DETERMINATION OF REVIEW PANEL	
	
CITATION:	Eftikhari v AAI Limited t/as AAMI [2023] NSWPICMP 93	
		
CLAIMANT:	Ali Eftikhari	
		
INSURER:	AAI Limited trading as AAMI	
		
REVIEW Panel	 	
		
MEMBER:	Susan McTegg	
		
MEDICAL ASSESSOR:	Margaret Gibson	
		
MEDICAL ASSESSOR:	Shane Moloney	
		
DATE OF DECISION:	16 March 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of minor injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 25 February 2021; Medical Assessor Gorman found the following injuries were minor injuries: cervical spine, soft tissue injury to the neck; lumbar spine, soft tissue injury to the lower back; left shoulder, soft tissue injury; right elbow, soft tissue injury; right arm, scarring; left knee, soft tissue injury; left leg, soft tissue injury; face, soft tissue injury to the chin; right shoulder, soft tissue injury; right leg, soft tissue injury, and right arm, soft tissue injury; Held – Medical Assessment Certificate affirmed; scarring to the right wrist and right elbow minor injuries; simplistic to say skin is an organ and any injury to the skin, no matter how minor would be excluded from definition of minor injury; skin is made up of three layers of tissue which connects, supports or surrounds other structures or organs of the body; injury to the skin is an injury to connective tissue which connects, supports and surrounds other structures; injury to the skin 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.  	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION

The Review Panel affirms the certificate of Medical Assessor David Gorman dated 
4 April 2022.

STATEMENT OF REASONS
introduction
1.	On 25 February 2021 Mr Ali Eftikhari (the claimant) had gone to the police station with the insured driver to resolve a dispute regarding payment of repairs at his panel beating business. The Police were unable to assist, and the insured driver drove his vehicle away from the police station. In a lane behind Granville Police Station the insured driver proceeded to drive toward Mr Eftikhari who moved toward the vehicle.  The vehicle struck Mr Eftikhari who was thrown into the air and landed on the ground (the accident). He was knocked unconscious before being transported by ambulance to Westmead Hospital. 
2.	Mr Eftikhari’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). The MAI Act provides for a scheme of statutory benefits and compensation by way of lump sum common law damages for persons injured in motor vehicle accidents in New South Wales. Statutory benefits cease 26 weeks after the accident and there is no entitlement to common law damages if the only injuries sustained by the injured person in the accident are “minor” injuries. 
3.	AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to pay any damages to Mr Eftikhari under the MAI Act.
4.	Medical Assessor David Gorman issued a certificate dated 4 April 2022 in which he certified that injuries sustained by Mr Eftikhari caused by the accident were minor injuries for the purposes of the MAI Act. 
5.	As a result, Mr Eftikhari has no ongoing entitlement to ongoing statutory payments under the MAI Act. 
6.	The claimant has sought a review of the certificate of Medical Assessor Gorman.
BACKGROUND
7.	Mr Eftikhari is 33 years of age.
8.	On 4 March 2021 Mr Eftikhari lodged an Application for Personal Injury Benefits.
9.	On 5 July 2021 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that his injuries were minor injuries and that his entitlement to statutory benefits including treatment and care would cease on 26 August 2021.
10.	On 2 August 2021 Mr Eftikhari sought an Internal Review of that decision. 
11.	On 16 August 2021 the insurer issued their Internal Review - Certificate of Determination and Statement of Reasons affirming their earlier decision.  
12.	The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor injury dispute between the parties. 
13.	Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”. 
14.	A medical assessment matter is determined in accordance with division 7.5 of the MAI Act by a Medical Assessor.
MINOR INJURY- STATUTORY PROVISIONS
15.	A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”.  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.”
16.	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 MAI Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
17.	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 MAI Act. Version 9 of the Guidelines commenced on 25 November 2022 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.”
18.	Clause 5.7 of the Guidelines states that 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. Clauses 5.8 and 5.9 are in the following terms:
“5.8	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) 
(c)	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.
5.9	Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
ASSESSMENT UNDER REVIEW
19.	The dispute was referred to Medical Assessor David Gorman who assessed 
Mr Eftikhari on 17 March 2022 and issued a certificate dated 4 April 2022. The injuries referred for assessment were described as follows:
•	cervical spine - soft tissue injury to the neck with radiculopathy into the upper limbs/nerve damage;
•	lumbar spine - soft tissue injury to the lower back with radiculopathy into the lower limbs/nerve damage; 
•	left shoulder - rotator cuff injury/tendon injury, radiculopathy; 
•	right elbow - soft tissue injury; 
•	right arm – scarring; 
•	left knee - soft tissue injury; 
•	left leg - soft tissue injury; 
•	face - soft tissue injury to the chin; 
•	right shoulder - rotator cuff injury/tendon injury, radiculopathy; 
•	right leg - soft tissue injury, and 
•	right arm - soft tissue injury.
20.	Medical Assessor Gorman found the following injuries caused by the accident were minor injuries: 
•	cervical spine - soft tissue injury to the neck;
•	lumbar spine - soft tissue injury to the lower back;
•	left shoulder – soft tissue injury;
•	right elbow - soft tissue injury;
•	right arm – scarring;
•	left knee - soft tissue injury;
•	left leg - soft tissue injury;
•	face - soft tissue injury to the chin;
•	right shoulder – soft tissue injury;
•	right leg - soft tissue injury, and
•	right arm - soft tissue injury.
21.	In respect of the cervical spine and the lumbar spine Medical Assessor Gorman diagnosed a soft tissue injury with no radiculopathy or injury to nerves or to ligaments or discs. 
22.	Medical Assessor Gorman found soft tissue injury to the left shoulder, the right elbow, the left knee, the left leg, the right shoulder, the face, the right leg and the right arm with no evidence of complete or partial rupture of tendons, ligaments or cartilage. 
23.	In respect of the scarring to the right arm Medical Assessor Gorman reported the scarring was minimal and not affecting any activities of daily living (ADLs).
REVIEW PROCEDURE
24.	The claimant lodged an application for review of the medical assessment of Medical Assessor Gorman on 3 May 2022 within 28 days of the date on which the certificate of 
Medical Assessor Gorman was made available to the parties.
25.	On 11 August 2022 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).
26.	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 clause 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. 
27.	The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Panel to assess. 
28.	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.
29.	Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.
30.	The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
31.	The solicitor for the claimant uploaded to the portal a bundle of indexed documents paginated from pages 1 to 594 and marked AD1. The claimant also uploaded to the portal CCTV footage marked AD2. The insurer uploaded to the portal a bundle of indexed documents paginated from pages 1 to 134 and marked AD3. 
32.	On 9 September 2022 the Panel issued a Review Panel Report and Directions to the parties. Adopting the numbering used in that report and in respect to the presence of radiculopathy the Panel stated: 
“11. 	The claimant submits the following treating records satisfy the criteria for radiculopathy: 
11.1	the Functional Assessment dated 24 June 2021 which reports:
(a)	mid to lower back pain, with shooting pain into upper gluteal region bilaterally.15 – 20 minutes with difficulty; 
(b)	unable to take weight on left leg due to increased pain in lower back and left knee;
(c)	sharp pain in left knee lateral and front, unable to complete with left knee due to sharp increase in pain lower back 8-9/10; 
(d)	pressure on lower back - lumbar region, 7/10 sharp pain; 
(e)	unable due to sharp pain in neck and shoulder region, radiating down into elbow and hand; 
(f)	neural pain originating in neck region and radiating towards elbow; 
(g)	reported pain and increased pressure in lower back; and
(h)	pulling sensation behind R knee >> L Knee, hamstring tightness noted – mild.
11.2	the Physio file record which confirms:
(a)	 piercing pain in head with pressure on spine; 
(b)	 shooting pain towards Cx; 
(c)	 pressure on spine; 
(d)	 pain on palpation; 
(e)	 unable to weight bear due to pain and weakness; 
(f)	 pain affecting left side of body; 
(g)	 limping; 
(h)	 sensitivity to cervical/thoracic; and 
(i)	 limited cervical, thoracic, shoulder ROM.
11.3	the MRI scan of the lumbar spine dated 11 May 2021 which reported the presence of “mild disc dehydration at L5/S1 with no significant impingement identified in the lumbar spine”.
12.	The Panel does not take issue with the submission that a determination as to whether radiculopathy is present can be made at any time and it is sufficient that it be based on a clinical assessment by a medical practitioner.
13.	However, the preliminary view of the Panel, having regard to their qualifications, training and experience is that none of the records relied upon by the claimant fit the criteria for radiculopathy in accordance with clause 5.7 of the Guidelines.” 
33.	Again, adopting the numbering used in that report and in respect of the scarring the Panel stated:
“14.	Medical Assessor Gorman concluded the scarring constituted a minor injury in that it was minimal and did not affect any ADLs.
15.	There is no dispute Mr Eftikhari sustained abrasions to the right arm as a result of the accident. A scar is a permanent mark of a wound or damage to the skin. Medical Assessor Gorman described the scarring as follows:
‘There was a 2 cm rounded scar laterally over the right elbow which was mildly pigmented but not raised. There was a 3cm oval mildly pigmented scar over the dorsum of the right wrist which was not raised or tender’.
16.	The claimant submits it is not necessary to determine whether scarring affects activities of daily living to satisfy the requirement for a non-minor injury.  The claimant submits that the skin, as an organ does not fall within the ‘soft-tissue injury’ prescribed under the Act and constitutes a non-minor injury. 
17.	The insurer submits that the definition of soft tissue injury is clear in that a soft tissue injury does not include an ‘injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.’ The insurer submits there no specific ligament, tendon or cartilaginous structure within skin that would fall outside the definition of minor injury. 
18.	Whilst it may be true that the scarring is minimal and does not affect 
Mr Eftikhari’s activities of daily living the criteria for assessing permanent impairment is not relevant to the determination of whether an injury is minor.  
19.	In Alcan (NT) Aluminium Pty Ltd v Commissioner of Territory Revenue (Northern Territory) the High Court stated at [47] the task of statutory construction must begin with a consideration of the text itself, whilst at the same time, regard is to be had to its context and purpose. The context includes the general purpose and policy of a provision but also the legislative history and extrinsic materials, but it cannot replace the clear meaning of the text.  
20.	To have regard to the permanent impairment guides would involve the consideration of materials extrinsic to the definition of minor injury as set out in section 1.6 of the MAI Act. 
21.	The medical members of the Panel accept that skin is an organ of the body.  The statutory definition of ‘soft tissue injury’ as it appears in section 1.6 of the MAI Act refers to an ‘injury to tissue that connects, supports or surrounds other structures or organs of the body’.  
22.	The Panel finds that the clear meaning of the text is that a ‘soft tissue injury’ does not relate to organs of the body but only to tissue that connects, supports and surrounds organs of the body. Nor does a laceration or abrasion to the skin fall within one of the exceptions to the first phrase of the definition, that is, it does not constitute an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
23.	The Panel notes whilst regulations may be made pursuant to section 1.6 of the MAI Act to exclude or include a specified injury from being a soft tissue injury, the regulations do not refer to the skin.” 
34.	Adopting the numbering used in the report the Panel set out the following preliminary view:
“24.	The Panel’s preliminary view is that an injury to the skin evidenced by scarring does not come within the definition of ‘minor injury’. 
25.	Having regard to the Panel’s preliminary view as to the scarring the Panel considers a re-examination of the claimant is not required.”
35.	Having outlined those preliminary views the Panel directed the parties to indicate in writing on or before 23 September 2022 that they had received the report and to confirm whether they agreed to the Panel proceeding to determine the issues in dispute without re-examination and on the basis set out in the report.
36.	The insurer uploaded to the portal submissions dated 23 September 2022 marked AD4 and indicated that a re-examination of the claimant was required. 
37.	The claimant also sought a face to face medical examination and uploaded to the portal submissions dated 23 September 2023 marked AD4.
38.	On 10 March 2023 the claimant uploaded late submissions to the portal dated 
10 March 2023 marked AD9 and a copy of the Review Panel Decision in Al-Khafaji v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 519 marked AD10.
39.	On 26 September 2022 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
40.	At the time of the accident the claimant owned and operated a business with his brother where he worked full time as a panel beater. He worked six days a week. He is married with an infant daughter. 
CCTV footage of the accident
41.	The Panel had the opportunity to review CCTV footage of the accident.  
Ambulance report
42.	The report refers to a brief loss of consciousness post hitting the floor. The report refers to mild abrasions to the right arm and noted the main complaint was of severe pain to the lower back and the hip/pelvis region. 
Westmead Hospital Emergency Department Summary
43.	Immediately following the accident on 25 February 2021, the claimant had a brief loss of consciousness and was taken by ambulance to Westmead Hospital.
44.	The claimant was admitted overnight to Westmead Hospital. On arrival he complained of lower back pain. On examination of the cervical spine, he reported no midline tenderness and normal, painless range of motion. He underwent a CT of the brain, the cervical spine, the chest, the abdomen and the pelvis which found no acute intracranial haemorrhage, no acute cervical spinal fracture, no acute intrathoracic or intra-abdominal injury. Deformity of the distal left nasal bone was consistent with a fracture of indeterminate age. He was found to have soft tissue injuries and was treated with analgesia. He also had left chin and right forearm abrasions.
Clinical notes of Dr Mahajan
45.	The claimant first consulted Dr Aditi Mahajanm general practitioner (GP) on 
13 April 2021 when he reported his involvement in the accident. He reported ongoing severe left lower back, left shoulder and left knee pain. On examination Dr Mahajan reported:
“Appears well
Gait antalgic
Abnormal ROM lumbosacral spine
- reduced forward flexion/extension
- reduced lateral flexion right/left – worse on left side
- reduced rotation right/left – worse on left side
Nil pain or limitation of movement
Significant tenderness in midline in lumbosacral spine
Nil SI joint tenderness bilaterally
SLR negative bilaterally
Slump test negative bilaterally
FABER test negative bilaterally
Knee exam
Normal appearance of knees, nil swelling/skin changes/effusion
Nil varus or valgus deformity
Nil pes planus
Crepitus right knee
Tenderness over right medial joint line
Nil tenderness over tibial tuberosity bilaterally
Patellar apprehension test negative
Clark’s test negative
Medial bulge sign negative
Nil medial or lateral collateral ligamentous laxity
Nil ACL/PCL laxity
Nil meniscal tenderness – Apley’s grind negative
Thessaly unable to be performed due to back pain
Shoulder exam performed
Normal alignment, nil deformity
Nil bony tenderness
Speed’s test and Yergason’s test negative for bicipital tendinopathy bilaterally
Right arm normal
Reduced ROM in left arm
-	ROM limited to 30 – 60 degrees in all directions
-	Painful arc left side
-	Neer’s test positive on left side at 60 degrees
-	Hawkins-Kennedy test positive on left side
-	Empty can test positive on left side.”
46.	Dr Mahajan said his impression was of soft tissue injury to the lumbosacral spine, left shoulder and left knee and questioned a meniscal/ligamentous injury to the left knee and a frozen shoulder. 
47.	On 9 June 2021 Dr Mahajan referred the claimant to Dr Alan Nazha, of Sydney Pain Specialists. In the referral Dr Mahajan sought management of pain in the claimant’s left shoulder, lower back, and left knee following the accident. He also reported the presence of “significant yellow flags in his history with associated severe psychological distress following the accident which is impacting on his relationship with his wife”.
Records of Ajit Lamba, physiotherapist
48.	Records detail attendances on Mr Lamba of Physiotherapy Professionals Parramatta from 1 April 2021 to 28 June 2021 (26 attendances). Thereafter approval was declined by the insurer and the claimant was directed to exercise physiology. 
49.	Mr Lamba undertook a functional assessment on 24 June 2021. The report includes inter alia the following comments:
“(a)	mid to lower back pain, with shooting pain into upper gluteal region bilaterally; 
(b)	unable to take weight on left leg due to increased pain in lower back and left knee;
(c)	sharp pain in left knee lateral and front, unable to complete with left knee due to sharp increase in pain lower back;
(d)	pressure on lower back - lumbar region;
(e)	sharp pain in neck and shoulder region, radiating down into elbow and hand; 
(f)	neural pain originating in neck region and radiating towards elbow; 
(g)	pain and increased pressure in lower back; and
(h)	Slump test - pulling sensation behind R knee >> L Knee, hamstring tightness noted – mild.”
CT Lumbar spine, 3 March 2021
50.	The report concludes:
“There is very minor disc bulging posteriorly at L3/4 and L4/5 slightly effacing the theca. The canal is slightly reduced in dimensions throughout. The foramina are patent at all levels.”
MRI left knee, 11 May 2021
51.	The report concludes:
“1.	Mild bony oedema identified over the medial femoral condyle and medial tibial plateau may relate to the previous impaction injury and may represent resolving bony contusion with no fracture. 
2.	Mild tendinopathy of the quadriceps insertion at the upper pole of the patella.”
MRI lumbar spine, 11 May 2021
52.	The report concludes:
“Mild disc dehydration at L5/S1 with no significant impingement identified in the lumbar spine”.
Ultrasound of the left shoulder, 20 May 2021
53.	The report concludes:
“There is moderate subacromial bursitis with impingement.
Mild supraspinatus tendinosis without a tear.
Cortical step deformity at the greater tuberosity…”
X-ray of the left shoulder, 9 June 2021
54.	The report concludes:
“No fracture seen. There is mild widening of AC joint. … No bone lesion. No fracture. No soft tissue calcification.”

SUBMISSIONS
Claimant’s submissions
55.	The claimant provided submissions dated 3 May 2022.
56.	The claimant refers to the decision of a Review Panel in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 (David) to assert that a determination as to whether radiculopathy is present can be made at any time. 
57.	The claimant submits that cl 5.6 of the Guidelines and the surrounding clauses do not require the assessment of whether or not radiculopathy is present to be made by a Medical Assessor, and it is sufficient that it be based on a clinical assessment by a medical practitioner independent from the insurer. The claimant submits the meaning of Part 1, cl 4 of the Regulations is satisfied if the radiculopathy is present at any time, although to constitute radiculopathy, at least two clinical signs must be established as specified by cl 5.8.
58.	The claimant submits the following treating records satisfy the criteria for radiculopathy: 
“34.1 	the Functional Assessment dated 24 June 2021 which reports: 
(a)	mid to lower back pain, with shooting pain into upper gluteal region bilaterally. 15 – 20 minutes with difficulty; 
(b)	unable to take weight on left leg due to increased pain in lower back and left knee;
(c)	sharp pain in left knee lateral and front, unable to complete with left knee due to sharp increase in pain lower back 8-9/10; 
(d)	pressure on lower back - lumbar region, 7/10 sharp pain; 
(e)	unable due to sharp pain in neck and shoulder region, radiating down into elbow and hand; 
(f)	neural pain originating in neck region and radiating towards elbow; 
(g)	reported pain and increased pressure in lower back; and
(h)	pulling sensation behind R knee >> L Knee, hamstring tightness noted – mild.
34.2	the Physio file record which confirms:
(a)	 piercing pain in head with pressure on spine; 
(b)	 shooting pain towards Cx; 
(c)	 pressure on spine; 
(d)	 pain on palpation; 
(e)	 unable to weight bear due to pain and weakness; 
(f)	 pain affecting left side of body; 
(g)	 limping; 
(h)	 sensitivity to cervical/thoracic; and 
(i)	 limited cervical, thoracic, shoulder ROM.
34.3	the MRI scan of the lumbar spine dated 11 May 2021 which reported the presence of ‘mild disc dehydration at L5/S1 with no significant impingement identified in the lumbar spine’.”
59.	The claimant notes Medical Assessor Gorman in determining that scarring is a minor injury stated: “the scarring is minimal and not affecting any ADL’s – this is a minor injury”.
60.	The claimant submits it is not necessary to determine whether scarring affects the ADLs to satisfy the requirement for a non-minor injury. The claimant submits that the skin, as an organ, does not fall within the “soft-tissue injury” prescribed under the Act and constitutes a non-minor injury. 
61.	The claimant provided further submissions dated 23 September 2022 in response to the Panel’s direction. 
62.	In relation to the scarring the claimant agreed with the preliminary view expressed in the Review Panel Report and Directions dated 9 September 2022. The claimant submits the scarring does not fall within the constraints of s 1.6 of the MAI Act and nor is it excluded by any identifiable regulation. 
63.	The claimant otherwise relies upon the principle enunciated in David to assert that the treating evidence demonstrates the existence of post-accident lumbar radicular symptoms, together with evidence of left shoulder impingement and bursitis, neither of which, it is submitted, satisfy the definition of minor injury. 
64.	The claimant has highlighted the following entries contained in the clinical notes of Rosehill Family Medical Practice:
Date	Entry in clinical notes	
13 April 2021	Crepitus right knee
Tenderness over right medial joint line
Reduced ROM in left arm
ROM limited to 30-60 degrees in all directions
Painful arc left side
Imp – soft tissue injury lumbosacral spine, left shoulder and left knee? Meniscal/ligamentous injury/ frozen shoulder
MRI spine and left knee. US left shoulder.	
31 April 221	MRI – Spine-Lumbosacral, MRI- Left knee.
…Ongoing severe left lumbosacral spine and left knee pain since.  Unable to straighten or fully extend left knee. ?meniscal/ligamentous injury./to exclude significant disc pathology in lumbar spine.
…Ongoing severe left shoulder pain. Reduced range of motion in all directions ?frozen shoulder ?rotator cuff tear.	
11 May 2021	Ongoing severe left lumbar sacral spine and left knee pain since. Unable to straighten or fully extend left knee? Meniscal/ligamentous injury.? To exclude significant disc pathology in lumbar spine.
… 
Mild tendinopathy of the medical aspect of the quadriceps insertion.	
14 May 2021	Bilateral lower back pain
…
-aching radiates to bilateral anterolateral thighs
-sometimes gets sharp shooting in both heels – triggered by “too much movement”
Left knee pain
-constant
-worse on weight bearing
…
L shoulder pain
Pain mainly on movement – takes a few mins to settle
Initially also felt L trap was aching/tight
Now feels neck and R trap as well
Examination
Antalgic gait
L knee
-tender lateral >>>medial aspect of knee
-tender over quad tendon insertion to patella
-gngerly bends and straightens knee
Shoulder and neck region
R side – no pain, tenderness, full ROM
L side – flexion/abduction to 60 deg. Minimal extension, ext rot 30 deg. int rot minimal
Empty can test ++
Tender bilateral traps and paraspinal C-spine and upper thoracic L>R
Obvious muscle spasm of traps L>R
… likely back is facet joint dysfunction and muscular spasm.	
20 May 2021	Ultrasound left shoulder – see paragraph 35 above	
15 June 2021	Moderate subacromial bursitis with impingement, mild supraspinatus.
…
L shoulder USS May 2021 – see paragraph 35 above.
L shoulder X-ray 9 June 2021 – see paragraph 36 above.
L shoulder pain persistent… 
-mainly on shoulder extension (posteriorly) and abduction.	
25 June 2021	L moderate subacromial bursitis with impingement and mild supraspinatus tendinosis.
…
Functional soft tissue injury lower back – MRI showed disc dehydration L5/S1.
…
Low back pain is sharp, shoots down into lower limb and also upper back. 	
65.	The claimant provided late submissions dated 10 March 2023 relying upon the Review Panel Decision in Al-Khafaji v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 519.
66.	In Al-Khafaji at paragraph 98 the Review Panel reported: 
“Mr Al Khafaji has been advised to have multilevel foraminotomies which the Medical Members of the Panel note usually involves the excision of bone surrounding the nerve root exits. Bone is not a soft tissue and therefore an injury to bone, accidental or deliberate during surgery is not a minor injury. The claimant’s surgery might also involve the cutting of tendons, ligament or other tissue impinging the nerve root. The surgery certainly involves an incision into the skin which is considered an organ of the body elsewhere in the Guidelines. An injury to the skin is, in the view of the Panel not a minor injury because it is an injury to an organ not ‘an injury to tissue that connects, supports or surrounds [an organ] of the body’.”
Insurer’s submissions
67.	The insurer provided submissions dated 27 May 2022.
68.	The insurer notes Medical Assessor Gorman recorded the following clinical examination findings in respect of the lumbar spine:
“There was a normal range of lumbar spinal movements in all planes with no asymmetry. There was no guarding or muscle spasm although he indicted some ongoing discomfort in the right lower lumbar spine. Power, sensation and reflexes in the lower limbs were normal.”
69.	  Medical Assessor Gorman found:
“There is no radiculopathy. Investigations including MRI did not reveal significant disc injury or nerve compression.”
70.	The insurer submits the claimant has failed to particularise which of the symptoms recorded in the Functional Assessment or in the “physio file” allegedly amount to “at least two clinical signs of radiculopathy”. The insurer submits the symptoms do not establish at least two clinical signs of radiculopathy where they do not provide evidence of:
“a.	loss or asymmetry of reflexes
b.	positive sciatic nerve root tension signs 
c.	muscle atrophy and/or decreased limb circumference 
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.”
71.	In relation to the scarring the insurer submits that the definition of soft tissue injury is clear in that a soft tissue injury does not include an “injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”. The insurer submits there is no specific ligament, tendon or cartilaginous structure within skin that would fall outside the definition of minor injury.
72.	The insurer provided additional submissions dated 23 September 2022 in response to the Panel’s direction addressing the scarring.
73.	The insurer submits the Oxford Medical Dictionary states:
“a.	That ‘tissue’ is ‘a collection of cells specialised to perform a particular function.’ 
b.	That the skin consists of 
(i) 	the epidermis (outer layer) and 
(ii) 	dermis (inner layer). 
c.	That the epidermis consists of 
(i) 	continuously dividing cells, 
(ii) 	continually renewed cells and 
(iii) 	dead cells (outer layer). 
d.	The dermis is ‘the thick layer of living tissue that lies beneath the dermis’ that ‘consist mainly of connective tissue within which are blood capillaries, lymph vessels, sensory nerve endings, sweat glands and their ducts, hair follicles, sebaceous glands and smooth muscle fibres’.”
74.	Therefore, the insurer submits even if the skin is considered an organ it is made up of a collection of cells and an injury to the skin may fall within the definition of “soft tissue injury” for the purposes of s 1.6(2) on the basis that skin is “tissue that connects, supports or surrounds other structures”.
75.	The insurer submits when read as a whole the exception to the first phrase in s 1.6(2) gives guidance to what is considered a soft tissue injury with scarring only falling outside the definition of “soft tissue injury” if it involves an injury to “nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
76.	The insurer notes that s 3(d) of the PIC Act provides that one of the objects of the Act is “to ensure that the decisions of the Commission are timely, fair, consistent and or a high quality”. The insurer refers to decisions by Medical Assessor McGrath, Medical Assessor Menogue, Medical Assessor McGlynn, Medical Assessor Home and Medical Assessor Myers who have consistently held that scarring where there is no sensory loss, and no injury to nerves, tendons, ligaments, menisci or cartilage is a minor injury.
77.	The insurer also submits that fairness demands that superficial scarring should be considered a minor injury, to avoid the inequity which would follow where claimants with injury to various body parts, but no scarring would be found to have minor injuries with no ongoing statutory entitlement or entitlement to damages. 
THE MEDICAL EXAMINATION
78.	Mr Eftikhari attended the medical suites at the Commission on 1 March 2023 where he was examined by Medical Assessor Moloney. He was unaccompanied.
Pre-accident history
79.	Mr Eftikhari was born in Afghanistan and migrated to Australia in 2005. At the time of the accident, he was running a smash repair business with his brother. He is married and lives with his wife and one child. He states that there was no past history of any injuries to those body parts assessed today. Prior to the accident, he regularly attended the gym doing weight sessions.
History of accident
80.	Mr Eftikhari had a dispute with an owner of a vehicle he had repaired, and they both attended the Granville police station on 25 February 2021. Without a resolution to the dispute, the car owner failed to stop and collided with Mr Eftikhari in the laneway behind the police station. He was thrown in the air and lost consciousness. The ambulance was called and transported him to Westmead Hospital. His first recollection after the accident was waking up in a ward at the hospital.
Subsequent treatment
81.	At the time of the accident, Mr Eftikhari states that he had low back pain, pain in the left knee and left shoulder, right wrist and right elbow. He consulted his GP and was referred to physiotherapy and prescribed analgesics. He states that physiotherapy was of slight benefit. His GP also referred him to Dr Nazha, pain specialist who did not organise any injections but continued physiotherapy.
82.	There have been no further injuries sustained since the accident.
Current symptoms
83.	At present, Mr Eftikhari has stiffness and central low back pain with an occasional shooting pain into both legs which increases after walking. He gets left shoulder pain with any lifting such as lifting his young daughter. There is pain in the right wrist which increases with cold weather and a slight ache in the right elbow. There is pain in the left knee which increases with walking. He states that the cervical spine and right shoulder are asymptomatic. Mr Eftikhari states there has been no change in the pain level in the past year or so.
84.	Mr Eftikhari states that he no longer does any panel beating but attends the workshop two to three days a week for a few hours when he supervises the other workers. His brother continues to run the business. He is able to walk about 20 minutes and drive short distances. Since the accident he is no longer able to do any gardening or mow the lawn but does some household duties with the help of his wife. He undertakes no sporting activities but occasionally goes to the gym to walk on the treadmill.
Current treatment
85.	His present medication is Panadol Osteo two at night and he attends a physiotherapist on a weekly basis which is self-funded. He stated the physiotherapist works on his shoulders and low back.
86.	No radiological studies were available for inspection.
Clinical examination
87.	Mr Eftikhari walked into the rooms with a normal gait and sat comfortably during the interview. He states he is right-handed. His height was 176cm and weight 87.7kg.
Cervical spine
88.	On testing range of movement, there was a full range of flexion/extension, side bending and rotation with some tenderness over the left trapezius muscle, but no guarding or spasm was noted in the cervical musculature.
89.	On neurological examination of the upper limbs, reflexes were normal bilaterally with normal power. On testing for sensation, there was a global decrease in sensation to light touch to the entire left upper arm and forearm with normal sensation in the hands and fingers. No muscle wasting was apparent with the circumference of the upper arms 35cm bilaterally (10cm above the olecranon process) and at the maximum circumference of the forearm 29cm bilaterally.

Shoulders/elbows and wrists
90.	On inspection of the shoulders, no muscle wasting was apparent and impingement tests were negative. On passive movement, no crepitus was detected and on palpation there was tenderness over the left acromioclavicular joint and anterior glenohumeral joint. Active measurements were undertaken using a goniometer and repeated three times. There was a full pain free range of movement of both elbows.
91.	There was a slight decrease in range of movement of the right wrist and on palpation tenderness over the right styloid process of the ulna.
Shoulder Movements	Active ROM Measured
RIGHT	Active ROM Measured
LEFT	
Flexion	170°	120°	
Extension	40°	40°	
Adduction	40°	40°	
Abduction 	160°	120°	
Internal Rotation	80°	60°	
External Rotation	80°	80°	

Elbow Movements	Active ROM Measured
RIGHT	Active ROM Measured
LEFT	
Flexion	140°	130°	
Extension	0°	0°	
Pronation	80°	80°	
Supination	80°	80°	

Wrist Movements	Active ROM Measured 
RIGHT	Active ROM Measured
LEFT	
Flexion	60°	70°	
Extension	50°	60°	
Radial Deviation	20°	20°	
Ulnar Deviation	25°	30°	

Lumbar spine
92.	Mr Eftikhari was able to walk with a normal gait and stand on his heels and toes. Squatting was 80% of expected range with slight limitation due to left knee pain. On testing range of movement, there was a full range of flexion/extension and side bending. Straight leg raise was 70° bilaterally with negative sciatic nerve root tension signs. On palpation there was a diffuse tenderness over the paravertebral muscle bilaterally in the mid-lumbar region. No guarding or spasm was noted in the lumbar musculature.
93.	On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent.
Knees
94.	On testing range of movement, flexion of the right knee was 130° with 0° extension. The left knee had 120° of flexion and 0° extension. On palpation there was tenderness over the left fibula head and lateral joint line but no ligament laxity was noted in either knee. On passive movement no crepitus was detected in these. No effusions were present.
Face
95.	There were no scars or deformity over the facial area or any residual signs of injury to the face.
Scarring
96.	There is a 2cm in diameter brownish abrasion scar over the right wrist and a smaller brownish scar over the lateral right elbow. These scars are superficial, and the claimant is able to locate them. There are no trophic changes or suture marks and no contour effects with no effect on any ADLs or adherence to underlying structures. The wrist scar is visible with usual clothing. 
DETERMINATIONS – MINOR INJURIES
Cervical spine – soft tissue injury
97.	The Panel refers to cls 5.7 and 5.8 of the Guidelines and notes that at no time since the accident has the claimant demonstrated two or more clinical signs of radiculopathy arising out of the injury to the neck.
98.	In submissions the claimant has not sought to argue he has demonstrated signs of radiculopathy in the neck and on examination the Panel notes there was no evidence of radiculopathy. Indeed, Medical Assessor Moloney concluded any symptoms in the claimant’s neck had basically resolved. 
99.	Clause 5.7 of the Guidelines states that 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. Clause 5.8 states 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;
(b)	positive sciatic nerve root tension signs; 
(c)	muscle atrophy and/or decreased limb circumference; 
(d)	muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and 
(e)	reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
100.	On examination there was no evidence of any radiculopathy and the claimant’s symptoms are basically resolved. The Panel finds the claimant sustained a soft tissue injury to the cervical spine which is a minor injury for the purposes of the MAI Act.
Lumbar spine – soft tissue injury
101.	The claimant relies upon the principle enunciated in David to assert that the treating evidence, in particular, the clinical notes of Rosehill Family Medical practice, demonstrates the existence of post-accident lumbar radicular symptoms.
102.	However, whilst there is evidence of “ongoing severe left lumbosacral spine pain” the Panel is not satisfied the records of Rosehill Family Medical Practice show at any time the claimant has demonstrated two or more of the following clinical signs of radiculopathy: 
(a)	loss or asymmetry of reflexes;
(b)	positive sciatic nerve root tension signs;
(c)	muscle atrophy and/or decreased limb circumference;
(d)	muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and  
(e)	reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
103.	Medical Assessor Moloney did not find any evidence of radiculopathy on examination. Although there is still pain in the lumbar region the Panel finds the claimant has sustained a soft tissue injury to the lumbar spine which is classified as a minor injury for the purposes of the MAI Act. 
Left shoulder – soft tissue injury
104.	There is pain and restriction in range of movement of the left shoulder with apparent subacromial bursitis on scanning. The ultrasound of 20 May 2021 refers to mild supraspinatus tendinosis without a tear and the X-ray of 9 June 2021 reports no fracture. There is no evidence the claimant has sustained an injury to the left shoulder which involves an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The Panel does not agree a finding of left shoulder impingement and bursitis is sufficient to take injury to the left shoulder out of the definition of minor injury. The Panel finds the claimant has sustained a soft tissue injury to the left shoulder which is classified as a minor injury for the purposes of the MAI Act. 
Right elbow – soft tissue injury
105.	On examination Mr Eftikhari complained of a slight ache in the right elbow. However, Medical Assessor Moloney reported Mr Eftikhari had a full pain free range of movement of the right elbow and there is no evidence the claimant has sustained an injury to the right elbow which involves an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The Panel finds the claimant sustained a soft tissue injury to the right elbow which is classified as a minor injury for the purposes of the MAI Act.   
Left knee – soft tissue injury
106.	On examination Medical Assessor Moloney noted Mr Eftikhari has pain and tenderness in the left knee. The MRI of the left knee of 11 May 2021 disclosed mild tendinopathy but there is no evidence the injury to the left knee involves an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The Panel finds the claimant sustained a soft tissue injury to the left knee which is classified as a minor injury for the purposes of the MAI Act. 
Right shoulder – soft tissue injury
107.	On examination Mr Eftihkhari did not complain of any pain or restriction of movement of his right shoulder. There is no evidence the injury to the right shoulder involved an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. This Panel finds the claimant sustained a soft tissue injury to the right shoulder which has now resolved. The panel finds this was a minor injury for the purposes of the MAI Act. 
Left leg
108.	The Panel finds there is no evidence the claimant sustained an injury to the left leg apart from the soft tissue injury to the left knee which is addressed separately. The Panel finds there is no injury to the left leg. 
Right leg
109.	Following the accident on 13 April 2021 Dr Mahajan reported crepitus of the right knee and tenderness over the right medial joint line, but very little complaint thereafter. At the time of the examination by Medical Assessor Moloney there was no complaint in relation to the right knee and no abnormality demonstrated on examination. There is no evidence injury to the right shoulder involved an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. Any injury sustained by the claimant to the right knee has now resolved and would be classified as a minor injury for the purposes of the MAI Act. 
Right arm/wrist – soft tissue injury
110.	The Panel notes Mr Eftikhari continues to complain of pain to the right wrist and on examination Medical Assessor Moloney found a decrease in range of movement of the right wrist and tenderness over the right styloid process of the ulna. However, there is no evidence the injury to the right wrist involved an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The Panel finds the claimant sustained a soft tissue injury to the right wrist which is classified as a minor injury for the purposes of the MAI Act. 
Face
111.	The clinical records of Westmead Hospital document an abrasion to the left chin. This abrasion has resolved. The abrasion would have constituted a soft tissue injury and would be classified as a minor injury for the purposes of the MAI Act. 

Right arm – scarring
112.	There is slight scarring of the right wrist and elbow due to the motor vehicle accident. These scars are superficial with no evidence of sensory loss which would be a sign of an “injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
113.	The more significant question is whether the scars constitute a minor injury. In the Review Panel Report and Directions dated 9 September 2022 the Panel expressed a preliminary view that an injury to the skin evidenced by scarring does not come within the definition of “minor injury” on the basis the skin is an organ and the definition of soft tissue injury in s 1.6 of the MAI Act does not relate to organs of the body but only to tissue that connects, supports and surrounds organs of the body. The Panel invited the parties to provide further submissions.  
114.	The claimant adopted the preliminary view expressed by the Panel. The insurer submitted that “tissue” is made up of a collection of cells and the skin is made up of cells meaning that an injury to the skin may be an injury to “tissue that connects, supports or surrounds other structures”. 
115.	The insurer also submitted that the first phrase in s 1.6(2) gives guidance to what is considered a soft tissue injury meaning scarring can only fall outside the definition of “soft tissue injury” if it involves an injury to “nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
116.	In the recent decision of Nazari v AAI Limited trading as GIO (2) [2023] NSWPICMP 62 a Review Panel considered an abrasion to the right eyebrow which had been sutured but left no visible scarring. The Panel concluded in medical terms, skin is an organ and, by way of strict definition, is not a soft tissue injury.  However, the Panel considered the purpose of the MAI Act stating, “if the skin were not included as coming within the definition of a soft tissue injury, then the merest cut or abrasion would render it a non-minor injury”. The Panel referred to s 34(1) of the Interpretation Act 1987 which states consideration may be given to extrinsic material to determine the meaning of a provision:
“(a)	to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b)	to determine the meaning of the provision—
(i)  	if the provision is ambiguous or obscure, or
(ii) 	if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.”
117.	In Nazari the Panel noted in the second reading speech of the Motor Accident Injuries Bill the Minister indicated the bill was designed to reduce exaggerated claims, and where the only injury was soft tissue or minor psychological injury, statutory benefits for loss of income and treatment and care would be available for up to six months. The Panel suggested that to regard skin as not being soft tissue could lead to an interpretation that is not consistent with the purpose of the legislation and is “manifestly absurd or unreasonable”.
118.	In Alcan the High Court stated whilst regard is to be had to the context and purpose of a provision it cannot replace the clear meaning of the text. 
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”. 
120.	The Panel finds that the reference to “tissue” in s 1.6(2) includes “muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes”. However, the definition is not exclusive and arguably does not exclude the skin which clearly connects, supports or surrounds other structures or organs of the body. 
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.  
123.	The Panel notes the comments made by the Review Panel in Al-Khafaji referred to in the claimant’s submissions dated 10 March 2023 were obiter and expressed as a preliminary view only. The Panel also notes in Al-Khafaji what was proposed was an incision into the skin, a removal of a portion of bone and soft tissue and not a minor scar caused by an abrasion. The Panel does not dispute that the skin is an organ but considers that it also constitutes soft tissue. The reference to the skin as an organ in the Guidelines is in the context of the assessment of permanent impairment and requires a medical assessor to assess the total effect of the scarring on the entire organ system. Under the TEMSKI (Table for the evaluation of minor skin impairment) scale minor skin impairment is assessed as a 0% whole person impairment in the following circumstances:
•	the injured person is not conscious or barely conscious of the scar;
•	there is good colour match with the surrounding skin and the scar is barely distinguishable;
•	the injured person is unable to easily locate the scar;
•	there are no trophic changes;
•	any staple marks or suture marks are barely visible;
•	the anatomic location of the scar is not clearly visible with usual clothing or hairstyle;
•	there is no contour defect;
•	there is no effect on any ADL; 
•	no treatment or intermittent treatment only is required, and
•	there is no adherence. 
124.	The criterion for assessing permanent impairment is not relevant to the determination of whether an injury is minor. However, the Panel is of the view the scarring would be assessed as 0% whole person impairment. The reason is that whilst Mr Eftikhari was able to locate the brownish coloured scar over the right wrist and the lateral right elbow Medical Assessor Moloney’s examination had revealed the scars were superficial, with no trophic changes, no suture marks, no contour defect, no effect on any ADL, no adherence and not requiring any treatment. The Panel is of the view it would not be consistent with the purpose of the MAI Act or fair to other participants in the scheme if superficial minor scarring such as that suffered by the claimant was considered a non-minor injury. 
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”. 
126.	The Panel also notes the guiding principle to be applied to the practice and procedure in the Commission as set out in s 42 of the PIC Act is “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings”. The just resolution of these proceedings requires the Panel to act fairly. The Panel is of the view that it would be unfair for injured persons with a minor skin injury to have an entitlement to ongoing benefits under the MAI Act where an injured person with otherwise significant and disabling soft tissue injuries does not. 
127.	The Panel finds that the scarring is a minor injury for the purposes of the MAI Act.