QBE Insurance (Australia) Limited v Houda

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Houda [2023] NSWPICMP 593
CLAIMANT:	Zoubayda Houda
INSURER:	QBE
REVIEW PANEL
MEMBER:	Gary Victor Patterson
MEDICAL ASSESSOR:	David Sykes
MEDICAL ASSESSOR:	Geoffrey (Paul) Curtin
DATE OF DECISION:	16 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered multiple injuries on 28 August 2020 including a fracture of the right mandible and an undisplaced fracture of the right mandibular fossa; the right temporomandibular joint (TMJ) developed painful dysfunction, causing restriction to mouth opening and mastication; the dispute related to a proposed arthroscopy of the right TMJ; the claimant had significant pre-existing dental issues, consultant dental surgeon recommended a multidisciplinary treatment plan not including right TMJ arthroscopy; Panel satisfied that the proposed TMJ arthroscopy relates to the injury caused by the accident and was reasonable at the time it was proposed; claimant did not establish that proposed surgery was “necessary”; parties invited to indicate if they could agree upon treatment plan recommended by consultant dental surgeon to resolve the treatment dispute; Held – claimant did not establish that TMJ arthroscopy was “necessary’; nor likely to improve the claimants recovery.
DETERMINATIONS MADE:	CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – CAUSATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 24 February 2022 in relation to causation.

STATEMENT OF REASONS

INTRODUCTION

Mrs Zoubayda Houda (the claimant) suffered injuries on 28 August 2020 when the insured vehicle rear-ended her vehicle as it slowed before traffic lights on Canterbury Road at Wiley Park (the motor accident). The impact rotated her car such that the offending vehicle struck her car again on the driver’s door. The claimant was thrown forward and struck her head on the steering wheel. The claimant may have been rendered unconscious. The claimant is unaware how she was removed from her car. She understands that she was assisted by a passing doctor and others. The claimant was conveyed to St George Hospital by ambulance. The claimant was found to have an undisplaced fracture of her right jaw under the joint (right condyle). The claimant remained in hospital for three days. There was no active treatment for her jaw fracture.
QBE (the insurer) insured the owner and/or driver of the offending motor vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act2017 (the MAI Act).
The present dispute is “whether any treatment or care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of s 3.24” of the Act. The treatment dispute concerned arthroscopy of the right temporomandibular joint (TMJ). This is a medical dispute within the meaning of the MAI Act.[1]
[1] see Division 7.5 and Schedule 2 cl 2 of the MAI Act.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Paul Nichols on 18 February 2022. Medical Assessor Nichols certified on 24 February 2022 that the arthroscopy of the right TMJ relates to the injury caused by the motor accident, is reasonable and necessary in the circumstances and will improve the recovery of the injured person.
The details of that assessment are set out later in these Reasons.

THE REVIEW

The application for referral of the medical assessments to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificates for the medical assessments for which the review is sought.[2]
[2] s 7.26(10) of the MAI Act.
The delegate of the President referred the medical assessments to the Panel as the President’s delegate was satisfied that there was reasonable cause to suspect that the medical assessments were incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] s 72.6(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the motor accidents division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[4]
[4] s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings based solely on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[6]
[6] s 7.26(6) of the MAI Act.
The parties provided bundles of documents in accordance with the Panel’s direction, comprising some 1,000 pages, not all of which related to the disputed medical assessments.
The Panel subsequently was provided with a copy of a report dated 7 December 2022 by a consultant oral surgeon, Dr Khaled Zoud, to Dr Aiman Alsayed, which was of considerable assistance to the Panel. The Panel called for a copy of the radiologist’s report of a MRI scan, dated 31 October 2022, to which Dr Zoud refers. That report was not provided to the Panel.

ASSESSMENT UNDER REVIEW

Medical Assessor Nichols was not provided with dental records predating the motor accident. However, the Medical Assessor records that “it is clear there was a serious pre-MVA dental condition, but this is not related to the condylar fracture”. In making the certifications previously described, Medical Assessor Nichols stated the following Determinations:
“1. Treatment and Care – Causation
The documentation and clinical presentations supports the assertion that the MVA caused the sub condylar fracture and associated TMJ dysfunction.
2.Treatment and Care – Reasonable and necessary
Oral surgeon, Dr Kim, has recommended arthrosis where conservative treatment has failed. The claimant’s condition has deteriorated and further investigation and treatment is necessary.
3. Treatment and Care – Improve recovery
Dr Kim has advised prognosis will most likely be 'better if arthroscopy is employed.”
As to “2” and “3” above, it appears that Medical Assessor Nichols relied entirely upon the views expressed by Dr Kim, as no further reasons are stated for his conclusions.

MATERIAL BEFORE THE REVIEW PANEL

The claimant relied upon the following material:
·        claimant’s submissions;
·        all documents before Medical Assessor Paul Nichols, and
·        Certificate of Capacity/Certificate of Fitness.
There is no indexation of the claimant’s material that was before Medical Assessor Nichols. It contains reports from Dr Samuel Kim, treating oral surgeon, and a report dated 22 June 2022 by Dr Khaled Zoud, consultant oral surgeon, as well as much material relating to the claimant’s other injuries.
The insurer relied upon the following material:
·        insurer’s review submissions dated 9 March 2022;
·
determination of an application for review of a medical assessment dated

2 August 2022;
·        insurer’s treatment submissions dated 30 March 2021;
·        discharge referral of St George Hospital dated 2 September 2020;
·        referral from Dr Rafik Dimitri to plastic surgeon dated 4 September 2020;
·        referral from Dr Rafik Dimitri to Trauma Clinic dated 4 September 2020;
·        ambulance report dated 15 October 2020;
·        referral from Dr Rafik Dimitri to Dr Samuel Kim dated 23 October 2020;
·
report of Dr Samuel Kim, specialist oral and maxillofacial surgeon dated

4 November 2020;
·        X-ray chest and X-ray left ribs dated 27 November 2020;
·        CT chest routine dated 16 December 2020;
·        CT lumbar spine dated 16 December 2020;
·        estimate costs of Dr Samuel Kim dated 8 January 2021;
·        Certificates of Capacity (various);
·        Pinnacle Rehabilitation – CTP RTW and Recovery and Assessment Report dated 8 January 2020;
·        records of Dr Rafik Dimitri (various dates), and
·
Certificate of Medical Assessor Paul Nichols (treatment – physical) dated

24 February 2022.
The insurer submitted that Medical Assessor Nichols failed to engage with its submission that no reference to any pain in the mouth or loose teeth was made to the attending ambulance officers. The insurer stated that, had the claimant sustained these injuries in the subject accident, the claimant would have felt immediate pain, and the “broken/chipped and loosened” teeth would have been immediately apparently. The insurer notes there was no mention of this in Medical Assessor Nichols’ certificate. The insurer noted that the claimant reportedly denied any head strike whilst at St George Hospital. The claimant was restrained by her seatbelt, no airbags were deployed and there was no loss of consciousness. The insurer submitted that those circumstances are suggestive of the claimant’s injuries not being sustained in the motor accident. The insurer further submitted that no reference was made to this inconsistency in the certificate of Medical Assessor Nichols, nor was any reason or explanation given regarding the same. The insurer submitted that the evidence supports a finding that the claimant had significant pre-existing dental issues at the time of the motor accident. As much can be accepted.
The claimant opposed the insurer’s review application with detailed submissions going to Medical Assessor Nichols alleged failure to engage with material/arguments raised and his alleged failure to provide adequate reasons. There is no need for those submissions to be described in detail as they were not accepted by the President’s delegate. Sufficient to say that the claimant stated “there is no dispute that the claimant was diagnosed with an undisplaced fracture of the right TMJ and had difficulty chewing immediately after the accident. There is no suggestion that a history of poor dental hygiene could have resulted in the same presentation.” The Panel notes that the insurer provided no medical evidence to the contrary.
The Panel has considered that material and briefly summarises the relevant portions as follows.
The ambulance report indicates there was no loss of consciousness although the claimant complained of headache. Upon arrival, the Ambulance Officer recorded a Glasgow Coma Score of 15, which reduced to 14 during transportation to hospital. The claimant denied any visual disturbance or altered conscious state. The Panel notes that a different history was given to Medical Assessor Sykes upon examination.
The St George Hospital discharge referral confirms that the claimant suffered a right minimally displaced subchondral fracture and left forth – sixth rib fractures in the motor accident. The past history of sickle cell anaemia is noted. The claimant was to be followed up with the plastics clinic.
There is a report dated 4 November 2020 from Dr Samuel Kim to Dr Dimitri by whom the claimant was referred for treatment of TMJ issues. Dr Kim records a history of the motor accident causing blood trauma to the face sustaining undisplaced right ramus fracture. A sudden loud cracking noise from the TMJ was experienced three weeks before the consultation. Dr Kim recommended continued self-management, physiotherapy from the TMJ Clinics, MRI of TMJs, a TMJ arthroscopy absent any improvement and a TMJ night-time splint. Dr Kim noted dental treatment to address required dental work is required before his recommended treatments commenced. There is a letter issued by Dr Kim on

11 January 2021 to the claimant itemising costs of the proposed procedure involving the TMJ joint ($4,622).
There is an Initial Pharmacy Review report dated 3 June 2021 by Courtney Pragnell, Medicine Review Specialist and Pharmacist, to the insurer. That report notes that the claimant suffered fractures to her ribs and jaw, chipped teeth, swollen face, bruised chin and whiplash, in the motor accident. It noted that the claimant was in pain all the time and was prescribed Nurofen, Endone, Tarjan and Panadol. It makes recommendations for alternatives to opioids and changes to the claimant’s future medication management.
There is a report dated 22 June 2022 by Dr Khaled Zoud to Dr Alsayed by whom the claimant was referred for opinion and management of right TMJ pain following the motor accident. Dr Zoud records that the claimant’s vehicle was struck in the rear at a very high speed. The claimant told him that she was flanged forward and struck her chin on the steering wheel. She lost consciousness and her next recollection was being in hospital with significant swelling and pain involving the right TMJ. Dr Zoud recorded a medical history of sickle cell anaemia, depression/anxiety, TMJ pain and backslash neck pain. Clinical examination revealed tenderness to palpation of the right TMJ, right masseter muscle and right temporalis muscle. There was no evidence of clicking sounds emanating from the right TMJ with opening and closing. Maximal mouth opening was associated with pain in the right TMJ. Assessment of the dentition revealed numerous caries and fractured teeth which require attention by her general dental practitioner. Dr Zoud advised a new MRI scan to assess the current state of the right TMJ before making final recommendations relating to whether surgery is required or not. He was to report back to Dr Alsayed following review of the MRI scan.
There is a further report dated 7 December 2022 by Dr Zoud to Dr Alsayed which references the MRI scan performed on 31 October last. It demonstrated no evidence of chondral erosion or arthropathy or synovitis in the bilateral temporomandibular joints. There was no evidence of articular disc perforation. There was evidence of marginally limited translation of the temporomandibular joints and anteriorly, although this was thought to be borderline normal. The claimant complained “that she still finds it very difficult to chew without any pain, her pain is worse on the right...” Clinical examination revealed significant tenderness to palpation of the right masseter and temporalis muscles. The lateral aspect of the right TMJ was also exquisitely tender to palpation. The left side was pain-free. Dr Zoud diagnosed temporomandibular joint dysfunction syndrome with a significant component of myofascial pain involving the right temporalis and masseter muscles. He discussed the usual conservative treatment measures with the claimant. There is no reference to a TMJ arthroscopy.

RE-EXAMINATION

Report from Medical Assessor David Sykes is as follows:
“RE-EXAMINATION FINDINGS
Mrs Houda attended alone on 6 September 2023 at the rooms of Dr David Sykes. She was advised of the purpose of the further assessment and that I was unable to provide any clinical advice.
HISTORY
Mrs Houda reported that she was hit by a car from the rear as she was slowing her car down towards traffic lights. She was thrown forward and hit her head on the steering wheel. She was wearing a seat belt.
When I asked Mrs Houda how she had hit the steering wheel when she was retained by the seatbelt she advised that the collision rotated her car around such that the offending car struck her car again on the driver’s door dragging her car across the road. Mrs Houda was twisted out of the seatbelt in this second collision.
Mrs Houda was rendered unconscious. She is unaware how she was removed from the car. She understood that she was assisted by a passing doctor and other passers-by. Apparently, the car was leaking petrol.
An ambulance attended and she was taken to St George Hospital. She believed that she was drifting in and out of consciousness on the journey.
Mrs Houda showed me a photograph on her phone of her face when she was hospital. This showed a laceration on the point of her chin and swelling on the right side of her face.
The hospital carried out x-rays but not any treatment. The x-rays showed an undisplaced fracture of her right jaw under the joint (right condyle). Mrs Houda stayed in hospital for 3 days. She was advised that they would not operate on her jaw fracture and would see how it went.
Whilst in hospital, Mrs Houda found it very painful to open her mouth and she could not open very far. She also remembered feeling bits of tooth in her mouth, possibly from the right side front tooth.
Additional injuries included fractures of ribs on the left side.
Since the accident, a tooth on the upper left side has cracked on several occasions. She had a dental bridge on the lower left side and one of the supporting teeth has failed such that the bridge is no longer in position.
Mrs Houda advised that she could not open almost at all for 5-6 months and this prevented her brushing her teeth appropriately. The pain started to ease but it was still painful to chew and laugh. She feels that she could open about half way of her normal, pre-accident opening at this time.
Currently, Mrs Houda has jaw pain most days although there are days with no pain. However, the pain returns if she has to chew anything hard or has to open wide. Eating meat is very difficult. She can manage well-cooked vegetables and rice but not pasta. Basically, she can only eat soft food that does not have to be chewed. However, she is not restricted to soup. She can eat some solid food.
Mrs Houda reported that her bite felt normal. There is no pain if she keeps her jaw still. But eating anything meaningful brings on the pain. There is no pain from her teeth except some sensitivity from the tooth on the lower left that has a missing crown. There is clicking from her right jaw joint, not the left. These symptoms have not changed over the last 2 years.
Mrs Houda was referred to Dr Samual Kim about her pain who said she needed an arthroscopy. However, he did not wish to continue to see her as he was not seeing any insurance cases. He advised that she would need to see someone else. She has seen Dr Nichols for a report and was referred to Dr Khaled Zoud (oral & maxillofacial surgeon) regarding her jaw pain. He recommended physiotherapy, anti-inflammatory medication, an occlusal splint (bite plate) and then Botox. He suggested he would only do jaw surgery if this did not help. He referred her to Dr Prashant Patel (prosthodontist) for a bite plate but he advised that he could not do this unless she had her teeth fixed up. A bite plate has not been made. Mrs Houda saw Dr Nigel Curtis two days before seeing me for another report.
Mrs Houda advised that she used to see a dentist before the accident but he has now disappeared without trace.
MEDICAL HISTORY
Mrs Houda reported she suffers from Sickle cell anaemia and has been in hospital several times because of this. She currently takes Clexane, Targin and Endep. She is allergic to Codeine.
Mrs Houda smokes several cigarettes a day.
EXAMINATION
TOOTH NUMBERING
The FDI tooth numbering system is used throughout this report. An explanation of the system is provided below:
A two digit system is used to identify individual teeth. The first number refers to the quadrant and second number refers to the actual tooth. The quadrants are numbered this way:
Upper Right (Quadrant 1) Upper Left (Quadrant 2)

[IMAGE UNABLE TO RENDER]
Lower Right (Quadrant 4) Lower Left (Quadrant 3)
Each individual tooth is numbered from the midline back. In explanation: Tooth 26 (pronounced two six) refers to the upper left (quadrant 2), sixth tooth from the midline. Tooth 43 (pronounced four three) refers to the lower right quadrant (quadrant 4), third tooth from the midline.

Extra-oral examination revealed significant tenderness over the right TMJ (temporomandibular joint) along with the right temporalis and masseter muscles. There was no tenderness on the left side. There was mild clicking from the right TMJ. There was a minor scar on the midline of the chin. Maximum jaw opening was measured as 30mm at the incisors (normal range 40-45mm).
Intra-oral examination revealed no soft tissue pathology and good saliva volume. The oral hygiene was poor with soft plaque around all teeth. Calculus was present around the lower anterior teeth. Periodontal pocketing was between 1-3mm but teeth 11, 21 exhibited 4-5mm pocketing and there was 6mm pocketing around tooth 26. These findings confirm a moderate degree of localised chronic periodontal disease.
There was tobacco staining on all teeth.
There was a Class III occlusal relationship with edge to edge contact between the anterior teeth. Teeth 18, 17, 27, 28, 38, 37, 35, 46, 48 were missing. Significant caries (decay) was present at teeth 15, 14, 13, 22, 23, 24, 36, 45, 47. Tooth 25 was a retained root. The crown on tooth 36 that originally supported a dental bridge between teeth 34-36, was missing and the bridge poetic at 35 was also missing. I was unable to determine if the missing crown on tooth 36 had occurred due to the subject accident or dental caries.
Crowns were in position on teeth 16, 12, 11, 26. The occlusion was sound and did not show any sign of displacement due to the jaw fracture.
Mrs Houda was very wary of opening to any extent due to pain. There was minor enamel chipping on teeth 42, and 31.
DIAGNOSIS
Mrs Houda presents with significant myofascial pain (pain from jaw muscles) on the right side which is contributing to restricted jaw opening and dietary restriction. However, her multiple missing teeth are an equally significant factor in her dietary restriction.
Dental caries is present in multiple teeth which will be a function of her diet where there must be a high sucrose component. Smoking will be a factor in the caries and also in her periodontal disease. Her dental health is compromised by these issues and Mrs Houda requires considerable basic dental treatment to restore her remaining teeth and replace the missing tooth spaces. Tooth 36 may be unrestorable and require extraction.
ADDITIONAL DOCUMENTATION
The history reported to Dr Sykes at the assessment indicated that Mrs Houda had been seen by a second Oral & Maxillofacial Surgeon, Dr Kahled Zoud in October, 2022. A report dated 7 December, 2022 was obtained by the Panel.   This report confirmed that Mrs Houda continued to experience significant facial pain on the right side. A diagnosis of temporomandibular joint dysfunction syndrome with a significant component of myofascial pain involving the right temporalis and masseter muscles.
An MRI scan arranged by Dr Zoud showed no evidence of chondral erosion or arthropathy or synovitis in both temporomandibular joints.
Dr Zoud’s treatment recommendations were conservative in nature consisting of physiotherapy, the provision of an occlusal splint, a soft diet, use of non-steroidal anti-inflammatory drugs and, possibly, Botox injections.
TREATMENT RELATES TO THE INJURY
The Panel is of the view that treatment referred for review namely:
·   Arthroscopy of the right TMJ
does relate to the facial injuries sustained in the subject accident.   There is clear evidence from the CT Scan x-rays taken at St George Hospital that there was an undisplaced fracture of the right mandibular ramus and also the anterior wall of the mandibular fossa.
Dr Kim, in his report dated 4 November, 2020 some 11 weeks later, records a presentation similar to that found by both Dr Zoud and Assessor Sykes.
Dr Kim, as part of his treatment recommendations, suggested that a TMJ arthroscopy may be necessary if his initial conservative recommendations are not effective within 2 months.
The Panel found that the facial injuries confirmed by the hospital admission records and the contemporaneous findings of Dr Kim, confirm a causal relationship between the subject accident and the diagnoses of Drs Kim and Zoud.
TREATMENT REASONABLE AND NECESSARY
The Panel considered the treatment recommendations of both Drs Kim and Zoud together with the medical history of Mrs Houda; especially the history of Sickle Cell anaemia resulting in multiple hospital admissions for this condition.
The Panel is of the opinion that the following treatment is reasonable:
·   Arthroscopy of the right TMJ
but only as a last resort should a more conservative and multi-disciplinary approach as recommended by Dr Zoud, not prove successful. It is not necessary at present. The Panel expressed a strong preference for conservative, multi-disciplinary treatment. This preference was based on the most current MRI imaging available arranged by Dr Zoud and the report of his findings, Assessor Sykes’ examination findings and the medical history of Mrs Houda.
There may be a need to involve a chronic pain specialist in the management of Mrs Houda’s symptoms.
TREATMENT OR CARE WILL IMPROVE RECOVERY
The Panel finds that the Treatment recommended by Dr Zoud will improve recovery.”

CONCLUSION

The Panel concludes that the right TMJ arthroscopy relates to the injury caused by the motor accident.
The Panel concludes that the right TMJ arthroscopy is reasonable, but not necessary, in the circumstances.
The Panel concludes that the right TMJ arthroscopy will not improve the claimant’s recovery.

FINDINGS

For these reasons, the Panel concludes that the certificates issued by Medical Assessor Nichols concerning reasonable and necessary treatment, and treatment or care improving recovery, should be revoked. The new certificate is attached at the commencement of these reasons.

[2023] NSWPICMP 593

16 November 2023