Momand v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Momand v Allianz Australia Insurance Limited [2023] NSWPICMP 10
CLAIMANT:	Yama Momand
INSURER:	Allianz Australia Insurance Limited
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	David Sykes
MEDICAL ASSESSOR:	Geoffrey Curtin
DATE OF DECISION:	12 January 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical dispute about minor injury and whole person impairment (WPI); review of Medical Assessor’s (MA) assessment of temporomandibular joint (TMJ) and dental injuries under section 7.26; claimant injured in t-bone collision; as he got out of his car claimant said that the door sprang back and hit him in the face causing TMJ pain and fracture to tooth or bridge over tooth; first attendance on doctor 11 days after accident with complaints of TMJ symptoms; first mention of tooth pain five months later; Held –TMJ dysfunction caused by accident and a minor injury resulting in 2% WPI; fracture of tooth or bridge not a minor injury but not caused by accident and no additional impairment; discussion of whether tooth enamel is a hard or soft tissue and whether an injury to a tooth or bridge would be a minor or non-minor injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate of Medical Assessor Nichols dated 6 May 2022. 1. Certifies that the injuries caused by the accident on 19 January 2018 are minor injuries for the purposes of the Act. 2. Certifies that the claimant’s whole person impairment for his accident-related injuries is not greater than 10%.

STATEMENT OF REASONS

introduction

On 19 January 2018, Mr Yama Momand was driving his taxi when he “t-boned” a car which had failed to give way at an intersection on Elizabeth Street in Sydney’s Surry Hills[1].
[1] This detail of the accident has not been challenged and is found in the application for personal injury benefits at page 36 of the claimant’s bundle of documents.
Mr Momand made a claim against his employer and was paid benefits in accordance with the relevant workers compensation legislation.
On or about 27 April 2020, Mr Momand made a claim for damages against Allianz the third-party insurer of the vehicle at fault[2].
[2] According to the claimant’s bundle of documents, the claimant’s application for motor accident personal injury benefits was dated 6 April 2018 but was not served until 19 January 2021. The claimant’s application for damages was dated 24 April 2020 and served on 27 April 2020. The claim forms (applications) are found at pages 1 and 34 of the claimant’s bundle of documents.
Two medical disputes have arisen in the course of this claim:
(a) whether the claimant’s injuries caused by the accident are minor injuries[3], and
(b) whether the degree of the claimant’s whole person impairment (WPI) resulting from his injuries is greater than 10%[4].
[3] The insurer’s minor injury decision was made on 17 August 2020, was the subject of an internal review which affirmed the original decision and is dated 17 August 2020. It is found at page 45 of the claimant’s bundle.
[4] The insurer’s decision that the claimant did not have a WPI of greater than 10% was made on 15 May 2020, was the subject of an internal review which affirmed the original decision and is dated 24 December 2020. It is found at page 47 of the claimant’s bundle.
The claimant referred those disputes to the Personal Injury Commission (the Commission) for determination. Two Medical Assessors were allocated the claimant’s physical injuries to assess, and one Medical Assessor has been allocated the claimant’s psychological injuries to assess.
On 6 May 2022, Medical Assessor Paul Nichols issued a certificate stating that the injuries referred to him were not caused by the accident and therefore he did not determine whether they were minor injuries or not and whether there was any impairment or not as result of those injuries.
The claimant then lodged an application for review of that decision. On 2 August 2022 a delegate of the President of the Commission determined that the review should be allowed as she was satisfied there was reasonable cause to suspect a material error in that assessment[5]. The President convened this Panel on 8 August 2022.

LEGiSLATIVE FRAMEWORK

Minor Injury

[5] The delegate’s decision is dated 2 August 2022.

General background

Mr Momand’s claims are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI 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 MAI Act there are some limitations and restrictions on access to benefits. Relevant to Mr Momand’s claims is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries.
Also relevant to Mr Momand’s claim for damages is that, in accordance with s 4.4 of the MAI Act, no damages are recoverable if his only accident-related injuries are “minor” injuries.

Minor injury defined

Section 1.4 of the Act includes a definition of “injury” as follows:
“… personal or bodily injury and includes—
(a) pre-natal injury, and
(b) psychological or psychiatric injury, and
(c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”
A “minor injury” is defined in s 1.6(1) of the MAI Act as a “soft tissue injury” for physical injuries and a “minor psychological or psychiatric injury” for mental harm injuries.
Section 1.6(2) of the MAI 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 sustains 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 and they can make a claim for damages, including non-economic loss damages, but cannot recover those damages from the third-party insurer.
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 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)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).

Method of assessment

Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of injuries and Part 5 of the Guidelines contains details of the procedure for assessment by insurers, medico-legal experts, Medical Assessors and Review Panels of the Commission.
In respect of the medical assessment of whether an injury is a minor 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 minor psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess minor injury.
5.5    A 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.
5.6    The 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.”

Permanent impairment

Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[6] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[6] The current maximum as of October 2022 is $605,000.
The degree of an injured person’s permanent impairment is to be assessed in accordance with Chapter 6 of the Guidelines[7] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[7] Section 7.21. The current version of the Guidelines is Version 8 which is effective from April 2022.

Dispute resolution

If there is a dispute about whether an injured person’s injuries are minor injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[8].
[8] Schedule 2, cl 2(e) in the MAI Act.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[9].
[9] See s 4.12 and Schedule cl 2 (2)(a) of the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Nichols’, further medical assessments and the review of medical assessments by this Review Panel[10].
[10] Sections 7.20, 7.24 and 7.26 of the MAI Act.

The assessment of teeth

The claimant alleges injuries to his right temporomandibular joint (TMJ) and a dental injury to a tooth and a bridge over three teeth.
In order to better understand the references to teeth in these reasons, the numbering system for teeth used is as follows:
(a)    the claimant’s mouth and teeth are divided into four quadrants. The first is the top right-hand side of his mouth, the second quadrant is the top left, the third is the bottom left and the fourth quadrant is the bottom right;
(b)    including wisdom teeth, there are eight teeth in each quadrant with tooth number 1 being the front tooth and 8 being the wisdom tooth, and
(c)    a tooth is numbered with two digits, the first digit corresponds to the quadrant and the second to the tooth number.
Tooth number 11 for example is the first quadrant central incisor (front left top tooth) whereas tooth 31 is the third quadrant central incisor (bottom right front tooth). The wisdom teeth are numbered 18, 28, 38 and 48.

THE ASSESSMENT UNDER REVIEW

Medical Assessor Nichols, a dental surgeon, undertook his assessment on 6 May 2022. He was asked to consider the following injuries:
(a) TMJ – right TMJ dysfunction, and
(b) teeth – right lower molar teeth requiring extraction (three) and restoration with implant supported three-tooth bridge.
Medical Assessor Nichols telegraphed his decision early on in the reasons. For example, he indicated at [2] that the injuries alleged were not caused by the car accident. At [5] he then gave the following reasons why the TMJ and dental injuries were not caused by the accident:
(a)    the injury occurred after the accident as Mr Momand was getting out of the car;
(b)    there was a six-month delay in reporting the injury to a dentist;
(c)    there were no pre-accident records;
(d)    the subject fractured bridge was made in Pakistan 15 years ago;
(e)    there are other facial traumas in the claimant’s history;
(f)    the 3 February 2018 TMJ X-rays reported no abnormality;
(g)    both of the claimant’s TMJs were tested as normal during the course of the assessment;
(h)    if tooth 48 was fractured as a result of the car accident, it would have been apparent at the time (by way of a painful and loose bridge), and
(i)    the separation in time from the from the accident to the first report of the alleged dental injuries is too great.
Medical Assessor Nichols took a history from the claimant (and the documentation) as follows:
(a)    the claimant had a “complex history of previous trauma to his head, whiplash injuries, and dental treatment in Pakistan”;
(b)    while there are no pre-accident records, it was likely the claimant’s teeth were fragile and he had sub-clinical TMJ dysfunction before the accident;
(c)    the fractured bridge over the lower right molars was made in Pakistan 15 years before the accident and would have been at the end of its predicted or accepted lifespan at the time of the accident;
(d)    after the initial impact in the accident, the door of the claimant’s taxi apparently slammed shut and hit the right side of the claimant’s face;
(e)    the claimant was not taken to hospital after the accident and first reported his dental injuries six months after the accident. At that time, he had clicking in his TMJ, said it was painful to eat, and the lower bridge was loose;
(f)    the claimant says Dr Gohil who removed the bridge, placed an implant and a new bridge and gave the claimant a TMJ splint, and
(g)    the claimant reported symptoms of pain in his face and in the TMJ with clicking on the right had side when he eats.
On examination of both TMJs, Medical Assessor Nichols could not elicit pain on palpation or hear a click with the aid of a stethoscope.
Medical Assessor Nichols examined the claimant’s teeth noting at [14], “many old crowns and amalgam fillings” and worn teeth “from long term bruxing” (grinding). He noted the presence of the new bridge.
Medical Assessor Nichols noted at [15] that he had not seen any pre-accident records or X-rays and said “the presentation is not consistent with the claim of dental injuries caused by the” accident.
Medical Assessor Nichols then summarised the medical records noting “a pre-accident history of facial injuries caused by assaults” in 2004 (right side of face), 2007 (left side of face), 2009 (right ear) and 2013 (face, neck and laceration to left cheek).
The Medical Assessor notes the mechanism of the injury (caused by the door hitting Mr Momand’s face as he got out of the vehicle) following the accident and suggests having seen the photographs of the damaged cars there was damage only to the front of the claimant’s vehicle and not the side or the door. He therefore suggests if the claimant’s door did hit his face this was not as a result of damage caused by the accident.
Medical Assessor Nichols refers to the X-rays, scans and MRI of the claimant’s jaw which show no accident-related injuries and in particular no fractures. The Medical Assessor also records the insurer’s submission that the first complaint of tooth pain was June 2018 after multiple attendances for other matters.
Medical Assessor Nichols found “no diagnosis related to the MVA” and “no injury to the dentition that was caused by the MVA”.

PROCEDURAL MATTERS

Claimant’s submissions[11]

[11] The submissions in the claimant’s bundle relate to the assessment of Medical Assessor Cameron. The claimant’s submissions in this matter are document AD2 in the Commission’s electronic file.

The claimant asserts Medical Assessor Nicholls applied incorrect principles of causation concerning the mechanism of accident and says:
(a)    the Medical Assessor reviewed the photographs and said there was no damage to the door and if the door hit the claimant’s face the Medical Assessor must have considered it was because of some reason other than the impact and damage of the accident;
(b)    Mr Momand says his car door hit him in the face because of the dysfunction in the door caused by the impact of the accident;
(c)    there was no intervening act, the malfunction of the door was a continuing effect of the physical damage caused by the motor accident, and
(d)    the Medical Assessor does not have the expertise to determine from photographs whether the car’s door was damaged in the accident or not.
The claimant also argues that Medical Assessor Nichols erred by determining the issue of causation based on the length of time between the accident and complaint to a dentist saying;
(a)    Medical Assessor Nichols did not appreciate the contemporaneous claim of TMJ pain on 31 January 2018;
(b)    the claimant’s TMJ was X-rayed on 3 February 2018, two weeks after the accident and this was done because of pain and dysfunction in that area of his body, and
(c)    Medical Assessor Nichols should not have rejected the claimant’s treating dentist’s opinion.
Other submissions made by the claimant relevant to causation include:
(a) there may have been previous assaults but there is no evidence of TMJ dysfunction or loose teeth before the accident, and
(b) the assertion that the claimant has fragile teeth ignores the eggshell skull principle.
In terms of the allegation of inadequate reasons, the claimant says there is no record of the results of testing or the examination and no mention of testing to suggest which parts of the AMA4 guides ere applicable.

Insurer’s submissions[12]

[12] The insurer’s submissions are found at page 1,455 of the insurer’s bundle of documents.

The insurer submits in respect of the Medical Assessor’s causation findings on page 2 of his decision, that there are nine bullet points one of which concerns the door impacting his face after the accident and this should not be read in isolation and in any event is a fact about how the accident happened. The insurer also says no analysis of the photographs was undertaken.
The insurer says the claimant has conflated two injuries, the TMJ injury and the dental injury which the insurer says are two separate injuries. The insurer accepts that the claimant complained of TMJ pain close to the time of the accident but says that the dental injury was not reported until six months later.
The insurer responds to the claimant’s argument that the Medical Assessor did not consider the TMJ X-ray by highlighting the references to the X-ray made by the Medical Assessor and the findings of the X-ray (normal study).
The insurer also notes that the claimant’s argument about the Medical Assessor’s determination of pre-existing “fragile teeth” is not relevant in circumstances where the Medical Assessor found no dental injury due to the absence of contemporaneous complaints. The insurer also says the Medical Assessor’s comments about pre-accident assaults is not relevant due to the Medical Assessor’s finding of no current TMJ dysfunction.
The insurer takes issue with the claimant’s suggestion the Medical Assessor did not conduct a proper examination or record his findings summarising the examination findings that are recorded at paragraphs 12 and 14 of the decision.

Panel’s report and directions document

The Panel met on 19 September 2022 by way of a teleconference and on 23 September issued a document to the parties.
The Panel noted the two separate injuries it intended to assess being the TMJ dysfunction injury and the dental injury to the claimant’s right lower molar and restoration with a three-tooth bridge.
The Panel drew the parties’ attention to s 7.25 of the MAI Act and the guiding principle of the Commission in s 42 of the Personal Injury Commission Act 2020 and said at [7]:
“The Panel has, after considering the information before it come to the very preliminary view (and leaving aside any issue of causation) that:
(a) a TMJ dysfunction injury is a soft tissue injury and therefore a minor injury within the definition in section 1.6, but that
(b) because a tooth is a hard tissue and not a soft tissue, any chip, fracture or breakage to, or of a tooth falls outside the definition of minor injury. The Panel notes the definition of ‘injury’ in section 1.4 includes personal or bodily injury and damage to ‘artificial members, eyes or teeth …’ and that therefore if the claimant’s former bridge was broken in the accident, this too might fall outside the definition of ‘minor injury’.”

The Panel invited the claimant and the insurer to attempt to narrow the issues in dispute for the Panel to assess, for example by agreeing any TMJ injury if caused by the accident would be minor injury and that any broken tooth or bridge if caused by the accident would be a non-minor injury. That would leave in the minor injury matter, the main issue to be determined as, causation of the claimant’s right lower molar teeth and bridge injury and whether the extraction of three teeth and restoration work was caused by the motor accident.
The Panel noted the submissions refer to photographs and observed that the members of the Panel are not accident reconstruction or damage experts.
The Panel also noted the recent decision of Bell v Allianz Australia Insurance Limited [2022] NSWSC 1108 in which Basten J said it is “not part of the medical assessor’s function to determine the scope of a motor accident, where that issue was controversial”. The Panel notes there is controversy in the matter before it as to whether the car door hitting the claimant was part of the “motor accident” and proposes to proceed as McColl JA in AAI Limited v SIRA (formerly MAA) [2016] NSWCA 368 at [161] suggested by making findings on causation by referring to the physical events of the accident and its aftermath, leaving any issue of whether that constitutes part of a “motor accident” to others.
The Panel invited submissions on all of the above matters and requested the following additional:
(a) a short statement from the claimant identifying the dentists he has seen (if any) since arriving in Australia and, as best he recollects, the dental treatment he has received since arriving in Australia, and
(b) copies of any treatment reports and notes of any dental practitioners the claimant has consulted since arriving in Australia and in particular the notes of any dentist who has seen the claimant since the car accident.
The claimant was directed to provide the statement and notes and any final submissions by 7 October 2022 and the insurer was directed to provide any available notes and final submissions by 14 October 2022.
The insurer’s representative lodged its revised bundle on 24 October 2022 and forwarded the Panel the following message:
“We refer to the directions of the review panel dated 23 September 2022.
We advise we do not hold any dental records.
The insurer disputes the claimant injured his teeth or bridge as a result of the accident. If the claimant did injure his tooth, enamel is soft tissue and minor injury. If he did injure the bridge, damage to an artificial object which is not part of the organic human body does not fall outside minor injury. While injury is defined in section 1.4 of the MAIA as personal or bodily injury and includes (c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses – it would not fall outside minor injury because it cannot be an “injury” as it not part of the human body.”
The claimant has not complied with the directions and has not provided any additional documents or information. The claimant’s representative responded to the insurer’s message above in the following terms:
“Sadly, Ms McCartney [for Ms Toshack] is very much misinformed. Enamel cannot be a soft tissue. Enamel/teeth are HARD. If she somehow has soft teeth, I wonder how she chews!!!!
Similarly, a bridge or restoration is a permanent fixture in the mouth. I assume Ms McCartney would, on her logic, regard an injury to a titanium knee replacement as a result of an accident to be a minor injury even though it stops the claimant walking!!!
I don't think we need to respond to this.”

Review of the evidence

General observations

The insurer lodged a revised bundle of documents totalling over 1,450 pages[13]. There are document relating to areas of the body not being assessed by this Panel. The claimant provided a bundle of 250 plus pages of documents.
[13] Document AD5 in the Commission’s electronic file.
Despite the direction from the Panel to avoid duplication of documents, the bundles were replete with duplications, both duplications between the parties’ bundles and duplications within the insurer’s bundle in particular. Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[14] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[14] [2022] NSWSC 1079.
In the light of Justice Basten’s words, the Panel does not propose to refer to every single document in the bundles only those which are, in the Panel’s view relevant to the issues in dispute.

Claim forms and liability documents

The application for statutory benefits is signed and dated 6 February 2018 almost three weeks after the accident. It suggests the claimant has not had a motor accident claim before and that his vehicle was a write off after the accident. The claimant lists the following injuries:
(a)    head injury – headaches;
(b)    upper and lower back;
(c)    centre of neck, and
(d)    left and right knee.
While the application form mentions a head injury with headaches, the Panel considers it of interest that there is no mention of jaw or tooth pain in this important document.[15]
[15] The Panel notes the damages claim form is dated 24 April 2020 and includes no additional information relevant to this dispute.
The claimant’s workers compensation claim form is signed and dated 18 June 2018[16] alleges injuries to back, right shoulder, left shoulder, dental, arms, neck, headaches and depression. While there is reference to a dental injury, the Panel considers it of note that there is no mention of jaw pain or TMJ dysfunction in this claim form.
[16] Page 229 insurer’s bundle
The police report[17] notes the damage to the vehicles involved the claimant’s front into the driver’s side of the insured vehicle. The report suggests both vehicles were towed away from the scene of the accident.
[17] Page 234 of the insurer’s bundle.
Photographs[18] confirm damage to both doors and the B-pillar of the driver’s side of the insured Mercedes[19] and significant damage to the front of the claimant’s vehicle including deformation of the bonnet[20]. There are two clear photographs[21] of the passenger side of the taxi (showing no damage to the passenger door) but there is no clear photograph of either door on the driver’s side. There are three clear photographs of the claimant in a white shirt two showing the right side of his face[22] and one showing the left side of his face[23].
[18] The photographs commence at page 237 of the insurer’s bundle. There are four photographs on each page which were not individually numbers and which will be identified by the Panel as A (top left), B (top right), C (bottom right) and D (bottom left).
[19] Photograph C on page 239 in particular shows the damage very well.
[20] Photograph B on page 239.
[21] Photograph A on page 238 and photograph D on page 239.
[22] Photograph A on page 238 and photograph B on page 241.
[23] Photograph B on page 240.

Treating doctors

The claimant has provided histories to doctors that Dr Mohmand of the Priority Medical Centre (PMC) was his usual general practitioner (GP) before the accident.
Dr Mohmand completed the medical certificate for the motor accident claim form on 31 January 2018 (the first time he saw the claimant after the accident) listing injuries as follows:
(a)    neck and back pain;
(b)    pain in both knees;
(c)    anxiety;
(d)    headache, and
(e)    pain right mandible.
On 3 February 2018 the claimant had a number of radiological investigations undertaken at the request of Dr Mohmand[24]:
(a)    MRI of cervical spine with clinical history “Neck pain with radiculopathy to the left arm”. The result shows “C5/6 broad-based disc protrusion associated with mild to moderate foraminal stenosis bilaterally abutting the exiting C6 nerve roots”;
(b)    normal X-ray of both knees with a recommendation for MRI if there was further pain;
(c)    CT scan of the brain with a history of “pain following trauma. Headache” and the result was a normal study;
(d)    a lumbar spine CT scan was undertaken due to the clinical history of “Radiculopathy”. The conclusion was “L4/5 subtle broad-based disc bulge without neural compression.”, and
(e)    TMJ X-ray with the mouth open and closed revealing a normal study. In particular no fractures were seen and there was normal movement of the jaw joint.
[24] The report is found at page 123 of the insurer’s bundle.
In a certificate of capacity dated 27 February 2018[25], Dr Mohmand refers to bulging discs in the neck and lower back, anxiety and depression, knee pain and headaches. He does not refer to jaw or tooth pain. He refers to the claimant’s 2011 car accident and says, “he was in recovery and stopped taking all medications six weeks prior mva”.
[25] Page 80 insurer’s bundle.
There are nine certificates of fitness / capacity[26] all of which refer to neck and back injuries, headaches and knee pain, anxiety and depression but none of which mention jaw or tooth pain or difficulty eating.
[26] Commencing at page 632 of the insurer’s bundle.
The workers compensation insurer arranged for a workplace assessment to be undertaken by an occupational therapist Ms Quito and her detailed report is dated 26 April 2018[27]. The report deals with the claimant’s physical and psychological issues and is clearly focussed on getting him back to work and resuming activities of daily living. There is no mention of jaw pain or teeth injury however significantly for the Panel, at page 5 of the report there is a note “eating / drinking” which was said to be “not restricted”.
[27] Page 242 of the insurer’s bundle.
Ms Quito has a history of the claimant’s vehicle being struck on the driver’s side by the insured vehicle and the claimant driving home. This appears to be an incorrect history.
There are other reports before Ms Quito’s services were terminated and none of these mention any pain in the jaw or teeth or difficulty with eating.
On 2 July 2018 a CT scan was undertaken of the temporal bone at the request of Dr Mohmand due to a clinical history of “MVA. Right ear pain in the back of the ear and wisdom teeth.”[28] No fractures were detected and both TMJs were “maintained” suggesting to the Panel there was no abnormality in the TMJs at that time.
[28] Page 125 of the insurer’s bundle.
Dr Gohil of Priority Dental Care reported on 3 July 2018[29] after first consulting with the claimant on 30 June. She noted that the claimant attended with a chief complaint of a loose bridge “as a result of trauma” from his car accident. She confirmed the bridge was loose,

X-rays were taken and the bridge was seen to be fractured from tooth 48 “supporting Mr Mohmand’s chief complaint”. Treatment for removal of the tooth and restoration work was recommended.
[29] The report is at page 512 of the insurer’s bundle and the invoice for the work done and the quote for work to be done is dated 10 October 2018 and is at page 513.
On 10 July 2018, the claimant was seen at the Western Sydney Pain Centre (Dr Deshpande) having been referred by Dr Hadzidis at the Priority Medical Centre. There is a comprehensive report[30] documenting in great detail the claimant’s pain in his neck, shoulder and arms, numbness and occipital headaches. Dr Deshpande was also given a history of psychological symptoms. There is no mention in this report of any pain or symptoms in the jaw or teeth.
[30] Page 193 of the insurer’s bundle.
Dr Gronow, a pain management specialist prepared a report dated 22 August 2018 addressed to EML the workers compensation insurer. Mr Momand was said to have completed his pain management for ongoing neck, back, arm, knee and leg pain. “He believes he may have hit his head on the side window. He had an injury to his wisdom teeth and he gradually developed neck and back pain over the next few days”.
Dr Jufas, an ear, nose and throat surgeon (ENT) provided a report dated 31 August 2018 about the claimant’s complaints of ear symptoms and pain. He has a history of a “significant head trauma” when “a taxi door slammed against the side of his face on the right”.
Dr Kim wrote a lengthy letter to Dr Osman of the Priority Medical Centre dated 29 October 2018[31]. As a treating doctor he took a history from the claimant which included the car accident but did not include any previous history. He records that the claimant sustained a blunt right sided trauma from being hit by the taxi door. “Also sustained fracture of right lower wisdom tooth which was part of a 3-unit bridge and removed”.
[31] Page 146 of the insurer’s bundle.
Dr Kim had a history of TMJ issues including pain, jaw joint clicking, sensation of fullness blockage in both ears, ringing in the ears and alignment of teeth issue.
He notes four missing teeth (36, 45, 46 and 47). Dr Kim provided a preliminary diagnosis of various issues but requested an MRI and suggested a TMJ splint.
On 15 November 2018 the claimant had an MRI of his TMJs[32] at the request of Dr Osman from Harris Park. The clinical history was “Assess shape, position and TMJ disc”. The conclusion of the study was:
“Normal morphology of bilateral TMJ with no evidence of osteo arthritis or erosive disease. Normal signal and morphology of the articular discs, remaining in position on the open and closed mouth views.”
[32] The report is at page 126 of the insurer’s bundle.

Pre-accident and General Practitioner notes

Despite the request of the Panel and our directions, there are no pre-accident dental records and no statement from the claimant of the details of any pre-accident dental work.
Dr Allan Ebert appears to have been the claimant’s treating GP when Mr Momand was living in Queensland. His notes document the following attendances of relevance:
(a)    6 December 2002 – sept-rhinoplasty in hospital 4 December 2002.
(b)    29 April 2004 – “history of assault by a person yesterday at approximately four pm was alleged hit in the head and body as well as scratched. Injury 1 – swelling of right side of face abrasion of face. 2. Abrasion of right side of neck one cm contusion. 3. Abrasion on left wrist.”
(c)    4 August 2006 – gum abscess dental caries (decay).
(d)    10 October 2007 – “history of assault - has been punched in the face three pm yesterday – 1.5 cm abrasion on left side of jaw below lip. Swelling of left zygoma.
(e)    29 September 2009 – pain in right ear after assault.
(f)    28 October 2011 – car accident on 27 October, t-boned on driver’s side. Pain in the back from neck to lower back (Tramadol prescribed).
(g)    25 July 2013 – “has been assaulted at the airport by another driver – hit in the face and neck – laceration of the left cheek ½ cm in length bleeding”. On 26 July 2013, the claimant attended again to review the X-ray (no evidence of fractures) and the doctor noted there was swelling of the right side of his face along with a laceration and swollen lip.
(h)    27 February 2014 – “still has problems with the whiplash injury and neck pain” (Endep, Panadol and Tramal prescribed) similar consultation 31 July and 20 October 2014 (Tramal prescribed).
(i)    25 August 2015 – “slipped and fell and jarred his spine again – aggravated old whiplash injury of 2011 incapable of working as a taxi driver” – depression.
After moving from Queensland to New South Wales Mr Momand saw Dr Mohmand at the PMC in Harris Park: These notes reveal:
(a)    4 January 2007 – complains of bleeding right nostril on and off no apparent trauma but a referral was given to an ENT.
(b)    5 October 2015 – regular medication of Tramadol, Endep and Panadol Osteo for chronic pain related to 2011 accident and injury.
(c)    17 November 2015 – neck and lower back pain since car accident also depression improving – letter written for Centrelink. Also, 28 November flare up of lower back pain.
(d)    15 and 19 February 2016 – ongoing pain and depression. Further scripts for Endep, Panadol and Tramal.
(e)    6 February 2018 (Dr Mayur) – car accident while driving 19 January 2018 – started taking pain medication, started working, after a few days pain returned. MRI neck and lower back. Mentions of crying and depression, feeling weak, down and anxious. There is no mention of any jaw symptoms or teeth issues.
(f)    20 February 2018 (Dr Mayur) – depressed, forgetful, poor concentration, suicidal thoughts – major depression. Further appointments in March, April, May and June primarily for depression and neck and back but no mention of jaw or teeth.
(g)    27 April 2018 (Ms Rudy) – the reason for the visit was said to be the cervical and lumbar disc bulges, knee pains and right TMJ pain and the comment is “pain levels haven’t changed, only relieved with medication, still has headache / cervical and back pain”.
(h)    4 July 2018 – client presented in awful condition – he took out three teeth and reporting all of them damaged during his car accident.
(i)    5 July 2018 – bowel and constipation issues “usually goes to Auburn and sees Dr Omar”.
(j)    3 October 2018 – multiple issues including nasal surgery, whiplash, anxiety right TMJ pain.
There is a separate bundle of documents from Dr Omar at the PMC Auburn which shows[33]:
(a)    31 January 2018 – he was driving at 40 kms when the other car crossed the lines and Mr Mohmand t-boned the other car. There was a passenger in the vehicle. “Felt pain right side of the face, the car door hit against the right side of the face. Radiates to the left arm. Headache, neck pain, both knees / lower back pain. Tender right TMJ”.
(b)    1 February 2018 – headaches, can’t sleep due to pain. Pain right ear. Tender ++ right TMJ.
(c)    5 February 2018 – worsening pain right side of neck radiating to the lower back, still getting pain in his right temple and knees.
(d)    6 February 2018 – stress, tension, neck pain more right side, back and lower back more right side. Tender +++. Still getting pain in right temple and right temporoparietal bone. Ear improving.
(e)    9 February 2018 – (to Dr Oman) more complaints of neck and back pain with radiation to the foot. No mention of jaw or teeth pain. Also on that date (to Ms Rudy) MVA 50 km t-boned “didn’t have pain night of accident but slowly, slowly pain came on, occipital headache, pain travels up and down spine and radiates. CL knee pain no dizziness with HA or nausea”.
(f)    29 June 2018 – had surgery for his nose in 2003 or 2004. Getting pain in his maxillae – right side of the nose and under the jaw and pain right lower wisdom teeth had dental implant. Pain back of the right ear states the door hit him on his face very hard. A referral was given to Dr Carsten Palme (ENT), Peter Winkler (ENT) and Dr Hina Gohil (Dentist) with imaging request for OPG (a type of dental X-ray).
(g)    10 August 2018 – has pain behind his right ear. Headache behind right ear and right neck. ?right side of face may have hit the door frame, does not recall. Lower wisdom tooth extracted (had bridge x 2 next to it) and there was a fracture.
(h)    14 August 2018 – had audiogram … upset with the dentist seen Dr Barakat before requesting second opinion – letter Dr Nirmal Patel (ENT)
[33] Page 330 insurer’s bundle of documents.

Medico-legal reports

Dr Tong, rheumatologist, provided a report to the claimant’s lawyers dated 15 October 2018[34]. She has a consistent history of the car accident noting the claimant’s airbags did not deploy when he collided with the insured vehicle at 30 – 40 km per hour.
[34] Page 138 and 751 of the insurer’s bundle.
Dr Tong was given a history of the onset of neck and lower back pain immediately after the accident and that over the neck five days the pain increased and commenced radiating into his arms and hands and thighs with numbness. He then developed a headache and went to his doctor and was referred to a neurosurgeon. Although the claimant reports injuries and symptoms to areas outside Dr Tong’s expertise, the Panel notes there is no mention of jaw or tooth pain in this report.
Dr Scoppa, ENT surgeon provided a report to Brydens dated 17 October 2018[35]. He was given a history of the claimant opening his door after the accident and that the door “slammed back” and struck him on the right side of the head in the area of the right ear and right jaw joint. The claimant complained of hearing loss. The claimant also said he became aware of clicking in the right ear on jaw movement. Mr Momand expressed concern about whether this was related to a dental injury as he had recurrent right jaw pain when chewing and eating.
[35] Page 655 of the insurer’s bundle.
On examination there was evidence found of TMJ dysfunction on the right with tenderness on palpation and deviation to the right on opening his mouth (Dr McGlynn found deviation to the left).
Dr Scoppa found no hearing loss in the left ear and mild right conductive hearing loss which he did not relate to the car accident but which was due to pre-existing issues possibly recurrent childhood middle ear infections.
Professor David, a craniomaxillofacial specialist provided a report to the claimant’s solicitors dated 14 December 2018[36]. Professor David took a history from the notes and his interview with the claimant and says the claimant’s vehicle was t-boned by the insured vehicle (which the Panel suggests is incorrect). He notes “as he attempted to get out of the taxi, the door closed violently against the right side of his face”.
[36] Page 148 of the insurer’s bundle.
Professor David said the claimant’s current problems were pain and clicking in the right side of the TMJ present for a year with no improvement. The claimant said he had difficulty opening his mouth, discomfort on eating and lying in bed and that he eats soft and tender food. He says he was given no history of previous TMJ problems.
He examined the claimant noting a malocclusion, absent teeth, his mouth opened fully (to 40mm) with some discomfort in the last 5mm. His mastication muscles were tender on the right but there was no audible or palpable crepitus or click.
He reviewed the X-ray and noted no evidence of damage to the TMJ disc or joint. He diagnosed “soft tissue injury in and around the right temporomandibular joint. There is no evidence of bony or disc involvement”.
Professor David assessed 2% WPI under the workers compensation scheme due to dietary restrictions (a softer food diet).
Dr Peter Giblin provided a report for the claimant’s solicitor dated 25 November 2019[37]. He has a history of the claimant’s vehicle being struck on the left-hand side by a Mercedes Benz. Dr Giblin has a history of neck and back pain with increasing symptoms and restriction of movement in the shoulders as a result.
[37] Page 171 of the insurer’s bundle.
There is no mention of the claimant’s teeth, jaw or ear pain in this report.
Dr Truskett provided a report to the claimant’s solicitors dated 28 January 2020[38] in respect of the claimant’s gastrointestinal issues. He has a history of the claimant striking the driver’s side of the Mercedes Benz as it pulled out in front of him from a side street on the left-hand side. There is no mention of the TMJ issues or any dental injury.
[38] Page 181 of the insurer’s bundle.
Dr Truskett has a relatively consistent history of the onset of neck and back pain which progressed and which caused him to seek attention. He also has a history of psychological symptoms but no history of the TMJ or tooth pain.
While Dr McGlynn acknowledges he had assessed the claimant as an Approved Medical Specialist for the Workers Compensation Commission he provided a report for the claimant’s solicitor dated 15 January 2020[39].
[39] Page 164 of the insurer’s bundle.
The claimant reported pain on the right side of his face, a click when he opened his mouth and he avoided firm and hard food.
The claimant could only open his mouth to 32mm and after repeated opening and closing there was “a fine crepitus felt …on occasions”.
He found both the tooth / bridge injury and the TMJ soft tissue injury caused by the accident (without engaging with the issue of causation) and assessed WPI at 2% due to the effect of the TMJ injury on mastication.

Other assessments

On 4 June 2019, Approved Medical Specialist (AMS) Berry assessed the claimant’s cervical spine, lumbar spine and digestive system for the Workers Compensation Commission[40]. AMS Berry diagnosed soft tissue injuries to the cervical and lumbar spines with referred pain into the shoulders. He also found evidence of mild gastritis in the upper gastrointestinal tract but no lower tract injury. He assessed WPI in accordance with the workers compensation guidelines at 13%.
[40] The certificate of assessment of WPI is dated 2 July 2019 and is at page 4 of the claimant’s bundle.
AMS McGlynn, a plastic, reconstructive and hand surgeon assessed the claimant’s “ENT and related structures” on 25 June 2019[41] also for the Workers Compensation Commission.
[41] The certificate of assessment of WPI is also dated 2 July 2019 and is at page 13 of the claimant’s bundle.
The claimant gave a history of the driver’s side door springing back and striking him on the right side of the face sustaining a small laceration to the right ear, injury to the nose and damage to a lower right molar tooth. Mr Momand says he went home and rested after the accident. He attended a doctor because of pain in the front of the ear and TMJ clicking then went to see a dentist because of damage to right lower molar.
AMS McGlynn found a soft tissue injury to the TMJ causing diet restrictions (soft food) and assessed 2% WPI[42].
[42] In the workers compensation scheme the issue of causation of injury is not determined by the medical assessor therefore Assessor McGlynn has not engaged with the issues of the mechanism of injury or the pre-accident history.
Medical Assessor Cameron issued a certificate on 24 July 2022 following an assessment on 28 June 2022.
He was asked to assess:
(a)    the claimant’s cervical spine – C5/6 disc protrusion with associated mild to moderate foraminal stenosis bilaterally abutting the exiting C6 nerve roots;
(b)    and lumbar spine – disc bulge at L4/5;
(c)    right and left shoulder – referred from the cervical spine, and
(d)    upper and lower digestive tracts.
Medical Assessor Cameron diagnosed soft tissue injuries to the claimant’s cervical and lumbar spine and said there was no specific assessable shoulder injury. He also found gastrointestinal symptoms which had been investigated and that mild gastritis was diagnosed.
Medical Assessor Cameron found no evidence of any of the five signs of radiculopathy in the neck or lower back and that there was no injury to the digestive organs albeit symptoms in the digestive system. He said the claimant’s right and left shoulder symptoms were referred from the neck injury and were not independent injuries.
Medical Assessor Cameron found all injuries sustained by Mr Momand in the accident were minor injuries and therefore he did not proceed to assess the claimant’s WPI.
The claimant lodged an application for review of that decision and the Panel has been advised this application was unsuccessful.
Medical Assessor Samuel Roberts is to assess the claimant’s alleged psychological injury and an examination has been scheduled in May 2023. The Panel does not wish to defer its consideration of the review proceedings to await that assessment.

RE-EXAMINATION

Mr Momand was examined by Medical Assessors Curtin and Sykes on 24 October 2022. The claimant attended on his own.

History from the claimant

Mr Momand reported that he had been involved in motor accident in which he was “t-boned” by another car at approximately 40-50kph. The Panel notes this history is not consistent with other histories and the police report however the claimant confirmed this was how he remembered the accident. Mr Momand advised that his body did not hit anything in the car but that as he was getting out of the car, his door sprung back and hit him on the right side of his head.
Mr Momand says he broke a tooth and noticed blood in his mouth. There were no cuts on his skin or bruising. He was adamant that he did not turn as he was getting out of the car and that the door hit him on the right side of his face. The Panel notes Mr Momand told AMS McGlynn in 2019 that he had sustained a laceration to his face near his right ear but Mr Momand said there was no cut.
Mr Momand was also adamant that he told his doctor, Dr Mohmand, that he had pain in both his right jaw joint and his right bottom wisdom tooth immediately after the accident. When asked why his doctor only recorded in his notes about tenderness in his right TMJ (jaw joint). Mr Momand replied, “he must have made a mistake”.
Whilst Mr Momand felt someone had attended the accident scene, he did not believe it was the police or the ambulance.
Mr Momand reported that he did not go to see a dentist at first, as his doctor first referred him to a TMJ specialist and it took a while to get that appointment.
Mr Momand reported that he was not in much pain at present if he kept his jaw still. He had some clicking on opening his jaw and this could be painful. He said he was able eat a Big Mac hamburger. He could eat a Milky Way bar, rice, soft meat and cooked vegetables.
Mr Momand advised that he did not have any jaw problems before the accident, even after the assaults he sustained in the years before the subject accident.

Examination

Extra-oral examination revealed some tenderness over the right zygoma (cheek bone) and less tenderness to palpation over the right TMJ. There was some tenderness at the right masseter muscle.
Mr Momand’s maximum jaw opening was 30mm (the normal range is 40-45mm measured at the incisors) and there was no jaw clicking on opening to 30mm. Mr Momand did experience some pain on lateral jaw movements.
Intra-oral examination revealed significant xerostomia (dry mouth and lack of saliva). The periodontal (gum) health was poor with generalised deposits of plaque and gingival (gum) inflammation. Mr Momand’s oral hygiene was poor. Periodontal pocketing was between

2-5mm but 5mm around teeth 27 and 28. There were deposits of supra and sub-gingival calculus in many areas. All of these findings indicated a chronic, generalised periodontitis (gum disease).
There was a Class II division 2 occlusal relationship with retroclined teeth 11, 21. The following teeth were missing 18, 26, 28, 36, 45, 46, 47, 48. Tooth 14 had fractured at gingival (gum) level due to decay. There was decay on the distal of tooth 13 and on tooth 27 and there was very significant decay on tooth 38 where the crown of the tooth had been lost down to gum level.
A dental bridge was in place using abutment teeth at 25 and 27 replacing tooth 26. The bridge crown attached to tooth 27 was loose with decay obvious under the crown. Crowns were in place on teeth 44, 13 and 24. Dental implants had been placed at the teeth 45, and 47 sites supporting a three-unit bridge replacing tooth 46. There was no contact between the upper and lower posterior teeth on the right side. Tooth contacts were only on the front teeth and left-sided teeth.
Significant abrasion was obvious on the buccal (lip) surfaces of the upper central incisors (teeth 11, 21)

Diagnosis

Mr Momand exhibits significant decay at teeth 13, 14, 27 and 38. This is unrelated to the accident and due to the claimant’s poor oral health.
There is a poor occlusal contact pattern (bite) such that there is no contact between the upper and lower posterior teeth on the right. This is unrelated to the accident.
There is restricted jaw opening likely due to TMJ dysfunction caused by the accident for the reasons set out below.
An implant-supported bridge had been placed in the lower right quadrant replacing teeth 45, 46, 47 and tooth 48 has been removed. For obvious reasons the Panel has been unable to view the damage to tooth and bridge alleged to have been caused by the accident. The Panel has not been provided with a copy of the claimant’s dental X-rays or any notes or records from his pre-accident dentist. For the reasons to be provided below, the Panel is not satisfied the damage to the original bridge and removal of tooth 48 were caused by the accident.

ASSESSMENT AND FINDINGS

How did the accident happen?

There are two versions of how Mr Momand’s accident happened. Either he was t-boned by the insured Mercedes or it was his taxi that t-boned the Mercedes. The police report (completed the day after the accident), the photographs in particular and the early histories satisfy the Panel that the claimant t-boned the insured vehicle after it emerged from a side street.
The claimant has been consistent in his histories that the injury to his jaw and his tooth and bridge occurred after the initial impact between the two vehicles, as he got out of the taxi. He says the door of the car sprung back and hit him in the face.
The claimant’s submissions suggest the door hit the claimant because of the damage done to the front of the taxi. The claimant has reported that he was driving at between 30kms, 40kms or 50kms per hour. The Panel members are not biomechanical or accident reconstruction experts but note that the claimant’s airbags did not deploy and in the Panel’s experience, airbags usually deploy at speeds of over 30kms per hour. The Panel notes the photographs show considerable damage to the front of the car and that the claimant’s taxi was written off after the accident. The Panel does not have clear photographs of the driver’s side of the taxi and therefore cannot make any finding as to the damage to that part of the car and in particular whether there was damage to the driver’s door.
There is no evidence before the Panel of any pre-accident damage to the door springs or any suggestion that there was any other issue with the driver’s door of the taxi before the accident. The Panel also notes there was a passenger in the taxi and there is no statement from that passenger or any statement or evidence from the insured driver.
The Panel is satisfied on the evidence of the claimant and the available information that the driver’s door did hit the right side of the claimant’s face as he got out of the taxi.

Did the claimant injure his right TMJ in the accident?

The claimant first saw his regular GP Dr Mohmand on 31 January 2018, 11 days after the accident. When the claimant first sought treatment he complained of a headache, neck pain and tenderness in the right TMJ. The complaint of right TMJ pain continues in early February 2018, although Dr Mohmand records that there is no pain in the right temple area on 23 February 2018 and on 27 February 2018 there is no mention of jaw or dental injuries in the certificate of capacity signed by Dr Mohmand.
There are then no reports of further pain in the right TMJ until 27 April 2018 with many appointments in between and at that time the insurer’s occupational therapist records that the claimant had no problems eating or drinking.
On the basis of the consistent complaints since the first consultation with Dr Mohmand the Panel is satisfied that the claimant did sustain an injury to the right TMJ in the accident. The medical members of the Review Panel are also of the view that it is possible that a whiplash injury could have been the mechanism causing the TMJ dysfunction rather than any blow to the side of the face by the driver’s door.

Is the TMJ injury a minor injury?

Professor David diagnosed a soft tissue injury in and around the TMJ as did Dr McGlynn in both 2019 and 2020.
The claimant’s radiology did not disclose any fractures to the jaw or any damage to the TMJ disc. The medical members of the Panel found during the course of their examination, no evidence of any “injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage” in the TMJ area.
The Panel is therefore satisfied that the claimant’s TMJ injury is a soft tissue injury and therefore a minor injury within the meaning of s 1.4 of the MAI Act.

Did the claimant injure his tooth or bridge in the accident?

There appears to be some evidence of exaggeration by the claimant in that Professor David has a history of the door “violently” hitting the claimant and Dr Jufas had a history of a “significant” head injury and the door “slamming” into his face. If the claimant was hit violently or by a door slamming against his face with sufficient force to fracture a tooth or a bridge, the medical members of the Panel would, in their clinical judgment, expect there to be some visible sign of injury on the claimant’s face.
The photographs show the claimant at the site of the accident clearly showing the right side of his face. There is no sign of any injury to the right side of his face. There is neither a laceration (reported to Dr McGlynn) or any redness or bruising. No laceration or bruise was mentioned by the GP and the claimant did not give a history of a laceration to anyone other than Dr McGlynn.
The claimant reported noticing blood in his mouth after the accident. The Panel notes the photographs show that the claimant is wearing a white shirt and there is no sign of blood on the shirt.
The Panel also notes that the X-rays taken for Dr Gohil revealed that it was the bridge over tooth 48 that was fractured and that there were no tooth fractures. As a bridge is an artificial device with no blood supply it is difficult to explain the blood in the claimant’s mouth unless the claimant bit his tongue.
Dr Mohmand has a record on the initial visit of tenderness in the right TMJ however there is no mention of any tooth related problems. There are no complaints of specific pain in any teeth until 29 June 2018, five months after the accident. The claimant said he did mention to Dr Mohmand that he had injured his tooth in the accident and that it is a mistake in the records that it is not mentioned.
There are 11 records of attendances in the PMC Harris Park notes and 57 records of attendances in the PMC Auburn notes between the first attendance (31 January 2018) and the first record of a specific dental injury on 29 June 2018. The records are thorough and contain much detail about the areas of the body the claimant says he injured in the accident and the nature of his symptoms and complaints. The Panel does not accept that Dr Mohmand was told of dental pain on 31 January 2018 and did not record it. There is no evidence elsewhere such as the claim form or in any of the other more than 60 consultations to suggest dental complaints before June 2018. There is no report from Dr Mohmand to address the alleged omission and correct the error.
The Panel also notes that Dr Gohil is apparently a dentist with the PMC group at the Harris Park address. She reports that Mr Momand first presented on 30 June 2018 two days after Dr Mohmand first records a complaint of tooth pain. The Panel is of the view if the claimant had tooth pain or a broken tooth and had complained about it to Dr Mohmand a prompt referral to Dr Gohil would have been made at that time.
The medical members of the Panel asked Mr Momand why he did not see a dentist soon after the accident if he had experienced a broken tooth or tooth injury. The claimant said that he was first referred to a TMJ specialist and it took some time to get that appointment. This is not supported by the evidence. On 29 June 2018, the claimant was referred to both a dentist (Dr Gohil) and Dr Palme (head and neck surgeon[43]). Before that date there is no referral to a TMJ specialist the Panel can see in the file. The report of Dr Kim (the TMJ and jaw specialist) is dated 29 October 2018 and there is no copy of the referral to him in the records although there is a gap in the PMC records in late 2018.
[43] The terms of the referral are for pain in the right ear, back of the right ear, maxillae and under the jaw since the motor vehicle accident.

The medical members of the Panel are of the view that if the claimant sustained a fracture to the existing bridge and any injury to tooth 48, the claimant would have experienced immediate significant pain in the back of his mouth and into his jaw requiring him to seek medical and dental treatment. An absence of recorded complaint and the failure to pursue treatment for five months after the accident leads the Panel to conclude that the claimant did not sustain a dental injury in this accident.
The Panel notes the report of Dr Gohil which does not engage with the issue of causation. Dr Gohil repeats the history given to her of there being no bridge or tooth 48 problems before the accident and that after the accident the bridge became loose. The Panel notes that the claimant has developed problems with the bridge and tooth 48 after the accident but, in the Panel’s view, five months between accident and the emergence of dental problems suggests any bridge or tooth 48 issue did not arise because of the accident.
As the Review panel has found no evidence of any causal relationship between the accident and the fractured bridge or tooth 48, the subsequent dental treatment including removal of tooth 48, dental implants and a new bridge is not as a result of any accident-related injury.

If caused, would the bridge and tooth injury be a minor injury?

Due to the Panel’s finding on causation, it is not strictly necessary to address the issue of whether the claimant’s dental injuries are minor injuries or not. However, the insurer’s submissions have raised two important issues which the Panel considers should be addressed to prevent any future disputation.
The insurer suggests that an injury to a bridge is damage to an artificial object which is not part of the human body. The insurer appears to be suggesting that a minor injury must be an injury to the human body. The Panel disagrees.
The MAI Act provides a scheme of compensation and benefits for persons who sustain injury in a motor accident. Section 1.4 of the MAI Act defines injury as a personal or bodily injury. If the claimant fractured his tooth in the accident, that would be an injury to his body within the meaning of s 1.4. The definition of injury however extends to include injury beyond the physical human body and covers a baby in utero, psychological or psychiatric injury and damage to artificial members including teeth. As a structure that is fixed to the top of, and is an integral part of two teeth (in this case tooth 44 and 48), it is the Panel’s view that if the claimant’s bridge was fractured in the accident that would be an injury within the definition of section 1.4.
Section 1.4 is an entitling provision – if you have an injury within the s 1.4 definition then you are entitled to participate in the third-party scheme in respect of that injury subject to whatever limits and restrictions are found elsewhere in the Act. The compensation and benefits provided to injured persons are limited and restricted by a separate concept of “minor injury” in s 1.6. If the injured person’s s 1.4 injuries are minor injuries in accordance with s 1.6 then they are not entitled to statutory benefits beyond 26 weeks and they cannot recover any damages at all. Section 1.6 does not operate to modify the definition of injury in s 1.4. Section 1.6 operates to limit and restrict benefits and compensation to persons with only “minor” s 1.4 injuries. The Panel notes that the regulations can exclude or include “a specified injury” and if the parliament had meant to exclude damage to artificial members such as teeth, eyes, crutches or spectacle glasses it would have done so under s 1.6(4).
Minor physical injuries are soft tissue injuries in accordance with s 1.6(1). The insurer says that “enamel is soft tissue” and that any injury to it is a minor injury. With respect to the insurer that is incorrect. Enamel is only one part of the tooth, the visible part above the gum. A tooth is made up of other parts including dentin, dental pulp and cementum. While these other parts are softer (and in the case of dental pulp likely to be a soft tissue), enamel is the hardest substance in the human body. It is the Panel’s view that an injury to a tooth, including a chip, more significant break or complete removal of a tooth falls outside the definition of minor injury in s 1.6.

What would the WPI be for the TMJ and dental injuries?

While the Panel has found that the injuries it has been required to consider are minor injuries and therefore at least in respect of his physical injuries the claimant has no entitlement to recover damages, the Panel is aware of the outstanding assessment of the claimant’s psychological injuries. Should the claimant be found to have a non-minor psychological injury then the claimant would be entitled to pursue his claim for damages included damages for non-economic loss. For that reason, the Panel will undertake an assessment of the claimant’s WPI.
The assessment of WPI for both TMJ dysfunction and dental injuries is undertaken in accordance with chapter 9 of the AMA4 Guides. Part 9.3 of that chapter relates to “the nose, throat and related structures” which includes the oral region. The oral region in turn includes the TMJ and teeth.
Permanent impairment of any of the functions of respiration, mastication and deglutition, olefaction and taste or speech are assessed separately regardless of whether the impairment is caused by one or more regions or body parts. In the claimant’s case, he has an accident-related difficulty eating due to his TMJ dysfunction. No separate impairment percentage can be awarded for the loss of a tooth or bridge and any difficulty the claimant may have had eating due to the loss of tooth 48 or the bridge has been overcome by the dental work that has been done in any event.
In Mr Momand’s case, there is no evidence of any impairment of speech (the claimant conversed easily and freely with the Medical Assessor members of the Panel) and he does not report any issues with taste and smell. While he has no complaints of deglutition (swallowing), Mr Momand has complained of difficulties masticating, that is he says he cannot chew hard or semi-hard foods. The impairment is due to the TMJ dysfunction. The damage to the bridge and removal of tooth 48 has been repaired with dental implants and a new bridge which does not impair the claimant’s ability to eat.
The evaluation of impairment to mastication and deglutition is based on dietary restriction and in accordance with Table 6 (page 231 of the AMA4 Guides) there are three types of restrictions based on diet restrictions:
(a)    semisolid or soft foods;
(b)    liquid foods, or
(c)    tube feeding or gastronomy.
Clause 6.197 of the Guidelines (under the heading of “teeth”) suggests that if a claimant’s diet is limited to semisolid or soft food due to an accident-related impairment this attracts a 0-19% WPI.
AMS McGlynn and Professor David assessed the claimant’s impairment at the lower end of the range considering 2% WPI an appropriate percentage.
The Panel notes that the claimant says he can eat a hamburger, cooked vegetables and rice. The Panel is of the view that the claimant’s impairment should be assessed at the lower end of the range and that 2% reflects the impairment associated with an inability to chew hard foods.
The Panel notes the workers compensation insurer’s occupational therapist recorded in April 2018 that the claimant had no restriction to his eating or drinking and that the state of the claimant’s teeth suggests Mr Momand is likely to have issues with eating in any event due to the current state of his teeth. Due to the Panel’s findings in relation to minor injury the Panel does not intend to deal further with the issue of causation of impairment.

CONCLUSION

Of the injuries referred to it for assessment, the Panel determines:
(a)    the claimant’s TMJ dysfunction was caused by the accident and is a minor injury;
(b)    the claimant’s right lower teeth and bridge injury was not caused by the accident, and
(c)    the claimant’s WPI in respect of his TMJ injury is not greater than 10%.

[2023] NSWPICMP 10

12 January 2023