DETERMINATION OF REVIEW PANEL	
	
CITATION:	Akther v QBE Insurance (Australia) Limited [2023] NSWPICMP 250	
		
CLAIMANT:	Salma Akther	
		
INSURER:	QBE Insurance (Australia) Limited	
		
REVIEW Panel	 	
		
PRINCIPAL MEMBER:	John Harris	
		
MEDICAL ASSESSOR:	Christopher Grainge	
		
MEDICAL ASSESSOR:	Ian Cameron	
		
DATE OF DECISION:	7 June 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury from a rear end collision on 14 September 2020; the claimant suffered various soft tissue injuries; pulmonary embolism (PE) diagnosed in early October 2020; issue of causation of PE and whether it was a threshold injury; claimant did not suffer from anti-phospholipid syndrome as early blood tests were a false positive and subsequent test was negative; no other reason for PE other than bed rest following motor accident; time frame for onset of pain associated with PE consistent with cause being immobility following motor accident; PE causes lung tissue damage due to the blockage; not an injury that connects, supports or surrounds other structures or organs in definition; otherwise not an issue to soft tissue as defined in the parenthesis of the definition; Held – PE not a threshold injury; original assessment revoked.  	
DETERMINATIONS MADE:  	Medical Assessment – Threshold injury
Review Panel Assessment of Threshold Injury
Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 16 September 2022 and certifies that the pulmonary embolism caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. 
Medical Assessment –Treatment and Care
Review Panel Assessment of Treatment and Care
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel confirms the certificate dated 16 September 2022.

REASONS
BACKGROUND 
1.	Ms Salma Akther (the claimant) alleges that she suffered injury in a motor accident on 14 September 2020 when the insured vehicle failed to stop and collided with the rear of the claimant’s vehicle pushing it into a fence (the motor accident).
2.	The insurer is liable to pay to Ms Akther any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident. 
3.	The issue presently in dispute are whether Ms Akther’s physical injury is classified as a “threshold injury” within the meaning of the MAI Act and whether various treatment is reasonable and necessary in the circumstances and whether the need is caused by the motor accident. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters.
4.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
5.	Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.
ORIGINAL MEDICAL ASSESSMENT
6.	The dispute was referred to Medical Assessor Haber who issued a Medical Assessment Certificate dated 16 September 2022 (the Medical Assessment Certificate). Medical Assessor Haber concluded that the claimant suffered a pulmonary embolism caused by the motor accident which was a minor injury.
7.	Medical Assessor Haber noted that two to three weeks after the motor accident the claimant had an ECG and the VQ scan which showed two small clots in the lungs. He noted that the claimant had been suffering from dull chest pain for a couple of months.
8.	The Medical Assessor found that the treatment for the pulmonary embolism was reasonable and necessary in the circumstances and caused by the accident although there was no longer a necessity for ongoing treatment.
OTHER MEDICAL ASSESSMENT
9.	Whether the other physical injuries were minor injuries were referred to Medical Assessor Gorman who issued a Medical Assessment Certificate dated 24 September 2022. Medical Assessor Gorman concluded that the claimant suffered soft tissue injuries to the neck, left shoulder, left hand and low back which were minor injuries for the purposes of the MAI Act.
10.	A review of that medical assessment is not before the Panel.
AMENDMENTS TO MINOR INJURY 
11.	The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 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”. 
12.	The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury. 
13.	The Medical Assessment Certificate was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions were filed when the term was “minor injury”. Accordingly, we have used the terminology used by the parties and the original Medical Assessor for the legislation then in force. 
14.	Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
THE REVIEW
15.	The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
16.	The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
17.	Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply. 
18.	The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
19.	Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
20.	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.
21.	The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned. 
22.	The parties filed respective and comprehensive bundles of documents for the Panel’s consideration. Much of the documentation did not relate to the medical dispute before the Panel. 
23.	On 23 May 2023 the Panel issued the following further direction.
“The Panel is of the view that a medical examination is of no utility because the pulmonary embolism has been treated and the claimant has recovered from that condition. We are satisfied that a determination of the medical disputes can be undertaken on the papers.
The parties are to file any objection to this course by close of business, 30 May 2023.”
24.	The insurer advised the Panel that it consented to the matter being determined on the papers. The claimant did not reply to our direction. As we indicated in our direction, there is no utility in any examination, and we have determined the dispute on the papers.
STATUTORY PROVISIONS
25.	A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Within these reasons we have referred to either a soft tissue injury or threshold injury interchangeably, although the latter is a wider concept as it also includes a minor psychological or psychiatric injury. 
26.	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.”
27.	Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor 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.
28.	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 minor injury for the purposes of the Act. Version 9 of the Guidelines commenced on 15 January 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 minor 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 minor psychological or psychiatric injury caused by the motor accident. 
5.4 	Diagnostic imaging is not considered necessary to assess minor injury.
5.5 	A diagnosis for the purpose of a minor 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 minor 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.”
29.	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 minor injury. An injury resulting in radiculopathy will not be classified as a minor injury. 
30.	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.” 
31.	Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.
32.	Section 3.24 of the MAI Act provides:
“(1) 	An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a) 	the reasonable cost of treatment and care, 
(b) 	reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable, 
(c) 	if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) 	No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
SUBMISSIONS 
Claimant’s submissions dated 4 October 2022
33.	These submissions were filed seeking leave to review the Medical Assessment.
34.	The claimant submitted that the medical assessor failed to provide adequate reasons and failed to properly address refer to all relevant material.
35.	The claimant noted that the Medical Assessor found that the pulmonary embolism is caused by the motor accident. It submitted that if such an injury was found that it would satisfy the test that the claimant suffered a non-minor injury.
Insurer’s submissions dated 22 March 2021
36.	These submissions discuss whether the claimant suffered a minor injury generally. Insofar as they relate to the pulmonary embolism the insurer noted that the claimant reported to Dr Shams on 8 October 2020 that she was suffering from chest pain and shortness of breath with recurrent palpitations.
37.	The insurer noted that on 14 October 2020 the claimant underwent a venous Doppler of both lower limbs which showed no features of acute deep venous or superficial venous thrombosis. On 16 October 2020 the claimant was referred to Bankstown Lincoln Hospital noting that she had “beta 2 glycoprotein antibodies positive likely antiphospholipid syndrome”.
38.	In a report dated 26 October 2020 Dr Shams noted that the claimant had underlying antiphospholipid syndrome which may have contributed to the development of the pulmonary embolism after the motor accident. 
39.	The insurer submitted that the antiphospholipid syndrome caused the pulmonary embolism which was unrelated to the motor accident.
40.	The insurer submitted that the various treatments were not reasonable and necessary and/or caused by the accident.
Insurer’s submissions dated 20 May 2021
41.	These submissions addressed the various physical injuries and otherwise submitted that it repeated the submissions dated 22 March 2021 concerning the allegation of the pulmonary embolism caused by the motor accident.
Insurer’s submissions dated 24 October 2022
42.	These submissions address the application for review of the Medical Assessment. 
43.	The insurer candidly did not adopt any position with respect to the merits of the review application insofar as it was to be considered by the President’s delegate. However, the insurer otherwise relied on its earlier submissions with respect to the issue of minor injury and treatment dispute for the pulmonary embolism.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
44.	The claimant’s pre-accident medical history is not relevant save that there was no history pertaining to blood clotting. 
Contemporaneous evidence
45.	The ambulance report noted the claimant was stationary in traffic and complained of lateral right neck pain into shoulder with full range of motion and also complained of headache and dizziness. 
46.	The hospital discharge referral stated that the claimant was involved in a rear end collision, discharged home with “no injuries” and required “simple analgesia as needed”.
47.	A certificate dated 16 September 2020 referred to injuries caused by the motor accident to the left shoulder left hand and whiplash. 
48.	An Emergency Department discharge summary dated 8 October 2020 noted a history of three-day intermittent dull chest pain.
49.	A lung scan dated 9 October 2020 noted a three-week history of palpitations and central dull chest pain and was positive for a diagnosis of pulmonary embolism.
50.	A venous doppler of both lower limbs showed no features of acute deep venous or superficial venous thrombosis.
51.	in a report dated 21 October 2020, Dr Shams noted the claimant developed shortness of breath with pleuritic chest pain and had a VQ scan which showed pulmonary embolism. The thrombophilla screen showed positive beta-2 glycoprotein antibodies suggesting likely antiphospholipid syndrome. The claimant was not particularly immobile at that time. One week later the claimant developed chest pain and dyspnoea.
52.	A report by Dr Sultana Syeda, physician, dated 21 October 2020 noted the claimant presented to the Emergency Department with central chest pain a week after the motor accident. The doctor noted that there were no significant risk factors including no recent air travel and the claimant was not on hormone replacement therapy. 
53.	 A report by Dr Katherine Rankin dated 27 November 2020 referred to a past history of a motor accident in mid-September which resulted in soft tissue injuries to the right hip and knee as well as the back and left hand. The claimant received treatment in an emergency department overnight but was not particularly immobile beyond that time. One week later the claimant had onset of chest pain and dyspnoea and presented to Bankstown Hospital on 9 October.
54.	The doctor noted that the claimant commenced on apixaban with improvement in chest pain and dyspnoea in the last few days. The doctor noted no personal history of Deep vein thrombosis or pulmonary embolism and no family history of venous thrombosis. Recent blood testing showed normal haemoglobin, platelets and neutrophils were normal.  Beta-2 glycoprotein antibodies were noted in the recent blood tests. The doctor stated:
“In summary, Selma has had a pulmonary embolism that may have been provoked in the context of brief immobilisation post-MVA. Another contributing factor may be the presence of beta-2 glycoprotein antibody positivity although this will need to be confirmed on a follow-up blood test.” 
55.	A report from Dr Shams dated 26 November 2020 noted that the claimant presented with chest pain and shortness of breath on 5 October 2020 after she was on a trip to the Central Coast. The doctor noted that the claimant had underlying antiphospholipid syndrome which may have contributed to the development of the pulmonary embolism.
56.	The doctor noted that the claimant suffered ongoing chest pain which was central and left-sided and mainly constant.
57.	A report by Dr Syeda dated 1 February 2021 noted the claimant was diagnosed with the pulmonary embolism two weeks after the motor vehicle accident. The doctor noted the only positive finding was beta-2 glycoprotein with all genetic factors being negative.
58.	A report by Dr Gasiorowski dated 1 March 2021 noted ongoing fatigue and menorrhagia likely related to the apixaban. Recent blood tests again confirmed the presence of beta-2 glycoprotein antibodies which were lower than previously assessed in October. The doctor noted that this raised the possibility antiphospholipid syndrome although technically that would require two tests 12 weeks apart to be confident in that diagnosis.
59.	The doctor noted the initial clot was relatively small and was partially provoked by the car accident three weeks prior which did result in an overnight hospital admission and some bed rest at home for a couple of days.
60.	On 7 June 2021 Dr Gasiorowski noted blood tests continued to show persistent positive beta-2 glycoprotein antibodies although the titre has been falling since this was initially detected. The abnormality raised the possibility of antiphospholipid syndrome which would be associated with a high rate of recurrent thrombosis. The doctor recommended ongoing low-dose anticoagulation medication.
61.	In October 2021 Dr Gasiorowski noted that the claimant tested negative for beta-2 glycoprotein antibodies and recommended cessation of apixaban.
62.	On 11 April 2022 Dr Gasiorowski noted that the claimant had been off anticoagulation since October last year and opined that the initial PE was probably related to the motor accident and was hopeful that the overall risk of recurrence was low.
REASONS
63.	The review is a new assessment of all matters with which the medical assessment is concerned. 
64.	The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh. 
65.	The Panel adopts the reasoning in David v Allianz Australia Ltd that radiculopathy can be present at any time to establish that it is not a threshold injury for the purposes of the MAI Act.
66.	We adopt the reasoning in Lynch v AAI Ltd that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
67.	For the following reasons we are satisfied that the pulmonary embolism was caused by the motor accident.
68.	A pulmonary embolus is the presence of a blood clot in the pulmonary arteries. These vessels run from the right side of the heart, split into right and left branches, then divide further and further until they form the lung capillary bed, becoming smaller at each division. When a blood clot forms in the venous system of the body, if can often ‘break off’ and travel to the right heart, and then into the pulmonary arteries. Depending on the size of the clot(s) a blockage of one or more branches of a pulmonary artery occurs. This results in a section of the lung, which is not functional, as there is no blood supply to it. 
69.	Depending on the size of the clots which lodge in the pulmonary arteries, this can be a minor issue, or be fatal. Until the clot ‘dissolves’ over time, aided by medication, the area of the lung with no blood supply remains non-functional and suffers some damage. In a small proportion of patients, the area of the lung never recovers, though in most people full function is restored in a few months. 
70.	The antibody results for the claimant are not in keeping with an anti-phospholipid syndrome. The initial positive antibody results were likely a false positive secondary to presence of clot (the pulmonary embolus) at the time of testing. The second testing, although still technically positive was of a much lower titre, and the most recent test was negative. This is why the standard of care is to not perform such antibody testing at the time of an acute clot, and then repeat antibody testing to ensure ongoing positive results (which would be present in anti-phospholipid syndrome) before making a diagnosis of anti-phospholipid syndrome. 
71.	The final negative test is inconsistent with a diagnosis of anti-phospholipid syndrome. The earlier positive tests are consistent with false positives due to the presence of the pulmonary embolism.
72.	As the diagnosis of anti-phospholipid syndrome was in error, the only risk factor for a pulmonary embolus that the claimant had was immobility following the motor accident. 
73.	There was no previous personal or family history of clotting disorders. Following the accident, the recorded history is that the claimant was immobile at hospital and then rested at home for a few days which is consistent with recovering from the physical injuries sustained in the motor accident. This type of rest is sufficient to cause a pulmonary embolism. 
74.	Further, according to the histories, the claimant developed pain in early October and presented for medical treatment when the pulmonary embolism was then diagnosed. The time frame of onset of pain is consistent with the cause being associated with the period of immobility following the motor accident.
75.	On the balance of probabilities, the motor accident caused the pulmonary embolus, secondary to relative immobility. 
76.	Our conclusion that the motor accident caused the pulmonary embolism is otherwise consistent with the opinions expressed by Medical Assessor Haber and Dr Gasiorowski.
77.	We have earlier noted that the pulmonary embolism will cause lung tissue damage because of the blockage. That injury is not “an injury to tissue that connects, supports or surrounds other structures or organs of the body” in s 1.6(2) of the MAI Act. The injury is otherwise not an injury to tissue as defined by the example in the parentheses of the definition of “soft tissue injury”, that is “muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes”.
78.	Accordingly, we are satisfied that the claimant’s injury is not a threshold injury within the meaning of the MAI Act.
79.	The claimant underwent treatment for the pulmonary embolus including Somac, Ventolin and Eliquis which was both reasonable and necessary as there were clear risks if this condition was untreated. Our findings on the cause of the pulmonary embolism otherwise mean that the associated treatment for that condition was also caused by the motor accident. 
80.	The other item of treatment was the use of Ferinject which is an iron injection. That does not relate to treatment for a pulmonary embolism and is related to anaemia.
81.	Our conclusions on the treatment disputes accord with the findings made by Medical Assessor Haber.
CONCLUSION
82.	For these reasons the Panel concludes that the certificate for the threshold injury issued by Medical Assessor Haber is revoked. The new certificate is attached at the commencement of these Reasons. The certificate for the various treatment disputes is confirmed.