Lucanovic v QBE Insurance (Australia) Limited
[2023] NSWPICMP 38
•7 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Lucanovic v QBE Insurance (Australia) Limited [2023] NSWPICMP 38 |
| CLAIMANT: | Ana Lucanovic |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 7 February 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury in a motor accident on 14 August 2020; on 19 August 2020 complaints of left sided chest pain since accident; computed tomography (CT) scan showed intracapsular rupture of the right breast prosthesis; claimant underwent surgery to replace ruptured breast implant; review of certificate of the Medical Assessor who certified the right breast implant rupture was minor injury; Held – right breast implant caused by accident applying legal test of causation; Briggs v IAG Limited trading as NRMA Insurance considered; definition of injury in section 1.4 including artificial member captures artificial prosthesis; damage to implant not soft tissue injury so rupture not a minor injury; in the alternative as per Reed v Allianz Australia Insurance Ltd surgery to replace implant causally related to the accident; as a result of the surgery the claimant sustained non-minor injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Michael McGlynn dated · right breast implant rupture. |
STATEMENT OF REASONS
introduction
On 14 August 2020 Ms Ana Lucanovic (the claimant) was stationary in her motor vehicle when it was rear ended by another vehicle travelling at 40 to 50 kmph (the accident). Ms Lucanovic says she sustained injury to her neck, lower back and chest area and psychological injury.
QBE Insurance Australia Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Lucanovic under the Motor Accident Injuries Act 2017 (MAI Act).
Under the MAI Act statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”.[1]
[1] Section 3.28 of the MAI Act.
On 21 September 2020 Ms Lucanovic lodged an Application for personal injury benefits.[2]
[2] AD1 p 39.
On 30 November 2020 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that her injuries were minor injuries and that her entitlement to statutory benefits including treatment and care would cease.
Ms Lucanovic sought an Internal Review of the minor injury decision and on
6 April 2021 the insurer issued their Internal Review - Certificate of Determination and Statement of Reasons affirming their earlier minor injury decision.[3][3] AD2 p 123.
On 3 May 2021 the claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor injury dispute between the parties.
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 a minor injury for the purposes of the Act”.
As a result of the dispute about the medical assessment matter the claimant was assessed by Medical Assessor McGlynn in accordance with s 7.20 of the MAI Act.
CERTIFICATE OF MEDICAL ASSESSOR MCGLYNN
Medical Assessor McGlynn issued a Certificate dated 22 July 2022.[4]
[4] AD1 p 17.
The disputes referred to Medical Assessor Michael McGlynn were the following:
(a) whether the injury caused by the motor accident is a minor injury under Schedule 2, s 2(e) of the MAI Act;
(b) whether the initial consultation with Dr Kohout, plastic surgeon and the right breast implant replacement and scar revision relates to the injury caused by the motor accident, and
(c) whether the initial consultation with Dr Kohout, plastic surgeon and the right breast implant replacement and scar revision is reasonable and necessary in the circumstances.
The injury referred for assessment was the right breast implant rupture.
Medical Assessor McGlynn reported Ms Lucanovic underwent bilateral breast augmentation to increase her breast volume in 2014.
He reported on 14 August 2020 Ms Lucanovic was stationery in her vehicle, wearing a seat belt, when it was hit from behind by another vehicle. The airbags did not deploy. Four days later on 18 August 2020 Ms Lucanovic attended Fairfield Hospital in respect of tenderness over her ribs and on palpation. The rupture of the right breast was confirmed on ultrasound and MRI.
Medical Assessor McGlynn reported Ms Lucanovic saw Dr Kohout on
21 September 2020 when he reported discrepancy in shape and size of the breasts with the right nipple 2.5 cm lower than the left with distortion of the right breast appearance. He recommended surgery for the breast deformity and on
24 November 2020 Ms Lucanovic underwent removal and replacement of the ruptured right breast.Medical Assessor McGlynn noted Ms Lucanovic stated she had generalised chest pain worst centrally following the accident and the first post-accident investigation on
19 August 2020 reported a probable rupture of the right breast implant.He concluded Ms Lucanovic had sustained right breast implant rupture in the accident. Medical Assessor McGlynn found it was a minor injury for the purposes of the Act. He found Ms Lucanovic had sustained damage to a silicone implant which was situated deep to her breast tissue, it was not an injury to nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
In respect of causation Medical Assessor McGlynn stated:
“It is more likely than not the right breast implant ruptured due to pressure on her chest in the motor vehicle accident. There is no evidence to support pre-existing prosthesis rupture. The most likely cause of compression was her driver’s seat belt passing across right shoulder to left hip in front of the right chest. Dr Kohout reported obvious asymmetry of the breast with deformity the right breast and 2.5 cm discrepancy in nipple height. This is typical of breast implant rupture and would have been apparent prior to the motor vehicle accident if the rupture occurred prior to the motor vehicle accident.”
In relation to the treatment dispute Medical Assessor McGlynn stated the initial consultation with Dr Kohout, plastic surgeon and the right breast implant replacement and scar revision was reasonable and necessary in the circumstances and related to the injuries caused by the accident.
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor McGlynn on 13 September 2022 within 28 days of the date on which the certificate of Medical McGlynn was made available to the parties.
On 18 October 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[5]
[5] AD2 p 9
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 new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission[6]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[6] 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[7].
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
In Joshua Wood v Insurance Australia Group Limited trading as NRMA Insurance[9] Wright J emphasised if there is an agreement by the parties on part of the medical dispute, then the Medical Assessor is bound by that agreement. In this case the claimant’s application for review of the certificate of Medical Assessor McGlynn is limited to the minor injury dispute and in submissions dated 30 September 2020 the insurer noted “the claimant only appears to take issue with the determination that the right breast implant rupture is a minor injury”. Both parties’ submissions were limited to the minor injury dispute and the Panel is satisfied that is the only dispute for review.
[9] [2022] NSWSC 1290.
The Panel issued a Direction to the parties on 1 November 2022 (the first Direction) which required each party to file an indexed, paginated bundle of documents. The solicitor for the claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 115 marked as AD1. The solicitor for the insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 152 marked AD2.
At the request of the Panel the claimant uploaded to the portal a letter dated
16 December 2022 attaching the clinical records of Dr Mark Kohout. These documents were marked AD3.
MINOR INJURY- STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor 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 minor injury for the purposes of the MAI Act. Version 9 of the Guidelines commenced on 15 January 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 minor injury, the Guidelines relevantly provide:
“5.3The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4Diagnostic imaging is not considered necessary to assess minor injury.
5.5A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6The assessment of whether an injury caused by the accident is a minor 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.”
In Briggs v IAG Limited trading as NRMA Insurance[10] his Honour Justice Wright stated at [35]:
[10] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
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.”
EVIDENCE BEFORE THE REVIEW PANEL
Dr Gordana Jovanova, psychiatrist
Ms Lucanovic consulted Dr Jovanova on 14 August 2020.[11] She reported during the interview Ms Lucanovic reported earlier that day whilst stationary her car was hit by another car from behind and she experienced an increase in discomfort in her back and her neck.
[11] AD2 p 16.
Ray Rickard Medical Centre, clinical notes
Ms Lucanovic consulted Dr Maric-Todorovic, general practitioner (GP) on
16 August 2020 in relation to a referral letter.On 17 August 2020 Dr Maric-Todorovic reported the claimant’s involvement in the accident on 14 August 2020 and reported she was complaining of neck and lumbar spine pain and “nil seat belt injuries”.
On 18 August 2020 Dr Maric-Todorovic reported the findings on the CT scans of the cervical and lumbar spine were similar to the scans of the preceding year.
On 25 August 2020 Dr Maric-Todorovic reported post hospital discharge the right breast prosthesis rupture and on 1 September 2020 she reported right breast implant leakage.
Fairfield Hospital ED Discharge Referral 19 August 2020
Ms Lucanovic presented on 19 August 2020. The admission summary states:
1.“Left sided aching chest pain since Friday.
2.Reports she was involved in motor vehicle accident.
3.Rear ended her stationary car.
4.Not sure if she hit her chest to the steering wheel, she was wearing a seat belt.
5.Pain worse on breathing out and has been getting worse since Friday.”
The claimant’s chest was reported as tender.
CT Chest, 19 August 2020
Ms Lucanovic underwent a CT of the chest.[12] The report concludes:
“No skeletal injury.
Intracapscular rupture of the right breast prosthesis.
Mottled sclerosis in the T4 body may require further workup to exclude a significant cause.”
[12] AD1 p 52.
Ultrasound breasts, 31 August 2020
The report concludes[13]:
6. “1. Internal echoes in the right breast implant suggests extracapsular rupture.
7. 2. Complex fluid in the lower inner quadrant of the right breast adjacent to the implant may represent breast implant contents, however haematoma is a possibility
8. 3. Simple fluid adjacent to the left breast implant, most likely physiological/small seroma.”
MRI right breast, 24 September 2020
[13] AD1 p 54.
The report comment is as follows:
“Right breast implant shows intracapsular rupture, but no focal extracapsular extension. Left breast implant remains intact, no rupture.
Both implants are rotated: typically the base plate marker points posteriorly and to the side. Mild thickening of the fibrous capsule, and increased AP to transverse ratio, raise concern for a degree of capsular contraction.
9. No features to suggest breast implant associated anaplastic large cell lymphoma. No lesion of concern in the breast parenchyma on today's non-contrast study.”
Report of Dr Zelko Oreb, general practitioner 15 November 2020
Dr Oreb reported Ms Lucanovic presented on 11 September 2020 complaining of anterior chest pain, neck pain and back pain following her involvement in an accident where she was the driver wearing her seat belt when her vehicle was struck by another vehicle travelling approximately 40 to 50 kmph at the time of impact.[14] He noted she reported feeling sharp pain in her anterior chest, cervical spine and back on impact.
[14] AD1 p 59.
Report of Dr Mark Kohout, plastic surgeon 8 February 2021
Dr Kohout reported a history of immediate right sided chest pain following the accident.[15] He noted the ultrasound findings shortly after the accident showed rupture of the right breast prosthesis which was confirmed by an MRI scan performed on
24 September 2020.[15] AD1 p 63.
Dr Kohout noted a discrepancy in both the shape and size of the breasts with the right nipple-areola complex being 2.5cm lower than the one on the left. He also noted stretching of the right lower pole skin and distortion of the right breast appearance.
Dr Kohout reported Ms Lucanovic underwent a surgical correction of her breasts which included the removal of the ruptured implant, replacement with a new implant and a bilateral breast lift to symmetrize the breast size.
Dr Kohout suggested that a rupture of the breast implant is consistent with high velocity or high energy trauma to the chest such as may be encountered in an accident with direct trauma to the chest by either a seatbelt or steering wheel.
Report of A/Prof Allan Meares 15 October 2020
Associate Professor Meares undertook a case review at the request of the insurer.[16]
[16] AD1 p 66.
He reported it was difficult to be 100% sure whether the accident on 14 August 2020 caused the finding of a ruptured right breast implant. He also stated:
“She was the driver of a car and the seatbelt therefore would go across her right breast down to her left hip. It is possible that though she had pain in the left side of her chest that her right breast could have been ruptured by the seatbelt in the motor vehicle accident.”
Medical Assessment Certificates
Certificate of Medical Assessor Alexey Sidorov
Medical Assessor Sidorov issued a certificate dated 22 June 2022[17] in which he certified the following injury caused by the motor accident was a minor injury for the purposes of the MAI Act:
· mood and anxiety symptoms not amounting to a psychiatric disorder.
[17] AD2 p 130.
He also certified that psychological treatment (including counselling) did not relate to the injury caused by the motor accident and was not reasonable and necessary in the circumstances.
Certificate of Medical Assessor David McGrath
Medical Assessor McGrath issued a certificate dated 24 September 2022[18] in which he certified the following injuries caused by the motor accident were a minor injury for the purposes of the MAI Act:
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
[18] AD2 p 139.
He also certified that treatment, namely the proposed L5/S1 posterior interbody fusion did not relate to the injury caused by the motor accident and was not reasonable and necessary in the circumstances.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 3 May 2021 in support of the minor injury dispute.
The claimant submits the accident caused the claimant’s right breast implant to rupture. On 24 November 2020 the claimant underwent surgery to have the ruptured breast implant replaced.
The claimant relies upon the opinion of A/Prof Meares who stated in his report of
15 October 2020:“She was the driver of a car and the seatbelt therefore would go across her right breast down to her left hip. It is possible that although she had pain in the left side of her chest that her right breast could have been ruptured by the seatbelt in the motor vehicle accident…”
The claimant refers to paragraph 6.7 of the Guidelines and notes the motor accident does not have to be a sole cause as long as it is a contributing cause which is more than negligible.
The claimant submits she had no chest discomfort or pain prior to the accident and the chest pain developed after the accident. The claimant notes Dr Kohout in his report dated 8 February 2021 states:
“…a rupture of the breast implant is consistent with high velocity or high energy trauma to the chest such as may be encountered in a motor vehicle accident with direct trauma to the chest by either a seatbelt or a steering wheel.”
Insurer’s submissions
The insurer provided submissions dated 23 August 2021 in support of the initial minor injury dispute.[19] The insurer submitted there were causation issues as to whether the breast implant rupture was caused by the accident. The insurer relies upon the following:
(a) the airbags in the claimant’s vehicle did not deploy;
(b) the claimant did not make any complaint of pain in her chest or breast area during her consultation with Dr Jovanova on the day of the accident;
(c) there was no evidence of a seatbelt injury sustained in the accident;
(d) the claimant did not report chest pain during her initial consultation with her nominated GP on 17 August 2020 and did not report chest pain to her GP on 18 August 2020;
(e) the first recorded complaint of pain in the claimant’s chest was made on
19 August 2020 when the claimant attended Fairfield Hospital, five days after the accident, and(f) Associate Professor Meares reported it was “difficult to be 100% sure whether or not the motor vehicle accident on 14 August 2020, caused the finding of a ruptured right breast implant”.
[19] AD2 p 4.
The insurer provided submissions dated 30 September 2022 in response to the claimant’s application for review.[20]
[20] AD2 p 1.
The insurer submits that Medical Assessor McGlynn was influenced by the fact that the breast implant was situated in breast tissue to determine that the breast implant is a soft tissue injury within the definition of the Act.
The insurer submits Medical Assessor McGlynn was only required to assess whether the right breast implant was a minor injury not whether there was any injury to the skin or associated surgical ramifications.
PANELS DETERMINATION
The Panel issued a report and Direction to the parties dated 31 January 2023.The report stated:
“The Panel notes a medical examination where the claimant has now undergone right breast implant replacement would not assist the Panel in determining whether the right breast implant rupture is a minor injury. The Panel considers a re-examination of the claimant is not required.”
The Panel directed the parties on or before 8 February 2023 to confirm they had received the report and agreed to the Panel proceeding to determine the issues in dispute without examination. Both parties agreed it was appropriate to determine the matter on the papers.
In accordance with Rule 128(2) of the PIC Rules the Panel determined it was appropriate to assess the dispute without a medical examination and on the papers.
CAUSATION
The insurer argues the breast implant rupture was not caused by the accident.
The panel is satisfied having regard to the clinical notes of Dr Kohout and the MRI of the right breast of 24 September 2020 that the claimant sustained an intracapsular rupture of the right breast implant.
The accident occurred on Friday 14 August 2020. Ms Lucanovic consulted
Dr Jovanova, psychiatrist the same day when she reported the accident and an increase in back and neck discomfort. Ms Lucanovic saw her GP Dr Maric-Todorovic in relation to an unrelated matter on 16 August 2020 and although she reported her involvement in the accident on 17 August 2020 she complained of neck and lumbar spine pain and “nil seat belt injuries”.However, when she attended Fairfield Hospital on Wednesday 19 August 2020
Ms Lucanovic reported “left sided aching chest pain since Friday”. Her chest was reported to be tender, and she was experiencing pain on breathing out which had worsened since Friday.Ms Lucanovic was unsure whether she hit her chest on the steering wheel but confirmed she was wearing a seat belt. A CT scan the same day confirmed the intracapsular rupture of the right breast prosthesis. The Panel is somewhat perplexed by the left sided nature of the claimant’s chest pain when it was the right breast prosthesis which was ruptured.
Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in Part 6 of the Guidelines.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[21] His Honour stated at [70 – 72]:
“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].”
[21] Briggs [2022] NSWSC 372
The Panel is satisfied that the accident could have caused or contributed to the rupture of the breast implant having regard to the force involved in the rear end collision and the presence of the seat belt passing across the right breast.
The Panel considered the circumstances of the accident, noting neither the police nor the ambulance were called, and Ms Lucanovic was able to drive her car away. However, the panel was swayed by the record of her attendance at Fairfield Hospital five days later, when she presented with left-sided chest pain and tenderness, which Ms Lucanovic attributed to the accident. The Panel notes Ms Lucanovic also complained of pain on breathing which had worsened in the five days since the accident. Her condition was such as to arouse doubts that she might have either rib fractures on the left side or a pneumothorax, and a CT scan was ordered to investigate the situation.
Where a causal connection is possible, but scientific certainty is not required, the Panel is satisfied, on the balance of probabilities, that the accident did cause or contribute to the rupture of the right breast implant having regard to the force involved in the accident, the possibility she hit her chest on the steering wheel, the likely compression caused by the presence of the seat belt passing across her right shoulder and right chest to the left hip and the temporal connection between the accident and the complaints recorded by Fairfield Hospital five days later.
The Panel notes this conclusion is consistent with the opinion of Dr Kohout and even A/Prof Meares concluded it was possible that even though the claimant had pain on the left side of her chest her right breast implant could have been ruptured by the seatbelt in the accident.
The Panel finds the claimant sustained a right breast implant rupture caused by the accident.
MINOR INJURY
The Panel adopts the reasoning in David v Allianz Australia Ltd[22] that the definition of minor injury can be satisfied at any time following the accident for the purposes of the MAI Act.
[22] [2021] NSWPICMP 227 at [84]- [104].
Injury is defined in s 1.4 of the MAI Act as follows:
“Injury means 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.”The definition of injury in s 1.4 is designed to include artificial prostheses. Unlike the definition of minor injury in s 1.6 the definition of injury does not attempt to be exhaustive. The question is whether injury to a breast implant comes within the definition of injury in s 1.4(c) of the MAI Act.
The Panel accepts that damage to a breast implant is associated with soft tissue injury to the surrounding breast capsule, the release of irritating silicone-gel into the surrounding soft tissues and the deformity of the surrounding soft tissues due to lack of support from the deflated implant.
However, even if there is associated soft tissue injury arguably the injury to the prothesis itself is not a soft tissue injury, where it is not an 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) as defined in s 1.6(2) of the MAI Act.
The objects of the MAI Act are set out in s 1.3(2) and include:
(a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities, and
(b) to provide early and ongoing financial support for persons injured in motor accidents.
Section 1.3 (4) of the MAI Act states:
“In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.”
If a claimant’s only injuries resulting from a motor accident are “minor injuries”, there is no entitlement to damages, by virtue of s 4.4 of the MAI Act, and the entitlement to statutory benefits ceases after 26 weeks, by operation of s 3.28 of the MAI Act.
The Panel considers the definition of an “artificial member” would capture not just prosthetic limbs but other prosthetic devices such as pacemakers, hip, knee, or other joint prostheses. Where the preferred construction to be applied when interpreting a provision of the MAI Act is a construction which promotes the objects of the Act the Panel finds that the objects of the MAI Act would be promoted where injury to an “artificial member” is not caught by the minor injury provisions.
This interpretation is supported by the failure of the legislature to enact a regulation pursuant to s 1.6 of the MAI Act to exclude injury to an artificial member or any category of artificial member.
The Panel finds the injury sustained, that is the rupture of the breast implant is not a minor injury.
In the alternative and in the event the Panel’s interpretation of the injury to an artificial member is not correct the Panel has considered whether the subsequent surgery means the injury is not a minor injury.
The Panel finds that once the breast implant was ruptured surgery was necessary to remove and/or replace the ruptured breast implant. The Panel notes Medical Assessor McGlynn determined the right breast implant replacement and scar revision was reasonable and necessary in the circumstances and related to the injuries caused by the accident. As already stated, that determination is not disputed and is not for consideration by this Panel.
In undertaking surgery to remove and/or replace a ruptured breast implant a skin incision is usually carried out through the scar from the original surgical procedure to augment the breast. Surgeons commonly make an incision in the skin crease beneath the breast which provides access to remove the implant but also to remove the fibrous capsule that inevitably forms around the implant. There is a good deal of soft tissue dissection involved and a need to control bleeding. The procedure undergone by
Ms Lucanovic was slightly more extensive because a “breast lift” procedure was also carried out with repositioning of the nipple and the excision of excess skin to reshape the breast. Surgery carries the risk of nerve injury, in particular, to the intercostal cutaneous nerves resulting in some degree of sensory loss.In Reed v Allianz Australia Insurance Ltd[23] the claimant sustained soft tissue injuries causally related to the accident and aggravated the facet joint arthritis resulting in pain which ultimately led to the surgery undertaken by Dr Kohan. The Panel accepted that the motor accident materially contributed to the surgical procedure where the surgery involved the cutting of skin, tendons, ligaments, and cartilage.
[23] [2022] NSWPICMP 287.
“Motor accident” is also defined in s 1.4 of the MAI Act and means “an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused” during certain circumstances.
In Reed the Panel concluded the contextual meaning of minor injuries in the MAI Act is directed to what is caused by the motor accident and concluded where there was a causal nexus between the motor accident and the surgery, the claimant sustained a non-minor injury to the lumbar spine.
In accordance with Reed the Panel finds there is a causal nexus between the accident and the breast replacement surgery. As a result of the surgery Ms Lucanovic sustained a non-minor injury caused by the accident.
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