is required to determine the claimant’s degree of permanent impairment “as a result of the injury caused by the motor accident”. Damages for non-economic loss are, under s 131 awarded if the degree of permanent impairment is greater than 10% “as a result of the injury caused by the motor accident”.
The first task for this Panel then is to determine what injury was caused by the accident.
Clauses 1.6 – 1.7 of the Guidelines provide guidance on the test of causation to be applied. Relevantly cl 1.7 of the Guidelines provides:
“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.”
What is the mechanism of the accident?
The claimant has given a somewhat exaggerated history of the accident to various medical examiners. He told Medical Assessor Sykes for example that he flew through the air and hit his head on a pole as he fell.
The CCTV footage from inside the bus which has been viewed by each of the members of the Panel gives two different angled shots of the accident. There is no doubt the bus stopped suddenly, and that the claimant fell. While the CCTV shows the claimant came into contact with something he does not appear to have hit any of the poles of the bus. The CCTV footage does not show the claimant hitting his face but that he may have hit the back of his head either on one of the fold-out seats between the two people sitting on them or he might have come into contact with the legs of one or both of the people sitting on the seats.
While the claimant appears to have fallen onto his buttocks quite hard, the second impact between his upper back and possibly his head with the fold out seats does not appear to be as forceful. In the absence of expert evidence interpreting the video, the Panel does not intend to make any further observations.
Did the claimant damage tooth 12 in the accident?
The Panel accepts that the fall on the bus could have led to damage to a tooth or crown such as the crown over Mr Coleman’s tooth 12.
Although the records suggest he was invoiced two days later, the letter of Dr Turner dated
12 April 2018 says the claimant attended on the day of the accident. The Panel accepts that the claimant did attend his dentist on the day of the accident.
On the basis of this evidence of an attendance on the day of the accident, the Panel therefore finds that the claimant’s fall on the bus did damage the crown over tooth 12 requiring its replacement.
Has the accident caused further damage to the claimant’s teeth?
The claimant had a fractured crown repaired after the accident and in the next two years has had several failing and fractured teeth and fractured porcelains and crowns repaired.
Dr Howe says, “it is quite possible that the porcelain dentition suffered trauma at the same time”.
While the claimant may have had a vulnerable crown, which was damaged in the accident and needed replacing, the level of work suggested by his dentist is not, in the Panel’s view related to the injuries caused by the accident for the following reasons:
(a) there is limited evidence of significant trauma to the mouth. The CCTV bus footage does not show any impact between the claimant’s face and a part of the bus or a very forceful impact of the back of his head with a part of the bus;
(b)
the claimant did not complain to his GP of tooth or mouth pain. Had he had injury sufficient to damage more than tooth 12 and require the work suggested by
Dr Turner, the Panel would have expected there to be signs of bleeding (not mentioned in the dentist’s notes), swelling or bruising on the face (not mention in the GP’s notes);
(c) there are multiple crowns of varying ages. Crowns do not last for ever and usually have a 10 – 15 year lifespan depending on their quality and the care that is taken of them;
(d) the claimant’s teeth when examined show evidence of longstanding decay;
(e) the claimant’s adult teeth were formed before the advent of fluoride which had contributed to the state of decay in his teeth;
(f) the claimant is now 75 years of age and his teeth are ageing;
(g) the claimant has not attended his dentist ‘regularly’ or at the required interval of 6 – 12 months leading up to the accident. There is no evidence of any other dentist having treated the claimant and a gap in Dr Murray and Dr Turner’s records from November 2003 to May 2011 and from May 2012 to May 2016, and
(h)
the claimant has attended his dentist more regularly after the accident and had treatment for the crown on tooth 37 (January and March 2017), decay under the crown of tooth 46 (2 June 2017) and tooth 35 fell out having been decayed and a temporary crown provided (November 2017). An OPG was undertaken on
6 March 2018.
The loss of both teeth 35 (November 2017) and 46 (June 2017) after the accident was said to be caused by decay. It is the clinical judgment of the medical members of the Panel that the time frame between accident and the loss of these teeth is too short and that the decay in these teeth would have been present before the accident.
Does Mr Coleman have xerostomia?
The claimant alleges that he has developed decay due to xerostomia (dry mouth) caused by medications. Dr Turner does not mention xerostomia in his reports of 12 and 18 April 208.
Dr Howe, in September 2018 considered Mr Coleman may have xerostomia. Dr Nichols did not mention xerostomia in his report from May 2019 but as Medical Assessor Nichols he diagnosed xerostomia in December 2021.
A number of drugs can cause xerostomia including opioids, benzodiazepines, antidepressants, antipsychotics and mood stabilisers. The claimant has taken antidepressants since 2004 and opioids occasionally. In the years immediately preceding the accident there is no evidence of opiates and only occasional scripts for benzodiazepines.
The claimant’s intake of opioids and benzodiazepines has increased following the accident and there is no record of any antidepressants being prescribed.
Chemotherapy can also cause xerostomia. The Panel notes the claimant’s 2010 cancer diagnosis, its reoccurrence but notes the claimant told Medical Assessor Cameron he had radiotherapy rather than chemotherapy.
The Panel notes that the claimant has been a smoker for many years and smoking 20 cigarettes a day. Smoking is another cause of xerostomia.
The medical members of the Panel note that xerostomia is a condition that waxes and wanes depending on the prevailing cause of the condition. Some medications may cause xerostomia but when the medication is ceased, the production of saliva will return to normal.
The claimant could have had xerostomia at some stage since the accident but there was no evidence of it when the claimant was examined by Medical Assessor Sykes and he observed there was sufficient production of saliva. The Panel notes the claimant has been a smoker of 20 cigarettes per day and that smoking can cause xerostomia. The Panel also notes that
Mr Coleman said he had stopped smoking about three months before Medical Assessor Sykes examined him.
It is the medical members of the Panel’s clinical judgment that the motor accident did not cause xerostomia or a dry mouth of sufficient longevity or severity to have caused deterioration of the claimant’s dentition. It is more likely that the cause of the claimant’s xerostomia was his smoking habit.
CONCLUSION
The Panel is satisfied, on the basis of the contemporaneous complaint to his dentist that
Mr Coleman damaged the crown of tooth 12 in the accident and that it needed repair.
The Panel accepts that the claimant has a current impairment to his mastication limiting his diet to semisolid or soft foods which might lead to an impairment assessment of between 5 and 19%.
While the state of Mr Coleman's dentition immediately before the accident is not known from the documents, the report of Dr Howe two years after the accident makes it clear that 10 of Mr Coleman’s 12 posterior teeth were missing at that point, and there is no dental record or history of these teeth having been removed following the accident by Drs Murray or Turner. It is the loss of these posterior teeth which is responsible for the current problems Mr Coleman experiences with mastication.
The damage to the restoration of a single upper incisor tooth would have no impact on mastication. The Panel finds therefore that the claimant has no impairment to his mastication (or deglutition or speech) as a result of the single damaged crown over tooth 12.
It therefore follows that the certificate of Medical Assessor Nichols in respect of the assessment of the claimant’s dental injuries as well as his combined certificate should be revoked.
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