QBE Insurance (Australia) Limited v Frangie
[2023] NSWPICMP 671
•13 December 2023
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Frangie [2023] NSWPICMP 671 |
CLAIMANT: | Joseph Frangie |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Paul Curtin |
DATE OF DECISION: | 13 December 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dental treatment; threshold injury; pain in the masticatory muscles; right side temporomandibular joint (TMJ); enamel fractures of teeth 11 and 21; chipped teeth; psychiatric disorders; physical injuries; vehicle struck by police vehicle; no evidence of click or palpable crepitus from either TMJ; reasonable and necessary treatment; occlusal splint; flake fracture of the enamel of tooth; Held – pain in masticatory muscles and right side TMJ are threshold injuries. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act) The following injuries caused by the motor accident: · pain in masticatory muscles, and · right side TMJ – minor injury are THRESHOLD INJURIES for the purposes of the Act The following injury caused by the motor accident: · minor enamel fractures of teeth 11 and 21 is not an injury arising from the motor accident and accordingly is a THRESHOLD INJURY for the purposes of the Act. Assessment of treatment and Care – Causation Certificate issued under s 7.23(1) of the Act The following treatment and care: · Pain from the masticatory muscles on the right side of the face associated with right TMJ RELATES TO THE INJURY caused by the motor accident The following treatment and care: · the treatment requested in the orthodontic dental treatment plan dated 5 February 2022, completed by Dr Louis Chan, and · the treatment recommended by Dr Joseph Hajj on 10 September 2021 and 16 September 2021 DO NOT RELATE TO THE INJURY caused by the motor accident Assessment of Treatment and Care – Reasonable and Necessary Certificate issued under s 7.23(1) of the Act The following treatment and care: · composite resin repaif of the minor enamel fractures if teeth 11, 21, and · the treatment recommended by Dr Joseph Hajj on 10 September 2021 and 16 September 2021 IS NOT REASONABLE AND NECESSARY in the circumstances |
STATEMENT OF REASONS
INTRODUCTION
Joseph Frangie (the claimant) is a 26-year-old man who was involved in a motor vehicle accident on 30 July 2021. He sustained injuries when the vehicle he was driving was struck by a police car which ran into the side of the Hilux which was being driven by the claimant. The claimant lodged a claim in which he alleges that he sustained chipped teeth as well as an injury to his head, neck, right lower leg as well as psychiatric disorders.
The insurer did not concede that the claimant’s injuries were non threshold injuries and accordingly an application was made in respect to both treatment disputes, relating to the alleged dental injuries sustained by the claimant and the issue of whether the injuries ought to be considered a non-threshold injury.
The claimant was examined by Medical Assessor Sykes who, in a certificate dated 14 November 2022, determined that the TMJ was a minor injury, that the enamel fractures of teeth 11 and 21 are non-minor injuries and caused by the motor vehicle accident and that the composite resin repair of the minor enamel fractures to teeth 11 and 21, as well as the nocturnal occlusal splint, are reasonable and necessary in the circumstances but no other dental or orthodontic treatment was caused by the accident and accordingly not reasonable and necessary.
The claimant sought a review of Medical Assessor Sykes’ certificate and the matter was considered by the Personal Injury Commission’s President’s delegate, Jeremy Lum, who in a decision dated 11 April 2023 accepted the insurer’s submission that the Medical Assessor had not provided a path of reasoning for a finding that tooth 21 be causally related to the motor accident. Further the insurer submitted there is an inconsistency in Medical Assessor Sykes’ certificate as it relates to whether the veneers to teeth, including tooth 21, were fractured as a result of the accident.
The matter was then referred to the Medical Panel. The Medical Panel which met and conferred on 27 July 2023 at which time it was agreed that a re-examination of the claimant by Medical Assessor Curtin would take place on Friday 17 November 2023.
The claimant was examined and it was noted that the claimant had earlier this year travelled to Turkey on holiday and sought dental treatment there. All of the veneers on his anterior teeth had been replaced. That is the claimant now has six new complete veneers which are on his top jaw and six new complete veneers on his bottom jaw. The effect of these veneers, whilst pleasing to the claimant, meant that the Panel was not able to examine the teeth in respect to what had previously been described “very minor chip”.
History of the accident
Mr Frangie was driving a Toyota Hi Lux utility when it collided with a Holden Commodore police car which had come through a red light at an intersection. Mr Frangie had stopped at a traffic light at a T-junction, and on the green light had just turned right into a main road, when the police car ran into his vehicle. The Hi Lux sustained significant front-end damage and was towed away. The airbags apparently did not deploy. Mr Frangie said that his main concern was his right foot, which had only recently recovered from a fracture, and which had become wedged under the foot controls. He said that he also was aware that he had struck the right side of his face and head against the driver’s side window. He noticed some bleeding within his mouth and he thought that he might have chipped an upper front tooth. It was put to him that the police report had indicated no injuries had resulted from the accident. Mr Frangie said that although his foot was sore he was able to walk on it, and he did not consider that he had sustained any serious injury to his mouth.
He phoned his general practitioner (GP) Dr R Salim on 3 August 2021 and reported the car accident and that he had pain in his previously injured foot together with head and neck pain and headache. A new X-ray of his right foot on5 August 2021 showed no evidence of any new fracture. There were further consultations on 18 August 2021, 1 September 2021, 24 September 2021 and 27 September 2021. The GP records contain no mention of any dental damage, but he did complain of right TM joint pain, and he was referred for a CT scan of his facial bones which was carried out on 27 September 2021 and which failed to show any abnormality. Mr Frangie said that he went to see his dentist Dr Hajj on 10 September 2021 mainly in regard to his TM joint problems. Dr Hajj subsequently provided a report recommending a dental occlusal splint, relaxation therapy and a referral to a psychologist to reduce stress. Dr Hajj also indicated that dental veneers on his six upper anterior teeth were all cracked and needed replacement. His report made no mention of any chipped teeth.
It is of interest that Medical Assessor Sykes reported that only four of the upper anterior teeth had veneers, with no veneers evident on teeth 11, and 21. He also noted that on those teeth that did have veneers, there had been some partial loss of the veneers due to cement failure rather than any traumatic injury. He did however, also note an extremely small chip off the corner of tooth 11. A deficiency which was hardly visible on the anterior view of his face.
Mr Frangie did not go ahead with any treatment from Dr Hajj. He said that earlier this year he had travelled to Turkey on holiday and had sought dental treatment there. All of the veneers on his anterior teeth had been replaced. As he was due to get married, he was keen to get his teeth fixed prior to that event.
Current symptoms
Mr Frangie is pleased with his recent dental work and is not aware of any chipped teeth. He said that his upper right lateral incisor (12) is quite sensitive to cold and has been a source of pain. He said that he is still aware of intermittent sharp pain on the right side of his head and that symptoms of TM joint clicking on that side tend to come and go.
Findings on clinical examination.
Mr Frangie was a fit looking Caucasian man of 26 years. He had a pleasant manner and was somewhat overweight with a BMI of 33.1 (112kg and 184cm).
Examination of his mouth revealed that he had undergone veneer restorations of all his upper and lower anterior teeth, and these restorations appeared to be in good condition. The chipped tooth previously noted by Medica Assessor Sykes was no longer apparent, the tooth having been restored. Jaw opening was tested and found to be in the range of 35-40mm between the anterior teeth, and this was within the normal range. There was no deviation on opening and no evidence of any click or palpable crepitus from either TM joint.
Results of any additional investigations since the original Medical Assessment Certificate
There have been no additional investigations. The claimant now has six new veneers to his top line of teeth and six new veneers on his bottom teeth.
Comments on the threshold injury.
The following injuries were referred by the Personal Injury Commission for assessment:
(a) fractured veneers.
There is no longer any injury to consider as these veneers have been replaced. With regard to issues of causation that have been raised, it would appear that the dental/facial injuries sustained were relatively minor and were overshadowed by Mr Frangie’s concern regarding his right foot. Mr Frangie did report head and neck pain to his GP within a few days of the accident and these symptoms eventually caused him to seek treatment from his dentist Dr Hajj, six weeks after the accident. It seems reasonable to assume that these symptoms were related to injuries sustained in the motor vehicle accident.
The reported extremely small fracture on the palatal side of the disto-incisal corner of tooth 11 is no longer visible. There is no material available that the small fracture to tooth 11 occurred in the motor vehicle accident. I note the previous observations that tooth 21 exhibited a similar extremely small flake fracture of the enamel on the disto-incisal corner. Similarly there is no material to support a contention that this occurred in the motor vehicle accident.
The notation of fractured veneers is, as has been outlined above, no longer relevant as the veneers currently in place were replaced while the claimant was on holiday in Turkey in early 2023.
Comments on treatment to be assessed.
Both Dr Lewis Chan and Dr Joseph Hajj made essentially the same recommendations with regard to treatment, namely that the veneers on the upper anterior teeth be replaced, and that a TM joint disorder be treated with an occlusal splint. Medical Assessor Sykes reached the reasonable conclusion that problems with the dental veneers were not related to the motor vehicle accident, and in any case, Mr Frangie has recently replaced the veneers at his own expense.
As noted above, Mr Frangie did appear to develop symptoms of TM joint disorder, mainly on the right side, as a result of an injury sustained in the accident, and this was acknowledged by assessor Sykes.
As was noted by Medical Assessor Sykes the claimant notes there are signs of miofacial pain from the right masseter muscle. The claimant gives a history that he is still prone to troublesome but intermittent pain and clicking sensations from his right TM joint, and this was a problem which first developed as a result of the motor accident. Whilst there are currently no clear signs supporting the need for treatment by way of occlusal splint the nature of a TM joint disorder is such that symptoms and signs are very often intermittent. The provision of an occlusal splint is a non-invasive and effective treatment for the condition and can be used intermittently to relieve symptoms. This treatment is therefore recommended as reasonable and necessary noting the history of the motor accident given by the claimant and that he hit the right side of his head against the driver’s door. Additionally, the absence of any TM joint pain prior to the accident is supportive of the claimant’s history that the jaw pain has only developed following the motor vehicle accident. In any event it can reasonable be stated that the TM joint pain was an injury either caused or substantially aggravated by the motor vehicle accident. This treatment is therefore recommended as reasonable and necessary.
Conclusion – Threshold Injury
The following injuries caused by the motor vehicle accident:
· pain in masticatory muscles, and
· right side TMJ pain
are THRESHOLD INJURIES for the purpose of the Motor Accident Injuries Act 2017.
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