Martin v Allianz Australia Insurance Limited
[2024] NSWPICMP 9
•8 January 2024
| DETERMINATION OF REVIEW PANEL | ||
| CITATION: | Martin v Allianz Australia Insurance Limited [2024] NSWPICMP 9 | |
| CLAIMANT: | Eileen Martin | |
| INSURER: | Allianz | |
| REVIEW PANEL | ||
| MEMBER: | Gary Victor Patterson | |
| MEDICAL ASSESSOR: | David Skyes | |
| MEDICAL ASSESSOR: | Geoffrey (Paul) Curtin | |
| DATE OF DECISION: | 8 January 2024 | |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury on 15 February 2019 at St Ives; the dispute related to the assessment of permanent impairment arising from TMJ dysfunction; Panel satisfied as to causation; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Limited v Marsh applied; Held – claimant assessed at 5% whole person impairment for TMJ dysfunction; original certificate revoked. | |
| DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT The Review Panel revokes the certificate dated 10 February 2023 and issues a new certificate determining that:
| |
STATEMENT OF REASONS
INTRODUCTION
Mrs Eileen Martin (the claimant) suffered injuries on 15 February 2019 when she was the seat-belted front seat passenger in a VW Amarok work vehicle that was being driven by her husband at St Ives. They were on their way to a job cleaning carpets. Their vehicle was stationary at traffic lights on Killeaton Road when it was struck in the rear by a taxi. Their vehicle was pushed into the vehicle in front of it. The claimant struck the left side of her head on her door pillar. No airbags deployed. The claimant did not lose consciousness. She was able to self-extricate the vehicle. No ambulance was called. The claimant consulted her GP later that day and was referred to the emergency department at Northern Beaches Hospital. The insurer wholly admitted liability for the claim.
Allianz (the insurer) insured the owner and/or driver of the offending motor vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act).
There is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 and Schedule 2s 2a of the Act. This is a medical dispute within the meaning of the Act.[1]
[1] See Division 7 and Schedule 2 cl 2 of the Act
The claimant was referred for assessment by Medical Assessor Paul Nichols for assessment of the following injury:
· Temporomandibular joint – TMJ dysfunction – impaired jaw function and pain
Medical Assessor Nichols certified that all the injuries referred to him for assessment have been assessed and determined not caused by the motor accident. An assessment of the degree of permanent impairment of these injuries is therefore not required.
THE REVIEW
The claimant sought a review of Medical Assessor Nichols’ certificate on the basis that the assessment was incorrect within the meaning of s 7.26 of the MAI Act, in a number of material respects. The claimant did not bring the application within the time prescribed by s 7.26(10) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days). Nevertheless, the President’s delegate extended the time for making of the application for review on the merits.
Pursuant to s 7.26(5A) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
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.[2]
[2] s 41(2) of the PIC Act
Rules 127 to 130 of the Personal Injury Commission Rule 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 based solely upon the written application.[3]
[3] Rule 128 of the PIC Rules
The review is by way of new assessment of all matters with which the medical assessment is concerned.[4]
[4] s 7.26(6) of the MAI Act
ASSESSMENT UNDER REVIEW
The claimant submitted that Medical Assessor Nichols erred in his assessment of the right TMJ on the following basis:
·It contains demonstrable errors and is incorrect in a material respect;
·additional information from medical specialists about the probable cause of the injury was not considered; and
·the best and most contemporaneous medical evidence supports a finding that the claimant’s TMJ dysfunction was caused in the accident resulting in a whole person impairment of 12% for that discrete injury.
The claimant relies upon the report dated 18 March 2022 by Dr Anthony Greenberg, general and colorectal surgeon, and the report dated 28 November 2020 by Dr Joseph Scoppa, ENT physician, who assessed hearing loss (with tinnitus) and found evidence of TMJ dysfunction, contrary to what is stated by Medical Assessor Nichols.
It was submitted for the claimant that she sustained a heavy impact to the left side of her face in the accident. The claimant says that she never previously had any difficulties swallowing, in eating firm foods, nor did she have pain and clicking in her jaw and facial area. It was submitted for the claimant that there is no evidence anywhere in her medical records of symptoms of TMJ dysfunction before the accident. It does not appear that Medical Assessor Nichols had access to the claimant’s pre-accident dental records.
At paragraph 3.3 of the claimant’s submissions, particular are given of alleged demonstrable errors which contributed to the assessors’ finding that the claimant’s TMJ is unrelated to the accident. It is not necessary to re-state the particulars of those alleged factual errors.
It was further submitted for the claimant that the assessor:
(a)failed to carefully read, assess and review the medical report;
(b)failed to take a full medical history of the claimant, particularly in respect of her dental history and her reporting of TMJ dysfunction;
(c)did not conduct a thorough clinical examination of the claimant and view imaging of the TMJ injury; and
(d)did not provide sufficient evidence or reasons for his discounting of Dr Greenberg’s opinions.
The claimant also took issue with the insurer’s failure to disclose its report by Professor David David, who assessed the claimant the day before Assessor Nichols’ examination, the report of which Assessor Nichols said “may be relevant”, but was not provided to him. The Panel notes that Professor David’s report also has not been provided to the Panel.
The claimant’s review application was opposed by the insurer. The insurer submitted that Medical Assessor Nichols did not fail to consider the material upon which the parties relied and that he was not required to refer to the content of every report. The insurer noted that Dr Scoppa did not provide an opinion as to whether the TMJ dysfunction was related to the accident or was pre-existing. It was submitted that the claimant is arguing with the assessors’ clinical conclusions and is attempting to assert the assessor’s clinical discretion. The insurer denied that Assessor Nichols failed to take a full medical history and that his examination was erroneous. The insurer asserts that Assessor Nichols gave proper consideration to the opinion of Dr Greenberg, did not fall into error by not examining the claimant’s medical imaging and denies that a review is warranted by reason of the non-provision of Professor David’s report.
The insurer concluded by submitting the review application should be dismissed as the claimant had failed to identify an error in the certificate rendering it incorrect in a material respect.
President’s delegate Jeremy Lum issued a Determination of an Application for Review of a Medical Assessment on 25 July 2023 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 to be as follows:
·Assessor Nichols’ failure to take a full medical history of the claimant, particularly in respect of her dental history and her reporting of TMJ dysfunction, as a result of the motor accident;
·Assessor Nichols’ failure to genuinely consider the heavy impact upon the claimant’s face and jaw;
·Scan detail in the Certificate about the history of the motor accident, the history of bruxing (if any) and whether the loss of molar teeth (as allegedly reported) caused the TMJ dysfunction; and
·Difficulty in following the assessor’s pathway of reasoning as the history of the bruxing is not detailed, nor is the effect of the early removal of the molar teeth (a history which the claimant denies) discussed in the certificate.
Accordingly, the application was accepted and was referred to the Panel, which is to assess the following injuries:
·Temporomandibular joint – TMJ dysfunction – impaired jaw function and pain
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
·Letter dated 17 October 2023 to the Commission in relation to claimant’s dental records and a subsequent minor motor accident.
·Report dated 7 February 2023 from Professor David David, clinical professor of craniomaxillofacial Surgery, to the insurer’s lawyers. Professor David describes the claimant’s personal and medical history. He conducted a physical examination of her mouth and jaw. He viewed a MRI scan of the brain which also included incidental images of the TMJ joints. Professor David found presumptive evidence in the images of the claimant’s having objective TMJ joint distortion particularly on the left side. Professor David made a diagnosis of TMJ dysfunction caused by the motor accident which has impacted the claimant’s ability to chew. He found no evidence of any pre-existing conditions. Professor David found that the claimant’s TMJ pain and dysfunction had not improved and needs to be investigated and manage as soon as possible.
·Submissions in support of review of medical assessment which previously have been summarised.
·Letter to Allianz requesting internal review and referencing material from Dr Veivers, Dr Diaz, Dr Carr and Dr Scoppa and Dr Keller.
·Certificate of Determination of Internal Review by Allian confirming its decision not to concede that the degree of permanent impairment resulting from injury caused by the motor accident is greater than 10%. The stated findings upon internal review referenced a plethora of medical material. Only the report dated 18 March 2022 by Dr Antony Greenberg, General Surgeon, is relevant to the present dispute. Dr Greenberg made a diagnosis of temporomandibular joint dysfunction consequential to the motor accident with an assessment of 12% whole person impairment. Dr Greenberg’s opinion and assessment were rejected by the insurer on the basis that no treatment provider, nor other qualified medical expert, had made a diagnosis of TMJ dysfunction. The internal reviewer did not have the benefit of Professor David’s report.
·Medical records from Warringah Medical and Dental Centre and ForHealth Chatswood.
·Certificate dated 23 January 2020 by Medical Assessor Gregory Carr that the claimant’s cervical spine injury is a MINOR INJURY for the purposes of the Act. That certificate is not relevant to the present dispute.
The insurer relied upon the following material:
·Insurer’s review submissions dated 17 October 2022.
·Internal Review dated 16 August 2022.
·Clinical records o Waringah Medical and Dental as at 24 October 2019.
·Various certificates of capacity.
·Certificate of Medical Assessor Gregory Carr dated 23 January 2020.
·Certificate of Medical Assessor Brian Williams dated 1 March 2020.
·Report dated 16 March 2022 by Dr Alice Dwyer, consultant psychiatrist, to the claimant’s solicitors.
·Report dated 21 October 2020 by Dr Uthum Dias, consultant occupational physician, to the claimant’s previous lawyers.
·Report dated 11 April 2021 by Dr Andrew Keller, occupational physician, to the insurer.
It is not necessary to summarise most of that material as it is not relevant to the present medical dispute.
Under the heading HISTORY OF THE PRESENTING complaint, Dr Keller notes that the claimant’s vehicle was significantly damages in the motor accident. The claimant reported immediate symptoms of pain in the left side of her face and head with pins and needles in the left arm associated with neck pain. Dr Keller records that the claimant “has not seen any specialists for treatment of her physical complaints and has had no surgery…… and manages her symptoms with Paracetamol”.
Under the heading PRESENTING COMPLAINT, Dr Keller makes no reference to any jaw dysfunction or pain. He did not conduct an examination of the claimant’s jaw or mouth and makes no comment in relation to TMJ dysfunction. Query if he is qualified to do so.
The Panel had access to and OPG x-ray taken on 1 November 2023 which is referenced in the examination findings.
RE-EXAMINATION
Report from Medical Assessor David Sykes is as follows:
“History
1.Pre-accident medical history and relevant personal details
[enter info]
2.History of the motor accident
Ms Martin confirmed that she was involved in a motor vehicle accident on 15 February, 2019 in which she was the front seat passenger in a utility vehicle that was struck from behind with sufficient force to push the vehicle into the car in front. The vehicle was the work vehicle of her husband and her cleaning company and her husband was the driver. She advised that the vehicle had special protective bars fitted to the rear of the vehicle that had no crash crumple capacity such that the full force of the rear collision was reflected in the force applied to the occupants.
Ms Martin was thrust forward violently causing a whiplash injury and, on her rearward secondary motion, the left side of her head struck something on the door side of the car, possibly the door pillar. The car did not roll over and the air bags were not deployed. Ms Martin did not experience a loss of consciousness. She exited the car unaided and was a bit disoriented.
An ambulance was not called and her husband drove her home.
Immediately after the accident Ms Martin started to experience pins and needles down her left arm, altered hearing, pain in her face and difficulty swallowing. She attended the local medical centre on the same day who referred her to the Northern Beaches Hospital. Since the hospital was unable to take x-rays at that time, she was referred to a local radiologist where a CT scan of her cervical spine and head was taken. No jaw fractures were found.3.History of symptoms and treatment following the motor accident
Ms Martin’s symptoms of hearing, swallowing problems, neck and left arm pain facial pain with numbness on the left side of her face, continued after the accident and she was referred to Dr Veivers, ENT Surgeon, possibly 16 weeks after the accident. As part of this consultation, she was referred to an audiologist for hearing testing and he reported that he had heard of whiplash injuries causing a hairline fracture in her TMJ (jaw joint) and suggested she have a CT scan. The audiologist’s opinion was only a suggestion at this stage. The CT scan, when it was taken, did not find any such jaw joint fracture and no clinician has been able to find one since.
Ms Martin continued to experience difficulty swallowing and facial pain on the left side. She reported that she got into the habit of not moving her face on the left side to prevent precipitation of the pain and confirmed that as far as she was aware, there is nothing wrong with the nerves to her facial muscles on this side. She has just developed this habit.
Ms Martin showed me a photograph on her phone of her face with the left side bruised. I advised that I was unable to verify the date of this photograph and, thus, could not be sure how it related to the subject accident.
Apparently, Dr Veivers was unable to provide any treatment for her conditions and recommended Panadol, a soft diet for her chewing and swallowing problems.
Ms Martin reported that she has seen a couple of dentists since the accident. Dr Ian Fleming, Dr Richard Zhou from North Sydney Dentistry and a dentist at Mosman Fine Dental. At the time of my examination, I had not seen any clinical notes from either Dr Fleming or Dr Zhou. Following the panel's request for additional material, however, dental records were obtained from Mossman Fine Dentistry and North Sydney Dentistry, covering the period 02/01/2017--18/10/2021. During this time, 28 consultations occurred, 24 of which took place following the accident in 2019. There is quite detailed information regarding the dental treatment, but the records contained no information with regard to symptoms of TM joint dysfunction.
The dental records obtained as additional documents and detailed above confirm the history provided to myself by Ms Martin that she has had crowns placed on many upper teeth since the subject accident which were done because she was unhappy with the look of her upper teeth. There were old crowns on the upper incisors which Ms Martin considered unesthetic. The new crowns were not placed for any reason associated with the subject accident.
I asked Ms Martin why there was no mention of her experiencing any jaw joint problems in the dental clinical notes provided to myself. She replied that she was sure there was mention of a TMJ problem found by the dentist at Mosman Fine Dental as shown in the notes against the date 26 August, 2020 – “Occlusion/TMJ”. I pointed out that this was only a heading and was not meant to be a clinical finding. Any clinical findings under this category heading would have been placed under the heading. There are not such findings noted. Indeed, there are no notes made under any headings in this clinical note entry, including under “CC” which is common shorthand for “Chief Complaint”.4.Details of any relevant injuries or conditions sustained since the motor accident
Ms Martin was involved in a further motor vehicle accident on 5 September 2019 in the Domain tunnel in which she was again a passenger in a vehicle hit from behind by a van when the driver had a stroke.
Whilst Ms Martin did attend a medical centre after this accident to have herself checked out, she has not experienced any injury consequences from the accident and her current symptoms resulting from the first accident have not been worsened or affected.5.Current symptoms
Ms Martin reported that she did not experience any facial pain if she kept her jaw still but has pain if she tries to chew hard food such as steak, especially on the left side of her jaw. The pain can be felt around both jaw joints. Thus she restricts her diet to soft food and eating on the right. She avoids steak and raw vegetables. She can eat food that is cooked so that it is soft, such as well-cooked meat, vegetables, cheesecake, sponge cakes, jellies and lean cuisine meals.
Ms Martin experiences clicking in both jaw joints and also intermittent sudden pain in the left jaw joint, when she moves the jaw in a certain way; usually during chewing. It feels as though the jaw is suddenly out of alignment. She immediately pushes her jaw to the left which clears the malalignment and the pain goes immediately. The jaw joint clicking is louder on the right than the left.
Ms Martin reported that she can open her jaw normally although it is painful to open wide. There is no pain on talking. Ms Martin is not aware of any tooth grinding (bruxing) habit. As far as she is aware, she has all her back teeth although she had congenitally missing teeth in the lower jaw which accounts for her lower missing teeth. She believes that she has not had any teeth extracted.
Ms Martin advised that she did not experience any chewing, jaw pain or joint clicking prior to the subject accident.6.Current and proposed treatment
I am advised from the letter from the claimant’s solicitor, Cranston, McEachern Lawyers, dated 17 October, 2023, that the only dental clinical notes submitted for this assessment are from Mosman Fine Dental. There is no dental treatment currently proposed in these notes.
A dentist at Mosman Fine Dental (identity not identified by Ms Martin to myself) has carried out crown placement on teeth 15 to 25 during 2021. This treatment is unrelated to the subject accident.Clinical examination
7.General presentation
TOOTH NUMBERING
The FDI tooth numbering system is used throughout this report. An explanation of the system is provided below:
A two-digit system is used to identify individual teeth. The first number refers to the quadrant and second number refers to the actual tooth. The quadrants are numbered this way:
Upper Right (Quadrant 1) Upper Left (Quadrant 2)
[IMAGE UNABLE TO RENDER]
Lower Right (Quadrant 4) Lower Left (Quadrant 3)
Each individual tooth is numbered from the midline back. In explanation: Tooth 26 (pronounced two six) refers to the upper left (quadrant 2), sixth tooth from the midline. Tooth 43 (pronounced four three) refers to the lower right quadrant (quadrant 4), third tooth from the midline.
Extra-oral examination revealed an area of paraesthesia (numbness) to fine point and soft touch testing in the left temple area extending down past the left side of the eye to the left side of the nose and as far down as the left corner of the mouth.
There was no masticatory muscle tenderness or tenderness around the TMJ’s (jaw joints). There was soft, reciprocal clicking from both jaw joints, first from the right TMJ early in the opening movement followed by a click in the left TMJ. There was no pain on clicking and maximum opening was measured as 42mm at the incisors (normal range 40-45mm). The right TMJ was painful on wider opening. The jaw deviates to the right when the clicking occurs. Lateral jaw movement to the right was slightly restricted.
Intra-oral examination revealed no soft tissue abnormalities with good saliva volume. The oral hygiene was good with periodontal pocketing of only 1-3mm and no bleeding on probing or gingival inflammation. There was supra-gingival calculus around the lower interior teeth. Some gingival recession was present, especially on the upper left molars.
There was a Class II division 2 occlusal relationship with increased overbite and overjet. Teeth 18, 28, 36, 45, 46 were missing with tipping of the lower molars into the missing tooth spaces. Ceramic crowns had been fitted on teeth 15, 14, 13, 12, 11, 21, 22, 23, 24, 25. The crown margins were not ideal with minor overhangs on each crown but a large buccal overhang on tooth 24 purposely placed to correct the palatal alignment of this tooth. Large amalgams were present in teeth 26, 27, 47.
Minor attrition of the lower incisors was present that was most likely a result of normal function against the old crowns Ms Martin had in place prior to the new crowns. This does not represent evidence of a bruxing habit as no other tooth grinding facets were present.
There was an obvious crack on the mesial of tooth 37 with possible caries (decay) under the mesio buccal cusp. Provocation testing of this tooth did not produce any pain.
An OPG x-ray taken at my examination showed that tooth 28 was present but unerupted and that teeth 16, 22 and 47 had been root canal treated. There was no obvious caries on tooth 37. The condyles of the jaw joints appeared normal in this x-ray (see image at Appendix below).
8.Other Radiological imaging
aMs Martin brought with her CT scan images taken by Northern Beaches Medical Imaging Brookvale on 21 February, 2019 (six days after the subject accident). Ms Martin advised that these were the images taken to Prof David for his assessment.
bThe images are a CT scan not MRI images. They were imaging the cervical spine and Petrous bone but, incidentally, imaged both TMJ’s well.
cThe right TMJ appears normal. However, the condyle on the left TMJ shows a clear spur on the anterior aspect. This finding represents evidence of osteoarthritic change that must have been present prior to the subject accident as it could not have developed in three days (see images in appendix below). Ms Martin could not remember experiencing a blow to the face or jaw prior to the subject accident. Such trauma is often the precipitating factor in the development such radiological changes to the joint condyle.
9.Diagnosis
A diagnosis of accident-related TMJ joint derangement in both TMJ’s and pre-existing osteoarthritic change in the left TMJ is appropriate. This indicates that the subject accident is likely to have exacerbated a pre-existing joint pathology in the left TMJ which, according to Ms Martin, was symptom free.
There is paraesthesia on the left side of the face which has not resolved since the subject accident10.Reasons
aIt is clear that the subject accident was severe enough to cause a significant whiplash injury. In addition, Ms Martin’s history of striking the passenger door or some part of the interior of the car is plausible and consistent with her sustaining an injury to her left TMJ as Ms Martin reports. Professor David’s clinical findings on assessment and that of Assessor Sykes were also consistent in noting clicking and deviation on opening from both TMJ’s but particularly the left TMJ. These factors were convincing to establish causation in relation to an injury to the left TMJ.
bSince causation has been established and the persistent symptoms reported by Ms Martin have not changed over the last 12 months, WPI can be determined.
cThe WPI has been determined in relation to the following:
i.Reference to AMA4 Guidelines, Chapter 9.3b, page/table 6 and page 231 of the NSW Motor Accident Guidelines p37.
ii.Consideration of the extensive dental treatment Ms Martin has undergone since the subject accident recognising that there is no mention of TMJ or dietary restrictions in the dental clinical notes of any of the dentists who have treated Ms Martin. It should be acknowledged that Ms Martin has made no attempt to claim that this treatment has resulted from any injury sustained in the subject accident.
iii.The degree of dietary restriction Ms Martin has reported in her various histories including that provided to Assessor Sykes.
11.Ms Martin has reported paraesthesia on the left side of her face that has been confirmed by Professor David and Assessor Sykes. Professor David suggested that this should be assessed by a Neurologist or other appropriate specialist. This injury was not a matter before this Review Panel.
12.
Body Part or System AMA Guides/ Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident 1 Temperomandibular joint – TMJ dysfunction – impaired jaw function and pain Chapter 9.3b, page/table 6/page 231. Motor Accident Guidelines p37 Yes 5% 0% 5% * %WPI = percentage whole person impairment
APPENDIX
1.OPG x-ray taken 1 November, 2023
[IMAGE UNABLE TO RENDER]
2.Selected images from CT Scan Cervical Spine and Petrous bone taken 21 February, 2019
| [IMAGE UNABLE TO RENDER] | [IMAGE UNABLE TO RENDER] |
| Left TMJ Condyle | Left TMJ condyle. |
“
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned. [5] The Panel adopts the extensive reasons of the examination findings of Medical Assessor Skyes with which Medical Assessor Curtin concurs.
[5] s 7.26(6) of the Act
The Panel is not required to choose between competing medical opinions and is required to form its own opinion[6] and [7]. The Medical Assessors have explained the basis of their assessment which is not dissimilar to the assessment and findings of the insurer’s Professor David. The medical assessment of permanent impairment is undertaken at the time of the examination.
[6] Insurance Australia Group Ltd v Keen [2021] NSWCA 287
[7] Insurance Australia Group Ltd v Marsh [2021] NSWCA 31
CONCLUSION
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Paul Nichols should be revoked. The new certificate appears at the commencement of this Reasons.
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