Insurance Australia Limited t/as NRMA Insurance v Varghese

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Varghese [2023] NSWPICMP 437
CLAIMANT:	Kavitha Varghese
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Sylvester Fernandes
DATE OF DECISION:	5 September 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insured vehicle collided into house whilst claimant sleeping; claimant inhaled dust particles including asbestos; claimant developed various symptoms associated with dust inhalation held to be threshold injury; original Medical Assessor found possibility of developing an asbestos related disease was a non-threshold injury; short amount of asbestos exposure; claimant unlikely to develop an asbestos related disease; plain meaning of injury in section 1.4 means a physiological change; Military Rehabilitation & Compensation Commission v May referred to; the possible development of an asbestos related disease is not an injury within the meaning of the Act; Held – claimant suffered threshold injuries; original assessment revoked.
DETERMINATIONS MADE:	Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act *2017* The Review Panel revokes the certificate dated 8 October 2022 and issues a certificate that the claimant suffered threshold injuries.

REASONS

BACKGROUND

Ms Kavitha Varghese (the claimant) suffered injury in a motor accident on 12 February 2021 (the motor accident). The insured vehicle drove into the house where the claimant was sleeping with family members causing exposure to dust. The dust exposure included inhalation of asbestos.
The insurer for the motor accident is liable to pay to Ms Varghese any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Ms Varghese’s physical injuries caused by the motor accident are threshold injuries within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.

Medical Assessment

The medical disputes were referred to Medical Assessor Williams who issued a Medical Assessment Certificate dated 8 October 2022 (the medical assessment).[2]
[2] Insurer’s bundle, p 9.
The history recorded by the Medical Assessor of the pre-accident medical condition and motor accident is set out in full. The Medical Assessor stated:[3]
[3] Insurer’s bundle, p 8.
“9. Pre-accident medical history and relevant personal details
She gave no history of direct ear or head trauma prior to the MVA. She gave no history of otitis media. She gave no history of Military Service. She gave no history of otalgia (ear pain) or otorrhoea (ear discharge). She gave no history of ear surgery.
She gave no history of heart disease, stroke, diabetes, thyroid disease, raised cholesterol, hypertension, meningitis, allergic rhinitis, or asthma. I said she had a wheezy bronchitis in 2019 treated with oral steroids but she said she was never diagnosed with asthma. She gave no history of other motor vehicle accidents. She said she is a non smoker.
She said her medications are Ventolin puffer for shortness of breath, and Loratidine for itchy eyes, itchy throat and runny (watery) nose.
She flew from Queensland to Sydney yesterday, day prior to the assessment, with no ear problems.
Occupational History
• Registered Nurse for 8 years.
• Migrated from India in 2015.
o Registered Nurse in India 2010-2015
o Student of Nursing before that 2006-2010.
10. History of the motor accident
She said on 12.2.21 a car drove into the living room (made of asbestos). She said she was 28 weeks pregnant. She said she was asleep at the time and it woke her up and she was exposed to dust. She said she was told to evacuate because of risk of exposure; she said the fire people said there was asbestos. She said she went to another house that night, then her house was partitioned and she lived in a partitioned room for 1 month then moved to another house.
She said she noted fever, runny nose, itchy eyes and sneezing. She said she took 2 weeks off work. She said she was treated with antihistamines but they were not effective.
She said she was a Registered Nurse at Killarney Vale Care Community. She said her symptoms were on and off, occurring once a week and lasting 2-4 days. She said she was treated with Loratidine.
She said she was referred to an ENT Specialist. She said she was booked in but because of Covid-19 she was unable to go to the consult, then she moved to Queensland in April 2022. She said she had Covid-19 in May 2022 and fully recovered.
Now: She is treated with Loratidine 3 times a week for itchy eyes and throat and blocked ears which she said is helping.
Eustachian tube dysfunction tests: She said no tympanograms were done.”
The Medical Assessor found that the inhalation of dust causing sneezing and coughing was a minor injury and that the inhalation of asbestos was not a minor injury. The Medical Assessor stated that it is “possible that the asbestos exposure caused by the MVA could cause a malignant tumour of the nose and air passages in the future” and that this risk was a non-minor injury.

Amendment to legislation

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
The assessment by the Medical Assessor and the parties’ submissions were made prior to
1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the insurer within 28 days. That review related to the findings of minor injury suffered in the motor accident.
The President’s delegate referred the dispute to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.
The review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
All parties were advised that both medical disputes would be heard together and the evidence in one would be evidence in the other. There was no objection to that course.
All parties filed bundles of documents for the Panel’s consideration.
The Panel issued a further direction in the following terms:
“The Panel is aware of the allegation that the motor accident caused a sinus/nasal passage injury.
This direction relates to the claimant’s allegation of respiratory injury to the lungs (such as asbestosis, mesothelioma, or any asbestos related lung disease) and directs the claimant to provide submissions on the following matters by close of business, 29 June 2023.
1.    Is it alleged that the motor accident caused a respiratory injury to the lungs as opposed to a potential future diagnosis?
2.    If yes, what is the evidence supporting that contention?
3.    If no, is it the claimant’s contention that the allegation of a non-threshold injury is based on the possibility of a respiratory injury to the lungs developing at some future point.
4.    Otherwise, the claimant is to articulate the basis for the allegation that any respiratory injury to the lungs is not a threshold injury.”
The claimant’s responses to these questions were:
1.     No
2.     Not applicable.
3.     Yes.
4.     Not applicable.

STATUTORY PROVISIONS

“Injury” is defined in s 1.4 of the MAI Act to mean:
“personal or bodily injury and includes--
(a) pre-natal injury, and
(b) psychological or psychiatric injury, and
(c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Sections 5D and 5E of the Civil Liability Act 2002 (CL Act) apply to the MAI Act.[9]

SUBMISSIONS

Claimant’s submissions dated 26 July 2021[10]

[9] See s 3B(2) of the Civil Liability Act 2002.

[10] Claimant’s bundle, p 25.

The claimant submitted that the motor accident caused the following injuries:
(a)   inhalation of dust and asbestos causing sneezing, coughing and shortness of breath;
(b)   eustachian tube dysfunction, and
(c)   psychological.
The claimant referred generally to the attached medical evidence and submitted that there was “abundant evidence that [she] had sustained non minor injury.”

Claimant’s submissions dated 7 November 2022[11]

[11] Insurer’s bundle, p 77.

These submissions were filed opposing the review filed by the insurer.
The claimant submitted that she inhaled asbestos dust which caused “coughing, shortness of breath, blocked ears, nasal symptoms, itchy throat, itchy eyes, sneezing, runny nose and a psychological injury.”
The claimant submitted that the meaning of injury was not limited to symptoms that had become “manifest”. Such a construction was unfair as it would preclude claimants where the symptoms of injury may not develop for many years.
The claimant submitted that she had suffered an injury to the nose and air passage and there is “potential for a malignant tumour to develop in the future.”
The claimant submitted that the construction of injury by the Medical Assessor was consistent with the ordinary meaning of “injury”.
The claimant submitted that the definition of injury in the CL Act and the Worker’s Compensation (Dust Diseases) Act, 1942 (Dust Disease Act) had no bearing on the meaning of injury in the MAI Act.

Insurer’s submissions dated 17 August 2021[12]

[12] Insurer’s bundle, p 17.

The insurer noted that the claimant alleged:
(a)   inhalation of dust and asbestosis causing sneezing, coughing and shortness of breath;
(b)   eustachian tube dysfunction, and
(c)   psychological injury.
The insurer accepted that the medical evidence supported the finding that the claimant suffered allergy symptoms including persistent itchy throat, sneezing, coughing, and ear discomfort following dust inhalation. These injuries were a minor injury as defined in the MAI Act,

Insurer’s submissions undated[13]

[13] Insurer’s bundle, p 7.

The insurer submitted that inhalation of asbestos is not an injury within the meaning of the MAI Act and that the possibility of a future injury otherwise does not satisfy the definition.
It otherwise submitted that an unrealised possible disease is not an injury as defined in the CL Act (ss 5 and 11). There is otherwise no entitlement to compensation until a dust disease is diagnosed under the Dust Disease Act (ss 5(2)(iii) and 8).

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

There are no relevant medical conditions prior to the motor accident. The records of
Dr Pushpa Padmakaran, general practitioner (GP) intermittently refer to a cough in 2017 and 2019.[14]

[14] Insurer’s bundle pp 94 - 97

Medical records

The claimant attended her GP on 12 February 2021 and 14 February 2021 referring to the motor accident with symptoms of stress, sneezing and coughing. Reference was made to the long-term risks of cancer from asbestos inhalation.[15]
[15] Insurer’s bundle, p 105.
In a certificate dated 18 February 2021 the GP noted that claimant had symptoms included sneezing, cough and shortness of breath following the motor accident and opined that the dust inhalation had caused allergic symptoms.[16]
[16] Insurer’s bundle, p 35.
In an application form dated 20 February 2021[17] the claimant stated:
“Unknowingly inhaled the dust contaminated with asbestos. It caused sneezing, cough, sore throat, runny nose and shortness of breath. I have been under severe stress and anxiety. I could not sleep for days after the incident. I feel very low mood depressed and tired. I am 28 wks pregnant.”
[17] Claimant’s bundle, p 19.
On 3 March 2021 the GP noted symptoms including stress, runny nose, sneezing and cough.[18] Other symptoms at subsequent consultations included wheezing at night and throat irritation.[19]
[18] Insurer’s bundle, p 107.
[19] Insurer’s bundle, p 108.
Subsequent certificates dated 24 March 2021, 29 March 2021, 10 April 2021 and following confirmed ongoing allergic symptoms.[20]
[20] Insurer’s bundle, pp 36-67.
In a short report dated 3 June 2021[21] the GP stated that the claimant had a history of breathing friable asbestos and was worried about the risk of developing lung cancer. Dr Padmakaran stated:
“It is well known that there is [a] risk of [the] development of above cancers in the future”.
[21] Insurer’s bundle, p 34.
On 6 July 2021 the GP referred the claimant to Dr Shashi Singh for an opinion and management of ongoing symptoms including “persistent dry couch, itchy throat, sneezing, runny nose”.[22]
[22] Claimant’s bundle, p 159.
In a report dated 11 August 2021 the GP noted ongoing cough with allergic symptoms. The doctor stated:[23]
“The family is understandably worried and anxious about the risk of developing lung cancer, mesothelioma and other types of cancer. It is well known that there is a risk of development of above cancers in the future.”

MEDICAL EXAMINATION
[23] Insurer’s bundle, p 76.

The claimant was examined by Medical Assessor Fernandes on 21 August 2023. The clinical examination findings of the Medical Assessor were:
“The external cutaneous, cartilaginous and bony nasal complex is intact.
The nasal mucosa appears normal.
The nasal septum is central.
The nasal turbinates are not enlarged.
There is no significant obstruction of the nasal airway on examination.
The oral cavity appears normal.
The oropharynx appears normal.”
The medical examination undertaken by the Medical Assessor was normal with no clinical basis of ongoing symptoms.

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The medical assessment related to whether the injuries sustained in the motor accident were minor or non-minor (now threshold or non-threshold) as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[24] and Insurance Australia Ltd v Marsh.[25]
[24] [2021] NSWCA 287 at [40], [41] and [45].
[25] [2022] NSWCA 31 at [11], [21] and [64].

Onus of proof

We adopt the reasoning in Lynch v AAI Ltd[26] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[26] [2022] NSWPICMP 6 at [44]-[62].
That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2)[27]:
“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.”
[27] [2022] NSWSC 372 (Briggs (No 2)) at [73].

Section 5E of the CL Act otherwise provides that the onus of proof on causation is on the plaintiff. To the extent that s 5E has any application[28] it is consistent with the above conclusion.

Meaning of injury
[28] See s 3B(2)(a) of the CL Act.

Injury is defined in s 1.4 of the MAI Act and has been set out earlier.
In Briggs (No 2) Wright J noted that the question of causation of injuries is addressed in Part 6 of the Guidelines. His Honour noted that whilst Part 6 of the Guidelines related to the 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”.[29]
[29] Briggs (No 2) at [35].
Clause 6.6 of the Guidelines refers to page 316 of AMA 4 which in part relevantly provides:
“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”.
Clause 6.7 refers to both the injury and the associated impairment and provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
The heading above cl 6.5 of the Guidelines is “causation of injury” as distinct to causation of loss or impairment. Clauses 6.6 and 6.7 refers to whether the injury was caused or materially contributed to by the motor accident as well as interchangeably referring to impairment. That observation is clear from the sentence in cl 6.7 which provides:
“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”.
The clauses in the Guidelines are all consistent with the past tense that an injury has occurred. They are inconsistent with the claimant’s submissions that a future injury satisfies the definition of injury as defined in s 1.4 of the MAI Act.
The question of what amounts to an injury in the Commonwealth workers compensation legislation was discussed by the High Court in Military Rehabilitation & Compensation Commission v May.[30] The plurality then discussed the meaning of the word injury in the “primary sense” and stated:
“46. That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an "injury" in the primary sense.
47. However, as the Full Court correctly held, "suddenness" is not necessary for there to be an "injury" in the primary sense. A physiological change might be "sudden and ascertainable". A physiological change might be "dramatic". The employee's condition might be a "disturbance of the normal physiological state". That an "injury" in the primary sense can arise, and can be described, in a variety of ways does not mean that "suddenness" is irrelevant. As the Full Court said, "suddenness" is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.”
[30] [2016] HCA 19.
Whilst it is accepted that the meaning of words in one legislation do not ordinarily convey the same meaning in other legislation, we are unaware of any authority that has extended the definition of injury to a future physiological change that may occur as is contended by the claimant.
We do not agree with the claimant’s submission that the ordinary meaning of “injury” in the MAI Act extends to the situation envisaged by the claimant. The plain meaning of “personal or bodily injury” in s 1.4 is consistent with an established physiological change. A future possible physiological change does not satisfy the ordinary meaning of personal or bodily injury.
The insurer referred to the provisions of the CL Act and the Dust Diseases Act. How these Acts applied to the definition of injury in the MAI Act was not developed and is otherwise unclear.
It is our view it is unnecessary to refer to the provisions of the CL Act and how they may apply to the definition of injury in the MAI Act because they do not clarify the meaning of injury as it appears in the MAI Act.
Breathing in asbestos fibres may cause asbestos related diseases such as asbestosis, lung cancer and mesothelioma. Asbestos related diseases result from inhalation and subsequent deposit of asbestos fibres in the pulmonary parenchyma.
The risk of contracting an asbestos related disease increases with the number and type of fibres inhaled.
Most people are exposed to very small amounts of asbestos throughout their lives and do not develop asbestos related diseases.
Asbestos related diseases may develop over a period of between ten and forty years from the date of the first exposure.
The claimant inhaled small amounts of asbestos. We were not advised as to the type of asbestos inhaled and will not speculate. However, given the short duration of exposure, it is very unlikely that the claimant will develop asbestos related diseases.
The claimant accepted that “the allegation of a non-threshold injury is based on the possibility of a respiratory injury to the lungs developing at some future point”. That concession is entirely consistent with both the brief comments by the GP and the medical expertise within the Panel, that is there is only a “possibility”, as opposed to a probability, that the claimant may develop an asbestos related disease due to the inhalation of asbestos from the motor accident.
The medical evidence that we have summarised, and the history quoted earlier from the previous Medical Assessor which we adopt[31] shows that the claimant breathed in dust caused by the motor accident and developed various symptoms including sneezing, cough, sore throat, runny nose, and shortness of breath.
[31] See [7] herein.
Given the short duration of the asbestos exposure, the development of an asbestos related disease is very unlikely.
For these reasons we are not satisfied that a possible development of an asbestos related disease, is an injury within the meaning of the MAI Act.
The medical examinations undertaken by Medical Assessor Williams and Medical Assessor Fernandes show that the claimant has recovered from the effects of the dust inhalation. There is no basis to conclude that the motor accident caused eustachian tube dysfunction.
The claimant suffered an injury when she inhaled dust particles causing symptoms. The dust inhalation is a soft tissue injury as defined in s 1.6 of the MAI Act as injury to “tissue that connects, supports or surrounds other structures or organs of the body”. There is no medical evidence and the examinations of both Medical Assessors did not establish any “injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”

CONCLUSION

For these reasons, the Panel finds that the motor accident caused only threshold injuries. The certificate issued by Medical Assessor Williams is revoked. A replacement certificate is attached to these Reasons.

[2023] NSWPICMP 437

5 September 2023