Tasseli v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 49
•24 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Tasseli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 49 |
CLAIMANT: | Anthony Tino Tasselli |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 24 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; causation; right hand; removal of pre-accident metacarpal plate and screw; artificial aid; surgery; surgical scarring; the claimant suffered injury in a motor vehicle accident on 22 January 2023; Medical Assessor (MA) Kuru certified injuries to cervical spine, thoracic spine, lumbar spine, left shoulder, the chest, the abdomen, the right knee and the right hand were threshold injuries; claimant application for review; parties agreed to limit dispute to assessment of threshold injury to the right hand; whether injury to right hand caused by accident; whether surgery to remove pre-existing right little finger metacarpal plate and screws caused by accident; Held – increased lucency, pain and swelling established accident did cause or contribute to loosening of attachment of the plate/screws to bone; metacarpal plate and screws falls into definition of artificial aid; damage to aid which constitutes injury in accordance with section 1.6; not necessary to determine whether consequential surgery or subsequent surgical scarring could be person or bodily injury but note comments of Stern JA in Mandoukas v Allianz Australia Insurance Limited; alteration in bone structure of the fifth metacarpal bone caused by loosening of the screws and plate is a non-threshold injury; in the alternative injury by reason of damage to an aid is not a soft tissue injury and would constitute a non-threshold injury; certificate of MA Kuru revoked; finding of non-threshold injury in respect of right hand. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Kuru dated 1 July 2024 and certifies the following injuries caused by the accident were threshold injuries: (a) cervical spine orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy; (b) thoracic spine orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy; (c) lumbar spine orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy; (d) left shoulder – orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement, referred pain from cervical spine; (e) chest orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement; (f) abdomen soft tissue injury, aggravation and acceleration of degenerative changes, pain and restricted movement, and (g) right knee – aggravation and acceleration of degenerative changes, pain and restricted movement. 2. The Review Panel certifies that the injury to the right hand, namely to the 5th metacarpal and damage to the 5th metacarpal plate and screws is not a threshold injury. |
STATEMENT OF REASONS
INTRODUCTION
On 22 January 2023 Mr Anthony Tino Tasselli (the claimant) was the driver of a motor vehicle
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay statutory benefits to Mr Tasselli under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
Mr Tasselli submitted an Application for personal injury benefits dated 31 January 2023.
On 18 May 2023 the insurer determined that Mr Tasselli had sustained a threshold injury and denied liability for statutory benefits beyond 26 weeks after the accident.
Mr Tasselli sought an Internal Review of the threshold injury decision and on 16 June 2023 the insurer affirmed the determination that the claimant’s injuries met the definition of a threshold injury.[2]
[2] Claimant’s bundle p 20.
On 21 February 2024 Mr Tasselli filed an application in the Personal Injury Commission (Commission) in respect of the threshold injury dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
[3] Section 7.20 of the MAI Act.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
On 9 September 2024 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 36 (claimant’s bundle).
On 24 September 2024 the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 272 (insurer’s bundle).
THRESHOLD INJURY – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
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 an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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 Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In Briggs v IAG Limited trading as NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation 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.
6.7There 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.”
ASSESSMENT UNDER REVIEW
Medical Assessor Kuru issued a certificate dated 28 June 2024[5] in which he certified the following injuries caused by the accident were threshold injuries:
(a) cervical spine orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy;
(b) thoracic spine orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy;
(c) lumbar spine orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy;
(d) left shoulder – orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement, referred pain from cervical spine;
(e) chest orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement;
(f) abdomen soft tissue injury, aggravation and acceleration of degenerative changes, pain and restricted movement;
(g) right hand – aggravation and acceleration of degenerative changes, pain and restricted movement, requirement to undergo surgery for the right 5th metacarpal plate and screw removal and extensor tenolysis, and
(h) right knee – aggravation and acceleration of degenerative changes, pain and restricted movement.
[5] Claimant’s bundle p 11.
The injuries referred for assessment to Medical Assessor Kuru in respect of the dispute as to threshold injury were the injuries as described in his certificate:
Medical Assessor Kuru reported Mr Tasselli was on his Ls driving to the shops when a car swerved in front of him and collided with his vehicle head on. His right knee struck the ignition. He called his father and went home. A couple of days later he attended hospital with pain in his left shoulder, lower back, right hand and right knee. Dr Scougall, a hand surgeon had previously performed an open reduction and internal fixation for a 5th metacarpal fracture of the right hand. Hs subsequently saw Dr Scougall who noted the plate was loose and who subsequently removed it.
In relation to diagnosis Medical Assessor Kuru reported:
(a) Mr Tasselli denies any ongoing problems with his cervical spine;
(b) Mr Tasselli denies any ongoing problems with his thoracic spine;
(c) Mr Tasselli has ongoing low back pain after the accident. The diagnosis is that of non-specific back pain;
(d) Mr Tasselli denies any ongoing problems with his left shoulder;
(e) Mr Tasselli denies any ongoing problems with his chest;
(f) Mr Tasselli denies any ongoing issues with his abdomen;
(g) Mr Tasselli noted pain over his 5th metacarpal from a previous injury and went on to have the plate removed, and
(h) Mr Tasselli denies any ongoing problems with his right knee.
Medical Assessor Kuru concluded all injuries were caused by the accident and had resolved other than the injuries to the lumbar spine and the right hand.
REVIEW PROCEDURE
The claimant lodged an application for review of the assessment of Medical Assessor Kuru on 26 July 2024 within 28 days of the date on which the certificate of Medical Assessor Kuru was made available to the parties.
On 22 August 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
On 23 October 2024 the Panel noted that the submissions filed by both parties only referred to the right hand injury. The Panel issued the following directions to both parties:
”1. The claimant is, by close of business 31 October 2024 to confirm as follows:
(a)that the dispute is limited to the assessment of threshold injury in respect of the right hand;
(b)that the claimant accepts the findings of Medical Assessor Kuru that injuries to the cervical spine, the thoracic spine, the lumbar spine, the left shoulder, the chest, the abdomen and the right knee are threshold injuries within the meaning of the Motor Accident Injuries Act, 2017 (the MAI Act).
2. If the claimant agrees to limit the dispute to the assessment of threshold injury to the right hand the insurer is by close of business 5 November 2024 to advise whether it is also agreeable to limiting the dispute to be determined by the panel to the injury to the right hand.”
On 23 October 2024 the claimant uploaded the following message to the portal:
“We are instructed to confirm that, for the purposes of the dispute before the Review Panel, the dispute is limited to the right hand injuries and we accept the findings of Assessor Kuru as regards the injury to the cervical spine, thoracic spine, lumbar spine, left shoulder, chest, abdomen, and right knee.
If, however, further evidence arises indicating that the above listed injuries are in fact not threshold, the claimant reserves his right to lodge an application for further assessment in accordance with s 7.24 of the Act.”
On 29 October 2024 the insurer uploaded the following message to the portal:
“The Insurer refers to the Panel Direction dated 23/10/2024 and advises we are agreeable to limiting the dispute to be determined by the panel to the injury to the right hand.”
Having regard to the agreement of the parties the Panel accepts the findings of Medical Assessor Kuru that injuries to the cervical spine, the thoracic spine, the lumbar spine, the left shoulder, the chest, the abdomen and the right knee are threshold injuries within the meaning of the MAI Act.
The dispute to be determined by the Panel is limited to the assessment of threshold injury in respect of the right hand.
Pursuant to cl 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel “is to conduct and determine the proceedings in accordance with procedures determined by the panel”.
In a Review Panel Report and Directions dated 7 November 2024 the Panel noted the claimant underwent surgery on 17 July 2023 to remove the right little finger metacarpal plate and screws. The Panel advised it did not consider a re-examination of the claimant was required where the threshold injury dispute is limited to the right hand injury including the question of causation.
On 11 November 2024 the Panel confirmed that whilst a medical examination was not required the Panel considered it necessary to conduct an assessment with the claimant by MS Teams to clarify the claimant’s history.
EVIDENCE BEFORE THE PANEL
Mr Tasselli is 21 years of age, and he was 20 years of age at the time of the accident on 22 January 2023.
Application for personal injury benefits
In the Application dated 31 January 2023 Mr Tasselli described his injuries as follows:
“Pain in right hand, neck, right knee, back and left shoulder, chest and stomach. Bruising on chest, stomach and left thigh. (Possible strained rotator cuff left shoulder). Mental flashbacks, anxiety in car. Pain in shoulder and back affecting my work.”[7]
[7] Claimant’s bundle p 28.
Mr Tasselli described the accident as follows:
“We were heading twords pagewood from botany when a white car swerved into my lane and crashed into the front of my car [sic].”
Treating medical records
An X-ray report dated 24 January 2022 reads as follows:
“There has been internal fixation of the 5th metacarpal. There is a healing fracture of the mid to distal shaft. There is not yet complete bony union. There is consolidated periosteal reaction along the fracture site. Alignment appears near anatomical.”[8]
[8] Insurer’s bundle p 111.
On 1 February 2022, seven weeks post operation Dr Scougall, hand surgeon reported episodic ulnar hand pain and noted the X-ray showed healing in good alignment.
On 1 March 2022 Dr Scougall reported pain had improved, there was minimal swelling, excellent active range of movement and the scar was good.[9]
[9] Insurer’s bundle p 110.
On 26 August 2022 Dr Konstantine Stathis, general practitioner (GP) reported Mr Tasselli punched a wall that morning injuring his right hand on examination he reported:
“…definitely less prominent 5th MC with distal angulation but min swelling – says worse than previously. Sl pain with pull-push”.
An X-ray report dated 26 August 2022 reads:
“Findings compared to a previous radiograph on the 24th January 2022. Plate and screw fixation of the fifth metacarpal is again demonstrated. There has been complete interval healing of the previously demonstrated fracture. There is however slightly more marked lucency adjacent to the surgical plate and screws distally.
Normal alignment of the carpal bones. Normal alignment at the wrist joint. No evidence of an acute fracture. No definite evidence of a re fracture of the fifth metacarpal.”[10]
[10] Insurer’s bundle p 107.
On 15 October 2022 Mr Tasselli attended Prince of Wales Hospital.[11] It was reported he hit the lateral border of his hand on a granite benchtop earlier that day resulting in increased swelling and pain over the previous incision site. On examination the well healed surgical scar was noted, there was swelling over the scar and Mr Tasselli was tender to palpation of the proximal area of the 5th metacarpal. The X-ray showed nil obvious deformity.
[11] Insurer’s bundle p 146.
On 2 November 2022 Dr Scougall reported, “2w ag/ bumped hand against granite bench at work (café). Swelling/fluctuating ulnar pain”. On examination he reported:
“Minimal swelling now. Minimal local tenderness. No crepitus over the plate. Full active range. Rt 23kg, Lt 42kg.
X-ray: Fracture healed/plate and screws stable.
Mild lucency distal aspect hardware/unchanged for imaging a few months ago.
Treatment/Plan: Discussed plate and screw removal pin. Prefers to leave it for now.”[12]
[12] Insurer’s bundle p 110.
Mr Tasselli consulted Dr Stathis on 24 January 2023. He reported the claimant’s involvement in the accident. On examination he reported:
“chest pain –
Neck pain shoulders sore the next day – Mon am
Pain R hand Mon pm
Tues today – R knee pain – hit the dash
Pain/bruising belly seat belt strap
Mostly hand knee and chest
No prior R knee issues not neck”.
On examination Dr Stathis reported
“… neck – good rom, no n signs; L shoulder – painful acr 100-170; pos hawkins mild; N power; R hand – swelling thena eminence but no bruising nor evid #
Chest wall – spring ok, sternum nontender; brusing LIQ breast area cw seatbelt; abod – gen mildly tender, brusining across lower abdomen; R Knee – no obv effusion; good rom, stable.”
Dr Stathis issued a Certificate of capacity/certificate of fitness dated 24 January 2023 with a diagnosis of “soft tissue injuries neck, chest wall, lower abdomen, R knee, R hand and L shoulder”.[13]
[13] Claimant’s bundle p 32.
On 28 February 2023 Dr Kristine Allen, GP recorded, amongst other entries:
“R hand pain and feels 5th metacarpal sticking out more than prior to the accident ? jarred in the accident. Has a pin currently from a previous injury in that location”.[14]
[14] Claimant’s bundle p 103.
On 26 April 2023 Dr Allen reported the right hand was playing up again and the claimant had been using the splint.[15] Dr Allen referred the claimant for an X-ray of his hand.
[15] Claimant’s bundle p 106.
In a report dated 1 May 2023 Caoilfhionn Cullinane of Benchmark provided a summary of a case conference on 26 April 2023.[16] Relevantly she reported Mr Tasselli reported increased pain on the lateral aspect of his right hand which was noted to be visibly bruised and swollen on examination.
[16] Insurer’s bundle p 152.
An X-ray report of 11 May 2023 reads:
“Findings:
There is a T shaped plate and screws fixating the 5th metacarpal. There is well defined lucency around the plate which is similar to previously but now a little more extensive, reaching the proximal part of the plate. There is no fracture of the plate or screws and no fracture of the bone. There is no periosteal reaction.
Conclusion:
Increased lucency around the plate may reflect loosening.”[17]
[17] Insurer’s bundle p 137.
On 17 May 2023 Dr Allen referred Mr Tasselli to Dr Scougall regarding increasing pain of the metacarpal in the area of the plate/screw since the accident. She reported he was involved in the accident in January 2023 when he may have jarred his hand.
Mr Tasselli saw Dr Scougall on 6 June 2023 regarding right ulnar hand discomfort.[18] In a letter to Dr Allen Dr Scougall reported:
“Medical history includes open reduction and internal fixation of a right little finger metacarpal shaft fracture in December 2021. Anthony notes a brief episode of discomfort after the hand bumped a bench in early November 2022. Symptoms resolved until a motor vehicle accident on 22/012/23. He notes right ulnar hand swelling, fluctuating discomfort and stiffness.”
[18] Claimant’s bundle p 35.
Dr Scougall reviewed an X-ray of 11 May 2023 which he reported showed the little finger metacarpal shaft fracture union in good alignment after dorsal plate fixation. He noted the plate appeared loose distally. He recommended right little finger metacarpal plate and screw removal.
The operation report dated 17 July 2023 describes the following operative findings:
“Healed little finger metacarpal fracture in good alignment after plate fixation (Medartis locking 2mm plate and 5 screws). Moderate extensor tendon adhesions over the plate. Contained low grade subperiosteal inflammation related to the distal aspect of the plate. Fixation stable.”[19]
[19] Insurer’s bundle p 7.
On 12 September 2023 Dr Scougall reported the right hand had healed well.[20] He noted hand swelling and pain had improved, range of motion was good, and the surgical site is non-tender. He reported the X-rays showed no active infection. The previously noted lucent areas are ossifying. He concluded the infection had settled and recommended Mr Tasselli increase his hand use as comfortable.
[20] Insurer’s bundle p 8.
On 12 October 2023 Dr Michael Mina, infectious diseases staff specialist at St Luke’s Clinic diagnosed:
“Methicillin sensitive Staphylococcus aureus right 5th metacarpal – plate removed 17/7/23 – completed 7.5 weeks of cephalexin.”[21]
SUBMISSIONS
[21] Insurer’s bundle p 268.
Claimant’s submissions
The claimant provided submissions dated 22 July 2024.[22] The claimant argues the assessment of Medical Assessor Kuru was incorrect in a material respect because:
(a) he failed to consider whether surgery is a non-threshold injury;
(b) he failed to consider whether loosening of a metacarpal plate is a non-threshold injury, and
(c) he failed to consider whether surgical scarring is a non-threshold injury.
[22] Claimant’s bundle p 1.
The claimant underwent open reduction and internal fixation for 5th metacarpal fracture and had a metacarpal plate inserted in about December 2021. The claimant re-injured his hand in the accident on 22 January 2023. Post accident imaging revealed loosening of the plate, and he underwent surgery on 17 July 2023 to remove the plate.
The claimant submits it is not contentious that the surgery to remove the plate was causally related to the accident and was reasonable and necessary.
The claimant submits, the surgery involved damage by tearing to the claimant’s skin and nerves to access the plate and in removing it, the bone, noting that injuries to the skin, nerves and bones are not threshold injuries.
The claimant relies upon the decision in Saleh v Insurance Australia Limited t/as NRMA Insurance[23] where a Review Panel found that surgery consequential to a claimant’s injury constituted a non-threshold injury where it involved damage to the claimant’s nerves, ligaments, menisci or cartilage.
[23] Saleh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 14 at [187].
In the alternative the claimant submits loosening of the previously installed metacarpal plate is an injury itself. The claimant refers to the definition of threshold injury contained in s 1.6 of the MAI Act which includes an injury to tissue which connects, supports or surrounds other structures or organs of the body. Whilst it does not specifically refer to previously installed hardware the claimant submits the MAI Act contemplates such damage as injuries. The claimant notes at s 1.4 of the MAI Act “injury” is defined as including “damage to artificial members, eyes or teeth, crutches, or other aids or spectacle glasses.”
The claimant submits a metacarpal plate falls into the definition of “artificial aid” as it is something which has been specially constructed to enable the effects of a disability to be overcome as per Thomas v Ferguson Transformers Pty Ltd[24] and as affirmed by Pacific National Pty Ltd v Baldacchino.[25]
[24] Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216.
[25] Pacific National Pty Ltd v Baldacchino [2018] NSWWCCPD 12.
In the alternative and for the same reasons the claimant submits that surgical scarring should have been considered a non-threshold injury. The surgery to remove the plate which was causally related to the injury left a 4cm scar on the claimant’s right 5th metacarpal. Noting the skin is an organ, the claimant submits surgical scarring is not a threshold injury.
Insurer’s submissions
The insurer provided submissions dated 13 August 2024.[26]
[26] Insurer’s bundle p 3.
The insurer submits that Medical Assessor Kuru stated the hardware removed after the accident was already loose and infected at the time of the accident. However, the Panel notes this submission misrepresents the words of Medical Assessor Kuru who reported:
“He had previously undergone open reduction and internal fixation for a fifth metacarpal fracture. It was noted that the plate was loose, perhaps dislodged by the accident. The plate was subsequently removed by Dr Scougall and there was found to be evidence of infection at the time.”
The insurer submits that Saleh referred to a spinal fusion which did involve drilling into vertebral bodies to insert hardware and/or to remove the intervertebral disc which is considered a fibrocartilaginous structure. The insurer argues in this case the existing hardware was removed, no new drilling into the bones took place and there is no indication of damage to “nerves, ligaments or cartilage”.
Further the insurer submits that scar tissue falls within the definition of soft tissue as it is “tissue that connects, supports or surrounds other structures”.
The insurer refers to the decision in Mandoukos v Allianz Australia Insurance Limited[27] where Stern JA expressed a provisional view that consequential surgery to the cervical spine would be a different injury from the injury sustained by Mr Mandoukos 18 months earlier.
[27] Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.
The insurer relies upon these obiter comments to submit that even if it were accepted the accident caused the plate to loosen and the need to remove existing hardware this does not itself create a non-threshold injury.
As to whether loosening of the metacarpal plate is a non-threshold injury the insurer disagrees that the metal plate would be considered an artificial aid.
The insurer submits there was the potential for hardware removal pre-dating the accident. Mr Tasselli had some right hand pain after bumping his hand against a granite bench at work. X-ray results demonstrated a “mild lucency distal aspect hardware/unchanged for imaging a few months ago”. Dr Scougall discussed the plate and screw removal, but the claimant preferred to “leave it for now”.
The insurer disputes surgical scarring is a non-threshold injury where it is a consequence of the treatment and not the injury incurred as a result of the accident.
MEDICAL EXAMINATION
The Panel considered a medical examination was not required but considered it was necessary to conduct an assessment with Mr Tasselli by MS Teams to clarify his history.
That assessment with Mr Tasselli was undertaken on 21 November 2024 by Medical Assessor Gorman.
Pre-accident history
Mr Tasselli is a 22-year-old man working in retail.
In 2021 as a result of a punch he sustained a fractured right 5th metacarpal which required open reduction and internal fixation. There were ongoing symptoms, and the plate was inserted two weeks later at St Lukes Hospital.
After this Mr Tasselli recovered well. He had no symptoms from the wrist or forearm except for one incident where he hit his hand on a granite bench on 15 October 2022. Following this incident, he had pain and consulted Dr Scougall. Dr Scougall offered to remove the fixation, but the symptoms resolved over a few weeks.
Mr Tasselli has a history of mild asthma but no other problems with his health.
History of the accident
On 22 January 2023 Mr Tasselli was involved in a major head-on motor vehicle accident. The air bags were deployed. Mr Tasselli was holding the steering wheel and felt a direct impact to the right hand from the air bag. He felt immediate pain in the left shoulder, the low back, the right hand and the right knee.
Subsequent progress
Mr Tasselli recalled his right hand was swollen “straight away”. He recalled his brother saying, “your hand does not look right”.
His hand continued to be painful, and he got to the point where he was having trouble using the hand.
His GP encouraged him to have the hand fixed. He bumped the hand which caused severe pain and after this he went on to have the procedure to remove the plate.
At the time of the plate removal an infection was discovered. Mr Tasselli had three months of oral antibiotics. There was never any broken skin in the hand or elsewhere.
Current status
Mr Tasselli continues to have some pain in the low back and right hand. All of the other sites of injury are asymptomatic.
There is still pain in the right hand. The hand stiffens up. Where the plate was still feels sore. He says however it is “not drastic” – he can still use the hand normally.
He reported that he still has symptoms of post-traumatic stress disorder.
Mr Tasselli has completed treatment with physiotherapy and psychology.
PANEL OPINION
Causation
In Briggs Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[28]
[28] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
The insurer submits that Medical Assessor Kuru stated the hardware removed after the accident was already loose and infected at the time of the accident. However, the Panel notes this submission misrepresents the words of Medical Assessor Kuru who reported:
“He had previously undergone open reduction and internal fixation for a fifth metacarpal fracture. It was noted that the plate was loose, perhaps dislodged by the accident. The plate was subsequently removed by Dr Scougall and there was found to be evidence of infection at the time.”
On 26 August 2022 Dr Stathis reported Mr Tasselli had injured his right hand that morning when he punched a wall. Mr Tasselli underwent an X-ray of his right hand the same day which reported a healed fracture of the 5th metacarpal bone which had been treated by a place and screws, although it also noted slightly more lucency adjacent to the surgical plate and screws distally.
On 15 October 2022 Mr Tasselli attended Prince of Wales Hospital after hitting the lateral border of his hand on a granite benchtop earlier that day resulting in increased swelling and pain over the previous incision site. An X-ray reportedly showed nil obvious deformity.
Mr Tasselli saw his treating surgeon Dr Scougall for review on 2 November 2022. He noted Mr Tasselli had bumped his hand against a granite bench two weeks earlier but on examination he noted minimal swelling, minimal local tenderness, no crepitus over the place and full active range of movement. A follow up X-ray reported that the mild lucency previously seen was unchanged. Whilst discussion ensued about removal of the plate and screws it was decided to leave it in place.
At the time of the accident on 22 January 2023 Mr Tasselli felt direct trauma to the right hand from the air bag. His hand had been asymptomatic before the accident but was swollen and symptomatic immediately after the accident and continued to be so until he underwent surgery on 17 July 2023.
Following the accident Mr Tasselli consulted Dr Stathis who reported pain in the right hand and swelling but no bruising. On 28 February 2023 Dr Allen reported right hand pain, that Mr Tasselli felt the 5th metacarpal was sticking out more and that it was jarred in the accident. On 26 April 2023 Dr Allen reported the right hand was playing up, the claimant had been using a splint and she referred the claimant for an X-ray.
The X-ray of 11 May 2023 described more extensive lucency around the plate with the conclusion that the increased lucency around the plate may reflect loosening.
Mr Tasselli returned to see Dr Scougall on 17 May 2023. He reported since the accident Mr Tasselli had noticed right ulnar hand swelling, fluctuating discomfort and stiffness.
Mr Tasselli underwent removal of the right little finger metacarpal plate and screw on 17 July 2023. The operation report noted “low grade subperiosteal inflammation related to the distal aspect of the plate”.
The Panel refers to the definition of causation set out in clause 6.6 of the Guidelines but notes that scientific certainty is not required. The Panel finds the head on collision could have caused or contributed to a worsening of the claimant’s impairment.
The Panel refers to the increased lucency demonstrated on the post-accident X-rays. Lucency in this situation indicates either inflammation around the foreign body (the screw) or inflammation caused by slight residual movement of the screws in the bone.
The Panel finds that the increase in lucency as evident on the X-rays following the accident together with Mr Tassellis’ increased complaints of pain and swelling establishes that the accident did cause or contribute to loosening the attachment of the plate/screws to the bone. At the time of surgery Dr Scougall reported the presence of periosteal reaction/inflammation around the screw insertion into the 5th metacarpal bone, verifying the changes previously noted on the X-rays.
The Panel finds the loosening of the screws and plate affixed to the bone caused an alteration in bone structure of the 5th metacarpal bone.
Whether the metacarpal plate falls into the definition of “artificial aid”
Section 1.6 of the MAI Act defines injury as follows:
“Injury means personal or bodily injury and includes:
(a)Pre-natal injury, and
(b)Psychological or psychiatric injury, and
(c)Damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”
The claimant submits a metacarpal plate falls into the definition of “artificial members … or other aids…” as it is something which has been specially constructed to enable the effects of a disability to be overcome as per Thomas v Ferguson Transformers Pty Ltd[29]as affirmed in Pacific National Pty Ltd v Baldacchino.[30]
[29] Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216.
[30] Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281.
In Pacific National Pty Ltd v Baldacchino the Court of Appeal held that a total knee replacement was an “artificial aid” within the meaning of s 59A(6)(a) of the Workers Compensation Act, 1987.[31] The court referred to the decision in Thomas v Ferguson Transformers Pty Ltd where Hutley JA (with whom Hope JA agreed) said at [220]:
“An artificial aid, in my opinion, is anything which has been specially constructed to enable the effects of the disability (the result of injury) to be overcome. … The essential quality of an artificial aid is that it is an aid specially tailored to the needs of a person, which flowed from the injury.”[32]
[31] Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281.
[32] Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216.
In Baldacchino McFarlane JA stated at [29]:
“I accept that ‘artificial aids’ must, as the appellant submits, work to ameliorate the effect of a person’s disability and may comprise a single object or a composite of objects operating together. However, a knee replacement has these characteristics. According to the parties’ agreement, during the surgery the ends of the femur and the tibia are replaced with an introduced material and a piece of plastic is inserted between the bones as reconstructed. Plainly these materials are designed to facilitate the movement and use of the knee after the operation, therefore easing the patient’s disability. Their ‘provision’ (see s 59A(6)(a)) cannot occur without a surgical operation. The cost of the operation therefore falls within the statutory provision.”
The Panel finds that the metacarpal plate and screws does fall within the definition of “other aids” as it was something surgically constructed to enable the effects of the earlier injury to the 5th metacarpal to be overcome.
The question is whether there has been damage to the “aid” where there is no evidence of physical alteration to either the plate or screws themselves. The Macquarie Dictionary defines “damage” as meaning:
“injury or harm that impairs value or usefulness”.[33]
[33] Macquarie Dictionary (Revised 3rd ed, 2001) “damage”.
On the basis the Panel has found the accident caused the loosening of the screws and plate to the bone the Panel finds there has been damage to the aid where the accident impaired the value or usefulness of the screws and plate requiring their removal. Accordingly, the Panel finds there was damage to an aid which constitutes a personal or bodily injury in accordance with s 1.6 of the MAI Act.
Whether the surgery could be an injury
The claimant submits, the surgery involved damage by tearing of the claimant’s skin and nerves to access the plate and in removing it to the bone and relies upon the decision in Saleh v Insurance Australia Limited t/as NRMA Insurance[34] where a Review Panel found that surgery consequential to a claimant’s injury constituted a non-threshold injury where it involved damage to the claimant’s nerves, ligaments, menisci or cartilage.
[34] Saleh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 14 at [187].
The claimant also submitted that the surgical scarring should be considered a non-threshold injury where the surgery to remove the plate left a 4cm scar on the claimant’s right 5th metacarpal. On the basis skin is an organ the claimant submits that surgical scarring is not a threshold injury.
Having regard to the Panel’s findings above the Panel does not find it necessary to determine whether the consequential surgery or subsequent surgical scarring could be a personal or bodily injury but notes the obiter comments made by Stern JA in Mandoukas v Allianz Australia Insurance Limited at [99] as follows:
“99. In any event, even on the assumption that the removal of bone during the foraminotomy procedure could be a personal or bodily injury as defined in the Act (a question which, as set out at [54] above, it is unnecessary and inappropriate for this Court to determine) my provisional view is that that would be a ‘different’ injury from the injury to Mr Mandoukos’ cervical spine sustained at the time of the motor accident. The foraminotomy procedure occurred some 18 months after the motor accident. It involved a mechanism, consensual surgical removal of bone, entirely separate from the impact of the motor accident. That is so even though it was performed by reason of Mr Mandoukos’ symptoms resulting from the motor accident. It is also of a different character from an assault or impact upon the body consequent upon the forces of the motor accident. Ultimately, however, if Mr Mandoukos seeks referral of a medical dispute as to whether the foraminotomy procedure has the consequence that the cervical spine injury he sustained in the motor accident is a minor injury, that question can be assessed by a medical assessor.”[35]
[35] Mandoukas v Allianz Australia Insurance Limited [2024] NSWCA 71.
Threshold injury
The Panel finds the injury sustained by the claimant was not a soft tissue injury. Having found there was an alteration in the bone structure of the 5th metacarpal bone caused by the loosening of the screws and plate as a result of the accident, the Panel finds the claimant has sustained an injury to bone, which is a non-threshold injury.
In the alternative, the Panel finds the claimant has sustained injury by reason of damage to an aid, namely to the screws and plates attached to the 5th metacarpal. This is a not a soft tissue injury and would constitute a non-threshold injury.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Kuru dated 1 July 2024 and certifies the following injuries caused by the accident were threshold injuries:
(a) cervical spine orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy;
(b) thoracic spine orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy;
(c) lumbar spine orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy;
(d) left shoulder – orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement, referred pain from cervical spine;
(e) chest orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement;
(f) abdomen soft tissue injury, aggravation and acceleration of degenerative changes, pain and restricted movement, and
(g) right knee – aggravation and acceleration of degenerative changes, pain and restricted movement.
The Panel certifies the injury to the right hand, namely to the 5th metacarpal and damage to the 5th metacarpal plate and screws is not a threshold injury.
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