Threshold Injuries – Costal Cartilage Facture Conjecture

In Brief

• Section 1.6(1)(a)  of the Motor Accident Injuries Act 2017 (MAIA) states a threshold injury is a soft tissue injury.
• A “soft tissue injury” is defined in section 1.6(2) to be “an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial members), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage“.
• If a Claimant’s injuries are only threshold injuries, they are not entitled to claim either statutory benefits beyond 52 weeks or common law damages.

Facts

On 3 May 2024, the Personal Injury Commission published its decision in Maybury v CIC Allianz Insurance Limited [2024] NSWPICMP 229.

The Claimant was involved a motor vehicle accident on 15 July 2022.

The Claimant alleged the chest rib injury and the surgical scar arising from the injury constituted above-threshold injuries.

The Insurer disputed the chest rib injury, and the consequent incision in the skin due to surgery, were above-threshold.

The matter proceeded to a threshold injury dispute and the original Medical Assessor diagnosed soft tissue injuries to the Claimant’s cervical spine, head, lumbar spine, left shoulder and thoracic spine as well as the chest rib injury and surgical scar as threshold injuries for the purposes of the Act.

The Claimant lodged a review application.

The President’s Delegate was satisfied there was reasonable cause to suspect the assessment was incorrect in a material respect and the matter was referred to the Review Panel.

 The Claimant argued:

• His costal cartilage was mobile and it was highly likely that it was ruptured.
• The rupture constituted an above-threshold injury.

The Insurer argued that:

• The Claimant’s chest injury was not causally related to the accident because there was significant evidence of a pre-existing injury to the chest.
• The original Medical Assessor failed to provide sufficient reasoning in respect to causation.

The Review Panel

The Review Panel affirmed the test of causation in Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 that the Panel should have made a ‘non-medical informed judgment’ as to whether it was likely the accident caused or contributed to the Claimant’s injury in question.

The Review Panel concluded that the accident caused the chest injury for the following reasons:

• The Review Panel referred to the Claimant’s pre-accident consultant neurosurgeon records, the Claimant’s GP records and the Claimant’s cardiothoracic surgeon’s records which documented evidence of the costal cartilage popping in and out after the accident.
• An examination of the Claimant was carried out by the Panel. The Claimant complained of pain in his anterior chest at approximately the level of the fourth costal cartilage, but more to the right, also to some extent at the site of the injury over the left costal sternal junction. The Claimant reported it would flare up with movement with the left arm and also had pain in his left scapula and adjacent thoracis spine, radiating up to the left side of the neck, as far as the ear.
• On physical examination, a 65mm x 5mm keloid scar was present over the left sternocostal junction area at approximately the level of the fifth costal cartilage, with local tenderness and some alteration of sensation.
• The Panel accepted causation of the chest injury because it was shown to consist of a vertical fracture of the left costal cartilage near the sternocostal junction and, on the balance of probabilities, this condition was causally related to the accident, owing to the pressure directly applied from the overlying seatbelt, which would have tensioned when the Claimant was thrown side to side in the cabin at impact.
• The Panel determined the fracture of the left costal cartilage was not visible on x-ray, ultrasound or CT scan but was directly visualised at the time of surgery for resection of the costal cartilage, leaving no doubt as to its existence.
• The Panel concluded the chest injury was an above-threshold injury because there was direct visual evidence of complete or partial rupture of cartilage, namely, the left costal cartilage.

The Review Panel revoked the original medical assessor’s certificate and substituted its determination certifying the chest / rib injury was an above threshold injury for the purposes of the Act.

Key Learnings

This decision demonstrates an above-threshold physical injury such as a fracture of the vertical costal cartilage can be crystallised at the time of surgery when it is visually evident as opposed to a traditional fracture being visible on x-ray, ultrasound or on a CT scan.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner