Insurance Australia Limited t/as NRMA Insurance v Quigley
[2025] NSWPICMP 2
•6 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Quigley [2025] NSWPICMP 2 |
CLAIMANT: | Beau Quigley |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Michael McGlynn |
MEDICAL ASSESSOR: | Sophia Lahz |
DATE OF DECISION: | 6 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; whole person impairment; nerve injury left lower leg; full thickness burns; wound debridement; impaired activities of daily living; scarring and nerve injury; sural nerve injury; skin graft repair; requirement for combined certificate; Held – Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Panel revokes the Certificate of Medical Assessor Geoffrey (Paul) Curtin dated |
STATEMENT OF REASONS
INTRODUCTION
Beau Quigley (the claimant) is a 21-year-old man who was injured in a motorcycle accident on 28 September 2020. Following the accident, it was determined that the claimant sustained a non-threshold injury and, following the insurer’s declining to concede the claimant’s injuries exceed 10% whole person impairment (WPI) threshold, the matter was referred to the Personal Injury Commission (Commission) for the assessment of WPI.
The claimant has suffered a number of injuries including scarring, head and brain injury as well as an injury to his left shoulder and lumbar spine.
The claimant was assessed by Medical Assessor Geoffrey (Paul) Curtin who, in a Certificate dated 19 April 2024, determined the claimant had sustained a WPI of 4%. This was made up of a finding on 2 WPI consequent on the scarring sustained by the claimant and 2% WPI consequent on the nerve injury to the claimant’s left lower leg. This was described as the scarring of the left ankle is associated with dysaesthesia in the distribution of the lateral sural cutaneous nerve. This figure, when combined with the certificate of Medical Assessor Ian Cameron dated 29 April 2024, gave rise to a combined certificate certifying WPI of 11%.
The insurer sought a review of this determination primarily on the basis that the lower left leg nerve damage was not a matter which was referred to the Medical Assessor and accordingly not a matter which ought to be assessed.
In a Certificate dated 19 April 2024, the President’s delegate Melinda Drew, determined that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. Accordingly, the matter was referred to the Medical Panel.
The Panel convened on 30 September 2024 and determined that it was appropriate to re-examine the claimant in respect to the injuries. The Panel is of the view that the injuries sustained by the claimant include a nerve injury to the claimant’s lower left leg and it is the Panel’s view that this injury ought also be assessed in determining WPI. Submissions were received from the parties and the Panel is of the view that the nerve injury is due to the scarring of skin injury site. The wound required debridement and skin graft repair. The sural nerve lies in the subcutaneous tissue at this site.
Directions were issued to the parties that they are to provide any further material or submissions that they wish to make in respect to the Panel’s assessment of the claimant’s nerve injury – left lower leg prior to the re-examination of the claimant.
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.
Sections 58 and 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 Assessors Michael McGlynn and Sophia Lahz on
27 November 2024. He attended with his mother, Katherine Quigley.
HISTORY
The claimant sustained injuries in a motor vehicle accident on 28 September 2020. He was riding a motorbike and was struck by a motor vehicle and thrown to the road. He was initially treated at St Vincent’s Hospital, Darlinghurst. He was referred to the Burns clinic at Concord Hospital for management of friction burns.
Concord Hospital burns clinic note on 2 October 2020 reported findings of deep dermal with full thickness of burn to scalp, and mid dermal burn to left shoulder, deep dermal burn to left knee and left foot.
On 16 October 2020 he underwent debridement of burn wounds of right scalp, left knee, left ankle. Split skin graft was harvested from left thigh, meshed 1:5, then applied to those three friction burn sites.
There is no mention of injuries to right knee or right ankle.
CURRENT STATUS
ACTIVITIES OF DAILY LIVING (ADL)
Beau Quigley stated he is conscious of visible scarring on his right scalp, left knee and left ankle.
He is also conscious of alteration colour of his right ear at the site of an injury.
He is embarrassed when others notice the scarring.
He has difficulty hiding the right parietal scalp scar from others. His barber styles his hair longer in the scarred area to make the scar less visible.
Scarring near the left ankle is sensitive. Beau Quigley stated light touch or pressure on the scar and skin on lateral side of left foot distal to the scar causes tingling discomfort that radiates up the lateral side of left lower leg. This is in the sensory area of the sural nerve which supplies sensation to the posterolateral side of lower leg and foot. The left ankle scar is sensitive to knocks and bumps. This used to limit his footwear to shoes he could wear. However, he says he is now able to wear most shoes.
Current Treatment:
Beau Quigley stated he applies moisturiser to his scars once or twice a day and applies sunscreen lotional when the scars are exposed to direct sunlight.
EXAMINATION
The claimant was examined at the Commission’s rooms on 27 November 2024. His mother Katerine Quigley was present for the assessment. Medical Assessor Sophia Lahz was also present. Examination focused on scarring. Nerve injury of left lower leg was also examined. The claimant was 180.5 cm tall and weighed 103 kg. He had a fair skin colour and black hair. His hair was styled to cover a right scalp scar.
Skin scarring
Scalp
On the right parietal scalp immediately behind the ear and 15 mm above the border of scalp hairline, there was an oval split-skin graft scar 40 mm x 28 mm, slightly hyperpigmented with easily identifiable colour contrast with adjacent black hair, slightly indented, thin and atrophic, with no visible suture marks, and no adherence.
Left thigh
On the left lateral thigh, there was a barely visible split-skin graft donor site 100 mm x 70 mm, slightly hyperpigmented with some colour contrast with the adjacent thigh skin, flat, with no trophic features, no visible suture marks, and no adherence.
Left knee
There were two visible scars adjacent to the left knee.
On upper border of left patella, a scar 20 mm in diameter, with mixed hypopigmentation and hyperpigmentation causing noticeable colour contrast, flat, with minimal trophic features, no visible suture marks, and no adherence.
Below and lateral to the patella, a scar 15 mm x 20 mm, hyperpigmented was easily identifiable colour contrast, indented, with minimal trophic features, no visible suture marks, and no adherence.
Left ankle
On left lateral ankle and proximal foot immediately anterior to lateral malleolus, there was an oval area of split-skin graft scar, 48 mm x 28 mm, hyperpigmented with noticeable colour contrast, thin and atrophic, with no visible suture marks, and with adherence in a 10 mm diameter area at the center of the scar causing visible tethering when the ankle dorsiflexed.
Right ear
On the right ear at the midpoint of helical rim, there was an inconspicuous scar 15 mm x 8 mm, slightly pinker than the adjacent skin causing some colour contrast, with no contour defect, no trophic features, no visible suture marks, and no adherence.
Nerve injury
Light touch or pressure on the left ankle scar and skin distal to the scar on lateral side of left foot, caused tingling discomfort that radiated up the lateral side of the left lower leg. This is in the sensory distribution of the sural nerve which supplies sensation to the posterolateral side of lower leg and foot.
Impairment assessment
Skin Scarring
Skin scarring and disfigurement are assessed as a skin condition, as directed in MAA Guidelines Version 9.1 paragraphs 6.258 to 6.267, using AMA4 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 activities of daily living (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.
AMA4 – 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. Mr Quigley has limitation of Social & Recreational Activities and Sensory Function. The scarring receives intermittent treatment, namely application of moisturiser. These two factors satisfy the requirements for Class 1 Skin Disorder.
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, Table for Evaluation of Minor Skin Impairment (TEMSKI) in the MAA Guidelines, is then used to assess the scarring.
TEMSKI criteria:
· Beau Quigley is conscious of the scarring and disfigurement;
· there is easily identifiable colour contrast with the surrounding skin;
· he is able to easily locate the scarring;
· there are visible trophic changes in scalp and ankle skin graft scars;
· suture marks are not visible;
· the anatomic location of lower leg is usually visible with summer mode of dress;
· there is minor contour defect;
· there is minor limitation of few ADL due to scarring;
· no or intermittent treatment is required, and
· there is adherence of ankle scar.
Eight of ten scar criteria are spread across the TEMSKI scale from 2% to 9% WPI, with four at 2%, six at 3-4% and five at 5-9%. In my opinion the best fit is at 4% WPI.
Sural nerve
Medical Assessor Curtin was referred “skin – scarring to right knee and right ankle”, for permanent impairment assessment. Mr Quigley sustained a wound to left lateral ankle and proximal foot adjacent to lateral malleolus. The Sural nerve lies in the subcutaneous tissue at this site. Mr Quigley had a significant area of full thickness skin loss at this site, caused by the motor vehicle accident. The wound required debridement and skin graft repair.
At the examination the skin graft scar was 48 mm x 28 mm. Light touch or pressure on the left ankle scar and skin distal to the scar on lateral side of left foot, caused tingling discomfort that radiated up the lateral side of the left lower leg. This is in the sensory distribution of the sural nerve which supplies sensation to the posterolateral side of lower leg and foot.
The Panel determined there is an injury to the Sural nerve due to scarring at the ankle site caused by the injury sustained in the motor vehicle accident and necessary surgery for the injury. On the balance of probabilities the nerve injury is due to scarring at the skin injury site. The Panel agreed with Medical Assessor Curtin’s decision to assess impairment due to nerve injury.
Impairment due to injury to Sural nerve is assessed using AMA4, Chapter 3, section 3.2K, Table 68, Page 89. Injury to Sural nerve causes of maximum 1% WPI for sensory loss and 2% WPI for dysaesthesia. His nerve injury does not affect the entire sensory area of the nerve nor does it cause the worst possible dysaesthesia. I place his condition at the middle of the maximum impairment of 3% (1.5%). After rounding there is 2% WPI due to injury to left Sural nerve.
The two WPI, 4% & 2%, combine using AMA4 Combined Values Chart. The total is 6% WPI.
There is no pre-existing or subsequent injury or condition contributing to the impairment
| 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 para 6.258-6.267 Table 6.18 p132 (TEMSKI) AMA4 Ch13 p280 Table 2 | Yes | 4% | 0% | 4% |
| Left Lower Extremity – Sural nerve injury | MAA Guidelines Para 6.68-6.75 AMA4 Ch3, Section 3.2K, Table 68, Page 89 | Yes | 2% | 0% | 2% |
* %WPI = percentage whole person impairment
0
0
0