Kidd v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 807
•29 November 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Kidd v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 807 |
| CLAIMANT: | James Kidd |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 29 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute as to threshold injury; the claimant was driving a vehicle on President Avenue at Miranda when the insured vehicle either turned in front of the claimant’s vehicle, or crossed over to his side of the road, causing a frontal impact; claimant alleges that he suffered injuries to his head, cervical spine, both shoulders, both arms, left wrist and lumbar spine, some or all of which are non-threshold injuries; insurer denied liability to pay statutory benefits beyond twenty-six weeks on the basis that all of the claimant’s alleged injuries relevantly are threshold injuries for the purposes of the Act; Medical Assessor Cameron certified that all of the claimant’s injuries, including a laceration to the head, are threshold injuries; Review Panel also finds that all of the claimant’s injuries are soft tissue injuries; Review Panel finds it is bound by the Supreme Court decision in Abawi v Allianz Australia Insurance Limited to find that the laceration to the claimant’s scalp is a non-threshold injury; Held – certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel revokes the certificate issued on 19 March 2024 and issues a new certiricate as follows: (a) the following injury caused by the motor accident: (i) cervical spine – fracture, C4/C5 disc annular tear, C5 wedging of 15%, aggravation of pre-existing asymptomatic cervical pathology, radiculopathy, nerve impingement , disc injury, musculoskeletal injury; (ii) head – closed head injury, brief loss of consciousness, concussion, headaches; (iii) lumbar spine – radiculopathy, nerve impingement,disc injury, musculoskeletal injury; (iv) shoulder – both shoulders – paresthesia ulnar nerve, musculoskeletal injury, and (v) left wrist – musculoskeletal injury is a threshold injury for the purposes of the Act. (b) The following injury caused by the motor accident: (i) scalp – laceration (resolved) is a non-threshold injury for the purposes of the Act. (C) There is no separate soft tissue injury to the left or right arm caused by the motor accident. |
STATEMENT OF REASONS
INTRODUCTION
On 25 June 2022, James Kidd (the claimant) was driving a vehicle on President Avenue at Miranda when the insured vehicle either turned in front of the claimant’s vehicle, or crossed over to his side of the road, causing a frontal impact (the accident). Airbags in the claimant’s vehicle deployed and there was smoke in the cabin. The claimant exited his vehicle to assist his passenger. Ambulance, fire brigade and police officers attended. The claimant was driven home by friends after being checked by the paramedics.
The claimant alleges that he suffered injuries to his head, cervical spine, both shoulders, both arms, left wrist and lumbar spine, some or all of which are non-threshold injuries.
The insurer indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
The insurer denied liability to pay statutory benefits beyond twenty-six weeks on the basis that all of the claimant’s alleged injuries relevantly are threshold injuries for the purposes of the Act.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about whether the injuries caused by the accident are threshold injuries under Schedule 2, cl 2(e) of the Act, the following injuries were referred by the Commission to Medical Assessor Ian Cameron for assessment:
· arm – both arms – paraesthesia ulnar nerve, musculoskeletal injury;
· cervical spine – fracture, c4/c5 disc annular tear, c5 wedging of 15%, aggravation of pre-existing asymptomatic cervical pathology, radiculopathy, nerve impingement, disc injury, musculoskeletal injury;
· head – closed head injury, brief loss of consciousness, concussion, headaches, scalp laceration;
· lumbar spine – radiculopathy, nerve impingement, disc injury, musculoskeletal injury;
· shoulder - both shoulders - paraesthesia ulnar nerve, musculoskeletal injury, and
· left wrist – musculoskeletal injury.
Medical Assessor Cameron certified on 19 March 2024 as follows:
The following injury caused by the motor accident:
is a THRESHOLD INJURY for the purposes of the Act.
- Cervical spine – soft tissue injury
- Lumbar spine – soft tissue injury
- Head – soft tissue injury
- Left and right shoulder – soft tissue injury
- Left and right arm – soft tissue injury
- Left wrist – soft tissue injury
Medical Assessor Cameron found no evidence of a fracture or disc injury to the cervical spine caused by the accident. He stated that changes in the cervical spine are degenerative in nature. Medical Assessor Cameron found no evidence of radiculopathy, as defined in the Motor Accident Guidelines, currently or at any time after the accident. He stated there is no evidence of a significant head or brain injury. Medical Assessor Cameron found no medically verified abnormalities in level of consciousness or brain imaging abnormalities. He said there is no evidence of nervous injury in the upper extremities. He did not consider whether the claimant’s scalp laceration is a non-threshold injury.
THE REVIEW
The claimant sought a review of Medical Assessor Cameron’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submits that Medical Assessor Cameron’s certificate is afflicted by material error on the ground that he considered the claimant’s scalp laceration to be a threshold injury. The claimant refers to Abawi v Allianz Australia Insurance Limited [2024] NSWPICMP 158 (15 March 2024) in which a Review Panel determined that a laceration to the skin is non/not-threshold injury, as the skin is not a connective tissue, as required by the statutory definition of “soft tissue injury”.
The Review Panel notes that the only relevant reference in the medical records appears to be the consultation note dated 19 August 2022 by the claimant’s treating GP, Dr Kourosh Mahmoodi, who reported the claimant’s having sustained a “laceration on front scalp area” (claimant’s Threshold Injury Application, page 81).
The claimant’s submissions quoted verbatim [62] to [65] of the decision in Abawi which inter alia made passing reference to the earlier decision of a Review Panel in Dhupar v AAI Limited t/as GIO [2023] NSWPICMP 99 which was to the contrary effect.
The claimant submitted that Medical Assessor Cameron’s decision, that the claimant’s scalp laceration is a threshold injury, is an error of law, as it is contrary to the Abawi decision.
The claimant made no further substantive submissions in support of the review application.
The Review Panel notes that Medical Assessor Cameron’s Certificate and Reasons were published the day before the Review Panel decision in Abawi was published. The Review Panel notes that the decision in Abawi is not binding upon the Review Panel, but is to be given weight, as a matter of comity. Every dispute will be fact sensitive.
The claimant’s review application was opposed by the insurer on various grounds.
The insurer firstly submitted that the Medical Assessor demonstrated he had undertaken the medical assessment of the claimant without error and that he carried out a detailed assessment of the claimant’s injuries.
The insurer observed the absence of the Medical Assessor’s recording an abnormal examination at the claimant’s forehead/skin. The insurer submitted that suggests the injury had resolved without any abnormality at the time of the assessment.
The insurer further submitted that the Medical Assessor provided reasons to support his determination that the head injury was considered to be a threshold injury. The insurer noted the Medical Assessor did not identify any reports and/or examinations which related to an abnormal assessment, diagnosis and treatment of the claimant’s forehead laceration sustained as a result of the accident.
The insurer noted that the decision in Abawi included a review of the decision in Dhupar and the other cases cited in paragraph 11 of the insurer’s submissions. There is no need to refer to those previous decisions in full.
The insurer noted that the decision of Abawi referred to evidence of a 3cm superficial laceration being sustained to both the claimant’s wrists. The insurer submits that the medical evidence provided to Medical Assessor Cameron for the skin injury sustained by the claimant did not meet the criteria of evidence of a skin injury as referred to within the decision of Abawi.
The insurer submits that the majority of the cases referred to in Abawi consistently provide detailed reasons that a skin injury, which results in damage to the underlying nerves, does not satisfy the definition of a threshold injury, as stated in s 1.6(1) and (2) of the Act and Schedule 1(2)(4) of the Motor Accident Injuries Regulations 2017.
The insurer submitted that the medical evidence provided to Medical Assessor Cameron, and his certificate, indicate there was no evidence of the claimant’s skin injury resulting in damage to the underlying nerves, or that which required further specialist involvement, or treatment.
The insurer finally submitted that the claimant failed to identify any errors that are of a material respect and that the review application should be dismissed.
President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 22 May 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated as follows:
“The claimant submitted that the laceration to her head fell outside the definition of a soft tissue injury. She relied on the decision of the Review Panel in Abawi. Medical Assessor Cameron determined that the laceration to the claimant’s head fell within the definition of a threshold injury. The Review Panel in Abawi determined that a laceration was not a threshold injury. I am satisfied that there is reasonable cause to suspect that Medical Assessor Cameron did not apply the test for a threshold injury under s 1.6 of the Act and cl 4 of the Motor Accident Injuries Regulation 2017.”
Accordingly, the review application was accepted and was referred to the Review Panel, to reassess all of the injuries referred to Medical Assessor Cameron, unless the parties otherwise agree. The insurer indicated that it was content for the examination to be limited to the head as that was the sole focus of the claimant’s review application. However, the claimant requested that all of the referred injuries be assessed, as was the claimant’s right.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] 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.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, 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 constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the 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.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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a)claimant’s review submissions (previously summarised).
(b)Commission’s threshold application – index and annexures.
(i)claimant’s submissions dated 10 October 2023;
(ii)Application for Personal Injury Benefits dated 22 July 2022;
(iii)liability notes – benefits after 26 weeks (minor) dated 30 December 2022;
(iv)NRMA internal review decision – minor injury dated 13 January 2023;
(v)spinaceous study including imaging scan dated 28 June 2022;
(vi)MRI cervical spine dated 7 June 2022.
(vii)consultation note of James Wood (physiotherapist) dated 31 May 2019;
(viii)Kinnect pre-employment medical screen and report dated 16 October 2019 (x2).
(ix)NSW Coal Industry – pre-placement medical assessment dated 30 April 2020;
(x)consultation notes of Dr Christopher Ogonowski including referral to physiotherapist dated 27 June 2022;
(xi)report of Dr Steven Lockstone (chiropractor) dated 14 December 2022;
(xii)all relevant clinical records of Physiofitness as at 22 December 2022;
(xiii)all relevant clinical records of Bondi Junction 7 Day Medical Centre as at 5 January 2023;
(xiv)referral of Dr Kourosh Mahmoodi, general practitioner (GP) to Dr Ron Granot (neurologist) dated 16 January 2023;
(xv)all relevant clinical records of My Chiro as at 2 February 2023;
(xvi)report of Dr Morgan Wood (chiropractor) dated 1 March 2023;
(xvii)Certificates of Capacity – various dates, and
(xviii)Allied Health recovery requests – physiotherapists dated 22 December 2022 and 24 January 2023.
The Review Panel does not consider that it is necessary to summarise that material.
The insurer relied upon the following material which the Review Panel has considered:
(a) insurer’s review submissions dated 1 May 2024 (previously summarised);
(b) insurer’s submissions for the PIC assessment dated 31 October 2023;
(c) liability notice – benefits up to 26 weeks dated 19 October 2022;
(d) request for an internal review dated 11 January 2023;
(e) Certificate of Capacities – various dates;
(f) physiotherapy Allied Health Recovery Request (AHHR) Plan No. 3 – undated;
(g) My Chiro report dated 1 March 2023, and
(h) insurer’s submissions dated 24 June 2024.
The insurer’s submitted that the inclusion of updated clinical notes from Bondi Junction 7 Day Medical Centre as at 15 June 2024 should not persuade the Review Panel those records provide any evidence that the claimant had sustained radiculopathy due to the effects of the motor accident.
Other than as set out above, the Review Panel does not consider it necessary to summarise the insurer’s material.
EXAMINATION REPORT
The claimant was assessed on 19 August 2024 by Medical Assessor Alan Home whose report is as follows:
“KIDD, James – PIC clinical assessment
Mr Kidd attended the rooms of medical assessor Alan Home, at Pitt Street, on 19 August 2024.
He was unaccompanied.
PAST HISTORY
Mr Kidd reports no past history of head, neck, upper limb, lumbar spine or lower limb complaints.
DETAILS OF SUBJECT ACCIDENT
Mr Kidd reports that he was involved in a motor vehicle accident on 25 June 2022, as the seat-belted driver of a vehicle that was travelling along President Avenue Miranda. His ex-partner was seated in the passenger seat, and the Labrador in the boot. He recalls that he was travelling in the right hand lane of the Princes Highway when a car travelling in the opposite direction veered onto his side of the road, resulting in a head-on collision.
He recalls initial symptoms of psychological shock, but was able to alight from the vehicle himself. There was smoke within the car, due to the deployment of airbags. He believes the airbags struck his left wrist, where he experienced early symptoms.
Ambulance, Police and Fire Brigade officers attended the scene. He was assessed by Ambulance officers but declined transfer. Subsequently, he was taken home by friends.
He recalls that he attended a general practitioner but was unhappy with the assessment and consequently sought treatment from a second doctor at the same practice. Subsequently he came under the care of his usual general practitioner, Dr Mahmoodi.
He was referred for imaging of the cervical spine, including a spinal EOS study that was performed on 28 June 2022, three days post-accident.
Mr Kidd confirms he was subsequently referred to a physiotherapist. He also attended a chiropractor for spinal adjustments, which continued until one month ago.
Physical therapy continued for 12 months. He has attended periodically thereafter. Treatment has included dry needling, massage and spinal adjustments. He reports transient symptom benefit from the treatments.
He reports a progressive improvement in symptoms over time.
He is currently attending Dr Mahmoodi at the Bondi Junction Medical Centre, in Spring Street.
He takes Panadol osteo as an analgesic. He is taking Mobic anti-inflammatory medication, approximately 2 tablets on most days. He has been using Citalopram to manage depression over the past 18 months. He also reports the use of Melatonin at night.
CURRENT SYMPTOMS
Mr Kidd reports symptoms of intermittent headache, occurring a few hours at night. There is no associated photophobia or diplopia. He does describe occasional disequilibrium.
His main physical complaint is constant neck pain. He describes the intensity of neck pain at 7-8/10 on a Visual Analogue Scale (VAS). The pain is felt evenly on each side. He describes exacerbation of neck pain with prolonged neck extension and repetitive neck rotation.
He describes occasional paraesthesia at the dorsum of the elbows, extending from the lower arm to the upper forearm on each side.
He describes occasional paraesthesia in the ulnar two digits of both hands.
He reports numbness in the right suprascapular region.
He says he has lost considerable muscle tone since the accident, due to his inability to undertake his previous level of physical activity.
There is occasional upper back pain.
He denies lower back pain.
He no longer experiences left wrist pain.
He tries to undertake walking and yoga stretching exercises.
He describes pain extending from the neck to the top of the shoulder girdle on each side. There is no lateral left or right shoulder pain.
He recalls that following the accident he suffered a haematoma in his left scalp, that may have been associated with an abrasion or small laceration. However, he cannot recall bleeding from the scalp. There is no residual scarring.
Mr Kidd is right hand dominant. He reports a sitting tolerance of two hours, and says that he tries to avoid driving where possible. There is no disability for standing, walking or bending at the waist, crouching, kneeling or stair climbing.
His sleep is disrupted. He is independent for activities of self-care. He is able to lift and carry moderate weight.
SOCIAL HISTORY
Mr Kidd is single, without children. He lives on his own in an apartment. He tends to order food in. He is able to load his dishwasher.
He has a cleaner to come in and perform his laundry tasks and heavier house domestic chores. There are no gardening requirements. He predominantly shops on line.
He says that he has not returned to previous active hobbies, such as weight lifting and running.
VOCATIONAL HISTORY
Mr Kidd is a qualified Geotechnical Engineer, obtaining qualifications at UNSW. He worked in his own consulting business, employing other engineers for a period of 10 years. He says he has been unable to attend site work since the accident. He explains he cannot pass a Coal Board Medical, due to his neck complaint. Consequently, his business has been suspended.
PHYSICAL EXAMINATION
Mr Kidd presents as a 36 year old, standing 182 centimetres, and weighing 88 kilograms.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature without muscle spasm.
Active cervical spinal motion is full in flexion and extension. Rotation is performed to 5/6 normal range on each side. Lateral flexion is performed to 3/4 normal range on each side, with contralateral tightness in the scalene muscles evident.
There is tenderness elicited to palpation overlying the right, more so than the left, paravertebral structures, between C5 and C7.
| Shoulder Movements | Active ROM – Right |
| Flexion | 180° |
| Extension | 50° |
| Abduction | 170° |
| Adduction | 50° |
| External rotation | 90° |
| Internal Rotation | 90° |
Neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is normal sensibility, with the exception of a small patch of numbness declared in the distal posterior right arm and the ulnar border of the proximal forearms, bilaterally. Tinel’s sign is bilaterally negative at elbow and wrist. There is normal sensibility in the hands. The deep tendon reflexes are symmetrically preserved. There is no muscle wasting.
Right shoulder
Examination of right shoulder there is a full range of active motion, measured by goniometer methods as follows:
Left shoulder
Examination of left shoulder there is a full range of active motion, measured by goniometer methods as follows:
Shoulder Movements Active ROM – Left Flexion 180° Extension 50° Abduction 170° Adduction 50° External rotation 90° Internal Rotation 90°
Face and scalp
Examination of the forehead and scalp reveals no visible scarring.
Mr Kidd indicated that he may have suffered a laceration in the left parietal region of the scalp, but there is no scarring evident. There is normal sensibility in the scalp. There is normal sensibility in the forehead.
Lumbosacral spine
Examination of the lumbosacral spine reveals no abnormality. There are no clinical signs of lumbar radiculopathy. There is normal gait.
Wrists
Examination of the left wrist reveals active motion, measured by goniometer methods as follows: flexion 60°, extension 70°, ulna deviation 40°, radial deviation 25°.
Examination of the right wrist reveals active motion, measured by goniometer methods as follows: flexion 70°, extension 70°, ulna deviation 40°, radial deviation 25°.
Forearm pronation and supination are full in range.
DIAGNOSIS AND CAUSATION
Mr James Kidd was involved in a motor vehicle accident in which his vehicle was struck head-on.
Based upon the clinical findings at the current assessment, the diagnoses are as follows:·Cervical spine – soft tissue injury, underlying degenerative change
·Head – closed head injury, concussion – resolved
·Scalp – laceration – resolved
·Lumbar spine – possible soft tissue injury – resolved.
·Left wrist – soft tissue injury - resolved
Cervical spine
There is early documentation of neck and thoracic back pain, early symptoms of paraesthesia at the left shoulder and arm.
Although the treating general practitioner, Dr Mahmoodi, documents early symptoms of tingling in the fingertips and left arm two weeks after injury, he noted that neurological examination was normal with no measurable weakness or sensory loss.
There are no clinical features of cervical radiculopathy at the current assessment.
The Assessor has reviewed the remainder of the medical file.
The assessor adopts the reasoning in David vs Allianz Australia Ltd (2021) NSWPICMP 227 at (84)-(104), that radiculopathy can be present at any time to establish that the injury is not threshold for the purposes of the MAI Act.
The assessor has found that there is insufficient medical evidence that the injury is not-threshold for the purposes of the MAI Act from the time of the accident up to the time of the assessment.
Detailed imaging has been confined to the cervical spine, including MRI scans, performed on 7 July 2022.
Whilst the scans refer to wedging of the C5 vertebral body, this is interpreted as an old change in the absence of bony oedema.
The Panel concurs with Assessor Cameron that the changes in the cervical spine are degenerative in aetiology.
The injuries listed above are threshold injuries. The injuries meet the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
The clinical presentation does not meet the criteria for cervical radiculopathy set out in Clauses 5.8 to 5.10 of the Motor Accident Guidelines.
Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found:•loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
•positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
•muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
•muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
•reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
None of the criteria are met.
Left wrist
Mr Kidd has made a full recovery from an early soft tissue injury to the left wrist.
The injuries meet the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
Head
On 19 August 2022, Dr Mahmoodi documented a laceration in the frontal scalp area. However, the Review Panel Assessor finds there is no evidence of scalp scarring and there is normal sensibility in the scalp, both within the hair-bearing area and over the frontal region.
There is no record of a medically verified abnormality in the level of consciousness. There has been no brain imaging.
There is no scarring.
The injuries meet the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
Lumbar spine
There is no current complaint of low back pain, and no abnormality on examination of lumbar spine.
There is little reference to lumbar back pain in the medical file, including the chiropractor’s notes, the clinical notes from the treating practitioner, the AHRR from physiotherapist (Mr Merlevede).
There is no evidence of radiculopathy currently, or at any time after the subject motor vehicle accident.
The injuries listed above are threshold injuries. I am satisfied the injuries meet the definition of soft tissue injuries.
There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
The clinical presentation does not meet the criteria for lumbar radiculopathy set out in Clauses 5.8 to 5.10 of the Motor Accident Guidelines (see above).
None of the criteria are met.
Head
Soft tissue injury – resolved.The injuries listed above are threshold injuries. I am satisfied the injuries meet the definition of soft tissue injuries.
There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.Shoulders: Left and right shoulder girdle – musculoskeletal pains
The injuries listed above are threshold injuries. I am satisfied the injuries meet the definition of soft tissue injuries.
There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
The assessor finds that Mr James Kidd did not sustain left or right shoulder joint injuries.
Whilst the listed injuries include both shoulders ‘paraesthesia ulnar nerve’, there are no clinical signs of ulnar neuropathy.
There is muscle tension due to the whiplash associated disorder of the cervical spine.
Left, Right arm
There is no separate soft tissue injury to the left or right arm.”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] The Review Panel adopts the examination findings and reasons of Medical Assessor Home with which Medical Assessor Oates concurs.
[4] Section 7.26(6) of the Act.
Noting the parties’ submissions in relation to the proper classification of skin injuries, the Review Panel finds that it is bound by the recent decision of the Supreme Court in Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245, which upheld the decision of the Review Panel in Abawi v Allianz Australia Insurance Limited cited in paragraph 9 (above), to which the claimant’s submissions refer.
Consequently, the Review Panel is bound to find that the claimant’s scalp laceration, included in the list of Head injuries referred for assessment, is a non-threshold injury, for the purposes of the Act.
CONCLUSIONS
For the reasons stated, the Review Panel is satisfied that all of the injuries suffered by the claimant, except the head laceration, relevantly are soft tissue injuries. The Review Panel accepts that the claimant’s head laceration must be classified as a non-threshold injury.
For the above reasons, the Review Panel concludes that the certificate issued on 19 March 2024 by Medical Assessor Cameron should be revoked. The new certificate appears at the commencement of these reasons.
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