Insurance Australia Limited t/as NRMA Insurance v Wilson
[2023] NSWPICMP 436
•5 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Wilson [2023] NSWPICMP 436 |
| CLAIMANT: | Gilin Wilson |
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; meaning of “injury” in section 1.4; Insurance Australia Ltd v Varghese applied; Military Rehabilitation & Compensation Commission v May applied; possible development of an asbestos related disease is not an injury within the meaning of the Act; Held – claimant suffered minor 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 6 June 2022 and certifies that the claimant suffered threshold injuries. |
REASONS
BACKGROUND
Mr Gilin Wilson (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 and family members were sleeping causing exposure to dust. The dust exposure included inhalation of asbestos.
The insurer for the motor accident is liable to pay to Mr Wilson any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Mr Wilson’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 6 June 2022.[2] The Medical Assessor found that the inhalation of dust causing sneezing, coughing and that allergic rhinitis is a minor injury. The Medical Assessor otherwise found that the inhalation of asbestos was not a minor injury.
[2] Insurer’s bundle, p 12.
The histories recorded by the Medical Assessor were:[3]
[3] Insurer’s bundle, pp 17-18.
“Pre-accident medical history and relevant personal details
He gave no history of direct nose trauma. He gave no history of head trauma. He gave no history of ototoxic exposure. He gave no history of Military Service. He gave no history of otorrhoea (ear discharge). He gave no history of sinusitis prior to the MVA. He gave no history of ear, nose or throat surgery.
He gave no history of heart disease, stroke, diabetes or thyroid disease. He gave a history of no treatment for raised cholesterol. He gave a history of no treatment for hypertension. He gave a history of allergic rhinitis and asthma. He gave no history of nasal trauma prior to the MVA. He gave no history of nose operations. He said he stopped smoking 8 years ago after smoking for 8 years. He gave a history of drinking ½ a bottle of whiskey once a day in the past. He gave a history of motor vehicle accidents prior to the relevant MVA as above.
He gave a history of an MVA in 2017 when his van was rear-ended. He said he had no injuries to his nose and no airbags were deployed.
Occupational History
He said on 12.2.21 he was on workers compensation and not working. He said he is still on workers compensation.
Telecommunication Technician for 4-5 years running cables along the duct. He gave no history of asbestos exposure in this occupation.
He gave no history of asbestos exposure prior to the MVA.
History of the motor accident
He said on 12.2.21 he was living at xxxx, in a house. He said at about midnight he was asleep and a car drove into the front of his house (in the living room). He said the door was open from the living room to his bedroom. He said he woke up and went to the living room and found the car in the living room with damage to the walls and ceiling of the living room. He said the ceiling and walls were made of asbestos. He said the insurer of the house sent a technician to survey the damage and Mr Wilson said the assessor said it was asbestos. He said the fire brigade put a special spray (coloured red) to cover the dust. He said he did not know the home was made of asbestos and he had accidentally inhaled the dust. He said the walls and ceiling were made of friable asbestos.
He said the fire brigade said the damaged area was not safe and he slept in the bedroom in the house and his wife and daughter slept in a friend’s house.
He said the insurance assessor divided the home into a safe and unsafe area. He said the second night he and his family stayed in the safe part of the house. He said his family lived in the safe part of the house for 28 days.
He said he was not hit by the car.
He said he inhaled the dust, and was in the dust for about 3 hours. He said the fire brigade had protective equipment and did spraying. He said the Police came first.
He said on the day of the MVA he had sneezing, coughing, shortness of breath, itchy eyes and irritation of his throat. He said he went to the GP and next day and was treated with nasal spray (Dymista) and an antihistamine (he is not sure of the name).
He said he has documentation from the insurance assessor that asbestos was in the dust. He said he did not have a Chest X-Ray after the MVA as referred by the GP and did not have a Chest X-Ray in August 2021. He said he did not see an Ear, Nose and Throat Specialist as referred by the GP. He said he did not see an Immunologist as referred by the GP. He said the home insurer had an asbestos specialist to clean the home and removal of his belongings.
He said he had a persisting runny nose of clear mucous and irritation.
Current Symptoms: he said he has shortness of breath, runny nose of clear mucous and irritation, itchy eyes, itchy throat and dry cough.
Current Medications: nasal spray (daily), an antihistamine tablet, daily – he said this helps temporarily, and last taken today), Metformin, Targin, Panadeine Forte and an Antidepressant. He said he is not on a puffer for his chest.
The Medical Assessor noted a history that Mr Wilson inhaled dust for about three hours. He also noted that Mr Wilson had a pre-existing history of allergic rhinitis, asthma and urticaria and allergy to house dust mite. The symptoms of house dust mite were aggravated by the motor accident.
In relation to asbestos exposure, the Medical Assessor stated:
“He gave a history of exposure to asbestos dust related to the relevant MVA. I have contemporaneous clinical notes of symptoms of exposure to asbestos dust. It is possible that the asbestos exposure as a result of the MVA could cause a malignant tumour of the nose and air passages in the future. I note that in the past he has been a smoker and had intake of alcohol, both of which are carcinogenic.
Accordingly I find that as a result of the MVA there is a risk of malignant tumour of the nose and air passages in the future. I find the asbestos exposure related to the MVA is a non minor injury because it has the potential to cause a malignant tumour of the nose and air passages in the future.”
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.
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 6 September 2021[10]
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] Claimant’s bundle, p 31.
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) allergic rhinitis, and
(c) psychological.
The claimant referred generally to the attached medical evidence and submitted that there is “evidence that [he] had sustained non minor injury as a result of the subject motor accident”.
Claimant’s submissions dated 19 September 2022[11]
[11] Insurer’s bundle, p 23.
These submissions were filed opposing the review filed by the insurer and also opposed the extension of time.
The claimant submitted that he inhaled asbestos dust which caused “sneezing, coughing, shortness of breath and allergic rhinitis”.
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 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 Dust Disease Act had no bearing on the meaning of injury in the MAI Act.
Insurer’s submissions
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 dated 19 August 2022[12]
[12] Insurer’s bundle, p 9.
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.
The insurer 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 Worker’s Compensation (Dust Diseases) Act 1942 (Dust Disease Act) (ss 5(2)(iii) and 8).
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The claimant had a pre-existing work injury to his knee and ankle following an assault with associated psychological trauma associated with heavy intake of alcohol.[13]
[13] Insurer’s bundle, pp 44 – 201.
The Panel has reviewed the extensive records from the workers compensation claim which we found of no relevance to the threshold injury issue for the physical injuries caused by the motor accident. These records are consistent with the pre-motor accident clinical records from the practice of the general practitioner (GP).[14]
[14] Claimant’s bundle, pp 90 - 121.
Prior associated symptoms included attendance at the GP in March 2020 for hay fever, runny nose and sneezing.[15]
[15] Claimant’s bundle, p 117.
Medical records
The claimant first advised his GP on 14 February 2021 of sneezing and coughing symptoms due to asbestos dust inhalation caused by the motor accident.[16]
[16] Claimant’s bundle, p 89.
On 18 February 2021 the GP noted the claimant presented with allergic rhinitis, itchy throat, cough and itchy eyes caused by the damage to the house caused by the motor vehicle. The doctor noted that the claimant inhaled asbestos dust and that “dust inhalation has caused allergic symptoms”.[17]
[17] Claimant’s bundle, p 77.
In an application form dated 20 February 2021 the claimant described the injuries caused by the motor accident as follows:[18]
“Unknowingly inhaled the dust contaminated with asbestos. It caused sneezing, coughing and shortness of breath. I was in shock after the incident, unable to sleep. I am worried about long term risk of concern from asbestos inhalation.”
[18] Claimant’s bundle, p 27.
The certificate issued by the GP on 20 February 2021[19] referred to “severe emotional and physical stress, allergic symptoms following dust and asbestos exposure” caused by the motor accident. Symptoms included persistent dry cough, itchy throat, sneezing and nasal itch and itchy eyes. The certificate otherwise referred to a “long term risk to health from asbestos inhalation”.
[19] Claimant’s bundle, p 45.
Subsequent certificates were in similar form.[20]
[20] Claimant’s bundle, p 49 - 76.
On 3 June 2021 the GP wrote:[21]
“The family is understandably worried about the risk of developing lung cancer, mesothelioma and other types of cancers. It is well known that there is risk of development of above cancers in the future.”
[21] Claimant’s bundle, p 78.
On 6 July 2021 the claimant was referred to Dr Singh for opinion and management of allergic symptoms post asbestos contaminated dust inhalation.[22]
[22] Claimant’s bundle, p 79.
On 10 August 2021 the claimant was referred to Dr Hettiarachchi, immunologist for review of ongoing symptoms of cough, itchy throat, runny nose itchy eyes and blocked ears. The GP stated:
“The family is understandably worried and anxious about the risk of developing lung cancer, mesothelioma and other types of cancers. It is well known that there is a risk of development of above cancers in the future.”
MEDICAL EXAMINATION
The claimant was examined by Medical Assessor Fernandes on 21 August 2023. The examination findings of the Medical Assessor were:
“The external cutaneous, cartilaginous and bony nasal complex is intact.
The nasal mucosa is oedematous and exhibits a bluish hue reminiscent of an allergic diathesis.
The nasal septum is slightly deviated to the left.
The nasal turbinates are enlarged.
There is no significant obstruction of the nasal airway on examination.
The oral cavity appears normal.
The oropharynx appears normal.”
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[23] and Insurance Australia Ltd v Marsh.[24]
[23] [2021] NSWCA 287 at [40], [41] and [45].
[24] [2022] NSWCA 31 at [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[25] 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.
[25] [2022] NSWPICMP 6 at [44]-[62].
The Panel heard three claims together relating to the exposure by the family. Reasons have been delivered in the other claims with this matter. We adopt the reasoning by this Panel in Insurance Australia Ltd v Varghese[26] when we concluded:
“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.”
[26] Varghese at [59] – [69].
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 10 and 40 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 and the history quoted by the original Medical Assessor which we adopt[27] show that the claimant breathed in dust from the motor accident which caused various symptoms such as allergic rhinitis, itchy throat, cough, sneezing and itchy eyes.
[27] At [7]-[8] herein.
Given the short duration of the asbestos exposure, the chances of the claimant developing an asbestos related disease is very unlikely.
We are not satisfied that a possible development of an asbestos related disease is an injury within the meaning of the MAI Act.
We have summarised the medical evidence in this matter. Both the findings of the original Medical Assessor and Medical Assessor Fernandes show that the claimant’s medical examination was normal.
The claimant suffered an injury when he inhaled dust particles causing various 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.
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