QBE Insurance (Australia) Limited v Joyan

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Joyan [2025] NSWPICMP 153
CLAIMANT:	Sofia Joyan
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	John Giles
MEDICAL ASSESSOR:	Adrian Vertoudakis
DATE OF DECISION:	11 March 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant was injured in a motor vehicle accident on 19 November 2020; the insurer wholly admitted liability for the claim; medical dispute as to whether the injuries sustained in the accident exceeded 10% whole person impairment (WPI); on 19 March 2024 the Medical Assessor determined that the claimant did not have a WPI greater than 10%; review of medical assessment; Held – Review Panel revoked the certificate of Medical Assessor; claimant’s condition had not stabilised and her injuries are likely to improve by at least 3% in the period of 12 months from the date of examination.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the Certificate of Medical Assessor Curtin of 19 March 2024 and substitutes its Certificate that the claimant’s condition has not stabilised and that her temporomandibular joint dysfunction is, in the opinion of the Panel, likely to improve by at least 3% in the period of 12 months from the date of the examination on 26 November 2024.

STATEMENT OF REASONS

BACKGROUND

The claimant, Sofia Joyan (Ms Joyan), was injured in a motor accident (the Accident) on
19 November 2020.
Ms Joyan has brought a claim for common law damages for the injuries she sustained in the motor accident under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE (the insurer) is the relevant insurer with liability to pay any damages to Ms Joyan under the MAI Act.
A medical dispute about the degree of Ms Joyan’s whole person impairment (WPI) has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Geoffrey (Paul) Curtin for assessment.
On 19 March 2024, Medical Assessor Curtin determined that Ms Joyan did not have a WPI of greater than 10% (the Medical Assessment).

REVIEW PROCEDURE

Ms Joyan sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review). The application for referral of a medical assessment to a Review Panel (the Panel) was made by Ms Joyan within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought: s 7.26(10) of the MAI Act.
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 cl 14A(1) of Schedule 1 of the PIC Act. As the Medical Assessment which is the subject of the Review was made on or after 1 March 2021, the new review provisions apply.
A delegate of the President of the Commission determined there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Panel.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.

LEGISLATIVE FRAMEWORK

General provisions

Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Ms Joyan’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines)
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘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:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ASSESSMENT UNDER REVIEW

Medical Assessor Curtin examined Ms Joyan on 15 March 2024 and issued a certificate under s 7.23(1) of the MAI Act on 19 March 2024. I summarise his Certificate by reference to paragraph numbers:
[2]     Medical Assessor Curtin was asked to assess the following injuries:
·mouth-dislocation to jaw causing temporomandibular dysfunction
[3]     Ms Joyan submits that impairment exceeds the 10% threshold and relies on the combined reports of Dr Bentivoglio, Orthopaedic Surgeon, and Dr McGlynn, Plastic Surgeon
[4]     The insurer submits that impairment does not exceed the 10% threshold and relies on the combined reports of Dr Keller, Orthopaedic Surgeon, and
Dr McGlynn, Plastic Surgeon.
[5]-[6] Medical Assessor Curtin lists the documents upon which he relied during his assessment.
[7]     Ms Joyan was accompanied by her mother to the appointment.
[8]     Medical Assessor Curtin notes Ms Joyan’s pre-accident medical history and relevant personal details.
[9]     He outlines the history of the accident.
[10] Medical Assessor Curtin sets out the history of symptoms and treatment following the Accident.
[12]-[13]    He discusses current symptoms and current and proposed treatment.
[14]-[15]    Medical Assessor Curtin outlines his clinical examination of Ms Joyan.
[16] He provides a summary of relevant documentation.
[17]-[19]    Medical Assessor Curtin sets out his determinations, being that Ms Joyan has bilateral temporomandibular dysfunction and that the injury was caused by the Accident.
[20] He also notes a 9% permanent impairment which is unlikely to change substantially and more than 3% in the next year with or without medical treatment.
[21] Medical Assessor Curtin sets out his findings in the table below:

Body Part or System

AMA4 Guides/ Guidelines References (chapter/ page/table)

Permanent (YES/NO)

Current %WPI

%WPI from pre-existing OR subsequent causes

%WPI due to Accident

Jaw-temporomand ibular joint dysfunction

AMA4 Ch9, p231 para9.3b and Table 6

Guidelines P117-118 para 6.194 6.198

Yes

[22] He notes no evidence of pre-existing or subsequent impairment.
[23] Medical Assessor Curtin discusses apportionment.
[24] Referring to the Guidelines, he notes that there is no adjustment to impairment for the effects of treatment.
[25] Medical Assessor Curtin concludes, noting a 9% impairment caused by the Accident.

EVIDENCE BEFORE THE PANEL

The documentation available to the Panel is summarised at [16] in the Certificate of Medical Assessor Curtin of 19 March 2024.
Evidence available to the Panel in addition to clinical examination and review of Ms Joyan was the following:
(a)    the statement of Ms Joyan of 6 September 2022;
(b)    the notes of Norwest Physio of 29 April 2021. These notes are not summarised;
(c)    report of Dr Prashanth Rao of 4 August 2021. Dr Rao is a neurosurgeon and spine surgeon. Although the report has been read by the Panel, it is not summarised in these Reasons;
(d)    report of Dr Andrew Keller of 1 August 2022;
(e)    reports of Dr Michael McGlynn of 18 August 2022;
(f)    the opinion of Dr John Bentivoglio of 26 October 2022. He is not an expert in the area, but an orthopaedic surgeon. Consequently, his report is not presented in detail, but it was read by the Panel;
(g)    report of Dr Nigel Curtis, oral and maxillofacial surgeon, of 6 June 2023, and
(h)    report of Dr Ben Teoh of 8 August 2023. Dr Teoh is a psychiatrist. His report is not summarised for that reason, but it was read by the Panel.

Statement of Ms Joyan dated 6 September 2022

I note the Statement of Ms Joyan of 6 September 2022 by reference to paragraph numbers:
The Accident
6.     On 19 December 2020, at around 12.30pm, Ms Joyan was the passenger in a vehicle driven her mother. She was seated in the front passenger’s seat. Whilst stationary at a set of traffic lights at the intersection of Marsden Street and Macquarie Street in Parramatta, the insured driver collied into the rear of Ms Joyan’s mother’s vehicle at high speed.
7.     The matter was later reported to NSW Police and event number 77816906 was issued.
Injuries and disabilities
8.     As a result of the subject accident, Ms Joyan sustained the following injuries:
(a)Dislocation to jaw.
(b)Cervical spine – soft tissue.
(c)Lumbar spine – soft tissue.
(d)Thoracic spine – soft tissue.
(e)Right shoulder and hand – soft tissue.
(f)Whiplash.
(g)Sleeping disorder.
(h)Eating disorder.
(i)Psychological – panic attacks, secondary atypical anorexia nervosa, anxiety and depression.
9.     As a result of the injuries sustained in the subject accident, Ms Joyan suffered and continues to suffer from the following disabilities and restrictions:
(a)Pain, discomfort, and restriction of movement in abovenamed body parts.
(b)Difficulty standing for extended periods of time.
(c)Difficulty walking for extended periods of time.
(d)Difficulty sitting for extended periods of time.
(e)Difficulty sleeping due to pain, discomfort in shoulders/neck and headaches.
(f)Difficulty with travel.
(g)Requirement to take medication.
(h)Requirement to undergo medical treatment and review.
(i)Low moods.
(j)Anxiety and depression.
(k)Difficulty engaging in pre-accident domestic duties.
(l)Difficulty engaging in pre-accident social activities.
(m)Difficulty concentrating.
(n)Difficulty driving.
(o)Loss of confidence.
(p)Hypervigilance as a passenger.
(q)Headaches.
(r)Difficulty bending and twisting.
(s)Difficulty carrying items of weight.
(t)Panic attacks.
(u)Difficulty eating resulting in eating disorder.
(v)Weight loss.
(w)Difficulty engaging in studies.
10.   Prior to the subject accident, Ms Joyan obtained her learners licence on 25 November 2021. Since the accident, she has been too scared to drive, she had done two or three practice lessons, but when she tries to drive, she gets very anxious and also experiences stiffness in her neck and back.
11.   Ms Joyan struggles to sit down for extended periods of time. She struggles to sit in class and concentrate because of the pain and stiffness she experiences. As such, this has impacted negatively on her performance at school and resulted in poor grades. She has lost confidence in herself and her ability to engage in schoolwork and activities.
12.   Sitting in the car can be very uncomfortable for Ms Joyan, not only because of the pain in her neck and back, but also because she experiences hypervigilance as a passenger and panic attacks. Her panic attacks have been random, and she is not exactly sure how they are triggered.
13.   Ms Joyan has struggled to fulfil her pre-accident domestic duties. Prior to the accident, she would vacuum and mop, maintain her room and engage in regular cleaning and chores around the home. Now, she is unable to do anything particularly because of the pain in her shoulder and back, but also because of her low moods and lack of motivation., Her mother notes that her room is very messy.
14.   Ms Joyan has no motivation to go out with friends and attend family gatherings which she used to enjoy doing. She now prefers to stay at home, and even if she does go out, she comes home upset and wishing she had not gone. If family and friends visit her home, she will often avoid sitting with them and will generally stay in her room.
15.   Prior to the accident, Ms Joyan was a very active teenager. She enjoyed doing dancing workouts at home, going for walks, ice-skating and playing soccer with her sister. All of this has stopped and she no longer has an interest in being active.
16.   Due to the injury Ms Joyan sustained to her jaw, she struggled to eat food. This resulted in an eating disorder which has taken over her life. As soon as she wakes up, the first thing she thinks about is what to not eat and she has a constant internal struggle as to whether she should eat. This has resulted in an unhealthy lifestyle and fluctuating weight loss. It has not only impacted Ms Joyan, but her whole family as they try to support her, but it worries them that she is experiencing this.
Treatment regime
17.   Two days after the subject motor vehicle accident, Ms Joyan was experiencing pain, so she attended her GP, Dr Abie Thomas, on 21 December 2019. She continued to attend on Dr Thomas once a month for general check-ups.
18.   In around February 2021, Dr Thomas referred Ms Joyan to Specialist Dr Seamus Dalton for treatment and review.
19.   Dr Dalton then referred Ms Joyan to physiotherapy at Norwest Orthopaedic & Sports Physiotherapy where she attended upon physiotherapist, Nic Toose, on 29 April 2021. She continued to attend physiotherapy once a week consistently until the end of 2021, then she would attend as needed before she stopped in around April 2022.
20.   In around June 2021, Ms Joyan saw Professor Robert Mitchell who reviewed the MRI of her jaw. He stated that she was too young for surgery and instead gave her a splint to wear for about one month, but this did not help with them pain. The Professor recommended she attend physiotherapy for her jaw.
21.   Dr Thomas suggested that Ms Joyan visit a neurologist, Dr Sumana Gopinath. Ms Joyan saw her on 12 May 2021, but Dr Gopinath informed us that she does not see people Ms Joyan’s age. As such, Ms Joyan made an appointment with Dr Rao.
22.   In July 2021, Ms Joyan attended upon Dr Rao, who suggested that she continue with physiotherapy and taking pain killers.
23.   Ms Joyan started seeing Christine Knight at Northwest Physiotherapy in around May 2022 for jaw physiotherapy. Christine suggested that Ms Joyan see her dentist. She attended on her usual dentist, Dr Christopher Walsh who recommended she see Dr Kenneth Lee at Today’s Dental.
24.   Ms Joyan attended Today’s Dental practice, she saw Dr Chan who referred her for a scan, the results of which were shared with Dr Kenneth Lee who reported on them and devised a treatment plan.
25.   Ms Joyan continued to see her usual dentist Dr Walsh for general check-ups.
26.   Ms Joyan sought treatment from Dr Salena Bhanji in relation to her psychological injuries. However, she has changed psychologists and as of mid-July 2022. She has begun seeing Shauna Byrne at Talbot Centre.
27.   Ms Joyan has also been seeking treatment from psychiatrist Dr Sadia Saeed whom she has attended on about three times.
28.   Since May 2022, Ms Joyan has been attending upon dietician, Courtney Thornton at the Talbot Centre, to assist with treatment of her eating disorder.
29.   As a result of the injuries sustained in the subject accident, Ms Joyan has been required to take the following medications:
(a)Panadol – initially 8-8 tablets per day, now as needed.
(b)Neurofen – as needed.
(c)Zactin (20mg) – one per day for one week.
(d)Voltaren cream – daily.
(e)Olanzapine (2.5mg) – once nightly.
30.   As a result of this medications, Ms Joyan experienced confusion from taking Zactin, for that reason she ceased taking it after one week.
Treatment providers
31.   As a result of the subject Accident, Ms Joyan has attended upon the following medical practitioners for treatment of her injuries:
(a)    Dr Abie Thomas, General Practitioner, Thomas Family Medical Practice, Suite 9, 15 Terminus Street, Castle Hill NSW 2154.
(b)    Dr Salena Bhanji, Psychologist, Level 3, Suite 3.06, 32 Delhi Road, Macquarie Park, NSW 2113.
(c)    Shauna Byrne, Psychologist, The Talbot Centre, Suite 207b/25 Solent Circuit, Baulkham Hills NSW 2153.
(d)    Dr Sadia Saeed, Psychiatrist, 23-27 Lytton St, Wentworthville NSW 2570.
(e)    Dr Sumana Gopinath, Neurologist, Alpha Specialist Centre, Suite 515, 5 Celebration Drive, Bella Vista NSW 2153.
(f)    Dr Prashanth Rao, Neurosurgeon and Spine Surgeon, Brain and Spine Surgery, 20 Mons Road, Westmead NSW 2145.
(g)    Dr Seamus Dalton, Specialist in Rehabilitation Medicine, North Sydney Sports Medicine Centre, 60 Pacific Highway, St Leonards NSW 2065.
(h)    Dr Kenneth Lee and Dr Pei San Chan, Dentist, Today’s Dental, 7 Beatrice St, Auburn NSW 2144.
(i)    Dr Christopher Walsh, Dentist, Bella Dental Care, 106/2-8 Brookhollow Ave, Norwest NSW 2153.
(j)    Nic Toose, Physiotherapist, Norwest Orthopaedic & Sports Physiotherapy Bella Vista, Suite 117, 20B Lexington Drive Norwest Business Park, Bella Visa NSW 2153.
(k)    Christine Knight, Physiotherapist, Northwest Physiotherapy, 5/499 Windsor Rd, Baulkham Hills NSW 2153.
(l)    Professor Robert Mitchell, Oral and Maxillofacial Surgeon, 6/1 South St, Kogarah NSW 2217.
(m)     Courtney Thornton, Dietician, The Talbot Centre, Suite 207b/25 Solent Circuit, Baulkham Hills NSW 2153.
Previous injuries and medical conditions
32.   Ms Joyan was generally in good health at the time of the accident. She had not suffered from any prior injuries or medical conditions of significance, and she had not had any prior disabilities. She has not made any prior claims for compensation.
33.   For the period of 5 years prior to the subject accident, Ms Joyan attended upon the following medical practitioners:
(a)    Dr Abie Thomas, General Practitioner, Thomas Family Medical Practice, Suite 9, 15 Terminus Street, Castle Hill NSW 2154.
(b)    Dentist, HCF Dental Centre Chatswood, 6/13 Spring St, Chatswood NSW 2067.
Non-economic loss
34.   As a result of the injuries Ms Joyan sustained in the subject accident, she is seeking to make a claim for non-economic loss. She understands that this will depend on her Whole Person Impairment being assessed as greater than 10%, or alternatively, by agreement with the Insurer.

Report of Dr Andrew Keller dated 1 August 2022

Presenting complaint

Ms Joyan reports constant pain affecting the left and right jaw joints. The pain is worse with chewing and talking, and she rates it up to 8 out of 10 in intensity, on a scale where 10 is the most severe.
She reports separate pains affecting her neck and lower back that are constant. She rates the pain between 5 and 9 out of 10 and states they are aggravated by doing stretches or walking.
Her self-stated capacities include:
•      sitting 30 minutes;
•      standing 20 to 30 minutes;
•      walking 5 to 30 minutes;
•      lifting 5-6kg, and
•      driving - she has a learner’s licence but states that her spine pain stops her driving.
Ms Joyan is independent in self-care tasks. She states she is unable to assist her parents with cooking and cleaning. There is no paid cleaner. She is not required to do yard work. There is no paid gardener.
Ms Joyan continues to attend Year 12 at school, full time, doing face-to-face classes. Her hobby is drawing. She attends no sporting activities.
She is able to attend the shops once per week. She does not go out to socialise.

Observation and examination

Ms Joyan was asked whether she gave consent for a physical assessment, and she verbally confirmed that she did.
She was advised not to perform any movements that would increase her symptoms.
She was pleasant and cooperative throughout the interview that she attended with both parents.
She walked unassisted and without a limp, and sat comfortably throughout the consultation that commenced at 9.20am and finished at 10.14am.
Her appearance matched that of photographic identification, NSW Learner’s Driver Licence, 24267609, expiry November 2026.
She gave her height at 160cm, weight at 57kg and stated she was right handed.
In the cervical spine, Ms Joyan demonstrated a full symmetrical range of motion including flexion and extension 45°, rotation to both sides 90° and flexion to both sides 45°. There was no spasm, but she reported pain with movement.
There was normal sensation to light touch reported in both upper limbs.
Ms Joyan demonstrated a full symmetrical range of motion in both shoulders, elbows, wrists and all fingers.
In the thoracic and lumbar spine, Ms Joyan demonstrated a full symmetrical range of motion including extension 30°, flexion 90°, lateral flexion and rotation to both sides, 45°. There was no spasm.
There was normal power and sensation to light touch in the lower limbs.
Straight leg raise on the bench was 70° on both sides, and 90° during reflex testing, showing no signs of nerve root tension.
Reflexes were present and symmetrical at the knees and ankles.
Ms Joyan was able to stand on her heels and toes without foot drop. She could squat deeply and arise without assistance.
At the end of the assessment Ms Joyan and her parents were asked if there was any further information to add.
Ms Joyan and her parents reported that she had a review with a dental specialist a week ago, and that there was a plan to produce moulded mouth guards in August. They stated that she had tried casual work, working for Woolworths between November 2021 and May 2022, working 8 to10 hours per week on a cash register. She had ceased this due to her pain. They stated that from 2021, Ms Joyan was seeing a psychologist for an eating disorder and continued this fortnightly. She was prescribed two medications that may have been antidepressants, though the names were not to hand. She was seeing a psychiatrist for depression and had had three assessments in 2022. She was seeing a dietician from 2022 for her eating disorder. They attributed her psychological condition to the effects of the accident.
Ms Joyan and her parents were also specifically asked if they had any complaints or concerns with regard to today’s assessment and examination. Ms Joyan’s father particularly stated that they were not given enough information prior to the assessment to prepare their documents so that they could answer questions about treatment dates and the progress of Ms Joyan’s medical complaints to the present date. Ms Joyan’s father stated that he felt under pressure with regard to the details of her claim to date.
I was able to clarify that the purpose of today’s assessment was to gather as much information from the file provided and from the family present today with regard to the incident causing the injuries, the medical diagnoses and their treatment progress to date. Although Dr Keller was asking questions with regard to details when events had occurred, there was no pressure on them to have detailed dates, although any information they had would be taken into consideration.
No other complaints were raised with Dr Keller.
In answer to your specific questions:
[1]    A history of the incident from which the claim arises, subsequent treatment and progress and any other history relevant to Ms Joyan's complaints or disabilities.
·        This is detailed in the body of the report above.
[2]    Comment upon any x-rays supplied by Ms Joyan or that you may order, as appropriate.
·        These have been summarised as supplied in the body of the report above.
[3]    Examination of Ms Joyan in light of the allegations of injury and disability and the matters raised by Ms Joyan in the course of your examination.
·        On examination today, there was a full symmetrical range of motion in the cervical spine without spasm or signs of radiculopathy. There was a full symmetrical range of motion in the thoracic and lumbar spine without spasm or signs of radiculopathy. Ms Joyan was able to open her jaw approximately 4cm and had symmetrical deviation from side to side, exceeding 2cm, but with reported pain.
[4]    Comment upon Ms Joyan's condition in each area of alleged injury or disability.
·        Ms Joyan reports persisting constant pain affecting her cervical spine, lumbar spine and temporomandibularjoints.
[5]    The relationship between the accident and the injuries and disabilities alleged.
·        Ms Joyan attributes the onset of her neck, back and jaw pains and psychological symptoms to the events of the accident in 2020. She gives no history of prior or subsequent contributing factors.
[6]    Details of any pre-existing medical conditions or other injuries which may affect Ms Joyan's present condition.
·        Ms Joyan gives no history of prior medical conditions.
[7]    Does Ms Joyan require future treatment in the future? If so, please identify the type of treatments that may be necessary, duration and cost.
·        It appears that Ms Joyan was involved in a low force accident on 19 December 2020. Airbags were not deployed and the car was later repaired. Following the accident the family continued on their planned journey.
·        Ms Joyan has had an MRI of the cervical spine showing a possible subtle disc tear without nerve compression, and a normal MRI of the temporomandibular joints.
·        On examination, Ms Joyan has a full range of motion in the spine without radiculopathy, and a full range of motion in the jaw but with reported pain.
·        In Dr Keller’s opinion, it is unlikely that Ms Joyan will receive lasting benefit from ongoing passive physical therapies to the spine. There are no current indications for injections or surgery.
·        Comment on temporomandibular joint pain and treatment is a matter for a dental specialist and is outside Dr Keller’s area of expertise.
·        Comment on mental health diagnosis and management is a matter for a psychiatrist and is outside Dr Keller’s area of expertise
[9]    Your prognosis for improvement and recovery.
·        It is reasonable that Ms Joyan suffered soft tissue strains causing pain in her neck and back as a result of the subject accident. Dr Keller states that he would have expected these to have recovered within 3 months of the accident. It is not clear to me that Ms Joyan’s current reported pain in her neck and back continue to relate to the effects of the accident.
·        Comment on Ms Joyan’s temporomandibular joint and its relationship to the accident and her psychological condition should be referred to relevant specialists.

Report of Dr McGlynn dated 18 August 2022

Opinion

Your specific questions are answered as follows:
[1]    Date of consultation.
•      15 August 2022.
[2]    History as provided by Ms Joyan - this is to include her medical history and all relevant information.
•      As listed in History
[3]    Findings on clinical examination - we would request you carry out a clinical examination looking at all the areas that have been injured. We ask you to look at all relevant issues including height, weight and movements in relation to the injury.
•      As listed in Examination
[4]    Your opinion as to whether there are any secondary injuries as a result.
•      In Dr McGlynn’s opinion, Ms Joyan has bilateral temporomandibular dysfunction, worse on right, following a motor vehicle accident on 19 December 2020. Symptoms were noticed within a few days of the accident and have become progressively worse. TMJ dysfunction causes pain especially when eating and clicking or grinding when opening mouth or chewing. It can be caused by facial trauma; also by jaw clenching and teeth grinding which due to stress.
•      Ms Joyan’s TMJ dysfunction may be a primary injury sustained in the motor vehicle accident due injury to muscles of mastication from direct trauma or sudden clenching of teeth at moment of impact. It may be secondary to jaw clenching and teeth grinding caused by post-traumatic stress which she is being treated for. Or in maybe due to both factors with primary injury at time of motor vehicle accident and secondary aggravation due to PTSD.
•      In Dr McGlynn’s opinion, it is more likely than not the condition is related to the motor vehicle accident.
[5]    Details of any X-rays or other diagnostic test results viewed and your interpretation of same.
•      MRI of TMJs reported no abnormality. This is a typical finding in TMJ dysfunction.
•      MRI of Cervical Spine reported C5/6 disc annular tear. This can occur with neck trauma and causes pain. Ms Joyan has had neck pain since the accident.
[6]    Your opinion as to whether the condition on examination was consistent with the history of the accident as given by Ms Joyan.
•      In Dr McGlynn’s opinion TMJ dysfunction apparent on examination is consistent with the history of the accident.
[7]    Your assessment of Ms Joyan’s condition.
•      Ms Joyan has bilateral temporomandibular dysfunction, worse on right
[8]    The nature and extent of any present and/or continuing disabilities.
•      Her bilateral temporomandibular dysfunction causes pain, exacerbated by eating firm and hard food.
[9]    Your opinion as to whether the injuries to the jaw have led to the onset Anorexia Nervosa and/or Ms Joyan’s strained relationship with food.
•      Cause of anorexia nervosa requires a psychological opinion best provide by a psychiatrist. Psychological conditions lie outside Dr McGlynn’s area of clinical expertise.
•      TMJ dysfunction causes pain that is made worse by jaw movement and eating. This restricts mastication and can cause weight loss because of dietary restriction.
[10]     Your opinion as to whether the injuries to the jaw can lead to the onset of eating disorders, weight loss or an unhealthy relationship with food.
•      Eating disorders requires a psychological opinion best provide by a psychiatrist. Psychological injuries lie outside Dr McGlynn’s areas of clinical expertise.
[11]     Your opinion as to whether the injuries to the neck, back and jaw can cause or have caused any secondary injuries or exacerbated any other injuries sustained in the subject accident.
•      Neck injuries can cause facial pain. Spinal nerve roots C2 and C3 supply sensation to posterior face at angle of jaw and around the ear. Pain from cervical spine can radiate to those areas, which match the sites of Ms Joyan’s facial pain. The MRI reported abnormality at C5/6 level only. An opinion from a spine expert / neurosurgeon is needed to determine if there is a cervical spine injury causing or contributing to her facial pain.
[12]     Your findings as to the range of movement of Ms Joyan’s jaw.
•      As above in Examination. The range of jaw movement is less than normal and appears to restricted by pain and joint crepitus with mouth opening.
[13]     Your findings as to the range of movement of Ms Joyan’s neck and the time periods for which she can maintain upright movement.
•      Injuries to the spine lie outside Dr McGlynn’s areas of clinical expertise. This should be commented on by an appropriate spine expert.
[14]     Treatment undertaken to date by Ms Joyan.
•      Her treatment for TMJ dysfunction to date has consisted of trial of dental splint, physiotherapy, modification of diet to avoid exacerbation of pain.
[15]     Your opinion as to prognosis and details of any recommended future treatment including the duration of this treatment of such treatment, the nature of the treatment and if possible, an approximate costing.
•      The prognosis is fair. Most cases of TMJ dysfunction resolve eventually. However, treatment to date has been ineffective. Both A/Prof Mitchell and Dr Lee recommended an occlusal splint to be worn at night. This is an essential part of any treatment program and was abandoned because of exacerbation of pain when wearing the splint. She has had physiotherapy with is usually of some benefit.
•      I recommend her treatment plan be restarted with a custom fitted occlusal splint. Physiotherapy should continue. An orthodontic assessment should be undertaken and any recommended orthodontic treatment undertaken. Dr McGlynn does not recommend any surgical treatment. Her treatment plan will need to continue for one to two years. The probable cost will be approximately $15,000.
[16]     Your opinion as to the extent, if any, that Ms Joyan’s ability to lead a normal life is significantly impaired by the injury suffered in the accident.
•      Her TMJ dysfunction is likely to resolve over the next two years with treatment. The condition should not affect her long term ability to lead a normal life.
[17]     Your conclusion with regard to diagnosis. We welcome your opinion as to the issue of causation. In particular, whether the injuries listed and flow on conditions have resulted from the subject accident.
•      In Dr McGlynn’s opinion, Ms Joyan has temporomandibular dysfunction restricting mastication as a result of injury sustained in a motor vehicle accident on 19 December 2020.
Second report (supplementary) of 18 August 2022
Opinion
(a)    We would ask that you comment, by way of a supplementary report, whether there were any injuries that you are able to elicit or examine that were not caused by the accident.
•      In Dr McGlynn’s opinion, Ms Joyan has temporomandibular dysfunction restricting mastication as a result of injury sustained in a motor vehicle accident on 19 December 2020.
•      Ms Joyan has restriction of diet to soft food because hard food cause TMJ pain. This can be assessed by analogy as a dental injury. MAA Guidelines Version 8 paragraph 6.195 states damage to the teeth can only be assessed when there is a permanent impact on mastication and deglutition (page 231, AMA4 Guides) and/or loss of structural integrity of the face (pages 229–230, AMA4 Guides). Paragraph 6.197 directs use of AMA4 Table 6 on page 231 with the first category, diet limited to semisolid or soft food, to be 0-19%, not 5-19%.
•      Ms Joyan has diet restricted to soft and semisolid food. In Dr McGlynn’s opinion, the condition fits the middle third of the 0-19% range and causes 8%WPI.
•      She has not had adequate treatment for the condition and maximum medical improvement has not been reached as her condition is likely to improve and by more than 3%WPI in the next year with appropriate treatment.
(b)    Your summary of injuries that were pre-existing which may have been exacerbated by the accident.
•      I have seen no evidence of a pre-existing injury or condition contributing to impairment due to TMJ dysfunction.

Report of Dr Nigel Curtis, oral and maxillofacial surgeon

Dr Curtis diagnoses derangement in the temporomandibular joints plus myofascial pain syndrome, both of which are directly and causally related.

History

On presentation to the Sydney office of Medicins Legale, in the presence of her father, on
26 May 2023, Ms Joyan described that she had been involved in a motor vehicle accident as a front seat passenger in a car driven by her mother on 19 December 2020. Ms Joyan described that she was wearing a seatbelt at the time of the motor vehicle accident and a vehicle behind her mother’s car had caused a rear end collision accident whilst stationary at a traffic light and she reported that no air bags were deployed at the time of impact in this collision and she did not lose consciousness on impact. Ms Joyan described a jolting sensation of her neck at the time of the accident and she attended her general practitioner, Dr Thomas, two days later as indicated in the notes dated 21 December 2020. Dr Thomas did prescribe some Nurofen as analgesics at that stage and arranged for some radiographic examination. The notes from Dr Thomas dated 15 February 2021 indicate persistent discomfort in the cervical spine and shoulder region and also clicking and pain in the right temporomandibular joint at that stage. Ms Joyan was prescribed some physiotherapy for the neck and shoulder region and the problems do appear to have gradually resolved in this region. Ms Joyan also does appear to have developed a form of post-traumatic stress disorder following the motor vehicle accident and has been reviewed by both a psychologist and psychiatrist and is being prescribed Catapress in relation to this issue. Ms Joyan does also have appeared to developed an eating disorder since the time of the motor vehicle accident on 19 December 2020 and has consulted a dietician in relation to this issue.
In relation to the orofacial injuries, Ms Joyan was referred to Adjunct Associate Professor Mitchell by Dr Thomas, as indicated in Dr Mitchell’s report dated 22 November 2021.
Dr Mitchell did review an MRI of the right temporomandibular joints and did suggest that the report of the radiograph was inaccurate with some anterior displacement of the disc in the right temporomandibular joint present. Adjunct Mitchell suggested provision of an occlusal splint for the ongoing problems in the right temporomandibular joint and this does appear to have been provided. A night and day splint has indeed been provided by Dr Kenneth Lee of Todays Dental, as indicated in his correspondence dated 19 July 2022, 8 November 2022 and his associated note from this time. The symptoms of pain and derangement of the right temporomandibular joint do not appear to have improved following several months of wearing Dr Lee’s splints and he did suggest some injections into the neck for Ms Joyan, though her parents sensibly declined to allow Dr Lee to provide this treatment. In his letter dated 19 July 2022, Dr Lee has also suggested some Botox injections and what he calls a ‘trigger point’ injection, and this treatment is yet to be approved by the insurance company.
Ms Joyan has also been reviewed by Dr Bisht, another psychiatrist, as indicated in his report dated 21 September 2022. Dr Bisht does ascribe a 7% whole person impairment in relation to the ongoing psychological problems in this case. In relation to the orofacial injuries,
Ms Joyan has been reviewed by Dr Michael McGlynn, a plastic surgeon, as indicated in his report dated 18 August 2022. Dr McGlynn in his report did suggest that the ongoing temporomandibular joint dysfunction would usually resolve but then goes on to ascribe an 8% whole person impairment in relation to these issues. There does appear to be a clear discrepancy in Dr McGlynn’s comments and this may clearly be due to the fact that
Dr McGlynn as indicated is a plastic surgeon and not a specialist oral and maxillofacial surgeon and would not manage temporomandibular joint dysfunction in the normal realms of his practice. Ms Joyan has also been reviewed by Dr Paul Nichols, who is a general dental practitioner and not a specialist, in his report dated 11 November 2022 Dr Nichols strangely suggests a pre-existing level of temporomandibular joint dysfunction prior to the accident which is a little strange since Ms Joyan was 15 years of age and in Year 10 at the time of the accident on 19 December 2020. Dr Nichols does suggest a review by a prosthodontist in his report and Ms Joyan has been reviewed by Dr McLaughlin, a specialist prosthodontist, as indicated in his report dated 1 January 2022 and Dr McLaughlin sensibly has suggested the right temporomandibular joint derangement at this stage is unlikely to respond to simple occlusal splint treatment.

Presently, in relation to the orofacial injuries, Ms Joyan does complain of ongoing discomfort and restriction in the right (moreso than the left) temporomandibular joint and does indicate a reduced ability to chew hard foods.

Clinical examination

On clinical examination at the Sydney office of Medicins Legale, in the presence of her father, on 26 May 2023, Ms Joyan presented as a 17 years of age female taking Catapress for post-traumatic stress disorder and a combination of Panadol and Nurofen for neck and jaw pain. External facial examination revealed crepitus and restriction, more in the right than the left temporomandibular joints, and inter-incisal opening was limited to approximately 30mm of inter-incisal distance. There was no facial disfigurement present and no loss of sensation in the distribution of the trigeminal nerve. There was tenderness in both the right and left masseter and temporalis muscles indicating an element of myofascial disorder present. Intraoral examination revealed a Class I-II type occlusion present and the 17-27 teeth were present in the maxilla and the 37-47 teeth were present in the mandible.

Radiographic examination

The plain radiographs supplied, dated 17 June 2022, demonstrate no abnormality. The report of the MRI cervical spine, dated 9 April 2021, indicates a subtle injury in the C5/6 region, the report of the MRI temporomandibular joints, dated 2 November 2021, demonstrates no abnormality, but as indicated by Adjuct Mitchell, he does feel that this is an incorrect report and there is displacement of the right temporomandibular joint meniscus, or disc.

Diagnosis

It is clear that Ms Joyan suffered a motor vehicle accident on 19 December 2020 as a front seat passenger in a vehicle driven by her mother which suffered a rear end collision.
Ms Joyan does appear to have suffered some orthopaedic strains to the neck and shoulder region and does appear to have developed some psychological problems since the time of the motor vehicle accident and has also developed some ongoing orofacial problems including dysfunction of the right, more than the left, temporomandibular joint and some ongoing myofascial pain symptoms. In relation to the orofacial injuries, Ms Joyan has initially suffered crepitus and dysfunction in the right temporomandibular joint and this was identified by Dr Thomas, her general medical practitioner, as indicated in the notes dated 15 February 2021. This dysfunction does appear to be related to displacement of the joint meniscus as identified in radiographic and clinical examination and as has happened in this case the effect on one side of the jaw joint can affect the other side to a smaller degree. Internal derangement of the temporomandibular joint as has happened in this case is common in such a motor vehicle accident with a jolting of the impact often causing a whiplash injury of the cervical spine region and also distraction of the soft tissue joint meniscus, or disc, often referred to by authors as ‘jawlash’ in such cases. Ms Joyan has been reviewed by Adjunct Mitchell and has been prescribed an occlusal splint and Dr Lee, a general dental practitioner and not a specialist, has gone on to bemusingly provide two splints to Ms Joyan. These splints do not appear to have been effective. Ms Joyan continues to suffer from ongoing internal derangement of the right, more than the left, temporomandibular joint and has also developed tenderness in both the masseter and temporalis muscles consistent with a myofascial pan syndrome. Dr Lee, a general dental practitioner and not a specialist, has suggested he give Ms Joyan injections into the neck, which have sensibly been declined by her parents, and has also suggested some Botox injections, plus trigger point injections for which again it is questionable whether a general dental practitioner should provide. Dr Curtis notes another general dental practitioner, Dr Nichols, not a qualified specialist, has suggested in some way that Ms Joyan suffered from pre-existing temporomandibular joint dysfunction, which does appear quite ridiculous since Ms Joyan was in Year 10 at the time of the motor vehicle accident and only 15 years of age. There is no evidence to support
Dr Nichols suggestion in this case. The report of Dr Nichols should therefore be disregarded in this matter. There is no evidence of any pre-existing disorders which could have affected the orofacial injuries in this case. The orofacial injuries suffered by Ms Joyan are consistent with her description of the motor vehicle accident suffered on 19 December 2020. In regard to the orofacial injuries, the ongoing internal derangement of the temporomandibular joints, plus development of myofascial pain syndrome do appear to be clearly directly and causally related to the motor vehicle accident suffered on 19 December 2020.
In respect to the questions you ask:
[9]    Please review Ms Joyan's report by Dr Michael McGlynn, Plastic, Reconstructive & Hand Surgeon dated 18 August 2022 (annexure 9) and comment on whether you agree or disagree with Dr McGlynn's findings. Please provide your reasoning.
•      In regard to the report of Dr McGlynn, a plastic surgeon, dated 18 August 2022, his views in this report do not appear to be consistent or organised in relation to the internal derangement of the temporomandibular joints and myofascial pain suffered by Ms Joyan, and at one point in his report, he suggested that the internal derangement should resolve spontaneously, but then in the same report attributes an 8% whole person impairment to these injuries. The inconsistencies in Dr McGlynn’s report in common sense terms are likely related to the fact that Dr McGlynn is a plastic surgeon and not a qualified specialist oral and maxillofacial surgeon and would not manage internal derangement of temporomandibular joints or myofascial pain syndrome in his regular plastic surgery practice.
[10]     Please review the Insurer's report by Dr Paul Nichols, Dental Surgeon dated
11 November 2022 (annexure 14) and comment on whether you agree or disagree with Dr Nichols' findings. Please provide your reasoning.
•      In regard to the report by Dr Paul Nichols, a general dental practitioner and not a specialist, dated 11 November 2022, as indicated above there is a suggestion by Dr Nichols that Ms Joyan somehow had pre-existing temporomandibular joint dysfunction present is quite ridiculous and unsubstantiated, especially considering the fact that the motor vehicle accident occurred when Ms Joyan was in Year 10 and 15 years of age. There is no evidence to support the assertion of Dr Nichols and Dr Curtis note his report is full of disclaimers and this report should be clearly set aside since it is extremely short of factual evidence.
[11]     Please review the insurer's report by Dr Matthew McLaughlin, Specialist Prosthodontist dated 31 January 2023 (annexure 15) and comment on whether you agree or disagree with Dr McLaughlin's findings. Please provide your reasoning.
•      The report of Dr Matthew McLaughlin, a specialist prosthodontist, dated
31 January 2023 does appear to contain a common sense opinion in relation to Ms Joyan’s condition, and Dr McLoughlin accurately describes that simple treatment with an occlusal splint provided by Adjunct Mitchell and Dr Lee, a general dental practitioner, have clearly not been effective and Ms Joyan’s condition does require a proper surgical opinion with options of a simple arthrocentesis, or arthroscopy, mentioned in order to correct the ongoing problems.
[12]     Your prognosis.
•      In regard to prognosis for the ongoing orofacial injuries including internal derangement of the temporomandibular joints plus myofascial syndrome in the muscles of mastication. If the simple procedure of arthrocentesis and manipulation of the temporomandibular joints plus Dysport injections into the muscles of mastication including the masseter and temporalis muscles is carried out, plus some follow up occlusal splint therapy treatment, Dr Curtis expects a reasonably good prognosis for recovery from the orofacial problems suffered by Ms Joyan in this case. In the absence of this treatment being carried out,
Dr Curtis would not expect the whole person impairment to vary by more than 3% over a 12-month period.

SUBMISSIONS

The Panel briefly summarises the Insurer’s submissions of 4 October 2022 by reference to paragraph numbers:
[1]    Ms Joyan lodged a WPI dispute regarding her physical and psychological injuries, allegedly sustained from the subject accident.
[2]    The Insurer submits following Internal Review that Ms Joyan’s WPI does not exceed 10%.
[3]    The Insurer submits that Ms Joyan’s physical injuries do not exceed 10% WPI because:
(a)    There is no evidence of an injury or combination of injuries warranting a WPI exceeding 10%.
(b)    No treating evidence supports a WPI which would satisfy the threshold for physical injuries. The Insurer highlights the following:
(i)    April 2021 MRI of the cervical spine showed no disc protrusion or neural compression at C2/3, C3/4, C4/5, C6/7, and C7/T1. C5/6 showed an annular tear with no neural compression.
(ii)    Medical evidence highlights that no symptoms or signs of radiculopathy meet Clause 5.8 of the Guidelines. No neurological signs are present.
(c)    No independent medicolegal opinion supports a WPI exceeding 10%:
(i)     Dr Keller (Occupational Physician, 27 July 2022) assessed 0% WPI and noted:
(A)   Cervical spine: Full symmetrical range of motion; no spasm; Ms Joyan reported pain with movement, normal sensation in upper limbs.
(B)   Thoracic and lumbar spine: Full range of motion; no spasm; normal power/sensation in lower limbs; no signs of nerve root tension.
(C)   Advised TMJ and psychological injuries should be assessed by specialists. He did not provide a WPI assessment of either the TMJ or psychological injuries.
(ii)    Dr McGlynn (Plastic Surgeon, 15 August 2022) assessed TMJ at 8% WPI:
(A)   No visible facial deformity, no acute inflammation.
(B)   Mild TMJ tenderness, palpable crepitus.
(C)   Jaw opening to 38 mm.
(D)   Psychological assessment required for eating disorder.
(E)   TMJ injury had not stabilized and could improve by more than 3% with treatment.
(iii)    Despite concluding that Ms Joyan had yet to reach maximum medical improvement, Dr McGlynn assessed 8% WPI. The Insurer submits that
Dr McGlynn has not followed Clause 6.19 of the Guidelines, which states that impairments must be permanent to be evaluated.
(iv)   Dr McGlynn did not assess an impairment exceeding the threshold.
[4]    The Insurer submits that Dr Keller’s assessment aligns with contemporaneous medical evidence and follows Part 6 of the Guidelines. The Insurer submits his 0% WPI assessment should be preferred.
[5]    Accordingly, the Insurer submits that Ms Joyan’s WPI does not exceed 10%.
[6]    The Insurer submits that Ms Joyan’s psychiatric injuries do not exceed 10% WPI because:
(a)    There is no medical evidence that Ms Joyan sustained a recognized psychiatric illness meeting DSM-5 criteria.
(b)    No WPI assessment under Part 6 of the Guidelines supports a WPI exceeding 10%. The Insurer relies on Dr Bisht (Psychiatrist, 21 September 2022), who diagnosed Major Depressive Disorder and assessed 7% WPI.
(c)    No independent medicolegal opinion supports a WPI exceeding 10%.
(d)    No treating evidence supports a WPI exceeding 10%.
(e)    Ms Joyan’s condition may not have stabilized. The Insurer is awaiting clinical records from her GP, psychologists, and psychiatrist:
(i)Dr Bisht recommended six months of psychological treatment and 1–2 years of medication.
(ii)The Talbot Centre report (18 August 2022) noted ongoing treatment for an eating disorder, with stable weight and reduced binge eating. Ten further sessions were recommended.
[7]    The Insurer reserves the right to provide further submissions upon receiving additional evidence.
[9]    The Insurer submits that Ms Joyan has not sustained physical or psychiatric injuries which attract a WPI rating which exceeds 10%.
The insurer further submits on 27 April 2023 (by reference to paragraph numbers):
[1]    The insurer referred to the upcoming assessment of Ms Joyan by Assessor Anil Nair, Orthopaedic Surgeon, on 12 May 2023. The Insurer had been unable to locate a medical referral letter which set out injuries to be assessed by Assessor Nair and specifically, whether Assessor Nair will assess the alleged TMJ (jaw) injury.
[2]    The insurer submits that an assessment of Ms Joyan’s alleged TMJ injury should be conducted separately to her other physical injuries and by a suitably qualified TMJ specialist, rather than by an Orthopaedic Surgeon.
[3]    The insurer has arranged for Ms Joyan to be assessed by Dr Nigel Curtis, Oral and Maxillofacial Surgeon, on 15 May 2023.The Insurer submits that a TMJ specialist, such as Dr Curtis, is more suitably qualified to comment on Ms Joyan’s TMJ injury, and any resulting impairment.
[4]    The insurer submits that a separate assessment by a suitably qualified TMJ specialist should take place at PIC after late June 2023, to allow time for
Dr Curtis' report to be obtained following his examination of Ms Joyan on
15 May 2023 and to assist the Commission’s Medical Assessor.
[5]    The insurer also submits that Ms Joyan’s TMJ has not yet stabilised and relied on the report by Dr Paul Nichols, Dental Surgeon dated 11 November 2022.
Dr Nichols deferred his opinion on the TMJ injury to a Specialist for opinion on diagnosis, causation, and impairment. The insurer arranged for Ms Joyan to attend Dr Matthew McLaughlin, Specialist Prosthodontist, on 31 January 2023.
Dr McLaughlin opined that Ms Joyan required further treatment, including an alternative splint design. The Insurer submits that stabilisation of the alleged TMJ injury should be assessed separately to her other physical injuries and by a TMJ specialist.
The Panel briefly summarises the Insurer’s supplementary submissions of 21 February 2024 by reference to paragraph numbers:
[1]    Ms Joyan alleges TMJ injury, sleeping disorder, and orthopaedic and psychiatric injuries from the accident. Orthopaedic injuries were assessed below 10% WPI by Medical Assessor Nair (5% WPI).
[2]    The insurer relies on previous submissions (dated 4 October 2022, 27 April 2023) and all supporting Commission’s documents.
[3]    The insurer maintains that Ms Joyan’s WPI does not exceed 10%.
[4]    The insurer refers to cl 6.19 of the Guidelines, stating an impairment must be permanent to be evaluated.
[5]    WPI Assessment Below 10% Threshold:
a.     Reliance on Dr Curtis' Reports (6 June 2023):
i.Dr Curtis (Consultant Oral and Maxillofacial Surgeon) diagnosed orofacial injuries, TMJ derangement, and myofascial syndrome.
ii.He agreed with Dr McLaughlin’s proposed treatment (arthrocentesis, Dysport injections, occlusal splint therapy).
iii.Considered this treatment conservative and effective, expecting good recovery.
iv.If untreated, WPI is assessed at 5%.
v.Work/study disruptions likely psychological, not orofacial.
vi.Criticized Claimant’s expert, Dr McGlynn (plastic surgeon), for inconsistencies and lack of expertise in TMJ management.
vii.From the clinical records of Norwest Physiotherapy and Today’s Dental, Ms Joyan underwent inappropriate trigger point injections by a dentist. Reported pain relief (VAS 7/10 to 4-5/10 by May 2023), improved movement by July 2023.
b.     Insurer submits that Ms Joyan has not yet completed appropriate treatment for the TMJ injury to reach stabilisation and continues to submit that it is inappropriate to assess WPI while treatment is ongoing. The Insurer further submits that it is not yet clear whether the trigger point injections have helped or hindered Ms Joyan’s recovery.
c.     The Insurer is waiting on further records (ENT referral to Dr Vanaja Siva, June 2023).
d.     If the Commission’s Medical Assessor is of the opinion that treatment has Concluded, the Insurer submits that WPI does not exceed the 10% threshold.
e.     Ms Joyan alleges that she had an eating disorder/ secondary atypical anorexia nervosa and panic attacks, anxiety, depression as a result of the subject accident. Referring to Ms Joyan’s treating psychiatrist, Dr Saeed’s clinical notes, the Insurer submits that Dr Saeed noted that Ms Joyan was ‘eating ok these days’ and ‘was less worried with her body image’ and that there were no pervasive mood or psychotic disorders as at 23 May 2023.
[10]     The insurer submits that Ms Joyan’s injuries do not exceed 10% WPI.
The Panel briefly summarises Ms Joyan’s submissions of 1 May 2024 by reference to paragraph numbers:
[1]-[2] Ms Joyan submits this response to the Insurer’s application for a Panel Review of a Single Medical Assessment, which assessed her WPI at 9% for physical injuries.
[3]     Ms Joyan was injured in a motor vehicle accident on 19/12/2020.
[4]     Ms Joyan lodged an application for Assessment of Permanent Impairment with the Commission on 8 September 2022.
[5]     The insurer lodged their reply on 5 October 2022.
[6]-[7] Ms Joyan was examined by Assessor Curtin on 15 March 2024 who determined that her jaw injury constituted a 9% WPI.
[8]     On 26 April 2024, the Insurer lodged a review application.
[9]-[10] The insurer submits that a review ought to be conducted in relation to Dr Curtin’s assessment on the basis that there is a material error in the assessment due to:
(a)    Failure to have any regard to relevant documentation and evidence submitted on behalf of the Insurer and failure to respond to the Insurer’s argument on causation;
(b)    Breach of clause 1.18 of the Guidelines; and
(c)    Failure to provide an adequate path of reasoning for the determination.
[11]-[13]    Ms Joyan submits that the assessor explicitly stated in the certificate that all relevant documents were reviewed, contradicting the Insurer’s claim.
[14]-[15]    The insurer submits at 16(d) of its Submissions that the assessor incorrectly stated that Dr. Curtis’s assessed a 5% impairment and failed to question Ms Joyan on proposed treatment, which was only a medico-legal opinion.
[16]-[19]    Ms Joyan submits that the assessor, at their discretion, weighed the Insurer’s evidence and correctly referenced Dr. Curtis’s report, demonstrating due consideration.
[20]-[23]    Ms Joyan submits that the Insurer’s claim that the assessor failed to take an accurate history is incorrect, as the certificate contains a detailed assessment. No clear errors have been identified.
[24]-[27]    Ms Joyan submits that the Insurer’s argument that the assessor failed to consider documentation is incorrect. The assessor clearly referenced medical reports in his certificate, exercised discretion in weighing evidence, and did not breach the Guidelines.
[28]-[29]    The insurer claims the assessor did not address their arguments, but the law only requires adequate reasoning which, as Ms Joyan submits, was provided in the Certificate.
[30]-[31]    The assessor confirmed Ms Joyan’s condition was stable and addressed the treatment recommendations of both treating doctors and Insurer’s experts.
[32]-[33]    Ms Joyan submits that the Insurer’s argument regarding dietary limitations is baseless, as the assessor explicitly referenced Ms Joyan’s restricted ability to chew in multiple parts of the certificate.
[34] Ms Joyan submits that there have been no errors in Medical Assessor Curtin’s Certificate, and the Insurer’s disagreement with the assessment is merely a difference of opinion.
At the conclusion, Ms Joyan submits that the Insurer has failed to prove any material error in the assessment. The assessor provided a thorough review, considering all evidence and demonstrating causation. The Insurer’s application lacks merit and serves only to delay the resolution of the claim. Therefore,
Ms Joyan submits that the request for review should be dismissed.

RE-EXAMINATION BY THE PANEL

Medical Assessor Vertoudakis examined Ms Joyan on 26 November 2024.

She was accompanied to the appointment by her father.

Key points

She has seen Dr Ken Lee (Dental general practitioner) for Temporo Mandibular Dysfunction (TMD) treatment since at least 19 July 2022 (date of his report) and she has seen Dr Sadia Saeed (Psychiatrist) for even longer.
Medical Assessor Vertoudakis noted that at 22 March 2022 Dr Saeed had described
Ms Joyan’s eating pattern as:
[7]    Breakfast - 2 boiled eggs and bread.
[8]    Morning Tea – apple.
[9]    Lunch-vegetarian sandwich.
[10]     Afternoon Tea - pieces of chocolate or nothing.
[11]     Dinner-pasta bowl.
Medical Assessor Vertoudakis noted her dietitian in "appetite for change" report dated
20 May 2022 states "binge eating 2-3 weeks since November 21 where she consumes a block of chocolate and 800mls milk or family size packet of chips followed by guilt or shame".
Medical Assessor Vertoudakis noted that this is before Ms Joyan saw Dr Lee to commence treatment for TMD and over two years post motor vehicle accident and she could eat hard foods.
To date, Dr Lee has treated the TMD for over two years and Ms Joyan’s ability to chew hard foods seems to have deteriorated. On examination she stated that she avoids steak and harder foods because she feels it might hurt her and once the trigger point injections and Botox start wearing off it is more difficult to eat harder foods. However, she told Medical Assessor Vertoudakis that she can eat harder foods if she cuts them into little pieces.
Ms Joyan's TMD history is complicated. The most precise diagnosis is from Specialist Prosthodontist Dr Matthew McLaughlin who in his report of 31 January 2022 (1 year post motor vehicle accident) states with aid of the original MRI:
(a) right TMJ - displaced non-reducing disc and therefore an absence of joint sounds and limitation in opening, and
(b) left TMJ displaced disc with reduction.
He also states that the diagnosis presents as a progression of severity since the MRI of
2 November 2021.
He continues that chronicity of injury may limit chance of conservative splint therapy and maybe there is a psychological component to the TMD.
Ms Joyan's father is unsure as to why he did not follow up with Dr McLaughlin or attend referral to Professor Au (another specialist Prosthodontist) but never-the-less after a return visit to the Orthodontist at Bella Dental Care was referred to Dr Ken Lee (Dental GP) who has been treating the TMD since late 2022 with 24 hour splint therapy (note the splint for day time is a removable posterior orthotic with no anterior coverage and contacting only on the 1st molars).
Ms Joyan and her father state this has been in conjunction with trigger point injections and Botox injections 2-3 months apart in the last year and seem happy with his treatment.
Medical Assessor Vertoudakis had not seen any of Dr Lee's Clinical Notes outside of original letters sent but Dr Lee seems to have helped Ms Joyan through her initial acute pain post motor vehicle accident.

Examination

Ms Joyan states that her jaw pain increases as the trigger point and Botox injections wear off. Her anterior gape is 38mm from upper and lower anterior incisal edge and is reached with some difficulty. Normal gape is between 40 and 50mm. Medical Assessor Vertoudakis noted a very unstable occlusion which needs an immediate orthodontic opinion. The only contact on retrusive are on left and right 2nd premolars and 1st molars with an anterior open bite from the 1st premolars. The upper 2nd molars are so far palatal of the lower 2nd molars that they don't occlude. It appears that the occlusion has worsened since seeing the Bella Dental Care Orthodontist who diagnosed only a mild Class II. She had seen the orthodontist at Bella Dental Care 17 July 2021 who noted mild Class II with bilateral 7 scissor bite and referred her to Professor Au, Prosthodontist. However, Ms Joyan did not attend.
Medical Assessor Vertoudakis noted:
[7]    Pain on opening at left and right angles of jaw.
[8]    Opening and closing elicits no pain in left and right TMJs.
[9]    Small pain on palpating left TMJ at maximum opening but no click evident on opening or closing.
[10]     Right side click on maximum opening.
Ms Joyan's jaw pain has certainly improved since the acute pain immediately post motor vehicle accident under Dr Lee's care. In summary Ms Joyan has not reached maximum medical improvement (MMI), in Assessor Vertoudakis’ opinion, as:
[7]    Her current ability to chew harder foods has decreased since
22 March 2020 (see Dr Saeed's description of her daily diet).
[8]    She needs specialist orthodontic treatment to give her a stable occlusion especially posteriorly to support her TMJs.
[9]    She needs to see a specialist Prosthodontist (like Professor Au) from here on to lead to a multi-disciplinary team including Orthodontist, Maxillofacial Surgeon, Physiotherapist and Psychologist because of the complexity of the case.
[10]     Surgical intervention in the form of arthrocentesis may need to be carried out to aid in treating the internal derangement of the left and right TMJs because of the chronicity of the TMD. The specialist prosthodontist will decide then on appropriate splint therapy in discussion with a Maxillofacial surgeon and specialist Orthodontist.
In Medical Assessor Vertoudakis’ opinion, Ms Joyan's TMD will improve by more than 3% in the next 12 months under such a multi-disciplinary specialist team. Thus, she has not reached maximum MMI and so Medical Assessor Vertoudakis cannot give a WPI in this matter with the proviso that no one can force Ms Joyan to proceed to this next step as she seems to be happy with Dr Lee's treatment thus far and he may address the concerns listed in due course. Medical Assessor Vertoudakis has not seen the clinical notes or proposed treatment plan of Dr Lee.
If Ms Joyan's dental and TMJ status and ability to chew remains at her current level then
Dr Curtin’s assessment of her WPI is quite reasonable.

CONCLUSION

In the matter of clinical judgement of Medical Assessor Vertoudakis, with the most specific expertise in his field, the Panel determined that Ms Joyan’s temporomandibular dysfunction is likely to improve by more than 3% in the 12 months ensuing his examination.
For these Reasons, in order to determine the extent of Ms Joyan’s WPI, it will be necessary to have a further examination in or about November 2025.

[2025] NSWPICMP 153

11 March 2025