Avakian v Allianz Australia Insurance Limited
[2024] NSWPICMP 853
•11 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Avakian v Allianz Australia Insurance Limited [2024] NSWPICMP 853 |
| CLAIMANT: | Alin Avakian |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Michael McGlynn |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 11 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Assessment of degree of permanent impairment; activities of daily living; conscious of visible scarring; less socially active; application of daily moisturiser; split skin graft scarring; reduced sensation medial aspect right lower thigh; skin scarring and disfigurement are assessed as a skin condition; skin graft scar easily identifiable colour contrast; visible tropic changes in the skin graft; stitch marks visible; adherence present; TEMSKI criteria; 4% whole person impairment; Held – certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Medical Panel confirms the certificate of Medical Assessor John Giles dated 22 May 2024 and finds: (a) the following injuries caused by the motor accident give rise to a permanent impairment of 4% and is not greater than 10%: skin scarring – left leg. |
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STATEMENT OF REASONS
INTRODUCTION
Alin Avakian (the claimant) is a 40-year-old woman who suffered significant injuries in a motor vehicle accident on 28 September 2021. She sustained injuries including fractures to her right hip, fractures to her right leg, lumbar spinal injuries and lacerations to her left leg.
The insurer conceded that she had sustained non-threshold injuries. The claimant sought a concession from the insurer that her injuries exceed the 10% whole person impairment. The insurer, after a review, declined to make this concession. Thereafter, the matter was referred for a medical assessment to the Personal Injury Commission (Commission) for an assessment of whole person impairment.
In a certificate dated 26 January 2024 Medical Assessor Nigel Menogue determined that her physical injuries gave rise to a whole person impairment of 2%. The claimant was examined by Medical Assessor John Giles on 22 May 2024, who in a certificate of the same date determined that the claimant had sustained 4% whole person impairment consequent on the skin scarring to the left leg.
The claimant sought a review of this certificate and, in a decision dated 5 August 2024, President’s delegate Stephanie Wigan determined that she was satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The matter was then referred to this Review Panel (the Panel).
On 20 August 2024 the Panel issued directions to the parties to upload to the portal all the material which was before Medical Assessor John Giles. This material has uploaded and the Panel convened on 15 October 2024 to discuss the matter generally.
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 the 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.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The claimant was examined by Medical Assessor Michael McGlynn on 25 November 2024 at 1.00pm. She attended the appointment alone.
PRE-ACCIDENT MEDICAL HISTORY
The claimant was in good health before the motor vehicle accident relevantly she had not undergone any prior surgical procedures.
MOTOR VEHICLE ACCIDENT
On 28 September 2021 the claimant was standing behind the insured’s motor vehicle which then reversed pinning her left leg between the tow bar array and the bumper bar of her vehicle which was parked and stationary. Her left leg was crushed between the reversing vehicle and the front of her own vehicle
Following the accident she was taken by ambulance to Westmead Hospital with extensive lacerations to the part of her left lower leg and fracture of the right femoral neck. She underwent surgery to debride and repair the laceration of her left lower leg. The surgical procedure required skin grafts, debriding of the wound and removal of necrotic tissue. Thereafter, the wound became necrotic which required the claimant to undergo further surgery on 14 December 2021 requiring deep debridement and draining. On 24 December 2021 she again underwent surgery to her lower leg which required debriding of her wound and a skin graft with tissue taken from the claimant’s right thigh.
Finally on 29 June 2022 the claimant underwent a fat transfer to the area below the graft to try and alleviate the irregularity of her left lower limb.
MEDICAL CONDITIONS SINCE THE MOTOR VEHICLE ACCIDENT
The claimant has undergone laparoscopic surgery for a hiatus hernia. Following the surgery she developed bilateral deep veinous thrombosis from when she has since recovered.
CURRENT COMPLAINTS
The claimant gave a history of some impairment relating to the activities of daily living (ADL).
ACTIVITIES OF DAILY LIVING
Ms Alin Avakian stated she is very conscious of the visible scarring. Seeing the scarring each morning causes depression. She dresses to cover the scarring, so it is not seen or commented on by others. She avoids going to the beach or pool even with family. She is less socially active than before the accident which she attributes to concern about dressing to hide the scarring. Her left leg swells from ankle to knee after standing for long. Kneeling causes shooting pains in the lower leg.
TREATMENT
The claimant stated she applies moisturizer to the scarring daily and massages the scar areas daily.
EXAMINATION
Ms Alin Avakian was examined on 25 November 2024. Her identity was checked and confirmed. She had a light brown skin colour, she said was from her Armenian heritage. She was 167cm tall and weighed 79kg. The examination focused on skin scarring. There was mild swelling of the left lower leg and at calf and ankle level with both sites measuring 1cm more than the right side.
On left upper lateral thigh, there was a skin graft on site 75 mm x 65mm, hyperpigmented with noticeable colour contrast, flat, with no visible suture marks, no trophic features, and no adherence. There was a longitudinal curved scar running from medial thigh to medial lower leg, 320mm x 5mm, with mixed hyperpigmentation and hypopigmentation causing easily identifiable colour contrast, with easily visible suture marks, no contour defect, minimal traffic features, and no adherence.
On left lower leg at midcalf level abutting the longitudinal scar described above, there was a split-skin graft scar 70mm x 50mm, hyperpigmented with distinct colour contrast, with clearly visible indentation, thin with visible atrophic features, and adherence to deeper tissue. The graft was numb with no protective sensation. There was reduced sensation on the medial aspect of right lower thigh and upper half of right medial lower leg in sensory distribution of anterior femoral cutaneous nerve and saphenous nerves.
IMPAIRMENT ASSESSMENT – SKIN SCARRING
Skin scarring and disfigurement are assessed as a skin condition, as directed in Motor Accident Insurance Act Guidelines Version 9.1 paragraphs 6.258 to 6.267, using American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4) Table 2 and the Table for Evaluation of Minor Skin Impairment (TEMSKI – Table 6.18 of MAA Guidelines).
There is visible scarring, limitation of few ADL and the condition requires no or intermittent treatment, thus is a Class 1 Skin Disorder. Class 1 skin disorders have an impairment range of 0%WPI to 9%WPI.
AMA 4 – Glossary Table page 317 lists nine ADL. These are self-care, communication, physical activity, sensory function, hand functions, travel, sexual function, sleep, social and recreational activities. In this instance three ALD are limited by scarring, physical activity, sensory function, social and recreational activities. Treatment is intermittent, namely daily application of moisturiser and massage of scarring.
MAA Guidelines Version 9.1 paragraph 6.262 states:
“When using Table 2 (page 280, AMA4 Guides), the medical assessor is reminded to consider the skin as an organ. The effect of scarring (whether single or multiple) must be considered as the total effect of the scar on the organ system as it relates to the criteria in Table 2 'Table for the evaluation of minor skin impairment' (TEMSKI). Multiple scars must not be assessed individually. The medical assessor must not add or combine the assessment of individual scars but assess the total effect of the scarring on the entire organ system.”
Paragraph 6.264 of the MAA Guidelines Version 9.1 states: “When an assessor determines a skin disorder falls into Class 1, they must assess the skin disorder in accordance with the TEMSKI criteria.” Table 6.18, TEMSKI in the MAA Guidelines, is then used to assess the scarring.
TEMSKI criteria:
(a) Ms Alin Avakian is conscious of the scarring and disfigurement;
(b) the skin graft scar has easily identifiable colour contrast with the surrounding skin;
(c) she is able to easily locate the scarring;
(d) there are visible trophic changes in the skin graft;
(e) stitch marks are visible;
(f) the anatomic location of lower leg is usually visible with summer mode of dress;
(g) there is easily visible contour defect;
(h) there is minor limitation of few ADL due to scarring, exposure of the insensitive skin graft to physical agents such as heat, sun, and minor trauma may temporarily increase the limitation;
(i) intermittent treatment is required, and
(j) there is adherence.
Seven of ten scar criteria fit the 3-4% WPI TEMSKI zone; four fit 2% WPI TEMSKI zone and five fit 5-9% WPI TEMSKI zone. in my opinion the best fit is 4% WPI. The Panel notes the claimant’s concern that ADL were not adequately considered in the original assessment. They have been adequately considered by the Panel. Three of nine ADL were found to be limited by the scarring. The Panel considers three of nine ADL to be “few” ADL. Together with intermittent need for treatment, namely daily application of moisturiser, the criteria for Class 1 skin disorder are satisfied.
There is no pre-existing scarring or skin disorder contributing to impairment of the skin system.
There is 4% WPI due to skin scarring caused by the motor vehicle accident.
Body Part or System
AMA Guides
MAA Guidelines References (chapter/ page/table)Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent
causes
%WPI* due to motor accident
Skin - scarring
MAA Guidelines par 6.258- 6.267
Table 6.18 p 132 (TEMSKI) AMA 4 Ch13 p 280 Table 2Yes
4%
0%
4%
* %WPI = percentage whole person impairment
0
0
0