Krapceva v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Krapceva v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 472
CLAIMANT:	Daniela Krapceva
INSURER:	IAG Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Nigel Ackroyd
MEDICAL ASSESSOR:	Wing Chan
DATE OF DECISION:	11 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Prior to accident, claimant had been treated for supraventricular tachycardia (SVT) and had medication for it, but at the time of the accident was not taking that medication; history of heart palpitations by a physiotherapist six months post-accident but no other history of this following the accident before this time; claimant had investigations in March 2021 where the examining heart specialist was not satisfied that the claimant had SVT; Medical Assessor concluded that the complaint of SVT was caused by the accident but provided no reasons for this; causation considered by the Medical Review Panel; Held – the claimant had a demonstrated predisposition to SVT and the occurrence of the accident did not satisfy the panel that on the balance of probabilities it was a contributing cause which was more than negligible; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Haber dated 4 May 2023. 2. The Panel is not satisfied that the claimant suffered supraventricular tachycardia as a result of a motor vehicle accident on 19 July 2020 and that this was a non-threshold injury pursuant to the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

This is a review of a certificate of Medical Assessor Haber (the Medical Assessor) dated 4 May 2023.
The Medical Assessor found that the claimant suffered supraventricular tachycardia (SVT) as a result of a motor vehicle accident on 19 July 2020 and that this was a non-threshold injury pursuant to the Motor Accident Injuries Act 2017 (Act).
There is a dispute between the claimant and the insurer about: whether the injury caused by the motor accident is a threshold injury under Schedule 2, s 2(e) of the Act.
The insurer sought and was granted leave to review the Medical Assessor’s certificate.

The accident

The accident occurred on 19 July 2020.
The claimant was a front seat passenger in a car which collided with a car in front of it. The car in which the claimant was a passenger was said to be travelling at a speed of less than 70kmph. The claimant was driven home after the accident.
There is no police report of the accident. It is not clear but the police may not have attended the accident scene.

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46].

LEGISLATIVE BACKGROUND

Jurisdiction

The claimant’s claim is governed by the provisions of the Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “threshold” injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.

Threshold injury

A threshold injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “threshold psychological or psychiatric 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.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, 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.
5.5   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.”

Insurer’s submissions

No submissions specifically on the point of SVT were made by the insurer to the Medical Assessor. The insurer only addressed the issue of SVT and causation in relation to the accident in its submissions for review of the Medical Assessor’s decision, to the delegate of the office of the President.
The insurer noted that the Medical Assessor, within the certificate determined, following his assessment of the claimant, that she did have a threshold injury based on the SVT arising due to the effects of the motor accident.
The insurer noted the Medical Assessor had determined following his assessment of the claimant and the medical reports provided for the assessment, the reasons the SVT was not a threshold injury were:
“3 to 4 weeks following the accident she started to have recurrence of episodes of SVT, more likely than not due to emotional stress” see page 4 of the certificate.”
The insurer observed the Medical Assessor’s reasons to indicate why the SVT was not considered a threshold injury was “This is NOT a threshold injury” see page 4 of the certificate.
The insurer submitted the Medical Assessor had erred within the certificate by failing to provide sufficient reasons to indicate why he had determined the SVT was an injury related to the effects of the accident in light of his examination findings and review of the medical documentation contained within the certificate.
The insurer submitted the Medical Assessor had also erred by failing to provide any reasons within the certificate to indicate why the SVT did not meet the criteria of a threshold injury.
The insurer noted the Medical Assessor’s examination findings within the certificate reported the claimant’s blood pressure was 130/80 and there were no other cardiac or respiratory abnormalities.
The insurer noted the Medical Assessor’s review of all the medical reports provided for the Personal Injury Commission’s (Commission) assessment was reported as:
“She has been getting recurrent attaches of tachycardia and SVT”
The insurer noted the Medical Assessor recorded the claimant having a history of an ablation for SVT in April 2018 and was prescribed medication for this following the procedure (the accident occurred on 19 July 2020). The insurer also noted the claimant had been treated for hypertension and the claimant’s blood pressure was normal 120/80 but occasionally went up to 160/110.
The insurer says that the Medical Assessor was noted to report the claimant developed recurrent attacks of SVT 3-4 weeks following the motor accident with tachycardia of more than 120 beats per minute. The claimant was noted to have palpitations four times a week with a heart rate of 150 on average.
The insurer noted that the claimant had been seen in an emergency Department in Macedonia on a couple of occasions for these symptoms.
The insurer observed the Medical Assessor had reported the claimant had a current BP of 130/80. The insurer submits that this was very similar to the cardiac history as reported by the Medical Assessor prior to the accident. As noted above, the insurer says that the Medical Assessor stated the claimant had a “resting ECG showed her heart rate to be 80/min. She was in sinus rhythm with mild left axis deviation”.
The insurer submitted the medical reports provided for the assessment did not include any medical certificate which had included a diagnosis of cardiac related symptoms from the effects of the motor accident.
The insurer submits that after a review of the consultation notes from Family Medical and Dental Practice, these did not contain consultations with regards to attacks of SVT or a consultation with in the first month following the motor accident with any cardiac symptoms.
The insurer submitted the second consultation following the motor accident, that is, on 12 August 2020, Dr Natale stated “Continues with neck, bilateral shoulder, lower back and leg pains despite taking Panadol Osto, Nurofen, Lyrica 75 mg tables. Awaiting approval for scans.” The insurer submits this does not contain a record of the claimant experiencing cardiac or SVT symptoms following or due to the effects of the motor accident.
The insurer submitted the first reference to the claimant experiencing cardiac symptoms occurred within the consultation notes from physiotherapy on the dates
2 December 2020, 6, 13, and 20 January 2021, and 5 March 2021 (the Panel has seen no reference to this on 2 December 2020). The insurer submits these notes do not suggest these were related to the effects of the motor accident.
The insurer submitted after a review of the consultation notes from Family Medical and Dental Practice these appeared to provide a history of ongoing treatment directed to the claimant’s pre-existing cardiac history, that is:
(a)    the active past history was noted to include hypertension in 2014, diabetes mellitus Type 2 in 2015 and SVT which was treated with an ablation in
April 2018;
(b)    on 16 November 2020 the claimant was prescribed Daptab for hypertension and low K and a new medication which was due to be trialled for control of her blood pressure;
(c)    on 2 December 2020 the claimant was recorded to have persisting low potassium and was prescribed Telmisartan;
(d)    a sleep study showed moderate sleep apnoea, and
(e)    on 4 February 2021 the claimant had lower limb oedema and was prescribed Lasix twice weekly.
The insurer submits therefore the medical evidence provided for the certificate did not suggest that the claimant had been diagnosed, investigated or treated for SVT following or due to the effects of the accident.
The insurer observed the certificate by Medical Assessor Home dated 13 March 2023 did not include a history of the claimant sustaining any cardiac of SVT symptoms following the accident.
The insurer noted the certificate by Medical Assessor Sidorov on 26 March 2023 determined the claimant had an adjustment disorder with mixed anxiety and depressed mood. Medical Assessor Sidorov reported the claimant had SVT in 2017, undergone an ablation in 2018 and this had resolved her cardiac symptoms. The insurer observed however, Medical Assessor Sidorov did record the claimant had developed heart palpations 4-5 months following the motor accident and had been trialled on Toprol to control her heart rate.
The insurer noted that Medical Assessor Sidorov reported the claimant had developed following the accident, symptoms of anxiety and low mood associated with disturbed sleep, as well as memory and concentration problems, secondary to the pain and physical impairment.
The insurer further noted the absence of any psychological factors being attributed to the claimant’s SVT/cardiac symptoms. Medical Assessor Sidorov determined the claimant had sustained threshold injuries from a diagnosis of adjustment disorder with mixed anxiety and depressed mood.
In light of the above, the insurer submits the certificate completed by the Medical Assessor had not provided sufficient reasons to indicate why the diagnosis of SVT was related to the effects of the motor accident when the treating medical evidence had not diagnosed this condition to be due to the effects of the motor accident.
Furthermore, the insurer submitted the certificate by Medical Assessor Sidorov had not determined that the motor accident had led to any psychological symptoms which had manifested itself in the form of cardiac related symptoms following the accident.
The insurer says that based on the reasons listed within the certificate, the Medical Assessor had not provided reasons to allow an understanding why the claimant had been diagnosed to have sustained a recurrence of SVT as due to the emotional stress following the accident.
The insurer also submits the Medical Assessor has not provided reasons to permit an understanding why the SVT was not related to the pre-existing blood pressure and SVT which was present prior to the accident.
The insurer noted the Medical Assessor had listed within the certificate the criteria to allow an understanding of what injuries may be considered to be classified as a threshold injury as listed within s 1.6(2) of the Act and the cl 4 of the Motor Accident Injuries Regulation 2017. However , the insurer noted the only reasons provided by the Medical Assessor to indicate the SVT was not a threshold injury was to say that the SVT was not a threshold injury. The insurer submits this statement does not provide any reasons to understand why SVT does not meet these criteria which the Medical Assessor had listed within his certificate.

Claimant’s submissions

The submissions by the claimant are limited. The thrust of these submissions is that there is nothing in the Medical Assessor’s certificate to indicate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material aspect.

Medical evidence

The Medical Assessor provided a certificate dated 4 May 2023. He found that the SVT was a non-threshold injury for the purposes of the Act.
The Medical Assessor noted that in April 2018 the claimant had an ablation for SVT and was on medication for one year afterwards. The claimant had already commenced treatment for hypertension approximately 12 months before the accident.
The claimant informed the Medical Assessor that three or four weeks after the accident she started to get recurrent attacks of SVT and with a heartbeat of 120 bpm associated with breathlessness and burning sensation in the chest whilst the tachycardia persists.
The Medical Assessor was provided a history by the claimant that she still gets attacks of tachycardia with a heart rate of 140 to 160 or even quicker at times. She said this wakes her up often as she then has a burning sensation in her chest and shortness of breath. At the time of examination, the claimant had a resting ECG which showed a heart rate of 80 bpm.
The Medical Assessor thereafter provided no other information, insight or discussion and concluded by saying the claimant had a non-threshold injury with recurrent attacks of SVT and sinus tachycardia.
The claimant was also examined with respect to her psychiatric disability by Medical Assessor Siderov who provided a certificate dated 26 March 2023.
The claimant informed Medical Assessor Siderov that she was diagnosed with SVT in 2017 and had an ablation procedure in 2018 with resolution of her cardiac symptoms.
The claimant confirmed that in the accident, airbags were not deployed and police and ambulance did not attend. The car was driveable after the accident.
The claimant said that four to five months after the accident she developed heart palpitations and was given Toprol medication to control her heart rate. This information is contradictory to the history given to Medical Assessor Haber who reported the first attack was three or four weeks post accident. The claimant said that her heart rhythm had been irregular at times, and she had been getting shortness of breath and experiencing chest pain.
Medical Assessor Siderov diagnosed the claimant is meeting the diagnostic criteria for an adjustment disorder with anxiety and depressed mood. The Medical Assessor said that his diagnosis was based on a history of the claimant developing symptoms of anxiety and low mood associated with disturbed sleep, as well as memory and concentration problems, secondary to the pain and physical impairment she had been experiencing after the accident. There was no consideration of what part, if any, SVT might take in this diagnosis.

The claimant was also seen by Medical Assessor Home who provided a certificate dated 13 March 2023.
Prior to the accident, it was noted that the claimant had a cervical decompression in 2018 for herniated discs and the surgery was successful. This was at the C5/6 level.
The claimant gave no history of SVT but did say that she had undergone heart ablation treatment.
The claimant gave no history of post-accident SVT condition nor that she was undertaking medication for this.
Medical Assessor Home concluded that the claimant had suffered a minor injury only to the following;
(a)    Cervical spine: aggravation of cervical spine spondylosis; previous C5/6 decompression surgery.
(b)    Right shoulder: soft tissue injury; subacromial bursitis; underlying rotator cuff tendinopathy.
(c)    Left shoulder: soft tissue injury; subacromial bursitis; underlying rotator cuff tendinopathy.
(d)    Lumbar spine: soft tissue injury.
The clinical notes of Dr Natale, general practitioner (GP) attended by the claimant show that the claimant was a passenger involved in a motor vehicle accident on
19 July 2020 and that she had been suffering with anxiety and an adjustment disorder and that she was having difficulty travelling in a car.
The medical history included a hysterectomy, hypertension, diabetes mellitus type 2, endometriosis, an SVT treated with ablation in April 2018, a cervical disc bulge at C5/6, decompression surgery and a right oophorectomy. This medical history was prior to the accident.
There was an attendance on Dr Natale, on 22 July 2020 which is the first attendance following the accident. The complaints on presentation were noted to be pain in the neck, lower back and left shoulder and noted to be radiating to the left foot region and the right knee region.
On 12 August 2020, Dr Natale recorded notes as follows; “Continues with neck., bilateral shoulder, lower back and leg pains despite taking Panadol Osto, Nurofen, Lyrica 75 mg tables. Awaiting approval for scans.” There is no record of the claimant experiencing cardiac or SVT symptoms following or due to the effects of the accident.
The claimant was noted to have ongoing pain in subsequent clinical entries, despite analgesia and physiotherapy. A clinical entry, dated 11 September 2020, noted, “Feeling anxious and suffering with an Adjustment Disorder post-MVA, finding it difficult to cope.” Anxiety and depressive symptoms were noted in a clinical entry, dated 18 January 2021. Ongoing pain issues were noted in subsequent clinical entries.
The claimant sought physiotherapy treatment from 2 September 2020, and regularly thereafter. The first reference to the claimant experiencing cardiac symptoms occurred within the consultation notes from the claimant’s physiotherapist, Mr Kwon, on 6, 13, and 20 January 2021, and finally on 5 March 2021. These were not specifically references to SVT but rather pressure on the chest, palpitations and not feeling right, in the heart as well as having “to go to emergency due to heart problem”. While there is reference to a heart problem in the consultation on 6 January 2021, there is no information about the date of the occurrence, the treatment and cause, nor the outcome.

Medical examination

The claimant was medically examined by Medical Assessor Ackroyd on
20 February 2024. His report follows.
HISTORY
Ms Krapceva attended the interview with a support person.
The accident has been well described and involved a car in which the claimant was a passenger that rear ended another car in front. The claimant indicated that her car was travelling at a speed of approximately 50kph. The level of damage to the car in which the claimant was travelling, from photographs provided by the insurer, would not indicate a forceful impact. Seat belts were worn and no airbags were deployed. An ambulance was not required and injuries were minor soft tissue only. From a description by Mrs Krapceva of her condition immediately following the accident, she may have had a transient vasovagal attack after the accident. There was no chest injury.
The claimant has a history of labile hypertension, diabetes and obesity for which she has latterly been on Ozempic.
There was also a history of supraventricular tachycardia for which she had a successful ablation procedure for atrioventricular nodal re-entrant tachycardia (AVNRT) in April 2018 by Dr Adam Berger.
Following the accident, Mrs Krapceva says she may experience palpitations 1-3 x week which last 2-10 minutes or on some occasions only seconds. At no time have these episodes been objectively documented.
She has not seen Dr Adam Berger in this regard.
On 11^th March 2021 she saw Dr John French (cardiologist) at Liverpool Hospital for a cardiac assessment due to her history of these recurrent palpitations. Her Sestamibi Scan and her Stress ECG were normal on this occasion. There was no documentation of any abnormal rhythm. Dr French was not of the opinion that she had recurrent SVNRT.
More recently on 31^st August 2023 she was seen for review by Dr French regarding fitness for possible bariatric surgery. After normal Holter and exercise stress test (EST) he declared she was fit for non-cardiac surgery.
So, since the time of the accident there has been no objective documentation of the nature of her symptomatic palpitations. On the available evidence the palpitations do not represent SVT or AVNRT.
Physical examination on 22 May 2024 was unremarkable. Her pulse had a normal rhythm at a rate of 80pbm.
Discussion
There are several causes of paroxysmal SVT with abnormal “electrical” conduction pathways in the region of the atrio-ventricular node. These are called “re-entrant” rhythms where the electrical signal makes its way back to the atrium to cause a positive feedback loop which excites a tachycardia. In Mrs Krapceva’s case she had a re-entrant rhythm known as AVNRT requiring a successful ablation in April 2018.
The predisposition to SVT is a congenital one which may remain dormant until challenged by a trigger event. The so called “triggers” to develop SVT in the presence of one of these abnormal pathways include stress, anxiety, smoking, and caffeine as well as heart or lung disease. Also, thyroid conditions, sleep apnoea and diabetes. Moreover, it may occur without any discernible cause and be serendipitous in its time of onset.
If one is to impugn the accident as a cause of further SVT episodes, then it would need to be shown that there was significant anxiety caused by the accident. There was no injury to the chest attributable to the accident itself that would account for any recurrent SVT. In Mrs Krapceva’s case there is no evidence of an abnormal response to the accident in the psychological sense.
If it was thought that she had suffered a pathological AVNRT then I would expect in my experience that she would have been referred back to see Dr Berger. It would appear that after the accident there was no evidence of recurrent SVT in any objective sense such as testing by ECG. Indeed two cardiology consultations in 2021 and 2023 found no objective evidence of recurrent SVT. The latter consultation on 31^st August 2023 involved a normal Holter 24hr Monitor and a Stress ECG Test.
It is well accepted that there can be recurrent SVT after ablations and that these events can be serendipitous in their timing. They are related to recurrent or residual re-entry pathways. Simply because a possible SVT event occurred after the accident does not of course imply it was due that accident. In Mrs Krapceva’s case there were no documented episodes of SVT after the accident. Her oral history implied SVT but none was ever documented.
I did not perform an ECG today however her pulse was regular at 80bpm. Blood Pressure measurement was not performed.
The occurrence of episodes of SVT after the accident are poorly documented. No objective or physical evidence was obtained of the same if such existed. She was apparently given nitrolingual spray for tachycardia by her GP. This medication is normally used solely for angina due to coronary artery disease and is not indicated for SVT.
During the history she says she has panic attacks when driving and may have been given Metoprolol and Aspirin. Any tachycardia she may experience during these attacks does not represent SVT due to re-entry rhythms.
There are references to the two episodes of treatment by Dr French. On the first occasion on 11^th March 2021, she had a normal stress test and a normal sestamibi scan. On the second occasion on 31^st August 2023, she had a normal 24hour Holter monitor and a normal exercise stress test.
The Panel adopts the examination report of Medical Assessor Ackroyd.

CAUSATION

The Motor Accident Guidelines

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.
Clause 6.6 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, it is necessary to verify both of the following:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 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.”

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation",[4] and
"scope of liability".[5]
[4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[6]
[6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”.
In the accident involving the claimant, in which she was a front seat passenger, her car collided with a car directly in front. It was sudden, and might have been with some degree of force. However, photographs of the car in which she was travelling indicate only slight damage to the car which was able to be driven after the accident. On the observations of the Panel, the damage was minor and not indicative of a significant impact.
Campbell J in Owen v Motor Accidents Authority (NSW),[7] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[8]
[7] [2012] 61 MVR 245; [2012] NSWSC 650.
[8] At [27].
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues determined in Kinchela involved applying the definition of “minor injury” (now referred to as threshold injury”) and involved a question of causation in respect of an amputated toe.
The discussion in Kinchela concerning the correct principles to apply relating to causation follows:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d)(of the Motor Accidents Compensation Act). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said;
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a “left posterolateral annular tear” with “mild disc desiccation” shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) ‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;

(2) ‘a delamination may not fall within the definition of a tear’; and

(3) ‘the defect may not be the source of his pain and disability’.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’’
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgment” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”

Photographs of the car in which the claimant was travelling, possibly taken a short time after the accident but not known to the Panel, show limited body damage to the front panel of the car. From this, the Panel discerns from general experience, that the impact was not one involving high speed and to the contrary, was a low impact collision. These photographs are at pages 178-183 inclusive of the insurer’s submissions. The claimant informed Medical Assessor Siderov that the airbags were not deployed in her car as a result of the accident, the police and ambulance did not attend, and the car was able to be driven after the accident.
The Panel must consider whether, with the claimants SVT complaints, the disability is causally related when there was little or no complaint about this area of disability for six months post-accident.
The Panel is mindful that a lack of reported complaint of SVT should not preclude a conclusion that this condition arose from the accident.
The claimant provided a history to her treating physiotherapist that she had been to “emergency for a heart problem” but there is no other information. There are no hospital notes forming either of the bundles of documents of the parties. The claimant did see Dr French at Liverpool Hospital on 11 March 2021 but after testing, he was not of the opinion that the claimant had AVNRT.
The claimant had required treatment for SVT one year before the accident and had been on medication. The Review Panel understands that she was not needing that medication at the time of the accident.
The claimant reported to the Medical Assessor that three to four weeks after the accident she had recurrent attacks of SVT. There is no documented record of this, and her GP clinical notes make no reference or recording of this. The claimant informed Medical Assessor Siderov that four to five months post-accident, she developed heart palpitations. The timing of this reporting coincides loosely with the clinical notes of
Mr Kwon, a physiotherapist who first recorded a reference to heart problems on
6 January 2021, when it was said that the claimant had “to go to emergency due to heart problem”.
Scientifically, there is a possibility that the accident could have caused SVT. The Panel must consider, did the accident contribute to the claimant suffering SVT approximately six months after the accident? Medical Assessor Haber for example, drew the conclusion that SVT was caused by the accident. Therefore, it might be possible although the Medical Assessor provided no justification for this.
While the lack of contemporaneous complaint or record is not determinative, the reality is that there is essentially no evidence of complaint about SVT following the accident, before the Panel. There is nothing to confirm any complaint or treatment of SVT. The only “evidence” are some references by a physiotherapist retained by the claimant, by way of a recording of a history from the claimant.
Was the accident a contributing cause of SVT by reason of psychological injury? The Panel is not qualified to attribute a psychological cause. There was no consideration by Medical Assessor Siderov about what part, if any, SVT might take in his diagnosis of an adjustment disorder with anxiety and depressed mood.
The Panel must also ask itself in considering whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, whether the claimant’s SVT condition arises because of contribution by the accident, and whether the accident materially contributed to that condition and need for treatment.
There is nothing before the Panel to connect a condition of SVT, reported six months after the accident, and which occurred on 19 July 2020. Whilst this is not determinative, the Panel notes that the claimant was treated for SVT prior to the accident. This was 12 months before the accident, and she took medication for this condition thereafter. It seems that it was not until she saw Dr French in March 2021 that the claimant had investigations for recurrent palpitations, but he was not satisfied that she had AVNRT. The intervention of the accident is coincidental in the finding of the Panel to a complaint of SVT by the claimant around January 2021.
The Medical Assessor gave no consideration to the crash impact of the accident and subsequent condition of SVT. He accepted that the condition arose 4-5 weeks after the accident but did not have anything before him to verify this.
On the balance of probabilities, can it be said that the SVT suffered by the claimant apparently five months post-accident, was caused by the accident? The Panel is not satisfied that this is the case. The claimant, at the time of the accident, was 48 years of age. She had been treated for symptoms of SVT approximately 12 months before the accident and took medication for her symptoms for a time thereafter.
Would the impairment have occurred, if not for the accident? The Panel notes that the SVT had occurred in 2018, before the accident. The claimant therefore had a predisposition to this however, there is nothing before the Panel to indicate that the accident in July 2020 was a precipitating factor in January 2021.
The Panel is not satisfied that the accident and impact has had a more than negligible effect on the SVT condition suffered by the claimant.
The claimant had a demonstrated predisposition to SVT and the occurrence of the accident has not satisfied the Panel that on the balance of probabilities it was a contributing cause which is more than negligible.

CONCLUSION

This is a dispute between the claimant and the insurer about: whether the injury caused by the accident is a threshold injury under Schedule 2, s 2(e) of the Act.
The Panel is not satisfied that the accident and impact has had a more than negligible effect on the SVT condition suffered by the claimant. That condition has not been caused by the accident.

DETERMINATION

The Panel revokes the certificate of Medical Assessor Haber dated 4 May 2023.
The Panel is not satisfied that the claimant suffered supraventricular tachycardia as a result of a motor vehicle accident on 19 July 2020 and that this was a non-threshold injury pursuant to the Act.

[2024] NSWPICMP 472

11 July 2024