Rowland v AAI Limited t/as GIO
[2025] NSWPICMP 178
•18 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Rowland v AAI Limited t/as GIO [2025] NSWPICMP 178 |
CLAIMANT: | Nakitia Rowland |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Geoffrey (Paul) Curtin |
MEDICAL ASSESSOR: | Michael McGlynn |
DATE OF DECISION: | 18 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment dispute; motor accident caused airbag to deploy striking claimant in the nose; CT scan showed a deviation of the bony nasal septum to the right causing early compromise to the right nasal passage; Review Panel examination revealed moderate obstruction of the right nasal airway; under clause 6.199 of the Motor Accident Guidelines the Review Panel noted that significant partial obstruction of the right and/or nasal cavity is assessed at 0-5% whole person impairment (WPI); Review Panel considered the degree of partial obstruction of the right nasal airway is moderate in extent and the impairment fell in the middle of the range at 3% WPI; this was the same assessment as the medical assessment under review and the Review Panel therefore confirmed the certificate; it was noted that the claimant’s other orthopaedic injuries were assessed at 7% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate issued by Medical Assessor Payten dated 30 May 2024, namely that: The following injury: (a) Nose (deviation of the nasal septum causing obstruction to the airway) is causally related to the motor accident of 9 December 2021 and results in a whole person impairment of 3%. |
STATEMENT OF REASONS
INTRODUCTION
Nakitia Rowland (the claimant) was involved in a motor accident on 9 December 2021. She was the front seat passenger in a vehicle driven by her friend when a vehicle pulled out in front and collided with the driver’s side. Airbags were deployed striking the claimant in the face and chest. She says she sustained injuries to her nose and air passage, chest, both shoulders, neck, lower back, both knees as well as psychological injury.
The claimant made a claim for personal injury benefits with GIO, the third-party insurer of the vehicle that she says caused the accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. This is relevant because if there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination.
[1] See Division 4.3 of the MAI Act.
Accordingly, the medical dispute was referred to the Personal Injury Commission (Commission) for medical assessment. Due to the nature of the claimant’s injury involving different body systems, the claimant was referred to multiple Medical Assessors.
On 15 May 2024, Medical Assessor Home found the claimant had a WPI of 7% in respect of the injuries to the claimant’s chest, neck, lower back, both shoulders and both knees.
On 30 May 2024, Medical Assessor Payten found the claimant had a WPI of 3% in respect of the injury to the claimant’s nose.
On 5 June 2024, Medical Assessor Home issued a combined certificate, combining his assessment with that of Medical Assessor Payten’s and determined the claimant’s combined WPI to be 10%.
On 20 June 2024, Medical Assessor Jones found the claimant had a WPI of 5% in respect of the claimant’s psychological/psychiatric injury.
MEDICAL ASSESSMENT UNDER REVIEW
The claimant lodged an application with the Commission seeking a review of Medical Assessor Payten’s assessment of the injury to the claimant’s nose.
On 7 August 2024, a delegate of the President accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.
Medical Assessor Payten examined the claimant and noted her complaints of right-sided nasal obstruction causing snoring which was not present before the motor accident.
Clinical examination revealed a “moderate right-sided nasal obstruction causing a diminished airflow of the right side as compared to the left…”
A CT scan of the facial bones performed on 24 January 2023 was noted by the Medical Assessor to show “…a marked soft tissue swelling over the right orbit in keeping with the haematoma. There is no associated fracture. There was a deviation of the bony septum to the right causing early compromise to the right nasal passage…”
Under the heading ‘Causation and reasons’, the Medical Assessor found:
“The cause of the deviated nasal septum has been trauma to the nose from an airbag hitting her face at the time of the accident. The reason for my opinion about causation is from the history given of bleeding from the nose immediately after the accident and right nasal airway obstruction after the accident as compared to no airway obstruction prior to the accident.”
Under the heading ‘Diagnosis and reasons’, the Medical Assessor found:
“The diagnosis is deviation of the nasal septum to the right side causing a moderate impairment of the right nasal airway. There is no mucosal swelling of the lining of the nose to account for any airway blockage. The right nasal airway obstruction caused by deviation of the nasal septum to the right is the result of trauma to the nasal septum causing an epistaxis immediately after the accident.”
In the ‘Permanent Impairment Table’, the Medical Assessor referred to the cl 6.199 of the Motor Accidents Guidelines (version 9.2) (Guidelines) and paragraph 9.3a, table 5, page 231 of the AMA 4 Guides and assessed the claimant’s nasal airway obstruction injury at 3% WPI.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant reproduces cl 6.199 of the Guidelines in full:
“When Table 5 (p231, AMA 4 Guides) is used for the evaluation of air passage defects, these Guidelines allow 0 – 5% WPI where there is significant difficulty in breathing through the nose and examination reveals significant partial obstruction of the right and/or left nasal cavity or nasopharynx, or significant septal perforation.”
The claimant says Medical Assessor Payten’s assessment of 3% represents a midpoint of the range of assessments. Given the claimant’s age (46 at the date of injury) and the fact that she has continued to suffer symptoms as well as snoring since the motor accident, it is submitted Medical Assessor Payten fell into error in assessing the impairment as halfway in the range of 0 – 5% WPI.
In addition, the claimant says the Medical Assessor failed to consider or obtain and history of the presence or absence of dyspnea. The claimant notes that Table 5, p 231 of the AMA 4 provides Class 2 11-29% WPI range if dyspnea “is produced by stress, prolonged exertion, hurrying, hill climbing, recreation except sedentary forms, or similar activity”. The claimant submit that had the Medical Assessor obtained a history as he was required to do so, the assessment of WPI may have been assessed in Class 2 11-29%.
Insurer’s submissions
The insurer’s original application submissions state that the claimant’s injury to her nose is an abrasion from the airbag would have resolved within a few weeks after the motor accident. This is consistent with the history taken by Medical Assessor Hyde-Page on page 34.
The insurer says the claimant has not served any qualified medical evidence that diagnosed a more significant injury or obtained any treatment or radiological scans in the immediate period following the motor accident.
The insurer’s review reply submissions contend that the claimant disagrees with the assessment of 3% WPI without pointing to any error in the assessment. The insurer refers to the Medical Assessor’s reasons for assessment and submits that the Medical Assessor was entitled to come to the view that he did, given the contemporaneous evidence, his clinical examination and in accordance with cl 6.199 of the Guidelines.
In relation to the claimant’s alleged presence of dyspnea, the insurer says the claimant did not provide any detailed submissions regarding dyspnea or provided any evidence from a qualified ear, nose and throat surgeon in her application.
The insurer refers to the criteria for Class 2, 11-29% pursuant to Table 5 on page 231 of the AMA 4 Guides as follows:
“A recognised air passage defect exists.
Dyspnea does not occur at rest.
Dyspnea is not produced by walking freely on the level, climbing at least one flight of ordinary stairs, or the performance of other usual activities of daily living.
Dyspnea is produced by stress, prolonged exertion, hurrying, hill climbing, recreation except sedentary forms, or similar activities.
Examination reveals one or more of the following: partial obstruction of oropharynx, laryngopharynx, larynx, upper trachea (to fourth ring), lower trachea, bronchi, or complete obstruction of the nose (bilateral) or nasopharynx.”
The insurer says the Medical Assessor’s clinical examination revealed a moderate right sided nasal obstruction however not a complete obstruction. There was no complaint by the claimant of dyspnea produced by stress, prolonged exertion, hurrying, hill climbing, recreation or similar activity as required for a Class 2 impairment under AMA 4 Guides.
The insurer submits that there is no error in the assessment of Medical Assessor Payten, material or otherwise.
REVIEW OF THE EVIDENCE
General observations
On 16 August 2024, the Panel issued a direction to the parties requesting indexed and paginated bundles of the information they relied upon. Both parties duly responded with the claimant’s bundle comprising of pages 1-461 and the insurer’s bundle pages 1-538.
The Panel notes that the documentation is voluminous, much of which are not relevant to the injury to the claimant’s nose. The Panel will only refer to the material that are relevant to the matters to be determined with respect to the assessment under review.
Medical evidence relating to the nose
The ambulance report on the day of the motor accident states that the claimant had a “graze to nose from airbag deployment”.
In the GP notes of Dr Ganesh, there is an entry dated 10 December 2022 which states “nose injury – tip of the nose”.
The police report dated 22 February 2022 noted that there was an abrasion to the nose most likely from the airbag.
The claim form dated 3 March 2022 was completed by the claimant and describes her injury as… “Had bleeding nose at time of accident”.
On 21 December 2022, Medical Assessor Hyde-Page provided an assessment of what was previously termed “minor injury” (now threshold injury). Included within that assessment was a finding that the graze to the nose settled in a week or two without any need for treatment or investigations. The Medical Assessor concluded that the injury was a minor (threshold) injury.
Radiology
The only radiology available to the Panel is a CT Facial Bones dated 24 January 2023 which is summarised in the below Panel re-examination report.
PANEL RE-EXAMINATION REPORT
Following its preliminary conference and report dated 14 November 2024, the Panel determined that the claimant be re-examined. The re-examination was conducted by Medical Assessor Curtin in his rooms on 7 March 2025. The re-examination report is as follows:
The claimant's medical history, where it differs from previous records.
Ms Rowland said that she was a front seat passenger in a car which collided with the side of another vehicle at an intersection. She said that when the impact occurred she was turning around in her seat to give a drink to her grandson sitting in the back. She was restrained by a seatbelt, and the impact triggered an airbag which struck her in the chest and face. She said that her nose was sore afterwards and that she had abrasions on the bridge of her nose, but that she did not remember any bleeding from her nose at the time of the accident.
Following the accident, she was taken by ambulance to the John Hunter Hospital. The ambulance report recorded that Ms Rowland complained of abrasions to her nose from the airbag together with tenderness of the left shoulder and pain in the mid sternal area. Ms Rowland was treated in the emergency Department at the hospital. The hospital records contain no reference to any nasal injury and mentioned that there was no history of any head strike or loss of consciousness. Ms Rowland discharged herself from hospital the same day because she had concerns about an aggressive patient in a bed next to hers. She consulted her GP, Dr Ganesh, the next day, and his medical records noted the history of injury to the tip of her nose, but made no mention of the nose in his physical examination at the time.
Ms Rowland said that she became aware of some difficulty breathing through her nose after the accident, symptoms which she had never noted before. She said that that as far as she was aware she had never previously sustained any significant injury to her nose. She said that since the accident, her husband had became aware of her snoring at night, something he had never mentioned before.
In January 2023 she had a fall during an epileptic fit, and hit her face. She said that the impact caused her nose to bleed, and that she subsequently developed a “black eye” on the right side, but not on the left.
Current complaints.
Ms Rowland said that at the present time she was only aware of difficulty breathing through her nose from time to time when her nose was blocked. She said that she was not aware of any breathing problems generally, and that she did not get short of breath when she walked. She said that she only experienced breathing problems when she had a flareup of her asthma.
Additional history since the original Medical Assessment Certificate was performed.
There has been no further surgical or medical treatment since the assessment by Dr Payten in May 2024.
Findings on clinical examination.
Ms Rowland was a fit looking Caucasian lady of 49 years. She had dark hair, tanned complexion and a BMI of 35.9 (100 kg and 167 cm).
Examination of her nose revealed a slight deviation of the nasal bridge line to the left, but no evidence of any scarring or altered pigmentation. There was moderate obstruction of the right nasal airway due to septal deviation.
Investigations
CT facial bones 24/01/2023 (clinical history-following seizure X 2): there is marked soft tissue swelling over the right orbit in keeping with haematoma. There is no associated fracture. There are mucosal changes within the maxillary antra. There is deviation of the bony nasal septum to the right causing an early compromise to the right nasal passage. Aeration of the middle terminates. There is increased soft tissue density in relation to the left inferior turbinate presumably inflammatory. There has been previous surgery on the left.
Estimation of impairment.
With regard to air passage defects, the Motor Accident Guidelines (para 6.199) refer the assessor to Table 5, p231 AMA4 Guides, which lists 5 classes of increasing impairment. The partial nasal airway obstruction in this case falls into the Class I category, which AMA 4 states should allow for 0-10% WPI. There is no evidence that this lady suffers from dyspnoea as a result of the accident, a development which might place her impairment in a higher classification. The MA Guidelines however state that when there is significant partial obstruction of the right and/or left nasal cavity, the impairment range is restricted to 0-5% WPI. As the degree of partial obstruction of the right nasal airway is moderate in extent, the impairment falls in the middle of the range at 3% WPI.
CONSIDERATION OF THE ISSUES
Causation and diagnosis
Causation is dealt with at cls 6.5-6.7 of the Guidelines. An abridged form of the requirements is contained in cl 6.7 which states:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
The Panel noted the motor accident was of an impact that caused the airbags to deploy which caused an injury to the claimant’s nose. She subsequently had some difficulty breathing through her nose and increased snoring, symptoms that she never had before. CT scan of the facial bones performed on 24 January 2023 reported deviation of the bony nasal septum to the right causing early compromise to the right nasal passage.
The Panel therefore accepts that the motor accident could have and in fact did cause an injury to the claimant’s nose and that the cause of the deviated nasal septum was from trauma to the nose from the airbag hitting her face at the time of the accident.
The diagnosis is injury to nose (deviation of nasal septum causing obstruction to airway).
Assessment of permanent impairment
The assessment of the degree of permanent impairment is to be made in accordance with the Guidelines.[2]
[2] See section 7.21 of the MAI Act.
Version 9.3 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.
Nose – obstruction to airway
Clause 6.199 of the Guidelines provides:
6.199When Table 5 (page 231, AMA 4 Guides) is used for the evaluation of air passage defects, these Guidelines allow 0-5% WPI where there is significant difficulty in breathing through the nose and examination reveals significant partial obstruction of the right and/or left nasal cavity or nasopharynx, or significant septal perforation.
With regard to air passage defects, cl 6.199 of the Guidelines refers the Medical Assessor to Table 5, p231 AMA 4 Guides, which lists 5 classes of increasing impairment. The partial nasal airway obstruction in this case falls into the Class I category, which AMA 4 states should allow for 0-10% WPI. Clause 6.199 of the Guidelines however state that when there is significant partial obstruction of the right and/or left nasal cavity, the impairment range is restricted to 0-5% WPI. As the degree of partial obstruction of the right nasal airway is moderate in extent, the impairment falls in the middle of the range at 3% WPI.
Although the Panel has arrived at its own conclusion, its findings are consistent with the assessment of Medical Assessor Payten who has reasonably allowed for 3% WPI because examination of the nasal airways showed a moderate right sided nasal obstruction causing a diminished airflow on the right side as compared to the left. In addition, a CT scan of the facial bones on the 24 January 2023 reported deviation of the bony nasal septum to the right causing early compromise of the right nasal passage.
The submissions regarding the claimant’s increased snoring and age were considered by the Panel. The increased snoring noticed by the claimant’s husband could be due to the moderate right sided nasal obstruction as a consequence of the injury. However, it does not attract any separate or additional impairment under the permanent impairment criteria in Table 5 of AMA 4 and cl 6.199 of the Guidelines, nor is age a relevant factor to be considered in the impairment evaluation.
Dyspnoea
The Panel acknowledges the insurer’s submission that there were no detailed submissions regarding the presence of dyspnoea or that such submissions are supported by a report from an ear, nose and throat specialist. However, the Panel felt that since the presence or absence of dyspnoea can attract a higher impairment category which, notably, is also assessed in Table 5, it was a matter that should be addressed.
There is no evidence that this lady suffers from dyspnoea as a result of the accident. The claimant gave a history to the Panel’s Medical Assessor that she was not aware of any breathing problems generally, and that she did not get shortness of breath when she walked. Breathing problems due to a flareup of asthma is not related to the motor accident.
CONCLUSION
The claimant’s WPI as a result of the motor accident is 3%. The Panel therefore confirms the certificate of Medical Assessor Payten dated 30 May 2024.
There is no change to the injury, description of the injury or the impairment percentage. Hence, there is no requirement to issue a new combined certificate.
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