Insurance Australia Limited t/as NRMA Insurance v Tu
[2025] NSWPICMP 83
•12 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Tu [2025] NSWPICMP 83 |
CLAIMANT: | Qiuhua Tu |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Sophia Lahz |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 12 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of assessment of single Medical Assessor (MA); whether injuries caused by the motor accident exceed 10% whole person impairment (WPI); claimant suffered injury as a pedestrian when insured vehicle hit her whilst crossing a roadway on 6 November 2019; original MA found 4% WPI related to scarring; other injuries referred found to be related and caused by the motor accident but resolved including lacerated liver and head injury; insurer’s application alleging the MA erred in ascribing a 4% WPI pursuant to the TEMSKI scale rather than 3%; Held – Medical Assessment Certificate confirmed; utilising clinical judgment and applying the “best fit” principle 4% found to be the most appropriate given the particular features of the scar. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF WHOLE PERSON IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel affirms the certificate of Medical Assessor Ian Cameron dated |
STATEMENT OF REASONS
BACKGROUND
Ms Tu, (the claimant) is a 54-year-old woman who suffered injury on 6 November 2019. The claimant was crossing a roadway as a pedestrian when she was hit by a vehicle. She suffered numerous injuries, including internal injuries.
A claim was lodged upon Insurance Australia Limited t/as NRMA Insurance (the insurer) who is the insurer of the vehicle involved in the motor accident. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The subject issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Ian Cameron. He issued a certificate dated 31 December 2023. However, a replacement certificate was issued, which is the subject of this Review, dated 4 March 2024. The Medical Assessor certified that the injuries caused by the accident give rise to a permanent impairment of 4% and are not greater than 10%.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[1]
[1] Section 7.26(10) of the MAI Act.
In a determination dated 26 June 2024, the President’s delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[3]
[3] Section 41(2) of the PIC Act.
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 proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[5]
[5] Section 7.26(6) of the MAI Act.
Interim directions were issued by the Panel requiring the parties to lodge bundles of all documents relied upon. Those bundles were received in compliance with the direction.
The Panel convened a teleconference and determined that a re-examination of the claimant was required. This occurred on 4 October 2024 with Medical Assessor Lahz and Medical Assessor Oates at the Commission’s medical suites.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]
[6] Clause 6.2 of the Guidelines.
Guidelines
Causation of injury is addressed from cl 1.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[7] Clauses 1.6 and 1.7 provides:
“1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
[7] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act):[8]
[8] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
ASSESSMENT UNDER REVIEW
Medical Assessor Cameron in his determination (replacement) dated 4 March 2024 found the claimant had suffered the following injuries caused by the subject accident:
(a) head – soft tissue injury and possible mild traumatic brain injury;
(b) skin – scarring from rib surgery, and
(c) abdomen – liver laceration.
The Medical Assessor referred a chest injury, including right-sided rib fractures back to the Commission as they were outside his area of expertise.
The claimant reported ongoing symptoms to her right shoulder including pain and stiffness. She also reported pain to the neck and lumbar spine and right rib. The claimant reported that her scar on the chest was itchy.
In his findings, Medical Assessor Cameron found the claimant sustained extensive injuries to her chest with multiple rib fractures and a flail segment to her right shoulder region with a scapular fracture and injury to the right acromioclavicular joint. Also found was a lacerated liver and a possible mild head injury.
The Medical Assessor found that the claimant suffered a right shoulder injury by way of soft tissue injury, scapular fracture and acromioclavicular joint injury as a result of the accident, however, such injury was not referred by the parties for assessment.
In respect of the head injury, Medical Assessor Cameron found that cl 6.164 of the Guidelines were satisfied in respect of a diagnosis of traumatic brain injury. He found a 0% whole person impairment.
In respect of scarring, applying the TEMSKI scale, the Medical Assessor found a 4% whole person impairment applying the ‘best fit’ principle. He noted noticeable colour contrast with some visible trophic changes and visible contour defect. It was noted the anatomic location was visible in some types of clothing, some adherence. No limitation of activities of daily living (ADLs) was found and no regular treatment was required.
Medical Assessor Cameron found the liver laceration had healed with no evidence of ongoing liver impairment. A 0% whole person impairment was found.
Additional Commission’s medical assessments
Medical Assessor Alan Home issued a certificate and reasons dated 6 September 2023. He found a 7% whole person impairment arising from the following injuries:
(a) cervical spine, soft tissue injury;
(b) lumbar spine, soft tissue injury;
(c) left hand, soft tissue injury – resolved;
(d) right rib cage, multiple fracture, and
(e) right shoulder, AC joint injury, adhesive capsulitis partially resolved.
The findings of Medical Assessor Home when combined with the findings of Medical Assessor Cameron result in the claimant’s level of whole person impairment caused by the accident to being greater than 10%.
The insurer lodged an application for review of the assessment of Medical Assessor Home. That application was not accepted by the President’s delegate, as set out in a decision dated 3 September 2024.
Medical Assessor Paul Nichols issued a certificate and reasons dated 24 February 2024 which certified that an injury to the claimant’s teeth caused by the accident gave rise to a 0% whole person impairment.
SUBMISSIONS
Insurer’s submissions dated 14 July 2022
Insofar as they relate to the assessment of Medical Assessor Cameron, the submissions of the insurer notes that no complaints are made to the claimant’s general practitioner (GP) regarding any injury or symptoms involving the liver. The insurer submits that no injury to the liver was caused by the motor accident. Alternatively, it is submitted that any such injury has healed and would result in a 0% whole person impairment.
In respect of the head injury the insurer submits that no such injury was caused by the motor accident. In this regard, the insurer notes that the claimant did not make any complaint to her GP following the accident of an injury to her head. In addition, the Allied Health Recovery Requests (AHRR) makes no mention of a head injury. Further, it is noted that the discharge summary of Royal Prince Alfred Hospital documents a CT report evidencing no intra cranial injury or fracture.
In further submissions dated 25 September 2023, addressing the scarring injury, the insurer submits the scarring would give rise to a 1% whole person impairment. The insurer notes the claimant’s GP, Dr Dong records the wounds as healing well.
The insurer also refers to the claimant’s report of Dr Dryson who noted that the scar was not visible with usual clothing, did not require ongoing treatment and did not interfere with ADLs.
Insurer’s review submissions dated 29 April 2024
The insurer submits that Medical Assessor Cameron failed to set out a path of reasoning in respect of the assessment of scarring. The insurer contends that a finding of 3% or 4% was open to the Medical Assessor according to the criteria of the TEMSKI scale, noting that such impairments fall within the same category and have the same criteria. It is submitted that the Medical Assessor failed to provide a clear path of reasoning to demonstrate why a 4% assessment was provided as opposed to 3%.
The insurer goes on to submit that the findings support the finding of 2% whole person impairment rather than 3% or 4%. The insurer states:
“The insurer submits the only differentiating factors between the 2% and 3-4% category relates to whether treatment is required, if there is adherence of the scar and whether the colour contrast is ‘noticeable’ or ‘easily identifiable’/ The insurer submits as the Assessor has used the word ‘noticeable’, which falls under the 2% impairment category, and there is no treatment required, the only descriptor in the 3%-4% category satisfied by the Assessor’s reasons is the fact there is some adherence to the scar. Therefore, based on the principle of ‘best fit’, the insurer submits the Assessor’s reasons do not match the 3-4% impairment category and the more appropriate category is 2% person impairment for scarring.”
Claimant’s review submissions in reply dated 12 June 2024
The submissions refute a suggestion that an error exists in the reasoning of Medical Assessor Cameron and it is contended that the insurer is attempting to go behind its own medical expert evidence.
The claimant submits that there is no evidence put forward by the insurer which suggests that the Medical Assessor did not take into account all of the evidence that was presented and that he did not correctly apply the necessary criteria.
DOCUMENTATION
The Panel has considered all material provided by the parties in the bundles lodged in accordance with the Panel directions.
The NSW Ambulance report confirms the claimant was struck by a vehicle when crossing the road. The report confirms the claimant hit her head on the ground with her head bouncing off the concrete median strip. The claimant was difficult to understand owing to language barriers. Haematoma to the left forehead was noted with a full thickness laceration to the right temporal region. Complaints of pain to the right side of the body are noted with pain in the right shoulder, right ribs and right abdomen. The claimant’s Glasgow coma score (GCS) is recorded as 13/15.
The claimant was transported via ambulance to the Royal Prince Alfred Hospital. An admission summary of 6 November 2019 noted the claimant’s GCS as 14 with a noted that it was 15 when spoken to by a mandarin interpreter.
On admission at the Intensive Care Unit (ICU) a non-displaced right scapular fracture was noted together with rib fractures and a haemopneumothorax. A minor head injury was noted together with a liver laceration to be treated conservatively.
Blood tests revealed elevated liver enzymes which improved by discharge.
The claimant was admitted to the hospital again on 2 December 2019. A discharge summary dated 13 December 2019 notes a principal diagnosis of right sided rib fractures from ribs 3 to 10 with flail segment, volume loss and extensive haemopneumothorax. A right scapular fracture and acromioclavicular joint dislocation is noted. The claimant is documented to have undergone an open reduction internal fixation of posterior rib fractures 3010 and lateral rib fractures 3-9 with adherent lung to ribs bluntly dissected off.
Medico legal reports
The insurer obtained a report of orthopaedic surgeon, Dr John Bosanquet, dated
5 April 2022. He found an 11% whole person impairment, arising from an 8% whole person impairment to the right shoulder and a 3% whole person impairment in respect of the scarring.On examination, he found a 44cm scar from the medial upper scapula running around the scapula inferiorly to the anterior ribs. He describes the scar as healed but prominent with tenderness at the apex of the scar.
A report of occupational physician, Dr Dryson, dated 28 October 2021 was obtained on behalf of the claimant. He provided an assessment of whole person impairment totalling 16% related to a 5% impairment of the cervical spine, and 8% impairment of the right shoulder and a 4% impairment related to scarring.
RE-EXAMINATION
Ms Tu attended punctually for the appointment, having travelled from home in Campsie by train to Central. She then used her GPS to walk to the Commission’s Suites at 1 Oxford Street Darlinghurst NSW.
A Mandarin interpreter Mr Chen Cao (CPN 7YK14N) was present for the duration of the interview and medical examination.
Background
Ms Tu was born in China (from Hunan) and has lived in Australia for six years. She lives with her husband at Campsie and has two adult children who live in China.
Ms Tu has a year 9 education and on leaving school, in China, worked in the QA department of a company manufacturing medical equipment for eight years. Prior to the motor accident, she had (in Australia) worked in Chinese restaurants and also in childcare.
Since the subject motor accident on 6 November 2019, Ms Tu has not done any paid work aside from just two days in a Chinese restaurant two years post-accident. However, she found herself unable to cope with frequent lifting due to pain in the right shoulder, neck, trapezius and right-sided chest wall.
History of motor vehicle accident and symptoms
Ms Tu confirmed her involvement in the subject motor accident. She had just bought some vegetables and remembers “trying to cross the road”. She recalls looking right and left before she was hit. She does not remember being struck by the car and unsure of how the accident happened. Her next memory is of being in the ambulance with paramedics cutting off some of her clothing.
She was taken to the Royal Prince Alfred Hospital and recalls lying on a gurney whilst being covered in blood. She reported being in ICU for 15 days and whilst in ICU the doctor informed her that there were 11 out of 12 right-sided broken ribs.
Ms Tu was in hospital for approximately one month. Whilst in hospital, sutures were applied to a right-sided head wound, a drainage tube was placed in the right side of her chest and on 2 December 2019, she underwent surgery to reconstruct the right-sided rib cage due to a chest wall deformity secondary to a flail chest.
Ms Tu also sustained a right shoulder injury and had to wear a sling for a period post discharge.
She received physiotherapy for approximately two years after the motor accident, mostly targeting the right shoulder as well as the lower back, another painful area. She said too that after the insurer discontinued payment for the physiotherapy, she self-funded this for a period. However, there has been no recent physiotherapy.
Presently she is not receiving any specific treatment for the motor accident injuries. She sometimes takes Nurofen and Paracetamol for symptomatic relief although in general she tries to avoid analgesics due to concerns regarding adverse effects.
Ongoing, Ms Tu’s main problems are pain in the right-sided neck, trapezius, shoulder and posterolateral chest wall 3-7/10 intensity. There are difficulties raising the right upper limb overhead due to shoulder girdle pain. There is also pain-related sleep disturbance particularly if she rolls onto the right side when the pain can wake her up.
The Medical Assessors asked her about the liver laceration. She reported no ongoing issues with this and believes it has fully healed.
She is aware of the large surgical scar over the right-sided posterior chest wall, which is intensely itchy. She tried some lotion from a pharmacy initially although it did not help so she then found a cream from Japan which she buys on line. The latter helps with the itch. She reported that the scar is ugly. She does not wear revealing clothing such as swimsuits so it is not apparent to others in ordinary clothing. The scar does not cause any physical restriction (the loss of right arm elevation relates to shoulder pain, not soft tissue tightness from the scar).
Ms Tu complains of forgetfulness although she could not provide many examples of this, only that she can sometimes be looking for her phone whilst it is still in her hand. She has tried to learn English since the accident though she reported that her memory is poor and there hasn’t been much progress. She still does basic money management/bill paying for the household. Typically, she deals in cash and there have been no instances of unpaid bills. Utilities are generally paid by the landlord.
When asked if there were any other concerns about her thinking abilities, besides memory, she replied in the negative.
She completes most chores as before the accident, aside from those involving heavy lifting. She manages to cook without problems and for shopping, she can go unaccompanied although she uses a trolley.
Friends still visit for chats and cups of tea. Her husband, children and friends have been very supportive since the accident and she does not report any adverse effects on social relationships. She feels too that her personality is unaltered since the accident.
She reported being (generally) an optimistic person and she denied depression. She is sometimes prone to anxiety although this is solely around roads/traffic and whilst her husband is driving if other cars come too close.
She has never seen a psychologist since the motor accident and does not feel the need given that she is quite stoical and has received such good support from family and local community.
She would like to resume work although she realises that this will be difficult given her physical limitations for heavy work and the language barrier.
Examination
On examination, she presented in a very straightforward, genuine manner.
At interview level, she was a concise historian who answered questions appropriately, and there was no obvious behavioural/emotional disturbance.
On the Montreal Cognitive Assessment (MoCA), she scored 28/29. The verbal fluency test was omitted given her non English speaking background (NESB). She missed one point on the memory item. This is a normal score.
Gait was normal and she could briefly balance on heels and tiptoes.
Cranial nerve examination was normal.
There were normal tone, strength, reflexes and sensation. Plantar responses were flexor (normal).
Heel shin and finger nose testing as well as rapid alternating hand movements (coordination tests) were bilaterally normal.
In summary, there were no neurological abnormalities.
Physical examination of the abdomen was found to be normal.
Regarding the scar over the posterior right sided chest, this was curvilinear, stretching from the superior right posterior chest wall to the inferolateral aspect, measuring 39 cm. It was
1cm wide at its widest point (superiorly) where there was a visible, small contour defect. The scar was very evident from surrounding skin due to brawny discoloration throughout most of its length. Trophic changes were present on palpation and there was some adherence superiorly. She complained during the examination that the scar was very itchy as well as “numb”. There were faintly visible suture marks in the superior third of the scar. As noted, she does regularly apply cream to reduce itch. The scar does not cause her to alter the type of clothing generally worn and the scar does not affect ADLs. She reported concerns that the surgical scar is ugly.
CONCLUSION AND PANEL FINDINGS
GCS was 13/15 (some confusion) soon after the motor accident (1228 and 1300) as recorded by the ambulance officers, consistent with occurrence of mild traumatic brain injury. There was a blow to the head with a full thickness laceration to the right temporal region requiring suture. A CT brain scan performed in hospital showed no signs of intracerebral trauma although soft tissue trauma to the scalp was evident. No other investigations of the traumatic brain injury have been performed because they were not necessary.
She was never referred for any formal cognitive assessment, nor was she referred to a brain injury rehabilitation service. She does not report any cognitive difficulties, adverse personality change, difficulties with social interactions or loss of hobbies due to brain injury related problems. ADL limitations relate to persistent pain at the chest wall and in the right shoulder/neck not the cognitive, emotional or behavioural effects of traumatic brain injury.
She has scored within normal limits on the MoCA 28/29 despite NESB.
She sustained a mild uncomplicated traumatic brain injury which would have completely resolved within three months of the motor accident. There are subjective memory difficulties which are non-specific and relate to chronic pain and sleep disturbance. There is no rateable whole person impairment for the mild traumatic brain injury which has fully resolved.
The hospital records referred to the multiple right-sided rib fractures with flail chest/haemo-pneumothorax with later chest wall collapse/significant chest wall deformity (the most serious injury) for which she later underwent plate and screw rib fixation, a liver laceration (conservative management, liver injury resolved).
There is also a large, unsightly scar over the right side of the posterior hemithorax.
The claimant is conscious of the scar. There is easily identifiable colour contrast due to pigmentary change. The claimant can locate the scar. Trophic changes are visible. Staple marks are faintly visible. The scar is not clearly visible in usually worn clothing. There is an easily visible contour defect at the superior aspect of the scar. There is no limitation in ADLs due to the scars though exposure to sunlight and chemicals can increase itch. The scar does require regular application of cream to contain itch. There is some adherence. 8/10 features are present within the 3-4% column of TEMSKI. The panel deems 4% WPI is an appropriate rating, rather than a 3% impairment, for the surgical scar given its size/prominence, symptoms (severe itch), presence of contour defect and need for regular topical treatment.
The Panel has considered the insurer’s submission that the ‘best fit’ would attract an assessment of 2%. The Panel rejects this submission and notes that the scar is not merely noticeable, but is instead easily identifiable. Similarly, the contour defect is easily visible and not merely ‘visible’. Furthermore, some adherence is present. The Medical Assessors utilised their clinical judgment and appropriate application of the TEMSKI criteria in coming to the conclusion that an assessment of 4% whole person impairment was the ‘best fit’, owing to the particular features of the scar.
Accordingly, the Panel affirms the medical assessment of Medical Assessor Ian Cameron.
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