Rios v AAI Limited t/as AAMI
[2023] NSWPICMP 369
•2 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Rios v AAI Limited t/as AAMI [2023] NSWPICMP 369 |
| CLAIMANT: | Ibrahim Rios |
INSURER: | AAI Limited t/as AAMI |
| REVIEW Panel | |
| MEMBER: | Terence O'Riain |
| MEDICAL ASSESSOR: | Geoffrey (Paul) Curtin |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 2 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAIA); this was a dispute about whether the claimant suffered a threshold injury in the motor accident; the claimant sustained right side upper and lower limb injuries in motor accident and submitted he sustained non-threshold injuries including a right leg laceration; claimant submitted skin injury satisfies threshold injury definition; Eftikhari v AAI Limited t/as AAMI on purpose of the MAIA considered; Held – the Panel found skin injury is a threshold injury unless the injury to the skin also involves an injury to nerves demonstrated with sensory loss, or a complete or partial rupture of tendons, ligaments, menisci or cartilage; Panel not satisfied the claimant’s injuries fit definition; the accident caused all the alleged injuries; all injuries are soft tissue under section 1.6. |
| DETERMINATIONS MADE: | DETERMINATION The Review Panel confirms Medical Assessor Home’s certificate dated 15 November 2022. · right arm – soft tissue injury; · right knee – soft tissue injury; · right ankle – soft tissue injury, and · right leg – soft tissue injury. These are THRESHOLD INJURIES for the purposes of the Motor Accident Injuries Act 2017. . |
REASONS
INTRODUCTION
Mr Ibrahim Rios (the claimant) sustained injuries in a motor bike accident on 21 November 2020. He was riding in the company of a friend who was on a separate motorbike. Mr Rios was the helmeted rider of a Kawasaki 250cc motorbike travelling along Belmore Road in Riverwood, when a car travelling the opposite direction turned right, striking his motor bike which caused him to fall. He recalls early pain in his right shoulder and right leg.
An ambulance took him to Liverpool Hospital, where he was assessed. X-ray and CT scan imaging of the right leg did not reveal any fracture. There was a 4cm anterior shin wound, which required suturing in the Emergency Department. He was given antibiotics. He was subsequently discharged on 25 November 2021.
He came under the care of his general practitioner (GP). He recalls persistent pain in the right leg and right shoulder. He was referred to a physiotherapist, whom he attended for three months in early 2021 with some benefit. He reports there has been no treatment since then.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages/statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
There is a dispute about whether the motor accident caused injury that could be classified as threshold injuries under Schedule 2, s 2(e) of the MAI Act.
The Motor Accident Injuries Amendment Bill 2022 amended the MAI Act on 1 April 2023 to substitute the term “threshold” for “minor”. The terms are interchangeable. This decision will retain the former term when talking about the decision this Panel is reviewing, but the current term will be used when addressing our certificate.
The Personal Injury Commission (Commission) referred the following to Medical Assessor Alan Home to assess:
· whether the right ankle soft tissue injury caused by the motor accident is a minor injury for the purposes of the MAI Act;
· whether the right arm soft tissue injury caused by the motor accident is a minor injury for the purposes of the MAI Act;
· whether the right knee soft tissue injury caused by the motor accident is a minor injury for the purposes of the MAI Act;
· whether the right leg injury – laceration and scarring injury caused by the motor accident is a minor injury for the purposes of the MAI Act, and
· whether the thoracic spine soft tissue injury caused by the motor accident is a minor injury for the purposes of the MAI Act.
Medical Assessor Home conducted the original medical assessment on 11 November 2022 and produced a certificate dated 15 November 2022. Medical Assessor Home found that the accident caused all of the injuries noted above except for thoracic spine and right arm injuries. He assessed the remaining injuries as minor injuries for the purposes of the MAI Act.
The claimant applied to the Commission to refer Medical Assessor Home’s certificate to a Review Panel (the Panel), which was within 28 days after the parties were issued with the original certificate.[1]
[1] Section 7.26(10) of the MAI Act.
On 13 December 2022, the President’s delegate referred the medical assessment to a Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
The President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Home’s certificate (the Review).
Legislative framework
Statutory provisions
At the time this dispute became apparent s 1.6 of the MAI Act defined a minor or threshold injury as a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act should be based on the evidence available and include all relevant findings derived from:
a comprehensive accurate history, including pre-accident history and pre-existing conditions
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in clause 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(e) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means the injury are to be assessed as a minor injury. They are now described as a threshold injury.
Part 5 of the Personal Injury Commission Act 2020 (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 merit reviewer or a Medical Assessor.[3]
[3] Section 41(2) of the 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether they were threshold or satisfying the threshold as defined under the MAI Act.
The Review Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[5] and Insurance Australia Ltd v Marsh.[6]
[5] [2021] NSWCA 287 at [40], [41] and [45].
[6] [2022] NSWCA 31 at [11], [21] and [64].
The Review Panel adopts the reasoning in David v Allianz Australia Ltd[7] that radiculopathy can be present at any time to satisfy the concept that the injury is not threshold for the purposes of the MAI Act.
[7] [2021] NSWPICMP 227 at [84]-[104].
We also adopt the reasoning in Lynch v AAI Ltd[8] that the claimant bears the onus of proof in establishing any injury is not a threshold injury for the purposes of the MAI Act.
[8] [2022] NSWPICMP 6 at [44]-[62].
Review
Assessment under Review
Medical Assessor Home’s certificate outcome is set out above.
Documentation
The Review Panel considered the following documentation:
(a) Medical Assessor Home’s certificate dated 15 November 2022;
(b) Application for review and attached documents;
(c) Reply and attached documents;
(d) Presidential delegate’s reasons dated 7 February 2023 referring this matter to a Review Panel, and
(e) all the documents which were provided to Medical Assessor Home before the assessment under review.
Additional evidence not before the Medical Assessor was:
(a) Dr Samer Elhafi, GP’s Certificate of capacity/certificate of fitness dated
17 April 2021, and(b) photo depicting scarring of the claimant’s right lower limb received on
22 June 2021.
Review Panel considerations and decisions
The Panel met on 8 March 2023 via Teams to discuss how this matter would proceed.
The Panel considered that the only injury that could be re-assessed as non-minor is the right leg laceration.
The Panel considered re-examining the claimant was necessary because it is necessary to test whether nerve damage occurred. It was also noted that the applicant has only made submissions in respect of Medical Assessor’s Home’s errors in respect of the laceration. It was apparent that was the only dispute.
The Panel notes s 7.26 of the Motor Accident Injuries Act 2017 is concerned with the referral of medical assessments, not medical disputes. Once a review application of a medical assessment is accepted, the Review Panel is to re-determine all the matters of the original medical assessment.
Section 7.26(6) of the MAI Act states as follows:
“The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.”
The parties were asked to agree they will accept findings in respect of the right knee, ankle and shoulder which confirm the earlier assessment.
The parties declined to agree to that and sought a complete re-examination of all the referred body parts. This was addressed in the submissions below.
Medical Assessor Curtin re-examined the claimant on behalf of the Panel on 23 June 2023 at 9am.
The claimant was directed to take all his relevant imaging studies to the appointment.
The parties were given the opportunity to provide further submissions, which are summarised below.
Submissions
Claimant’s submissions
Medical Assessor Home found that the claimant's right leg injury was a minor injury and provided the following reasons for this finding:
“I am satisfied the injuries meet the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage. There is a defect in the deep fascia of the lateral compartment of the right leg, however, such as fascia/ injury is a soft tissue injury in accordance with the definitions of Section 1.6(2)” (page 8).
These reasons show that the Medical Assessor failed to address the claimant's injury to the skin. He has not assessed the scarring that stretches over the underlying deeper soft tissue injuries referred to above.
Section 1.6(1) of the MAI Act states that a soft tissue injury is a minor injury. A soft tissue injury is defined in section 1.6(2) as follows:
"A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage."
Clause 4(1) of the MAI Regulations also provides that: "An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act".
From the very definition of a minor injury it is clear that if the injury is to an organ itself rather than to the tissues that connect, support or surround other structures or organs of the body, then the injury is non-minor. The skin is the largest organ in the body.
Here there was a deep penetrating laceration to the skin on the right shin. That is enough to constitute an injury to an organ, that is the skin, which must be a non-minor injury because minor injuries only apply to soft tissue injuries which are defined to mean injuries to tissues that support or surround organs of the body not to organs themselves.
The Medical Assessor has only assessed the soft tissues below the skin in his assessment of the right lower extremity. He has not assessed the injury to the skin itself which is the relevant organ. Indeed in this case the injury to the skin was so severe that it has left permanent disfiguring scarring. The Medical Assessor acknowledges this but because he has failed to appreciate that the skin itself is an organ he has led himself into error by focusing only on the subcutaneous aspects of the injury. That is why he refers to a defect in the underlying deep fascia of the lateral compartment of the right leg. Whilst that is no doubt true it is not the full picture. The only way there can be a defect in the deep fascia of the lateral compartment of the right leg is if the skin is first penetrated and lacerated which is precisely what occurred here. And because the skin in an organ this must by definition be a non-minor injury.
The claimant made additional submissions[9] that he does not agree to accept the previous findings that the right knee, shoulder and ankle are soft tissue injuries. The claimant relies upon s 7.26 (6) of the MAI Act in this regard which states that:
“The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.”
[9] AD1.
In accepting this review application the President’s delegate was satisfied that there was reasonable cause to suspect that the previous medical assessment was incorrect in a material respect (paragraph 9 of her reasons). This finding causes the claimant a sense of unease about the entire previous medical assessment. The claimant therefore seeks a re-determination of all matters with which the original medical assessment is concerned as is his right under s 7.26 of the MAI Act.
The claimant’s submissions dated 8 June 2021 set out the claimant suffered injuries to the right leg, knee, ankle, back, right arm and shoulder as well as scarring to the right leg.
There was a photo depicting scarring taken on 13 April 2021 attached to the Application.
It was submitted that as the skin is the largest organ of the body and has been penetrated and wounded in the accident, the scar qualifies as a non-minor injury.
There is documented ongoing complaints of pain and symptoms from the abovementioned injury.
There was ongoing treatment from the GP and physiotherapist. There were symptoms of numbness and tingling in the right leg from the scarring of the right leg down to the right ankle.
Insurer’s submissions
The insurer refers to the early treatment at Liverpool Hospital, including a right shin wound laceration 3-4cm in length that requires sutures. No other trauma was sustained at the right leg.
The insurer submits that the claimant’s right leg or shin injury is a minor soft tissue injury and is not a nerve injury or complete partial rupture of tendons, ligaments, menisci or cartilage as stated in s1.6 of the Motor Accident Guidelines.
The insurer refers to and relies upon the Commission’s Review Panel decision in Eftikhari v AAI Limited t/as AAMI [2023] NSWPICMP 93 (Eftikhari). The panel determined that accepting the claimant’s position in that case that any skin injury was a non-threshold injury would result in an interpretation of the MAI Act that would be ‘manifestly absurd or unreasonable’:
“[119] On further review the Panel considers it simplistic to simply say the skin is an organ and therefore, any injury to the skin no matter how minor would be excluded from the definition of “minor injury”…[121] The Panel notes that the definition of “soft tissue injury” in s 1.6(2) of the MAI Act refers to an injury to tissue that connects, supports or surrounds other structures or organs of the body. As the insurer submits the skin is made up of three layers of tissue, the epidermis, the dermis and the hypodermis which support and surround other structures and whether or not the skin is also designated as an organ it is only excluded from the definition of “soft tissue injury” if there is “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”…[122] The Panel is satisfied that injury to the skin as an injury to connective tissue which connects, supports and surrounds other structures is a minor injury unless the injury to the skin also involves an injury to nerves (which would be evidenced by sensory loss), or a complete or partial rupture of tendons, ligaments, menisci or cartilage…[125] The Panel considers this conclusion is consistent with the purpose of the MAI Act, as outlined in the Ministers second reading speech and with the objects of the Act as set out in s 1.3. Section 1.3(3) acknowledges that in the application and administration of the Act all participants in the third-party insurance scheme have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds…”
Note how the claimant’s GP diagnosed right knee strain, right ankle strain, right arm strain, right shoulder strain.
Based upon the information in the hospital Discharge Summary, the treating general physician and the physiotherapist notes those injuries are of minor nature.[10]
[10] R1 pages 4–7.
The insurer submits there is no evidence to suggest that the claimant sustained a specific injury to the thoracic spine or back.
REVIEW PANEL FINDINGS
Pre-accident medical history and relevant personal details
History of the motor accident
Mr Rios was injured in a motor vehicle accident on 21 November 2020. He was riding a motorcycle when a car coming from the opposite direction turn right in front of him resulting in a collision. He was able to remember the accident quite clearly and does not remember suffering any head injury. He remembers feeling that he could not breathe, and that he could not stand on his right leg which was painful. He said that his right shoulder was also painful and that apart from a few scratches on his back there were no other injuries.
History of symptoms and treatment following the motor accident
The ambulance took him to Liverpool Hospital where he was admitted. He was fully conscious, and the hospital discharge summary describes a right-sided pretibial laceration extending for 3-4 cm. The wound was cleaned and sutured in the emergency department. There was a full range of movement in the right knee and ankle, and hip flexion was in the range 0-80° but no hip joint irritability was noted. There is no evidence of an effusion in the right knee, no medial or lateral tenderness and no gross ligamentous instability. X-rays of the right hip/femur, knee, tibia, ankle, and foot revealed no evidence of fracture or dislocation. Some swelling of the right upper and lower leg compartments was noted.
The hospital record noted Mr Rios complaint of pain in his right elbow.
No tenderness was noted in the midline of the cervical, thoracic, or lumbar spine, and a full range of movement of cervical spine was recorded. There was a road rash to the left flank and posterior shoulder. He remained in hospital for four days because he had trouble mobilising due to ongoing pain from the soft tissue injuries to his right lower leg. He was reviewed by the orthopaedic team, who were happy for him to be discharged to the care of his GP once he was able to mobilise.
Following his discharge from hospital he consulted his GP who provided wound care and arranged for him to have a course of physiotherapy over the following three months.
A personal injury claim form dated 9 December 2020 does not list Mr Rios’ injuries. However, the claim form includes a diagram which indicates symptoms of pain affecting his right arm right leg and lower back.
An Allied Health Recovery Request dated 18 February 2021 indicate that Mr Rios had been treated for symptoms of discomfort affecting his right shoulder, right arm and right ankle and submitted a request for a further four weeks treatment. Mr Rios said that he was slow to recover from the injury to his right leg, and that the injury caused him to abandon and a carpentry apprenticeship that he had recently started. The accident also caused him to cease weight training in the gym.
There have been no relevant injuries or conditions sustained since the motor accident.
Current symptoms
Mr Rios said that he was aware of persistent scarring on his right lower leg because of the injury, and that this area was still sensitive to knocks and bumps. He said that with prolonged walking, he has noticed a burning sensation in the right lower leg. He said that his right knee was not painful but that at times it felt “weird”. He said that his right ankle was still weak, and he thought that the right calf had shrunk to some extent. He said that his right shoulder caused him no problems although he noted some discomfort when the shoulder was in certain positions. He made no complaints in relation to his right arm or about his thoracic spine.
Current and proposed treatment
Mr Rios is not currently receiving treatment and there is no further treatment proposed.
Clinical examination
General presentation
Mr Rios was accompanied by his mother (Ms Hiba Rios) and he arrived some 30 minutes late for the assessment. He was a heavily built young Caucasian man of 19 years with a fair complexion, a large mass of dark curly hair, a short beard. His BMI is 35.9 (175 cm and 110 kg). He was more muscular than fat.
Thoracic spine (thoracolumbar)
There were no radicular complaints. There was a full range of movement with no evidence of dysmetria, and no evidence of muscle guarding.
Upper extremity
Shoulder movements were symmetrical and were unrestricted apart from a minor loss of abduction on both sides. There was also a full range of symmetrical movement of the elbows, wrists and hands. There were no sensory losses in the right upper limb, and deep reflexes were present and symmetrical.
Lower extremity
There was a full range of symmetrical movement of the hips, knees, ankles and toes. Symmetrical brisk knee and ankle deep reflexes were present. Maximum circumference of the right calf was 41 cm compared to 42 cm on the left.
On the midline of the anterior aspect of the lower third of the right lower leg there was a noticeable scar extending vertically for 6 cm. The scar was flat, soft, lightly pigmented with no obvious suture marks, and was non-tender to gentle palpation. There was altered sensation in the immediate vicinity of the scar, but normal sensation was present in the skin immediately adjacent. With the leg lying flat, there was no obvious contour deformity, but when he stood up, a localised mild swelling became apparent immediately lateral and above the above-mentioned scar. The swelling protruded no more than a centimetre and extended in rectangular fashion for 12 x 4 cm. The appearance of this swelling was consistent with a muscle hernia. The surface of the swelling showed mild surface irregularities and pigmentation consistent with a prior abrasion.
On the medial aspect of the right lower leg just below the knee, there was a depressed atrophic scar extending for 3 cm. Mr Rios was not sure how this scar originated.
Comments on consistency
Mr Rios’s history and the examination findings were presented in a consistent manner.
Conclusions
There is evidence that Mr Rios sustained soft tissue injuries to his right shoulder and right leg, including the knee and ankle. There is no evidence that he sustained any injury to his thoracic spine.
The sensory loss is confined to the immediate vicinity of the scar and is not evidence of any significant nerve injury. There was some sensory loss in the immediate vicinity of the scar itself as is generally found with any scar, but there was no extension of the sensory loss that would suggest injury to any nerve or major branch of a nerve.
Panel deliberations
Panel decision
The Panel met on 1 August 2023 to discuss the examination report.
The Panel adopted Medical Assessor Curtin’s examination report as evidence in this dispute.
The Panel adopted the report’s conclusions regarding the injuries and made the following determination.
Determinations
Diagnosis and reasons
Based on the available medical information, Mr Rios suffered soft tissue injuries as follows:
Right shoulder:
(a) The injury listed above is a threshold injury. The Panel is satisfied the injury meets the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
Right knee:
(b) The injury listed above is a threshold injury. The Panel is satisfied the injury meets the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
Right ankle:
(c) The injury listed above is a threshold injury. The Panel is satisfied the injury meets the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
Right leg:
(d) The injury listed above is a threshold injury. The Panel is satisfied the injury meets the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage. There is a defect in the deep fascia of the lateral compartment of the right leg, however, such a fascial injury is a soft tissue injury in accordance with the definitions of s 1.6(2). Further, there is no evidence of radiculopathy in relation to the right lower extremity.
Causation and reasons
The motor accident that has been described could cause the referred injuries and the injuries are all documented in the contemporaneous documentation.
Summary of injuries referred by the parties
The motor accident caused the following injuries:
· right shoulder – soft tissue injury;
· right knee – soft tissue injury;
· right ankle – soft tissue injury, and
· right leg – soft tissue injury.
The motor accident did not cause injury to the right arm and thoracic spine.
Threshold injury
The assessment of whether an injury is a ‘threshold injury’ is not a direct measure of the claimant’s symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that the motor accident caused injury and there may be continuing symptoms. However the injury satisfies the definition of a threshold injury under the MAI Act and the Regulation.
This Panel agrees with the decision in Eftikhari in that a skin injury is a threshold injury unless the injury to the skin also involves an injury to nerves demonstrated with sensory loss, or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
This Panel agrees this is consistent with the MAI Act’s purpose.
For the reasons mentioned above these injuries are classified as ‘threshold’ following s 1.6 of the MAI Act.
Conclusion – threshold injury
The following injuries are threshold injuries:
· right shoulder – soft tissue injury;
· right knee – soft tissue injury;
· right ankle – soft tissue injury, and
· right leg – soft tissue injury.
Review panel certification
Threshold injury
The Review Panel’s findings in relation to the threshold injury confirms Medical Assessor Home’s certificate.
Member O’Riain, Medical Assessors Curtin and Kenna agree with this outcome.
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