Nazari v AAI Limited t/as GIO (No 2)
[2023] NSWPICMP 62
•19 January 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Nazari v AAI Limited t/as GIO (No 2) [2023] NSWPICMP 62 |
| CLAIMANT: | Reza Nazari |
INSURER: | AAI Limited trading as GIO |
| REVIEW Panel | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 19 January 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant injured on 6 August 2018; claimant was injured in a rear end collision as the driver of a car hit from behind; claimant taken to hospital and diagnosed with the following injuries: laceration, right eyebrow, which was sutured; injury to his cervical and lumbar spines; injury to both shoulders; injury to the left elbow and pain in both legs, but particularly the right knee; review application related to whether the following injuries are minor injuries: skin, lacerations to the right eyebrow and eyelid requiring suturing; left elbow, pain and restriction requiring the surgical removal of an existing pin and plate; left shoulder, partial thickness tear; consideration of whether injuries to the skin by way of abrasions or sutures or an incision through surgery as well as injuries to left elbow and left shoulder are minor injuries; consideration of whether injury to left elbow requiring removal of a pin and plate causally related to the accident; consideration of whether a laceration to the claimants right eyebrow is a non-minor injury; excision of skin and removal of a pin and plate from bone, and a left shoulder partial thickness tear are soft tissue and minor injuries or non-minor injuries; consideration of the objects of the Motor Accident Injuries Act2017 and the application of the Interpretation Act 1987; Held – conclusion of the Panel that the injury to the claimants right eyebrow is an injury to soft tissue and a minor injury; the injury to the claimants left elbow was caused by the accident; the need for surgery on the claimant’s left elbow was caused by the accident; surgery to the claimants left elbow was treatment only and the cutting of the claimant’s skin in the course of that surgery is a minor injury; injury to the claimants left shoulder causing a partial thickness tear is not a soft tissue injury and is a non-minor injury. |
| DETERMINATIONS MADE: | Certificate Issued under section 7.2(3) of the Motor Accident Injuries Act 2017 Determination a) Injury to the claimant's right eyebrow is an injury to soft tissue and a minor injury; b) Injury to the claimant's left elbow was caused by the accident; c) The need for surgery on the claimant's left elbow was caused by the accident; d) Surgery to the claimant's left elbow was treatment only. The cutting of the claimant's skin, in the course of that surgery, does not make it a non-minor injury; e) Injury to the claimant's shoulder causing a partial-thickness tear is not a soft tissue injury and is a non-minor injury. |
INTRODUCTION
The Review Panel (the Panel) has been requested to review a certificate of Medical Assessor Gorman (the assessor) dated 14 March 2021 (the certificate) and the assessment of minor injuries identified below. The issues for determination are of a narrow compass.
BACKGROUND
On 6 August 2018 the claimant was travelling along the M4 motorway when he came to a stop due to stationary traffic in front of him. A van directly behind the claimant failed to stop. As a result, a collision occurred between the claimant's vehicle and the vehicle in front of the claimant (the accident). The claimant sustained several injuries (identified below).
The claimant was taken to Westmead Hospital's Emergency Department for treatment.
Westmead's notes record the following injuries to the claimant:
a. Right eyebrow, a laceration, which was sutured;
b. Cervical and lumbar spines;
c. Both shoulders;
d. Left elbow; and
e. Legs, particularly the right knee.
The claimant sought an assessment for whole person impairment for the following physical injuries:
a. Aggravation of cervical spondylosis;
b. Aggravation of lumbar spondylosis;
c. Bursitis and impingement to both shoulders;
d. Post-traumatic lateral epicondylitis left elbow;
e. Chondromalacia patella right knee; and
f. Post-traumatic stress disorder.
The following minor injury dispute was also to be assessed:
a.Cervical spine - aggravation of cervical spondylosis;
b.Lumbar spine - aggravation of lumbar spondylosis;
c.Right and left shoulder - bursitis and impingement;
d.Left elbow - post-traumatic lateral epicondylitis;
e.Right knee - chondromalacia patella; and
f.Laceration and scarring to the right eyebrow and eyelid.
The assessor subsequently assessed the claimant's whole person impairment and physical injuries.
The claimant seeks a review of the assessor's determination on the issue of minor injuries.[1]
[1] Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in clause 14A (1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made after 1 March 2021, the new review provisions apply.
The review of the medical assessment is by way of a new assessment.
10.The Panel sought confirmation from the claimant and the insurer whether the underlying epicondylitis is an injury arising from the accident and whether the impingement and bursitis of the left shoulder is an injury arising from the accident.
11.The claimant responded that the underlying epicondylitis was related to the accident. The claimant noted the assessor had determined the epicondylitis had worsened by the accident and did not request the Panel to reconsider this aspect.
12.The claimant requests the Panel consider whether the need for removal of elbow hardware after the accident was needed because of the accident.
13.The insurer agreed with the assessor's determination that the claimant had aggravated pre-existing post-traumatic epicondylitis, a soft tissue injury.
THE ASSESSMENT UNDER REVIEW
14.The assessor found the following minor injuries:
a. Cervical spine – flexion extension injury of the cervical spine – "whiplash associated disorder"– there is no evidence of any radiculopathy or disc injury. The changes seen on MRI are of degenerative disease and not caused by the accident;
b. Lumbar spine – soft tissue injury to lumbar spine – there is no evidence of any disc injury and no radiculopathy – the changes seen on MRI of the lumbar spine are degenerative and not related to the accident;
c. Right shoulder - bursitis and impingement – there is no evidence of any complete or partial rupture of the rotator cuff;
d. Left shoulder - bursitis and impingement – no evidence of any complete or partial rupture of the rotator cuff caused by the accident. A "tiny" intrasubstance rotator cuff tear is noted on the ultrasound, but the assessor considered this likely to be age-related degeneration;
e. Left elbow - post-traumatic lateral epicondylitis at the site of previous elbow surgery – there was no evidence of bone fracture or complete or partial rupture of any ligaments around the left elbow. The accident aggravated symptoms pre-existing in the left elbow and led to the removal of the plates and screws;
f. Right knee - chondromalacia patella aggravated by the motor accident – that aggravation has improved. While there was an aggravation, as it has improved, it is unlikely that there was any complete or partial rupture of cartilage. The local trauma is likely to have caused soft tissue inflammation and right knee symptoms, which have resolved as the inflammation resolved; and
g. A laceration to the right eyebrow and a superficial laceration to the right eyelid was assessed as a minor injury as it was not a nerve injury, nor complete or partial rupture of tendons, ligaments, menisci or cartilage.
THE REVIEW APPLICATION
15.The Review Application relates to whether the following injuries identified by the assessor are minor injuries:
a. Skin - lacerations to the right eyebrow and eyelid, which required sutures;
b. Left elbow – pain and restriction requiring the surgical removal of an existing pin and plate; and
c. Left shoulder - involving a partial thickness tear.[2]
[2] The Panel does not assess the injuries to the cervical spine, lumbar spine, right shoulder and right knee by agreement of the parties.
THE ISSUES
16.A direction issued to the parties by the Panel requiring the provision of bundles of documents to be considered. The parties provided their respective bundles of documents forming this review, which have been considered.
17.The Panel issued a further direction to the parties to which they agreed and which provided;
a.As the Review Application relates only to the assessment of minor injury, noting the claimant's submissions dated 8 April 2021 not to seek a review of the assessment of permanent impairment, this Panel will not consider the assessment of permanent impairment.
b.As the Review Application is confined to the dispute about whether injuries to the skin, left elbow and left shoulder are minor injuries, this Panel does not propose to assess the injuries to the cervical spine, lumbar spine, right shoulder and right knee
c.The claimant argues there is a causal connection and the surgery involved cutting of the skin and removing the plate and screws from the bone and this takes the injury out of the definition of soft tissue injury in section 1.6 of the Act. The insurer does not dispute this part of the claimant's submission but argues that the surgery is not causally related to the motor accident and that any injury sustained in the accident to the elbow was soft tissue and, therefore, minor.
d.In relation to the injury to the left shoulder, there is no dispute that the ultrasound performed on 11 August 2018 did show a "tiny partial thickness intrasubstance tear on the left measuring 0.1cm x 0.1cm".
i.The claimant argues that the left shoulder injury is not minor because of the presence of this tear. The insurer contends that this tear was not accident related
ii.Also, the parties have not challenged the clinical examination findings of Medical Assessor Gorman set out on page 6 of his reasons, including that the range of motion in both shoulders was normal. Dr Poplawski and Dr Marsh also found a full range of movement in both shoulders.
18.The claimant requested a medical examination by the Panel. Medical Assessor Moloney undertook this on behalf of the Panel. His findings form part of this review.
ISSUES FOR CONSIDERATION BY THE PANEL
19.The following are the overarching considerations adopted by the Panel.
The injuries to the skin
20.The claimant's skin injuries occurred when he suffered an abrasion to his right eyebrow in the accident.
The injuries to the left elbow
21.Whether the elbow injury is minor, turns on whether the elbow surgery on 23 November 2018 was causally related to the elbow injury sustained in the accident.
22.The claimant has not challenged the assessor's findings that the left elbow was restricted in flexion and extension because of the previous elbow fracture and internal fixation.
The injury to the left shoulder
23.There is no dispute that the ultrasound performed on 11 August 2018 showed a "tiny partial thickness intrasubstance tear on the left measuring 0.1cm x 0.1cm" to the left shoulder.
24.The Panel adopts the assessor's unchallenged clinical findings that the range of motion in the left shoulder was normal.[3]
[3] See page 6 of Assessor’s reasons, which indicate there was a full range of motion in both shoulders.
THE CLAIMANT'S SUBMISSIONS
25.The claimant submits the following:
a.The assessor fell into error when finding the laceration to the right eyebrow was a minor injury within the meaning of section 1.6 of the Motor Accident Injuries Act (MAI Act):
a.The assessor adopted the definition of minor injury in its ordinary grammatical meaning and not the legal definition of a minor injury, as mandated by section 1.3 of the MAI Act;
b.The laceration to the claimant's eyebrow required sutures and is therefore not a minor injury as this involved the skin, which is an organ;
c.As there was bleeding, there was at least a tear or a rupture of the skin, which is an organ. Further, a complete or partial rupture of an organ is not a soft tissue injury applying the definition in section 1.6 of the MAI Act; and
d.The Regulations do not prescribe a laceration to the eyebrow as a minor injury;
b.In respect of the assessor's findings as to the claimant's left elbow:
a.Whilst there was some discomfort before the accident, that did not stop him from working and did not require the plates to be removed;
b.The assessor made no findings as to whether the removal of the surgical hardware from the left elbow was a non-minor injury;
c.The removal of the surgical hardware (the pin and plate) cannot be a minor injury within the definition of section 1.6 of the MAI Act, as the surgery involved:
i.A surgical laceration to the skin, which is an organ and thereby an injury to the organ; and
ii.Removing the surgical hardware from the bony attachments is an injury to the bone.
c.In respect to the claimant's partial thickness intrasubstance tear of the left shoulder:
a.There was no complaint of a left shoulder injury before the accident, which is supported by the clinical records;
b.The post-accident ultrasound (referred to in the assessor's certificate) reveals a tear in the left shoulder, and if the shoulder injury was constitutional (as identified by the assessor), then both shoulders would have shown a tear;
c.The majority of the claimant's injuries were left-sided;
d.The assessor's finding that the left shoulder injury was constitutional/age-related was not supported by his reasons;
e.The injury is not minor because of the presence of the tear;
f.The surgery involved an injury as the claimant's skin was cut, and there was; and
d.The assessor did not consider the claimant's submissions.
THE INSURER'S SUBMISSIONS
26.The insurer submits the following:
a.Regarding the eyebrow:
i.The assessor relied on his clinical expertise in reviewing the findings reported on the claimant in hospital and subsequent treatment and his assessment in person to review the healed eyebrow laceration;
ii.The assessor correctly concluded:
1.There was no visible scarring; and
2.This was a minor injury as it was not a nerve injury, which did not involve a complete or partial rupture of tendons and or ligaments;
b.Accepts the assessor clearly stated the claimant aggravated pre-existing post-traumatic lateral epicondylitis was a soft tissue injury causally related to the accident;
c.Regarding the left shoulder tear:
i.The assessor relied on his clinical expertise in reviewing an ultrasound scan dated 11 August 2018;
ii.To correlate a "tiny" partial-thickness intrasubstance tear of the left shoulder with an acute traumatic injury sustained in the accident requires a thorough history of the injury and a detailed examination of the way in which certain activities, and movements, affect pain, which was conducted by the assessor;
iii.The assessor correctly concluded (relying on his clinical expertise) that widespread degenerative changes exist and the "tiny" partial thickness intrasubstance tear was "likely to be age-related degeneration" and not accident related;
iv.The assessor's assessment and comprehensive analysis of the available evidence provided a clear pathway of reasoning between the nature of the injury in the presence of pre-existing degenerative pathology (including bursitis and impingement); and
v.Has been correctly determined to be a minor injury.
THE PANEL'S DISCUSSION
27.The following considerations underly the findings made by the Panel.
Are the right eyebrow and eyelid lacerations requiring suturing soft tissue injuries?
28.The claimant stated that he had a cut above his right eye, which was bleeding following the accident.[4]
[4] See the claimant’s statement dated 5 October 2018.
29.The hospital notes indicate that the claimant's cut required suturing.[5]
[5] See the Westmead Hospital discharge summary.
30.Dr Poplawski (for the claimant) did not consider this injury in his report.[6]
[6] See Dr Poplawski’s report dated 20 February 2020.
31.When outlining treatment following the accident, Dr Marsh (for the insurer) referred to the claimant as having had sutures for the laceration to the right eyebrow.
32.There are no medical records indicating any ongoing complaints about this injury.
33.The assessor found the cut was a minor injury, as it was not an injury to a nerve or a complete or partial rupture of a tendon, ligament, menisci or cartilage.
34.The Panel is satisfied:
- The accident caused an injury to the claimant's right eyebrow;
- There was a laceration of the claimant's skin; and
- The laceration to the right eyebrow required sutures.[7]
[7] The claimant has not claimed an ‘injury’ consequent upon the sutures to the eyebrow.
35.The Panel addresses the issue as to whether the lacerations to the right eyebrow and eyelid are soft tissue injuries, following the issue of causation identified below.
Was the injury to the left elbow requiring removal of a pin and plate causally related to the accident?
36.The claimant's statement provides no information concerning his left elbow injury and the surgery.
37.The clinical records of Dr Lim, the claimant’s general practitioner (GP) indicate:
a. Complaints of left elbow pain from 19 September 2018;
b. On 27 September 2018, there was a restriction to the claimant's elbow range of motion for flexion and extension and aggravated pain;
c. On 2 October 2018, the left elbow was noted as the area of the main complaint;
d. On 29 October 2018, there is a reference to the claimant needing surgery for his left arm.;
e. Post-accident, there is a continuous record of left elbow pain.38.Dr Poplawski considered the claimant's left elbow injury, noting a history of a previous fracture of the lateral epicondyle before the accident. Dr Poplawski noted that the claimant did not have problems with the left elbow until the accident, which resulted in damage to the lateral epicondyle requiring repeat surgery. Dr Poplawski observed that the claimant was troubled with intermittent discomfort and pain in the elbow with repetitive activities and lifting activities.
39.Dr Marsh reported that the claimant had indicated an aggravation to his previous injury to his left elbow, which subsequently led to surgery, and since that surgery, his condition had worsened. Dr Marsh noted a prominent scar over the lateral aspect of the left elbow relating to what he referred to as the "surgery". Dr Marsh accepted that the surgery was causally related to the accident and that it appeared the further surgery resulted from the accident.
40.The Assessor found:
a.The claimant had post-traumatic lateral epicondylitis at the site of the previous surgery;
b.There was no evidence of bone fracture or a complete or partial rupture of any ligaments around the left elbow following the accident; and
c.The accident aggravated pre-existing symptoms in the left elbow and led to the removal of the plates and screws.
41.The Panel is satisfied for reasons discussed later, that;
d.The claimant made no complaints of pain and restriction of movement of his left elbow prior to the accident;
e.The claimant did have pain and restriction of movement of the left elbow after the accident;[8] and
[8] Dr Lim GP, clinical notes.
f.The aggravation of the pre-existing disability of the claimant's left elbow required surgery to remove the pin and plates from his left elbow after the accident.[9]
[9] Removed by Dr Dave on 23 November 2018.
42.The relevant consideration for the Panel is assessing whether the post-accident surgery to the claimant's left elbow was causally related to the accident.
THE MOTOR ACCIDENT GUIDELINES
43.The Motor Accident Guidelines identify the test for causation in clauses 6.6 and 6.7.[10]
[10] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides).
THE AUTHORITIES
44.In Ackling v QBE Insurance (Aust) Ltd, [11] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one." His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[12]
[11] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[12] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW,) [13] Campbell J adopted Justice Johnson's approach with a caveat touching upon the CLA:
[13] [2012] 61 MVR 245; [2012] NSWSC 650.
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2))."[14]
[14] At [27].
The Civil Liability Act (the CLA)
47.As mandated by Justice Campbell in Owen, section 5D of the CLA also needs to be considered when assessing causation.
48.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."49.There are two elements to address when assessing causation under s 5D(1):
"factual causation";[15] and
[15] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
"scope of liability".[16]
[16] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
50.Assessing "factual causation" and "scope of liability" involves making value judgments.[17]
[17] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”[17] For the purposes of this Review, the Panel does not consider anything turns on this apparent conflict, given the medical evidence and the claimant’s statement do not give rise to an assessment involving multiple causes.
DID THE SURGERY TO THE LEFT ELBOW ARISE FROM THE ACCIDENT?
51.The Panel accepts:
g.That while the claimant did have a limitation of movement in his left elbow before the accident, the pain in his elbow was aggravated and made worse by the accident, as identified by his ongoing complaints of pain to Dr Lim following the accident;
h.The need to undergo surgery to remove the surgical implants was not something for which the claimant had sought medical opinion prior to the accident; and
i.Drs Poplawski and Marsh found the claimant sustained an aggravation of a previous injury to his left elbow due to the accident and had surgery consequent upon this.
52.Accordingly, the Panel finds that the need to undergo further surgery arose as a result of the accident, as "but for" the accident, the claimant did not appear to have any need to remove the hardware.
53.The Panel now returns to assessing whether the right eyebrow, left shoulder and right elbow injuries are minor injuries.
54.Are the injuries to the claimant's right eyebrow, left elbow involving surgery and left shoulder minor injuries?
55.The following legal considerations underly the findings made by the Panel.
THE STATUTES
THE MAI ACT
56.A "minor injury" is defined under the MAI Act as:
"… any one or more of the following –
j.a soft tissue injury,
k.a minor psychological or psychiatric injury."[18]
[18] See s1.6(1) of the MAI Act.
57.A soft tissue injury is defined under the MAI Act as:
58."… an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage."[19]
[19] See s 1.6(2) of the MAI Act.
59.Further, the Regulations under the MAI Act permit specified injuries to be excluded as soft tissue injury.[20] The Regulations do not exclude the injuries under consideration by the Panel.
[20] See s 1.6(4) and (5) of the MAI Act - The regulations may-60.The Panel considers the issues of whether the laceration to the claimant's right eyebrow, the post-accident surgery to his elbow, excision of skin and removal of a pin and plate from bone, and the left shoulder partial thickness tear are excluded as soft tissue and minor injuries.
61.The Panel must ask the question whether there is an injury to tissue "that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissue, fat, blood vessels and synovial membranes)". If the Panel is satisfied that the answer to that question is yes, this injury is a soft tissue only and a minor injury by definition in section 1.6 of the MAI Act.
THE INTERPRETATION ACT (NSW) 1987 (THE INT ACT)
62.The Int Act also provides guidance when considering the legislative intent of the legislation, in particular sections 33 and 34.[21]
63.Section 34 permits reference to the Minister's second reading of the Motor Accident Injuries Bill.[22]
[22] Read on 29 March 2017.
The authorities
64.In Military Rehabilitation Commission v May, the High Court stated:
65."… the question of construction is determined by reference to the text, context and purpose of the Act". [23]
[23] [2016] HCA 19 at 10.
66.In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, the High Court stated:
67."The starting point … is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose…"[24]
[24] [2009] HCA 41.
68.In Project Blue Sky v Australian Broadcasting Authority, the High court stated:
"The purpose of construing the text of a statute is to ascertain therefrom the intention of the enacting Parliament … A provision conferring a general power and a provision prescribing the manner in which the repository of that power must exercise it have to be read together."[25]
[25] [1998] HCA 28. See also Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42.
In Colquhoun v Brooks, Lord Herschell stated:
"It is beyond dispute … that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act."[26]
[26] (1899) 14 AC 493 at 506.
ARE THE INJURIES TO THE CLAIMANT'S RIGHT EYEBROW, LEFT ELBOW INVOLVING SURGERY AND LEFT SHOULDER MINOR INJURIES?
Regarding the second reading speech of the Motor Accident Injuries Bill, the Minister indicated the legislation would deliver statutory benefits for injured road users with injuries other than soft tissue or minor psychological injuries, regardless of fault, while retaining the right to claim modified common law damages for those able to establish fault [emphasis added].[27]
[27] The Minister also said that when the only injury was soft tissue or minor psychological injury, statutory benefits for loss of income and treatment and care would be available for up to six months
71.The Minister also stated that the bill was designed to reduce exaggerated claims,[28] and specifically identified soft tissue injuries were targeted to limit those claims.
[28] The Minister indicated that at that time of the reading of the bill fraud and exaggeration cost New South Wales motorists as much as $400 million per year and added about $75 to the cost of each green slip. Part 4 of the bill was said to assist to substantially reduce opportunities for fraudulent and exaggerated claims by providing statutory benefits for soft tissue and minor psychological injuries for up to six months and removing access to the common law system.
72.The MAI Act also acknowledges that in its application and administration, the setting of appropriate premiums requires a considerable measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place. That stability and predictability require the consistent and stable application of the law.[29]
[29] Section 1.3 (3)(c)(iii) of the MAI Act.
73.An expanded meaning of "skin" to be considered a non-minor injury could potentially lead to compensation being awarded for an "exaggerated claim", which is not supported by the objects of the Act.
The right eyebrow injury
74.The sutures to the eyebrow are like treatment and irrelevant to this review. The claimant had a laceration to his eyebrow, which required sutures and was attended to at the emergency department of the hospital he attended. That is treatment arising out of the accident.
75.The initial laceration to the eyebrow, though, is relevant for consideration by the Panel, mainly whether it falls within the definition of a minor injury under the MAI Act. In medical terms, skin is an organ and, by way of strict definition, is not a soft tissue. However, if the skin were not included as coming within the definition of a soft tissue injury, then the merest cut or abrasion would render it a non-minor injury. Such an interpretation would potentially lead to increased claims and defeat the intended purpose of the MAI Act.
76.The expanded meaning of "skin" to be a non-minor injury could potentially lead to compensation being awarded for an "exaggerated claim", which is not supported by the objects of the MAI Act. Furthermore, to regard skin as not being soft tissue could lead to an interpretation that is manifestly absurd or unreasonable
77.The Panel is mindful of the direction within sections 33 and 34 of the Int Act. The Panel must aim to give effect to a construction of the meaning of skin and whether it should be considered as soft tissue and, therefore, a minor injury so that this would promote the purpose or objects underlying the MAI Act. Such an interpretation is preferred to a construction that does not promote that purpose or object.
78.Furthermore, to regard skin as not being soft tissue would lead to an interpretation that is manifestly absurd or unreasonable, bearing in mind section 34 (b) (ii) of the Int Act. The Panel does not see an abrasion or slight bleed as intended as a non-minor injury.
THE PANEL'S FINDING
79.The Panel is not satisfied that on a reasonable construction of the definition of a soft tissue injury, an injury to the claimant's skin was intended to be captured as a non-minor injury. The Panel considers that applying the objects of the MAI Act and the additional information provided by the Minister in the second reading speech, it would not be reasonable to regard a laceration or cutting of skin as anything other than a soft tissue injury. Accordingly, the Panel consider that the injury to the claimant's eyebrow is a soft tissue and, therefore, a minor injury, pursuant to section 1.6 of the Act.
THE LEFT ELBOW
80.The claimant submits that the removal of the hardware from his left elbow cannot be a minor injury within the meaning of section 1.6 of the MAI Act.
81.The claimant submits that the surgical removal of the hardware involves:
l.Cutting the skin, which is an organ; and
m.Removing the surgical hardware from the bone.
82.The Panel has already determined that the elbow injury is causally related to the accident.
83.The claimant's submissions invite the Panel to find that the "injury" is the removal of the hardware. This submission is misguided as it invites the Panel to assess the treatment for the injury as the injury rather than the underlying injury.[30]
[30] The surgery involved required an incision through the skin. This created a pathway to remove the metal hardware from the claimant’s elbow.
84.The underlying injury is not the treatment.
THE LEFT SHOULDER
85.The remaining consideration is whether the claimant suffered a partial thickness tear in his left shoulder due to the accident. That is, was it trauma-related or pre-existing age-related?
86.The claimant's GP's clinical notes record complaints of pain in his shoulder after the accident but not before. None of the clinical records produced evidence of a complaint by the claimant going to pain or restriction of movement of his left or right shoulder before the accident.
87.An ultrasound dated 11 August 2018 showed supraspinatus tendinopathy with a tiny partial-thickness intrasubstance tear on the left.
88.Dr Poplawski undertook a physical examination of the claimant. He noted a complaint by the claimant of pain in the shoulders, worse on the right. Examination of both shoulders revealed a full range of movement. His focus was on the right shoulder, which he said had a painful arc at 130° abduction on the right.
89.Dr Poplawski referred to the ultrasound of both shoulders of 11 August 2018 and noted, without comment, a diagnosis of supraspinatus tendinopathy presenting bilaterally with a tiny partial-thickness, intrasubstance tear on the left. In addition, Dr Poplawski diagnosed bursitis and impingement of both shoulders.
90.Following an examination of the left shoulder, Dr Marsh said there was a full and pain-free range of movement. He did not consider the causation or otherwise of any tear in the left shoulder. Dr Marsh did not note any injury to either shoulder.
91.The assessor concluded that this small tear was age-related but gave no reasons for this conclusion.
92.The claimant was 35 years of age at the time of the accident.
93.It is challenging to say whether a tear of this nature is age or trauma related.
94.The claimant's statement can only guide the Panel after noting that no medical documentation identifies a complaint of any pain or restriction of movement in the left shoulder before the accident.
95.The Panel accepts what the claimant says, that it was only after the accident that he noted pain and consequent upon that, he had an ultrasound of his shoulders. This is affirmed by the clinical notes of the claimant's GP.[31] However, after that his complaints of pain continued, as evidenced by the clinical notes of his doctor.
[31] Dr Lim GP, clinical notes.
MEDICAL EXAMINATION
96.Medical Assessor Moloney examined the claimant. His examination report follows;
97.Mr Nazari attended the medical suites at PIC on 17 August 2022. In attendance throughout the interview and examination was an interpreter, Hasan Savand, NAATI CPN3M1251.
PRE-ACCIDENT HISTORY
98.Mr Nazari stated that he migrated from Afghanistan in 2015 and was initially located in Indonesia. After a fall in Indonesia, he fractured his left elbow and subsequently had an internal fixation with a plate and screws to the left lateral epicondyle in 2015. The claimant states that he has had no other injuries. He now lives in Sydney and is married with four children.
99.At the time of the accident, he was self-employed and worked from home as a tailor. Mr Nazari stated that he had residual pain in the left elbow prior to the accident.
HISTORY OF THE ACCIDENT AND SUBSEQUENT HISTORY
Mr Nazari was the driver of his car and stationary when he was hit from the rear, causing him to hit the car in front. He states that he initially felt dizzy but was able to get out of the car and was taken to Westmead Hospital, where he remained for a few hours and had a laceration to his right eyebrow sutured. He was discharged and went home and initially had a very painful neck. He states he consulted his GP three days after the accident who organised radiological studies and told Mr Nazari he had a disc problem in his neck and low back pain. He was referred for physiotherapy and later hydrotherapy.
Due to persistent pain in the left elbow, the internal plate and screws were removed in 2019, and Mr Nazari states that he had persistent pain in this region but only slightly improved after the plate was removed. He was also referred to a neurosurgeon Dr Singh due to persistent neck pain. Dr Singh suggested he might need the decompression and fusion procedure to his cervical spine, but he is apprehensive about this and has had no further follow-up with the surgeon. Mr Nazari has had no further injuries or accidents since this initial car accident.
Current symptoms
Mr Nazari has persistent neck pain, which wakes him at night and feels pins and needles over the left scapula and slightly over the right. There is global radiation of pain and pins and needles in the left arm, including the hand, with a slight ache in the right arm. He states that the neck pain increases with lifting more than 5 kg. A central lower back pain radiates down the left leg to the foot in a global distribution that also increases at night or if he walks for more than 20 minutes. He can drive for up to 30 minutes but undertakes no housework.
Mr Nazari works as a tailor for about 10 to 15 hours per week from home.
CURRENT TREATMENT
At present, Mr Nazari takes Panadol 2 to 3 tablets twice a day and sertraline 50 mg twice a day. In addition, he has physiotherapy about once per week, which is now self-funded. He consults his GP on an as needs basis.
Clinical examination
Mr Nazari sat during the interview with a flat affect and was wearing a soft lumbar brace and one to his right hand, which he removed for the examination. His height was measured at 179 cm, and his weight 81.5 kg.
Cervical spine
On inspection of the cervical spine, there was a normal contour, and testing range of movement, flexion/extension and side bending and rotation were limited to 50% of the expected range symmetrically. On palpation, there was tenderness over the left trapezius muscle and scapula region, but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes and power were normal. On sensory testing, there was a decreased sensation of light touch over the palmar aspect of all fingertips in both hands, excluding the thumbs. No muscle wasting was apparent with the circumference of the upper arms 31 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 27 cm bilaterally (5 cm below the olecranon process).
Lumbar spine
Mr Nazari walked with a normal gait and could walk on his heels and toes. Squatting was limited to 50% of the expected range due to low back pain. On testing, the range of movement, flexion/extension, side bending, and rotation were all 75% of the expected range bilaterally with no asymmetry. Straight leg raise when lying was 60° bilaterally with limitation due to hamstrings and low back pain. Sciatic nerve root tension signs were negative. On palpation was tenderness over the lower lumbar and sacral spines, but no guarding or spasm was noted in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were brisk and equal bilaterally with normal power and a slight decrease in sensation to light touch on the soles of both feet. No muscle wasting was apparent with the circumference of the lower thighs 44 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 37 cm bilaterally.
Shoulders
Active movement was measured using a goniometer and repeated three times. On palpation, there was no tenderness or guarding over the shoulder joints. In addition, there was a full pain-free range of movement of both shoulders.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 180° |
| Extension | 60° | 60° |
| Adduction | 50° | 50° |
| Abduction | 180° | 170° |
| Internal Rotation | 80° | 80° |
| External Rotation | 90° | 90° |
Elbows
| Elbow Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 140° | 120° |
| Extension | 0° | 0° |
| Pronation | 80° | 80° |
| Supination | 80° | 80° |
On palpation there was tenderness with a trigger point in the left lower trapezius muscle just above the insertion.
KNEES
On inspection and palpation, no effusions were noted, and no ligament laxity was noted in either knee. On passive movement, no crepitus was detected, and both knees had a full pain-free range of movement. Flexion was 130° bilaterally and extension 0°.
SCARRING
There was no visible scarring over the right eyebrow. However, at the left elbow, there is a crescent-shaped surgical scar of 9 cm in length with no colour differentiation. There are no trophic changes or contour effects and no effect on any ADLs. Mr Nazari is barely conscious of the scar but can locate it. Suture marks are not visible, and this scar is precisely in the same position as the original surgical insertion of the screws.
Mr Nazari provided a CT of the left elbow dated 2 November 2018. This was prior to the removal of three fixation screws. The report clearly defines moderate to severe osteoarthritic changes on both sides of the joint in both compartments, with no acute abnormality demonstrated.
CONCLUSION
There is no evidence from the treating GP's clinical notes that the claimant complained about pain or restriction of movement in his left shoulder prior to the accident. Only after the accident did this area become a focus of complaint. Further, its existence is verified by the ultrasound of 11 August 2018 (taken six days after the accident). Accordingly, the Panel finds that the partial-thickness intrasubstance tear in the claimant's left shoulder is accident related and not age-related. It is a non-minor injury.
The Panel also finds that the partial thickness intrasubstance tear in the claimant's left shoulder is not a soft tissue injury nor a minor injury. In answer to the question of whether there is an injury to tissue "that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissue, fat, blood vessels and synovial membranes)", the Panel is satisfied that the answer to that question is yes. Accordingly, the Panel finds that this injury is a non-minor injury.
CONCLUSION
The Panel revokes the certificate of Assessor Gorman dated 14 March 2021.
The Panel concludes:
n.Injury to the claimant's right eyebrow is an injury to soft tissue and a minor injury;
o.Injury to the claimant's left elbow was caused by the accident;
p.The need for surgery on the claimant's left elbow was caused by the accident;
q.Surgery to the claimant's left elbow was treatment only. The cutting of the claimant's skin, in the course of that surgery, does not make it a non-minor injury;
r.Injury to the claimant's left shoulder causing a partial-thickness tear is not a soft tissue injury and is a non-minor injury.
Clause 6.6 provides:
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
(a) exclude a specified injury from being a soft tissue injury or from being a minor psychological or psychiatric injury for the purposes of this Act, or
(b) include a specified injury as a soft tissue injury or as a minor psychological or psychiatric injury for the purposes of this Act.
(5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a minor injury for the purposes of this Act.
The Minister said that the introduction of statutory benefits should allow insurers to price risk more accurately, ensuring more funds flowed to injured people when they needed it, particularly the more seriously injured.