Dunn v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 851
•11 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dunn v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 851 |
| CLAIMANT: | Emily Louise Dunn |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Adrian Vertoudakis |
| MEDICAL ASSESSOR: | John Giles |
| DATE OF DECISION: | 11 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for whole person impairment (WPI); assessment by Medical Assessor (MA) Curtin of 10%; claimant’s application for review under section 7.26; claimant passenger aged 17 in rear of car which lost control and hit a pole; claimant sustained severe abdominal injuries which required surgery and caused scarring; jaw and teeth injuries which caused difficulty with masticating; claimant alleged a psychological condition which caused her to chew on her hands and arms which caused scarring; MA Curtin had not assessed scarring of hands and arms because only abdominal surgical scarring was referred to in the application and submissions; claimant re-examined by both MA’s; Panel found jaw and dental injuries caused by the accident and that they caused an impairment to mastication (certain foods the claimant avoided eating) which was assessed at 8%; insurer objected to the Panel assessing the scarring of the hands and arms on the basis of Mandoukas v Allianz and on the basis this scarring was not an injury caused in the accident (not caused by driving) but was a consequential injury and there was no psychiatric finding of a mental illness causing the biting of the hands and arms; Panel found scarring to hands and arms should be assessed as insurer on notice of claim as claimant’s expert had referred to it and assessed it and report annexed to application; skin an organ which Guidelines required to be assessed as a whole; Mandoukos v Allianz, Skates v Hill Industries and Elamma v AAI referred to; Panel found abdominal scarring was a consequential impairment following from injury caused by the accident and scarring caused by a psychiatric injury was no different; Nguyen v MAA applied; skin and scarring impairment assessed at 2%; Held – Certificate of MA Curtin confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Confirms the certificate of assessment of Medical Assessor Curtin dated 19 March 2024. 2. Confirms the combined certificate of Medical Assessor Curtin dated 23 May 2024. |
STATEMENT OF REASONS
INTRODUCTION
Emily Dunn (the claimant) was involved in a motor accident on 15 December 2019. She was a passenger in a vehicle, the driver of which lost control at a roundabout, colliding with a power pole. At the time of the accident, Ms Dunn was 17 years of age.
Ms Dunn says she sustained a number of serious internal injuries including lacerations to her spleen and a punctured lung as well as four broken ribs. She made a claim for statutory benefits and then damages with NRMA, the third-party insurer of the vehicle that the claimant was travelling in.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Ms Dunn referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 19 March 2024, Medical Assessor Curtin determined, in respect of the injuries he was asked to assess, that Ms Dunn did not have a WPI of greater than 10%. As the claimant was dissatisfied with that result, she lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 3 July 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 5 August 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.
The Panel is aware that Medical Assessor Izzo and Medical Assessor Truskett have assessed the claimant’s other physical injuries with no impairment found. Medical Assessor Chew determined that the claimant’s psychiatric injuries were not yet permanent, and he declined to assess impairment.
LEGISLATIVE FRAMEWORK
General provisions
Ms Dunn’s claim for damages and her entitlement to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
Dispute resolution
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Division 7.5 of the MAI Act provides for medical assessments by Medical Assessors of the Commission including provisions relevant to an original medical assessment such as Medical Assessor Curtin’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings, the Panel is not bound by the rules of evidence and the Panel may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 9, the ear, nose, throat and related structures chapter of the AMA 4 Guides is relevant as is Chapter 13, the skin chapter.
Tooth numbering
As Ms Dunn’s injuries include injuries to her teeth, the tooth numbering system of the Fédération Dentaire Internationale (FDI) is used throughout this decision and the chart is set out below.
A two-digit system is used to identify individual teeth. The first number refers to the quadrant and second number refers to the actual tooth. The quadrants are numbered this way:
(a) the person’s upper right (quadrant 1);
(b) the person’s upper left (quadrant 2);
(c) the person’s lower left (quadrant 3), and
(d) the person’s lower right (quadrant 4).
Each individual tooth is numbered from the midline to the back of the mouth. For example, tooth 27 (pronounced two seven) refers to a person’s upper left (quadrant 2), seventh tooth from the midline, a molar. Tooth 43 (pronounced four three) refers to the person’s lower right quadrant (quadrant 4), third tooth from the midline, an incisor.
ASSESSMENT UNDER REVIEW
Medical Assessor Curtin examined the claimant on 15 March 2024 and issued his certificate on 19 March 2024.
He confirms he was asked to assess the following injuries:
(a) mouth – displaced jaw;
(b) teeth – chipped teeth, and
(c) skin – extensive surgical scarring upper and lower abdomen.
The claimant gave Medical Assessor Curtin a history of no prior health problems but that in the year before the accident she had seen her dentist for an issue with a first molar tooth. The claimant denied previous temporomandibular joint (TMJ) issues.
The claimant reported she was the rear seat passenger in a car driven by a drunk driver who lost control of the car and struck a pole. The claimant has no recollection of the collision although she woke up and got out of the car on her own. She was taken to Westmead Hospital by ambulance. The claimant complained of abdominal, chest and back pain and sustained a minor laceration of her tongue and some chipped teeth. Radiology at hospital revealed right sided rib fractures and a pneumothorax and abdominal surgery revealed liver and spleen lacerations and a “high grade biliary leak”.
The claimant reported she noticed left sided jaw pain while in hospital. The claimant was discharged on 3 January 2020 over two weeks after the accident. On 3 March 2020 her general practitioner (GP) recorded that Ms Dunn required dental treatment. Six months after discharge when she was in hospital for removal of the bile duct stent, she noticed a clicking in the left TMJ and discomfort on the left side of her jaw and she was having difficulty chewing. Medical Assessor Curtin noted consultations with Dr Rice, Dr McHugh, the request for an occlusal splint and Botox injections (which have not yet occurred).
The claimant continued to complain of jaw pain and clicking with eating. She had been grinding her teeth and she avoids steak and difficult-to-chew foods.
The claimant did not like her abdominal scarring and would not wear a two-piece swimsuit. She felt tightness in the scar when lifting and it could be irritable and itchy and was sensitive to sunlight. She applies cream to it every day.
Ms Dunn said she only wore the dental splint when driving her car as it helps prevent her grinding her teeth while she drives but she does not wear it at night. She was having physiotherapy for her neck and back and took Panadol. She said she sees a psychiatrist every month and a psychologist every two weeks and takes antidepressants.
The claimant was 21 years of age when examined.
Medical Assessor Curtin did not identify any facial deformity or scarring. There was a full range of jaw opening (42mm) without deviation but with a “palpable click.” She had all her teeth although the wisdom teeth were either removed or not yet erupted. Tooth 46 was restored but asymptomatic and there were minor chips of the enamel visible on teeth 21, 31 and 27.
The abdominal scarring was described as a large midline scar of 26cm in length pale, slightly thickened and with adherence. There was a small patch of scarring of 20 x 10mm on the right with visible suture marks, contour defect and slightly adherent. There was a third patch of scarring on the right side of the chest of about 30 x 12mm with noticeable contour defect and slightly adherent.
Medical Assessor Curtin found the scarring was caused by the accident and that the TMJ dysfunction and dental injury could also have been caused noting the minor dental injury noted at the hospital and tongue laceration which indicated jaw trauma. He considered the claimant’s post-traumatic stress disorder (and associated teeth grinding) has likely aggravated the injury.
In terms of assessment, Medical Assessor Curtin notes that the Guidelines and AMA 4 Guides require consideration of impairment to mastication when there is TMJ dysfunction. He considered the claimant’s diet was “to some extent restricted to semisolid or soft food” and assessed her impairment at 8%.
For the skin scarring he considered the claimant’s scarring fell into Class 1 and required consideration of the Table for the Evaluation of Minor Skin Impairment (TEMSKI) criteria. He considered scarring most closely fit a 2% impairment.
The claimant’s total impairment was assessed at 10%.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s submissions note the three assessments of physical injury (Medical Assessors Curtin, Truskett and Izzo) and confirm that only the assessment of Medical Assessor Curtin was under review.
The claimant submits that one of the reports she relied on was from Professor David, craniomaxillofacial surgeon and that Medical Assessor Curtin did not refer to it and this suggests the Medical Assessor “had not been provided with the report.” The claimant submits that Professor David refers to scarring to the back of both of the claimant’s hands, “because of excoriation resulting from pain and agitation” which he says arises from the injuries in the accident.
The claimant says that had Medical Assessor Curtin examined the claimant’s hand scarring Ms Dunn may have been assessed with a greater than 10% WPI.
Insurer’s submissions
The insurer says that scarring of the claimant’s hands was not referred for assessment as it was not listed in the application.
The insurer says the report of Professor David was annexed to the claimant’s application for assessment and therefore Medical Assessor Curtin must have had it, as he refers to the documents “provided in the application.” The insurer submits that the Medical Assessor does not have to choose between opinions or comment on the correctness of other opinions and therefore did not need to directly reference Professor David’s report.
Procedural matters
On 9 August 2024 the Panel issued directions to the parties for bundles of documents. The claimant was asked to upload hers by 30 August 2024 (it was uploaded on 19 August 2024) and the insurer was asked to upload its by 13 September 2024 (and it was uploaded on 29 August 2024).
The Panel met on 30 September 2024 and reported to the parties the next day. After noting that the three injuries the Medical Assessor was asked to assess were a jaw injury, injuries to teeth and scarring, the Panel said:
“[6] Having read the submissions it does not appear there is an issue as to causation of an injury to the mouth and jaw and chipped teeth although it is clear that the degree of impairment was not agreed at the time of the referral. The Panel asks the insurer to advise whether it concedes the claimant sustained some form of injury to the mouth and jaw as well as the two or three chipped teeth.
[7] The Panel notes the scarring alleged by the claimant includes chest and abdominal surgery related scarring as well as scarring of the hands caused by excoriation or biting as explained in [Professor] David’s report. Does the insurer concede that the chest and abdominal scarring is accident related? Does the insurer concede or dispute that the claimant’s hands are scarred and that this scarring is related to the injuries resulting from or caused by the accident.
[8] Finally, the Panel notes the claimant’s physical injuries were also assessed by Medical Assessors Izzo and Truskett and that there decisions are not under review. The Panel will need to issue a combined certificate at the conclusion of the current proceedings.”
The Panel asked for additional documents from the claimant (photographs of her hands, a clearer copy of the ambulance report, treating dental records and a complete set of notes from the claimant’s pre-accident GP).
The Panel advised the parties of the re-examination date and requested the claimant take to that examination, her night splint and all relevant imaging studies of her mouth and jaw including any orthopantomogram (OPG) films taken.
Parties’ responses
On 9 October 2024 the claimant provided an additional bundle of material and advised that the claimant did not have any photographs of the scarring on the back of her hands.
The insurer lodged additional submissions and documents on 31 October 2024. The insurer concedes at [1.2] the claimant sustained an injury to her jaw as well as chipping tooth 31. The insurer is silent as to any injury to the claimant’s mouth or any other teeth.
The insurer concedes at [1.3] the claimant’s chest and abdominal scarring is related to the accident.
The insurer does not concede the claimant’s hands are scarred and says they have no photographs of the scarring [1.4] and [1.6]. If there is scarring the insurer submits this scarring is not causally related to the accident [1.5]. The insurer submits at [1.7] – [1.9] that Medical Assessor Chew did not take a history of hand scarring and neither did Dr McGlynn and there was no reference to hand scarring in the claimant’s original application for medical assessment.
The insurer argues at 2.1 that the Panel has no jurisdiction to assess the hand scarring in any event for these reasons:
(a) hand scarring was not referred for assessment and therefore it is beyond the scope of the Panel to assess it [2.2];
(b) after citing the case of Mandoukas v Allianz Australia Insurance Limited[5] (Mandoukas), the insurer says at [2.4] that “Court of Appeal made it clear that the scope of a medical dispute is defined, not by statute or by the bundle of documents provided to the Commission, but by the submissions made by the parties”. After citing further passages from Mandoukas the insurer says a Medical Assessor “is only empowered to assess the medical dispute [as] defined by the parties” [2.10];
(c) the insurer then cites a matter of Elamma v AAI Limited t/as AAMI[6] (Elamma) where a claimant alleged psychiatric injuries of post-traumatic stress disorder, severe shock, anxiety and depression. The Panel found post-traumatic stress disorder not caused but that the accident caused an adjustment disorder and opioid use disorder. While the adjustment disorder was threshold the opioid use disorder was not, and because the parties had not mentioned an opioid use disorder in their submissions, the Panel in that case declined to include it in their certificate [2.11]-[2.13], and
(d) the insurer then submits it was not open to the original assessor and is not open to the Panel to consider the hand scaring [2.14].
[5] [2024] NSWCA 71.
[6] [2024] NSWPICMP 280.
The insurer also submits at [2.16] that any scarring to the claimant’s hands was not caused during the driving of the vehicle and therefore is not an injury that occurred at the time of the accident. The insurer relies [2.10]-[2.22] on the case of Zotti v AAMI[7] and quotes paragraph 58 of that decision where the court found “an injury must be sustained during the relevant event” and not “sometime later.” The insurer says at [2.3] the scarring of the claimant hands is not an injury that occurred during the driving of the vehicle and therefore is not an assessable injury.
[7] [2009] NSWCA 323.
The insurer submits [3.1] the claimant only reported biting her hands due to anxiety to Professor David on 26 August 2022 and Dr Canaris on 23 August 2023. The insurer says [3.2] Dr David was not qualified to express an opinion on causation and that Dr Canaris did not reference this behaviour and the scarring in his assessment and [3.3] the claimant gave no history of it to Dr Bisht, psychiatrist. The insurer also notes [3.4] that Medical Assessor Chew has no history of any obsessive compulsive or self-harm issues.
The insurer says at [3.5]-[3.6] that a psychiatrist needs to determine a link between the accident and the biting or scratching on the back of the hands and the Panel is not qualified to offer an opinion on that.
The insurer notes at [3.8] that the claimant’s GP records suggest the claimant had eczema and dermatitis and has required treatment at times for this and that, as a vet nurse she may be exposed to irritants and that her scarring and scratching may be related to an underlying condition.
The insurer repeats at 3.9 that the injury is beyond the scope of the Panel to assess and at [3.10] that the Panel “is only empowered to assess the medical dispute referred.”
REVIEW OF THE EVIDENCE
The claimant has provided a bundle of documents comprising 460 pages with an additional bundle of 185 pages. The insurer has provided a revised bundle of 39 pages.
Noting the claimant has sustained physical injuries assessed by other Medical Assessors while the Panel has considered all of the documents, the Panel will refer in these reasons only to those documents the Panel considers relevant to the matters involved in this Review.
Claim form and claim documents
There is no copy of the claim form before the Panel.
Treating medical records and reports
The claimant’s pre-accident GP, Dr Al Faruque of First Care Medical Centre (First Care) has provided notes which commence in 2016. Relevantly to the matters about scarring before the Panel are these entries:
(a) 7 January 2021 – suffers from eczema, flare up occasionally. Mild itch present, needs Diprosone ointment;
(b) 9 August 2017 – flare up of her dermatitis and she was advised to use Diprosone. The claimant also reported a flare up with pain and swelling in her joints;
(c) 24 January 2019 – eczema and on 27 January 2019 – rash on the face for a few days and a diagnosis of peri oral dermatitis was given and a cream provided, and
(d) 7 August 2019 – a script was given for Diprosone and again on 25 November 2019.
The claimant provided a clear copy of the ambulance report in her additional bundle. The report refers to two periods of loss of consciousness although she had a Glasgow Coma Scale of 15 out of 15 suggesting no abnormality at the time the ambulance arrived. She was in pain and struggling to breathe.
The hospital discharge summary notes the claimant’s admission date (15 December 2019) and her discharge date (3 January 2020) and confirms the claimant’s injuries as:
(a) fractures of right ribs 4-7 with associated pneumothorax;
(b) intraperitoneal collection leading to laparotomy and discovery of a large and a small liver laceration, a grade two laceration of the spleen;
(c) high grade bile leak leading to surgery on 24 December 2019 and stenting;
(d) high levels of right upper quadrant pain, and
(e) chipped tooth 31.
Ms Holroyd, physiotherapist wrote to Dr Al Faruque on 12 March 2020[8] referring to neck, thoracic and rib injuries.
[8] Page 195 of the claimant’s bundle.
On 30 September 2020, Dr Nisanthan of First Care noted raised dermatitis patches on the claimant’s arms, leg and back which were very itchy but not painful or tender. The claimant was known to have eczema and was prescribed Diprosone and Claratyne. On 8 October 2020 the claimant saw Dr Nisanthan again with very itchy dermatitis and a short course of Prednisolone was prescribed. The claimant saw Dr Al Faruque with an itchy rash in the upper limbs and torso and on 5 January 2021 about her perioral dermatitis.
Ms Holroyd’s notes[9] document issues on 5 July 2021 with the left side of the jaw since the accident. Symptoms were of clicking and locking and Ms Holroyd confirmed “click on left TMJ at end range, able to open mouth 50 mm.” Some treatment was provided. There was a further attendance on 12 July 2021 with further complaints of jaw pain. While there are many other attendances with the same history copies, it does not appear that any further treatment was provided to the jaw. The second and third Allied Health Recovery Request forms (AHHR) completed by Ms Holroyd on 5 July and 18 August 2021[10] refers to the TMJ symptoms.
[9] At page 174 of the claimant’s bundle.
[10] Pages 203 and 208 of the claimant’s bundle.
The bundle of Dr Al Faruque’s notes provided[11] commence on 2 February 2021 with, amongst other things, a referral to a plastic surgeon (Dr Dona) for consideration of revision of her scars and there is a reference to dermatitis. Also on that date, the claimant was referred to Ms Knight for counselling.
[11] Page 217 of the claimant’s bundle.
On 5 July 2021 there was a complaint of a patch of eczema on the left shoulder and a script for Diprosone was provided.
The claimant relies on a report from Dr Lim of Workers Doctors dated 17 June 2021.[12] This was the claimant’s first attendance at the practice. Dr Lim refers to neck, back and psychological injuries but does not refer to scarring or Ms Dunn’s facial and dental injuries. On that day, Dr Lim referred the claimant to Insightful Mind for counselling and Dr Khan, psychiatrist. Dr Lim records, in answer to the question about relevant pre-existing factors, that the claimant was a “victim of bullying.”
[12] Page 39 of the claimant’s bundle.
Dr Lim has provided a copy of his records to the claimant’s solicitors. There is significant duplication within the bundle that has been provided including four copies of the referral to Dr Khan and Insightful Minds and five copies of Dr Lim’s report of 17 June 2021.
The Panel has found no reference in these notes to self-harm or obsessive-compulsive behaviours or the claimant’s jaw and dental injuries.
Dr Khan, psychiatrist has provided a report dated 3 September 2021.[13] He does have a history of physical injuries to Ms Dunn’s head, dentition, chest and abdomen and that she has chronic pain.
[13] Page 45 of the claimant’s bundle.
While he has a report of a variety of symptoms, he does not have a history of self-harm or excoriation. On 1 November 2021 Dr Khan noted the claimant’s sleep disturbance and motivation was improved but she had continued symptoms but again there is no mention of self-harm or excoriation.
On 21 February 2022, the claimant was again referred to Dr Dona, plastic surgeon for her scarring and to Dr McHugh for the issues with her jaw. Dr Dona has provided his notes – there appears to be on attendance on 19 May 2022 but the notes are handwritten and impossible for the Panel to decipher and even the date of the first consultation is difficult to ascertain.
Dr McHugh wrote to Dr Saw of First Care about Ms Dunn’s TMJ dysfunction and atypical facial pain. He recommended a “bite raising appliance” and Botox injections into the joint.
On 24 October 2022 the claimant saw Dr Saw seeking Diprosone for her eczema.
The claimant’s dental records from the Tindale Dental Centre have been provided and commence on 4 May 2012 and include details of the following:
(a) on 23 July 2019 she attended with pain on the left hand side radiating up the jaw and it appears tooth 84[14] was extracted;
(b) on 29 July 2019 tooth 36 was considered along with 46 (which was asymptomatic);
(c) the claimant attended again on 27 August and 3 September 2019 when sealant and fillings were done on various teeth, and
(d) after the accident the claimant attended on 31 March 2022, 10 May 2024, 22 May 2024 and 2 July 2024 for various radiographs, calculus removal and fillings.
[14] Tooth 84 is a lower right primary (baby) molar. This is likely an error in either the reference to left sided pain or should be a reference to tooth 74. Either way as a primary or baby tooth it is not relevant to the current dispute.
Medico-legal reports
The insurer relies on a report of Dr Sethi, gastroenterologist and hepatologist dated 8 March 2022.
Dr Sethi has a history of the surgery performed after the accident and later in April 2020. The doctor has a history of abdominal pain commencing immediately after the injury, which was constant sharp and stabbing, triggered by physical activity and eating fatty foods or drinking caffeine. The claimant had “prominent wind, bloating and gas” but no change in bowel habit. Her liver function tests were said to be normal.
Dr Sethi examined the claimant’s abdomen and noted her scarring. He considered the claimant has developed irritable bowel syndrome (IBS) not related to the accident. He assessed WPI at 0%.
Dr McGlynn, hand and plastic surgeon provided a report to the insurer dated 23 March 2022. Dr McGlynn examined the claimant’s three scars to her chest, right abdomen and midline abdomen. He did not assess the claimant’s hand scars, and did not make any comment about them. He assessed WPI at 2%.
Dr Peter Giblin provided a report to the claimant’s solicitor on 3 May 2022. He has a history of the accident occurring at 70 kms per hour and the claimant self-extricating. The claimant complained of ongoing chest pain, abdominal pain, neck, thoracic and lower back pain. He has a history of the claimant falling off her horse in August 2021 and that she had not returned to horse riding.
Dr Giblin undertook an examination and described the three abdominal scars. He examined Ms Dunn’s back and neck and asked the claimant at the end if there was anything else to add but there was not. Therefore, he did not have a history of the scars to the back of the claimant’s hands.
Dr Giblin assessed her WPI as 5% for the neck injury, 5% for the back injury and 1% for her scars. Dr Giblin wrote a further report dated 28 June 2022 having reviewed the claimant’s photographs of her abdominal scarring. He revised his assessment of WPI for the scarring to 2%.
Dr Rice, dental surgeon examined the claimant for her solicitors on 1 June 2022 issuing his report dated 15 June 2022. She had a history of the accident and the injuries, and that the claimant noted blood in her mouth and felt chipped teeth after the accident. She records that Ms Dunn had no x-rays of her jaws performed at the hospital.
Ms Dunn reported to Dr Rice that after the accident that her jaw clicks on the left, she wakes up with jaw pain and that it is worse when the weather is cold.
She said she was referred by Dr McHugh, maxillofacial surgeon for an occlusal splint, because she grinds her teeth which he considered was due to a posttraumatic stress disorder she developed after the accident. Ms Dunn explained to Dr Rice that this disorder was diagnosed by the psychiatrist from Dr Lim’s office. She denied teeth grinding before the accident.
The claimant described post-accident tooth pain in her lower right back tooth which had been filled in 2018. She denied any pre-accident pain in that tooth. She said she had returned to a dentist after the accident who wanted to perform root canal and install a crown.
The claimant says her diet has not been affected but her jaw gets tired, and she is embarrassed by the loud clicking in her jaw and chewing causes pain.
The claimant’s main dental problem with the lower right back tooth as it is sometimes painful. She is not concerned about the chip.
She reported anxiety which she manages by keeping herself busy and distracting herself.
Dr Rice notes the “loud audible click” in the left TMJ, and that Ms Dunn had a class one occlusion. She measured the claimant’s mouth opening at 40mm. Dr Rice had no dental records to review but was satisfied that the claimant chipped tooth 21 and 27 in the accident. She was not satisfied there was any accident-related condition in the lower right molar tooth 46.
Dr Rice considered the TMJ disorder was caused by the accident and that Ms Dunn’s bruxism (grinding) is related to her post-traumatic stress disorder.
Dr Rice assessed the dental injury as 0% noting there was no impact on her diet.
Dr Tew, plastic surgeon provided a report dated 27 June 2022 to the claimant’s solicitor. She has a consistent history of the accident and a list of injuries. Dr Tew has a note of a referral to Dr Dona for management of Ms Dunn’s scars in both 2021 and 2022. In 2021 Dr Dona apparently suggested revision surgery. Dr Tew only has a history of the abdominal scars and assessed these at 2% WPI.
The claimant had a horse kept elsewhere which she drove to visit but she was not doing dressage anymore. She reported panic attacks when she drove.
Dr Machart, orthopaedic surgeon provided a report to the insurer dated 6 July 2022. He limited his opinion to the cervical and lumbar spine. He records that the claimant lived with her parents and was unable to ride her horse since the accident.
He examined the claimant’s neck and lower back noting dysmetria in the cervical spine but no neurological signs in the upper or lower limbs and therefore no radiculopathy.
He assessed WPI at 5% and added 2% for the abdominal scarring.
Dr Canaris wrote a report dated 23 August 2022 for the claimant’s solicitor. The claimant told him more about the circumstances surrounding the accident. The claimant feared for her safety and wanted to get out of the car and that after the accident her friends tried to run away, and no one cared for her. She was angry when she told how she had been in hospital over Christmas and had put her parents through an ordeal at that time.
The claimant was conscious of her scars (abdomen, thorax and chest) and they remind her of the accident. She gave a history of ongoing pain, difficulty riding, and her jaw clicking.
She told Dr Canaris about her nightmares and reliving the accident, low energy levels, poor concentration and she is not very social.
Dr Canaris assessed her impairment at 13%. Again, he does not mention scarring on the hands or any form of self-harm.
Professor David, craniomaxillofacial surgeon wrote a report dated 26 August 2022 for the claimant.
He has a history of the accident and a brief history of her treatment. He notes she has memory loss, abdominal pain, concern about her scars, neck and back pain, two chipped teeth and posttraumatic stress disorder.
He says:
“Her anxiety has caused her to bite the backs of her hands and clench her jaws (bruxism) together when awake. Her jaw is sore in the morning, [she] has difficulty chewing hard food and her TMJ clunks on opening her mouth”.
Professor David remarks on her scars and says, “she had bite scars on the back of both hands.”
He assessed skin impairment at 8%, and her difficulty with mastication at 5%. The Panel notes Professor David used the 5th Edition of the AMA Guides and does not reference the TEMSKI or the Guidelines.
Dr Greenberg, general and gastrointestinal surgeon saw the claimant on 3 May 2022 and wrote his report to the claimant’s solicitor on 12 January 2023. He has a history of the accident and the claimant’s current issues as:
(a) recurring pain in the right lower quadrant one or twice a week. This is triggered by things including lifting and physical sudden movements. Her pain is intermittent and lasts 15 minutes and can be severe, which “drops her to the floor”;
(b) her bowel habits have altered in that she varies from constipation to loose watery stools and normality;
(c) this has impacted her life as before the accident she was engaged in horse jumping but cannot do this anymore, and
(d) the claimant is affected at work as lifting or physical activity is ongoing.
Dr Greenberg examined her stomach and noted the scarring. He felt no mass. He noted the TMJ and the click and the claimant told him she avoids eating solid foods and focuses on soft foods and liquid. He noted the referral to Dr McHugh for treatment of bruxism (grinding.
He was of the view the claimant should be further assessed by a general or trauma surgeon. He found “it difficult to give definitive answer and explain the cause of Ms Dunn’s ongoing abdominal pain.” He was also of the view she had a disruptive injury to the TMJ.
Dr Curtis, oral and maxillofacial surgeon provided a report to the claimant’s solicitor dated 31 May 2023. He has a history of the accident and notes the various expert reports.
He noted no facial disfigurement, no loss of sensation in the trigeminal nerve distribution but there was “clear crepitus and dysfunction in the left TMJ. Jaw opening was reduced.” He attributes this to the accident This internal derangement of the left temporomandibular joint was due to stretching and distortion of the left temporomandibular joint meniscus, similar to the flexion extension injury mentioned above, and says that some authors describe this feature as ‘jawlash’.
He assessed her WPI at 8% and did think she could benefit from manipulation under anaesthetic and a follow up splint.
Dr Giblin updated his assessment of WPI on 14 June 2023, combining Dr Tew’s assessment of 2% with Professor David’s assessment of 13% and Dr Curtis assessment of 8% to produce a total WPI of 30%.
The insurer relies on a report from Dr Bisht, psychiatrist dated 6 November 2023. It was a telehealth assessment. It does not appear he had Dr David’s report.
Dr Bisht takes a very detailed history of the accident, the claimant’s immediate treatment and the onset of her psychological symptoms. He records flashbacks and nightmares and preoccupation with her physical injuries. Ms Dunn did acknowledge partial improvement in her mental state
The claimant did not give a history of scarring to the back of her hands, or any obsessive compulsive self-harming behaviour and it appears Dr Bisht did not ask her about it. He assessed her WPI at 5%.
Other assessments
On 17 April 2024, Medical Assessor Truskett issued a certificate in respect of the claimant’s physical injuries including the liver and spleen lacerations, fractured ribs, thoracic spine and cervical spine injury.
Medical Assessor Truskett has a history of the accident and the claimant’s surgery and noted that after discharge the claimant developed a staphylococcus infection and several urinary tract infections.
The claimant complained of upper quadrant discomfort, disturbed bowel motions with good control. She had a constant ache in the region of her fractured ribs, pain in the back of her neck both of which could be at 10 out of 10 at times. The claimant also had pain in the thoracic region.
On examination the claimant’s neck was normal and there were no upper limb radicular symptoms or signs of radiculopathy. Back movements were also normal and there were no neurological abnormalities in the lower limbs. Medical Assessor Truskett noted the scarring.
Medical Assessor Truskett found all injuries caused by the accident although found there was no tear of the main bile duct. He assessed WPI at 0% in accordance with the Guidelines.
On 9 May 2024 Medical Assessor Izzo examined the claimant and certified in respect of an injury stated as “gynaecology – ovarian damage.” He said there was no evidence of any damage to her ovaries and causation was not established. He found no impairment.
Dr Chew assessed the claimant’s psychological injuries and on 4 June 2024 declined to assess her WPI.
Dr Chew has a history of there being four people in the car and of them all abandoning Ms Dunn in the car after the accident. She has trust issues, ongoing anxiety, nightmares and flashbacks and was concerned about her scars “she is very self-conscious about her scarring.” Dr Chew does not have a history of self-harm or excoriation but does note at section [14] of his report that on examination “There were no thought of harm to self or others.”
RE-EXAMINATION FINDINGS
Ms Dunn attended the appointment on 26 November 2024 at the Macquarie Street rooms of Medical Assessor Vertoudakis. She attended with her mother.
Both Medical Assessors Vertoudakis and Giles undertook the re-examination on behalf of the Panel.
She was co-operative throughout.
Jaw and dental injuries – Medical Assessor Vertoudakis
History of treatment
The claimant has provided copies of the notes from her dentist (Dr Tindale). There are no references to TMJ dysfunction in these notes from 2012 to 2024 (before and after the accident) even though Ms Dunn gave a history that it was he who referred her to Dr McHugh, maxilla-facial surgeon.
Dr McHugh in his report of 31 March 2022 notes the possible causes of the TMJ dysfunction as bruxing from post-traumatic stress disorder or a Class III malocclusion of the left side cross bite. I note there is no MRI put before the Panel which would assist in diagnosing the claimant’s problem and possibly shed light on the cause of her TMJ dysfunction.
Dr McHugh gave her an upper hard acrylic Michigan type full splint articulating in the lower [teeth] 6’s on a lower 2mm suck down splint. I examined her mouth with the splints in place. She wears this splints at night and when driving. She is aware of grinding her teeth while driving. She reports that her left sided “click” has improved since she has been wearing her nighttime splints, but it has not been eliminated.
Ms Dunn says she has not returned to Dr McHugh since 2022. She says “for a long time” no one has checked her dental progress or provided an expert opinion as to any future treatment for her TMJ dysfunction.
Ms Dunn says she no longer goes to physiotherapy.
Current symptoms
Ms Dunn has trouble with chewy foods like some sweets and steak (even when cutting it up fine) otherwise she says she has a reasonably normal and healthy diet.
She fears opening her mouth wide to accommodate a hamburger and then her jaw locking but has no experience of this occurring recently because she is careful with what, and how she eats.
I put to Ms Dunn, Dr Rice’s history on 15 June 2022 that she had a “normal diet”. Ms Dunn reports that Dr Rice misunderstood her (or she misunderstood his question). What she meant was that she had “a healthy diet” in terms of food intake and nutrition. She said he did not ask her a specific question about dietary modifications which she explained to me and which I have recorded above.
Dental and Jaw examination
Teeth 14 and 15 are in cross bite and teeth 27 and 24 are edge to edge. Tooth 26 is in cross bite. A cross bite is when the upper and lower teeth are not properly aligned when the mouth is closed.
This is an orthodontic problem as there is an inefficient occlusion (bite) with which to masticate. In other words, she would have difficulty chewing.
The anterior gape (as measured from upper incisal edge) is 40mm without over stretching which is classed as normal (40-50 mm) although at the lower end of normal. The Panel notes that Medical Assessor Curtin measured 42 mm and Dr Rice measured 40 mm.
There is no pain or audible clicking on opening in the left TMJ but there is a slight audible click on maximum opening on the right side. Ms Dunn says it can get worse, but no trigger was identified.
There is no pain or tenderness on palpation of either the left or right masseter.
In terms of the chipping of her teeth, tooth 31 is slightly worn on the incisal edge. Ms Dunn says she nibbles her hands with her front teeth when she is under stress. There is no need for restoration of this tooth for functional or aesthetic purposes.
Tooth 21 has a minor tiny chip on the incisal edge which again Ms Dunn attributes to nibbling and picking at her hands under stress. There is no need for restoration of this tooth for functional or aesthetic purposes.
On teeth 22 and 27 there is no incisal chipping evident.
Skin and scarring – Medical Assessor Giles
History and treatment
Ms Dunn was involved in a motor accident which caused internal injuries necessitating surgery. The surgery has left three scars to her abdominal and chest area.
Ms Dunn said she had eczema before the accident which would itch and was sore and required ointment. Her eczema can flare with stress or environmental factors.
She gave a history of chewing her hands which began in about 2021 and she says she has not stopped. When her hands are too sore, she chews on her arms, until they bleed, and even her tongue.
Ms Dunn said that her psychologist and said this chewing is a symptom of her post-traumatic stress disorder and is related to the accident.
Skin and scarring examination
Ms Dunn’s hands were carefully examined along with her arms and while there are marks on her hands and arms, they are not prominent and certainly not as prominent as the surgical scarring on her abdomen. The scars do not have the same appearance as marks or scars which might be caused by eczema.
The abdominal scars have been described by other examiners and were measured. In summary there are three scars:
(a) a 26cm long scar from the centre of the chest to above the pubic area,
(b) a 1-2cm round patch of scarring on the right iliac fossa, and
(c) a 3cm scar in the right upper chest wall.
The claimant is not having treatment for the scars but does use creams on the scars at night.
CONSIDERATION OF THE ISSUES – JAW AND DENTAL INJURIES
Jaw and dental causation and diagnosis
The insurer concedes that the claimant injured her jaw in the accident. The insurer also concedes the claimant chipped tooth 31 in the accident.
The insurer does not concede any other injury to the teeth. Noting the clinical findings of Medical Assessor Vertoudakis, there does not appear to be any evidence of chipping or injury to any teeth other than tooth 31.
The claimant’s dental and orthodontic treatment has been minimal and negligible for the last two years. Dr McHugh in June 2022 suggested there was a possible sub-luxation from trauma and some association of TMJ. He also acknowledged the cross bite intraorally with class 3 skeletal retrusion of the maxilla which may not be traumatic. SMs Dunn certainly has internal derangement of the TMJ with possible disc involvement. She has not had an MRI which would allow for a more definitive diagnosis and she has not seen a prosthodontic specialist.
The Medical Assessors are satisfied that the mechanism of the accident could have caused a jaw and tooth injury. The Panel is satisfied that a jaw and tooth injury did occur. The discharge records noted a dental injury at tooth 31 and that Ms Dunn’s tongue sustained a tongue laceration. Both of these features are evidence of likely jaw trauma. Also of note is that Ms Dunn has been diagnosed with whiplash.
What is Ms Dunn’s jaw and dental impairment?
Clause 6.194 provides that an impairment for loss of teeth must be done without any dental prosthesis. This is not relevant to Ms Dunn’s assessment as she has not lost any teeth.
Clause 6.195 provides that “damage to the teeth can only be assessed when there is a permanent impact on mastication (chewing) and deglutition (swallowing) or loss of structural integrity of the fact (not applicable in this case)”.
Clause 6.197 provides that when using Table 6, the first category of impairment is 0-19% WPI and not 5-19%.
AMA 4 Guides notes (at section 9.3b at page 231) that dysfunction in the TMJ may affect mastication, speech, lower facial deformity and produce pain.
“When mastication and deglutition are evaluated the ability to eat should be stable and maximum rehabilitation should be achieved. When mastication or deglutition is impaired the imposition of dietary restrictions usually results.”
Table 6, as modified by cl 6.197 of the Guidelines, provides the following WPI percentages:
(a) 0-19% if diet is limited to semisolid or soft foods;
(b) 20-39% if diet is limited to liquid foods, and
(c) 40-60% where ingestion of food required tube feeding or gastrostomy.
In Ms Dunn’s case while her orthodontic care has been sub-optimal, and there is the possibility of further improvement with additional treatment, her treating practitioners have not referred her for, or recommended, further treatment. On that basis she has, for the last two years or more had a condition that is static and well stabilised.
There are no case studies and little additional guidance in the AMA 4 Guides as to how to approach impairment when such a wide range (0-19%) is given. There are certain foods she avoids such as some sticky sweets and food that requires much chewing such as steak. This is understandable and advisable. She does not require a liquid diet and can eat most foods. The appropriate impairment is therefore at the lower end of the range.
It is the clinical judgment of the Medical Assessors that the claimant’s WPI should be assessed as 8%.
CONSIDERATION OF THE ISSUES – SKIN AND SCARRING
Impairment assessment principles for skin and scarring
Clause 6.262 of the Guidelines states that Table 2 (page 280, AMA 4 Guides) provides the method for clarifying skin disorder impairments. There are five classes of impairment provided in the table. There are three components for each class: signs and symptoms; limitation of activities of daily living and requirements for treatment.
Where the impairment is “class 1” a range of 0-9% WPI is provided. Table 6.18 in the Guidelines, the TEMSKI, has been developed as an extension of Table 2 and enables a Medical Assessor to determine a more precise percentage for a minor skin impairment. The clause says:
“The medical assessor must evaluate all scars either individually or collectively with reference to the five criteria and 10 descriptors of the TEMSKI. The medical assessor should address all descriptors.”
Clause 6.263 provides that when using Table 2 and the TEMSKI 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 …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.”
Should the hand scarring be included?
The insurer’s original submissions argues that the scarring at the back of the claimant’s hands should not be included because:
(a) the claimant did not refer this scarring in the list of injuries referred for assessment and only referred “surgical scarring” and Mandoukas prevents it being assessed, and
(b) the injury did not occur “during the driving of the vehicle” and is noted by Professor David as “consequential to the psychological injury”.
The insurer’s additional submissions did not concede the claimant’s hands were scarred and said that any scarring was not causally related to the accident and has not been mentioned by anyone other than Professor David.
In the additional submissions, the insurer maintains its argument that the Panel should not assess the scarring to the hands on the basis of Mandoukas which “made it clear that the scope of a medical dispute is defined, not by statute or by the bundle of documents provided to the Commission, but by the submissions made by the parties.”
The Panel notes that Justice Stern in Mandoukas (dealing with a dispute about whether an injury caused by an accident was a threshold injury and not a WPI dispute) held that what is in dispute or not before a Medical Assessor is a matter of fact in each case saying:
“[78] Thus, the medical dispute ‘about a medical assessment matter’ will, in each case, be a question of fact depending upon the ambit of the dispute between the parties at the relevant time having regard to the competing claims made. ...”
Both Mandoukos and the Workers Compensation case of Skates v Hill Industries Ltd[15] came to a similar communication, that is, it is not just the communication from the Commission to a Medical Assessor (or Panel) that determines the scope of the medical dispute and assessment, it is the referral, the submissions and the documentation before the parties that in the particular circumstances of the case that are relevant. The insurer’s summary of Mandoukos is in the Panel’s view not quite correct. The Panel is not limited to considering the submissions only when determining what is in dispute.
[15][15] [2021] NSWCA 142.
The insurer referred to the decision of Elamma which concerned a psychiatric injury and again a threshold injury dispute. The claimant had specified the precise injury (post-traumatic stress disorder) and the Panel found an adjustment disorder (threshold) and opioid use disorder (non-threshold). Because the parties had not mentioned the latter in their submissions, it was not included in the certificate by the Panel. With respect to that Panel, this Panel is not of the view that the opioid use disorder should have been excluded from the certification. The Panel notes that the Guidelines require a diagnosis to be made before it is determined whether an injury is threshold or not and it was open to the Panel to diagnose a different condition to that which was referred.
The Panel considers the scarring to the back of the hands should be assessed and included (subject to causation) for the following reasons:
(a) a review is not an appeal looking for error but an assessment de novo. Therefore, the Panel is reassessing impairment to the skin caused by scarring;
(b) according to cl 6.253 of the Guidelines the skin is an organ and impairment to that organ requires the claimant’s skin to be assessed as a whole;
(c) Professor David’s assessment was attached to the claimant’s application for Medical Assessment. Professor David included the hand scarring in his assessment of August 2022;
(d) the insurer has been on notice of the claim concerning scarring to the claimant’s hands since Professor David’s report was served, and in particular since the application for review was made by the claimant on or about 5 June 2024. The insurer has had time to obtain a supplementary opinion from any of its experts as to the degree of WPI resulting from the injury to all of the claimant’s skin including the hand and arm scarring, and
(e) one of the objects of the MAI Act is, “to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.”[16] The guiding principle of the Commission set out in s 42 of the Personal Injury Commission Act 2020 is to provide for the just, cost effective and quick resolution of the real injuries in dispute. The Panel has the expertise to assess the hand or arm scarring now and at no additional cost to the parties and the Commission. If scarring to the back of the hand is not included in this assessment, then the claimant may have to lodge a further assessment which will delay the resolution of the claim further.
[16] Section 1.3(2)(g).
Skin and scarring – diagnosis and causation
The insurer has conceded that the claimant’s abdominal surgical scarring is caused by the accident.
The insurer submits that the claimant’s scarring to her hands was not caused during the driving of the vehicle and refers to the definition of injury in s 1.4 of the MAI Act and says the injury did not occur at the time of the accident and therefore is not a motor accident injury.
The Panel is determining, in accordance with Schedule 2(2)(a) of the MAI Act a dispute about an impairment resulting from an injury. In particular the Panel is determining a dispute about impairment to the skin resulting from injuries sustained in the accident. The insurer refers to the scarring of the claimant’s hands as an injury consequential upon a psychological or psychiatric injury.
The Panel does not agree with the insurer’s argument. The cases concerning assessment of impairment are replete with examples of consequential injury or consequential impairment. The case of Nguyen v Motor Accidents Authority of New South Wales and Anor[17]for example held that if an injury to the neck results in impairment to the shoulders, then the shoulder impairment is included in the assessment even though the shoulders did not sustain a frank or specific injury in the accident. The Panel also notes that Ms Dunn injured her abdomen and internal organs in the accident. This required surgery after the collision. The surgery caused scarring which resulted in an impairment (which the insurer concedes).
[17][2011] NSWSC 351.
Scarring caused by excoriation due to stress is, in the Panel’s view, no different if the stress or anxiety was caused by the accident.
The medical members of the Panel acknowledge they do not have the expertise to diagnose whether Ms Dunn has an accident-related psychological condition which causes stress, anxiety and self-harming behaviours. However, it is the clinical judgment of the medical members of the Panel that psychological conditions can cause physical injury or symptoms which can lead to scarring and certain psychological conditions can also exacerbate physical conditions including skin conditions such as eczema.
The Panel also notes there has been no diagnosis by a Medical Assessor that the claimant has an accident caused psychological condition which has led to her biting her hands and arms. In the light of the Panel’s finding as to the degree of impairment, the Panel does not propose to defer its decision until such a medical assessment takes place.
What is Ms Dunn’s scarring impairment?
Medical Assessor Curtin assessed the claimant’s abdominal surgical scarring at 2%. This is consistent with the assessments of Dr McGlynn, Dr Giblin, Dr Tew and Dr Machart. With the exception of Professor David (who assessed WPI for the skin at 5%) the medical examiners did not assess any scarring to the claimant’s hands.
Ms Dunn says she started chewing her hands in about 2021 and she has not stopped. When her hands are too sore, she chews her arms, and even her tongue. She chews until she bleeds. She is aware she is doing it and tries to distract herself but it is difficult.
The scars are rather unremarkable although Ms Dunn is aware of them and can locate them.
Considering the claimant’s scarring as a whole, it is the Panel’s view that the claimant’s scarring falls within Class 1 because:
(a) signs and symptoms are present, always for the abdominal scars but more intermittently for the hand and arms scars;
(b) limitation of activities occurs sometimes, and
(c) there is no health or allied health treatment being provided for the scars other than creams.
The Panel must therefore apply the 10 criteria of the TEMSKI as follows:
TEMSKI CRITERIA as per the table Relevant evidence from the claimant and examination Rating Consciousness
The claimant is conscious of both her abdominal scars and the scars on her hands and arms.
2%
Colour Match
The scarring on her hands is a bit pinker than the surrounding skin. The abdominal scar is paler than the surrounding skin.
2%
Ability to locate
The claimant is easily able to locate her abdominal scars. While she is generally aware of the area where she chews her hands and arms, she is less able to locate the individual scars.
2%
Trophic changes
The scars on her hands and arms have no trophic changes. There are minimal trophic changes in terms of the abdominal scars in that there is no tenderness or pain or sensory loss, but the claimant does complain of itchiness and irritability of these scars.
1%
Visibility of staple or suture marks
The scars on Ms Dunn’s hands and arms have no staple or suture marks. There are suture marks on the smaller abdominal scars but not the long scar.
1%
Anatomical location
The scars on the hands are on a part of the body that is clearly visible. The arms to a lesser extent depending on the season. The abdominal scars are usually covered with clothing. The claimant’s swimsuit choice is affected.
3%
Contour defect
There is no contour defect in respect of the hand or arm scars. The long scar and the two smaller abdominal scars have obvious contour defects.
2%
Effect on any activities of daily living
While her psychological condition may have an effect on her activities of daily living, the scars on her hands and arms do not. The claimant says that her abdominal scars affect the clothes she wears but not what she does. She feels some tightness in the scar when she is lifting
1%
Treatment
Ms Dunn is having no treatment for any of her scars other than rubbing creams into them at night. She is having treatment for her psychological condition but that is not included in this assessment.
1%
Adherence
There is no adherence of the hand and arm scarring to the underlying structures. There is some adherence of the long abdominal scar in particular.
2%
The TEMSKI uses the principle of best fit (not the average or mean or median) when considering the impairment to the claimant’s skin over the whole of her body.
It is the clinical judgment of the Medical Assessors that the best fit in Ms Dunn’ case is 2%.
CONCLUSION
The Panel finds that the claimant’s WPI is as follows:
(a) jaw and dental injury 8% WPI, and
(b) skin and scarring 2% WPI.
The total WPI is therefore 10%. As the Panel has come to the same conclusion as Medical Assessor Curtin, it follows that his certificate must be confirmed along with the combined certificate.
0
5
0