Mcshane v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 9
•10 January 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Mcshane v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 9 |
| CLAIMANT: | Bernadette McShane |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Clive Kenna |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 10 January 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; the claimant suffered injury in a motor accident on 15 January 2019; medical dispute under section 7.26 about whether the motor accident caused permanent impairment greater than 10%; one Medical Assessor examined and assessed the claimant; applied TEMSKI scale to assess minor scarring; assessed left wrist with 5% permanent impairment; Held – claimant reassessed at 10% permanent impairment; same rating but different outcome for body parts; previous Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | Review Panel Assessment of Degree of Permanent Impairment The Review Panel revokes the certificate dated 23 February 2022 and issues a replacement Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 (the MAI Act). The MAI Act requires permanent impairment from injuries GREATER THAN 10% to access non-economic loss damages. The motor accident caused the following injuries, which the Review Panel assesses as permanent impairment of 10%: · shoulder – closed right distal clavicle fracture; · clavicle – closed right distal clavicle fracture; · wrist – closed left distal radius fracture, torn triangular fibrocartilage; complex, and tendinosis in ECU tendon; · cervical spine – soft tissue injury, and · scarring – right clavicle, left wrist. |
REASONS
Background
Bernadette McShane was injured in a motor vehicle accident on 15 January 2019. A car ran a stop sign and hit the motorbike she was riding. The collision knocked her off the motorbike injuring the right shoulder, cervical spine and left wrist.
An ambulance took her to Nepean Hospital in Penrith. Eventually Ms McShane’s injuries were diagnosed as:
(a) a fractured clavicle requiring an open reduction, internal fixation and bone graft to the right clavicle;
(b) a left wrist distal radius comminuted fracture, initially treated non-operatively in a plaster cast, later with surgery, and
(c) soft tissue injuries to the cervical spine.
The owner and driver of the motor vehicle were insured for liability to pay
Ms McShane any damages under the Motor Accident Injuries Act 2017 (the MAI Act).The insurer admitted liability.
Medical Assessor Bernard Tamba-Lebbie conducted the original medical assessment on 17 February 2022 and produced a certificate dated 23 February 2022.
Ms McShane lodged her application to refer Medical Assessor Tamba-Lebbie’s assessment to a Review Panel within 28 days after the parties were issued with the original assessment certificate.[1]
[1] Section 7.26(10) MAI Act.
On 9 May 2022 the President’s delegate referred the medical assessment to a Review Panel, as she was 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) MAI Act.
The delegate accepted the claimant's application that the Medical Assessor has erred in failing to outline his actual path of reasoning at coming to the conclusion that the scarring gave rise to a whole person impairment (WPI) of 2%.
Statutory provisions
Section 7.26 of the MAI Act empowers the President of the Personal Injury Commission (the Commission) to refer medical assessments from a single Medical Assessor to a review Panel.
In the present case Ms McShane’s degree of permanent impairment—expressed as a percentage—was disputed and referred for assessment.[3]
[3] Note the term “permanent impairment” in the MAI Act is used interchangeably with “whole person impairment”.
Permanent impairment disputes are resolved under s 7.21 of the MAI Act.[4] The “assessment of the degree of permanent impairment of an injured person...is to be made in accordance with the Motor Accident Guidelines (‘the Guidelines’)”.
[4] The Guidelines are issued pursuant to s 10.2 of the MAI Act. Section 10.1 of the MAI Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the Guidelines.
The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4). The Guidelines prevail where there is any difference between AMA4 and the Guidelines.[5]
[5] Clause 6.2 Guidelines.
When undertaking a medical assessment, a review Panel “is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of new assessment of all the matters with which the medical assessment is concerned”[6].
[6] s 7.26(6) MAI Act
Having conducted that medical assessment, the review Panel “may confirm the certificate of assessment of the single medical assessor or revoke that certificate and issue a new certificate as to the matters concerned”[7].
[7] s 7.26(7) MAI Act
If a review Panel issues a new certificate, s 7.23 of the MAI Act applies to that certificate. Section 7.23 deals with the status of medical assessments.
Relevantly, following medical assessment of a medical dispute, the Panel is to issue “a certificate as to the matters referred for assessment”[8]. That certificate “is to set out the reasons for any finding by the medical assessor or assesses as to any matter certified in the certificate in respect of which the certificate is conclusive evidence”[9].
[8] s 7.23(1) MAI Act
[9] s 7.23(7) MAI Act
Part 5 of the Personal Injury Commission Act 2020 (the 2020 Act) enables the Commission to make rules regarding the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[10]
[10] Section 41(2) 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Review Panel determines how it conducts the proceedings and may conduct the proceedings relying solely on the written application.[11]
[11] Rule 128 PIC Rules
Assessment under Review
Medical Assessor Bernard Tamba-Lebbie certified the following on 23 February 2022:
Permanent Impairment
The motor accident caused the following injuries, and the permanent impairment was not greater than 10%:
· clavicle – closed right distal clavicle fracture;
· wrist – closed left distal radius fracture, torn triangular fibrocartilage complex, and tendinosis in ECU tendon;
cervical spine – soft tissue injury, and
· scarring – right clavicle, left wrist.
The right clavicle injury had healed and resolved.
Permanent Impairment Table
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Right Shoulder/ Clavicle | Figure 38 page 3/43, figure 41 page 3/44, Figure 44 page 3/45 | Yes | 2% | NIl | 2% |
| 2 | Left Wrist | Figure 26 page 3/36, Figure 29 page 3/38 | Yes | 7% | Nil | 6% |
| 3 | Cervical Spine | Page 3/103, page 3/104 | Yes | 0% | Nil | 0% |
| 4 | Scarring | TEMSKI | Yes | 2% | Nil | 2% |
* %WPI = percentage whole person impairment
Pre-existing/subsequent impairment
There was no pre-existing impairment.
Apportionment
Not applicable.
Effects of treatment
He did not feel that adjustment was required.
Impairment Calculations
Range of Motion (Right Shoulder)
Figure 38 page 3/43
Forward Flexion 150° = 2 % UEI Extension 50° = 0% UEI Figure 41 page 3/44
Abduction 150° = 1% UEI
Adduction 40° = 0% UEI Figure 44 page 3/45
External Rotation 80° = 0% UEI Internal Rotation 80° = 0 % UEI Total for range of movement (ROM) 3%UEI
RANGE OF MOTION (Left Wrist)
Figure 26 page 3/36
Flexion 60° = 0% UEI
Extension 9° = 11% UEI Table 29 page 3/38
Radial Deviation 20° = 0% UEI
Ulna Deviation 30° = 0% UEI Total for ROM 11% UEI
Total Upper Extremity Impairment Combine 11% UEI and 3% UEI = 14% UEI
Table page 14% UEI = 8% WPI
DRE: Cervical Spine
Pages 3/103 & 3/104
There was no spasm. There was slightly reduced movement. This gave DRE Cervical Spine Category I = 0% WPI.
SCARRING
TEMSKI Table
“Using the TEMSKI table for skin, the scar is …. cm. It is/ is not (sic) palpable, it is/ is not (sic) easily visible. This will give a TEMSKI score of 2% WPI”
TOTAL WPI
Combining Values Chart page 8% WPI and 2 % WPI = 10% WPI
Documentation
The Review Panel considered the following documentation:
· claimant's submissions;
· claimant's statement;
· photos of scarring;
· Dr Bruce's report dated 13 January 2021;
· insurer's internal review determination dated 11 February 2021;
· left wrist MRI dated 13 April 2021;
· insurer's submissions dated 22 April 2021;
· Medical Assessor Tamba-Lebbie’s certificate dated 23 February 2022;
· insurer's submissions dated 22 April 2022, and
· Presidential delegate's decision dated 9 May 2022.
Review conduct
Each Review Panel members confirmed they had no previous involvement with this matter or with Ms McShane.
Review Panel considered and decided these matters
The Review Panel considered afresh all aspects of the assessment under review.
Panel initial determination
On 24 May 2022 the Panel issued a direction to require the parties to file a paginated bundle of documents they would rely upon for the Review with a joint statement of agreed facts and issues under rule 70 of the Commission rules. The claimant declined to comply with the rule 70 direction.
The Panel members perused that material and then met on 15 June 2022 in a telephone conference and agreed to make the following further directions:
“By 5pm on 13 July 2022 the parties were to advise jointly whether it is accepted that the Panel can adopt Medical Assessor Tamba-Lebbie’s findings and conclusions that the accident caused the following injuries:
Closed right distal clavicle fracture
Left distal radius fracture, torn fibrocartilage complex and tendinosis in ECU tendon.
Cervical spine – soft tissue injury
Scarring: left wrist and clavicle
By 5pm on 13 July 2022 the parties were to advise whether it is accepted that the Panel can adopt Medical Assessor Tamba-Lebbie’s permanent impairment assessment for:
Closed right distal clavicle fracture
Left distal radius fracture, torn fibrocartilage complex and tendinosis in ECU tendon.
Cervical spine – soft tissue injury
By close of business on 13 July the parties were to advise whether it is accepted that the Panel’s re-assessment be limited to the right clavicle and left wrist scarring.
Unless the parties agree under section 7.25 of Motor Accidents Injuries Act 2017 (the MAI Act) to adopt the assessor’s findings regarding causation and the level of impairment assessed for the body parts other than scarring on the right clavicle and left wrist, the Panel will conduct an assessment regarding causation and impairment of each claimed injury.”The Panel considered re-examining the claimant was required, because assessing the scarring would require an in-person examination of the scars. The Panel advised that Medical Assessor Kenna would conduct this examination on the Panel’s behalf on
9 August 2022 in Sydney.The Panel met again on 16 August 2022 to discuss the examination findings.
Submissions
Claimant's submissions
The applicant claims the claimant’s injuries give rise to a degree of permanent impairment greater than 10%.
The claimant’s submissions were marked A1 and accompanied the application for review. The submissions for the initial medical assessment were not included.
The claimant says the Medical Assessor failed to provide sufficient reasoning as to how he produced a WPI of 2% for the scarring, because Medical Assessors “must disclose the actual path of reasoning by which the assessor arrived at the opinions formed on each of the issues which had to be resolved”, as per AAI Limited v Fitzpatrick [2015] NSWSC 1108 [30] Schmidt J.
The Medical Assessor appears to have inserted “reasoning” which does not indicate the length of the scars, whether or not it was palpable or easily visible. It appears that the Medical Assessor failed to insert these details into his certificate.
The Medical Assessor has failed to consider all 10 of the TEMSKI scale categories.
The claimant referred to her statement dated 28 March 2022, which postdates the earlier assessment and note, firstly, that the Medical Assessor did not ask her any questions in the assessment relating to her scarring. The claimant highlighted the following:
“a. I am extremely conscious of the scarring on my clavicle and wrist. It is very obvious and irritating.
b. There is a distinct colour contrast between the scars and the surrounding skin.
c. I am able to easily locate both scars.
d. Trophic changes are visible. You can see where the scarring has become raised in some areas as a result of trophic changes. Parts of the scarring is thicker and other parts thinner than the surrounding skin, which can be visibly identified as well as felt.
e. There are suture marks on my wrist which are clearly visible.
f. The scarring is usually and clearly visible with usual clothing. I would always have to wear clothing with long sleeves and a high neckline to cover my scarring.
g. The scarring causes limitations in the performance of activities of daily living, including wearing a seatbelt. I experience irritation and pain on both the clavicle and wrist scarring when wearing clothing. I am unable to wear a normal bra and must wear a sports bra due to irritation. I must have padding on my seatbelt as this also causes irritation to the clavicle scar. Certain clothing fabrics hurt my wrist when I wear long sleeves or my wrist rubs against my clothes, preventing me from wearing certain fabrics. I used to wear a watch on my left wrist, but this causes constant agony now. In the cold my scarring causes greater pain and limitation, causing me to have to put heat packs on the scarring, especially the clavicle scar. I need to regularly reapply sunscreen on my scars as it causes great irritation to be in the sun. Noting that I live in a very sunny location, I often avoid going outside on very sunny days.
h. My physiotherapist has asked me to start wearing my watch on my left wrist again to try and desensitise the scarring, but this causes great pain and discomfort. As such, my physiotherapist and I are undergoing treatment in relation to the scarring.
i. There is some adherence to underlying structures under the skin, which can be felt on movement.”
The claimant proposes that the photos provided, and an examination would support the above assertions.
The claimant say her scarring should be assessed within the category of 5-9% permanent impairment.
The claimant did not address any other body part.
Insurer’s submissions
The insurer claims the claimant’s physical permanent impairment does not exceed the 10% threshold.
The insurer provided submissions dated 22 April 2021 to the original Medical Assessor as follows:
Cervical spine
On 13 July 2020, Dr Dryson reported that there was reduced and asymmetrical range of movement in the neck and assessed 5% WPI.
Ms Waugh’s treatment plan dated 4 January 2021 referred to a normal and symmetrical range of movement in the cervical spine. The insurer relies on
Ms Waugh's recent findings indicative of possible further improvement being made over time.Notwithstanding the above, due to the absence of contemporaneous evidence immediately following the accident indicating that the claimant's cervical spine was injured, and the due to the absence of treatment requests indicating the need for treatment, the insurer submitted that the accident did not cause the reported cervical spine injury.
Right shoulder
On 13 January 2021, Dr Bruce reported that there was a normal range of movement and no muscle wasting of the right shoulder.
Dr Bruce assessed 1% WPI.
The insurer notes that given Dr Scougall has not provided range of movement values for the radial and ulnar deviations for the left wrist, there is a full range of motion for these movements.
On 13 January 2021, Dr Bruce reported that the left wrist had a normal range of movement, no loss of sensation or stiffness.
Dr Bruce found no permanent impairment attributed to the left wrist injury.
On 7 September 2020, an MRI scan of the left wrist showed a healing osteotomy and no evidence of damage to the triangular fibro cartilage (TFCC) or distal radioulnar joint.
On 13 April 2021, an MRI scan of the left wrist showed no evidence of discrete or central foveal tear. Additionally, there was no significant ulnar variance identified with normal appearance of the flexor and extensor tendons.
Scarring
Dr Dryson does not provide any permanent impairment as a result of scarring.
Dr Bruce referred to a prominent scar on the right shoulder and left wrist which equate to 2%whole person impairment.
The insurer’s additional submissions provided to the presidential delegate only addressed why the President should not refer the original assessment for review.
Medical examination
Medical Assessor Clive Kenna (the Medical Assessor) examined Ms McShane on behalf of the Panel in Sydney on 9 August 2022. Ms McShane travelled from Brisbane on the day. She was unaccompanied.
The Panel’s re-assessment was not limited to the right clavicle and the left wrist scarring but related to causation and the level of impairment assessment of body parts other than scarring in relation to the right clavicle and left wrist.
Pre-accident medical history and personal details
Ms McKenna is single with no children. She moved from Sydney to Brisbane, where she works part-time in a hotel whilst studying for her Paramedical Science degree, which she is doing at the University of Southern Queensland (USQ). She is in her second year with two years to go. She hopes to train to be an ambulance paramedic.
She grew up in Wagga Wagga in southern NSW. She states that she has not been involved in any motor vehicle accidents before this one or since, and she has had no previous problems with her neck, either shoulder or left wrist.
Motor vehicle accident - 15 January 2019
A car ran a stop sign and hit the motorbike she was riding. The collision knocked her off the motorbike injuring the right shoulder, cervical spine and left wrist.
History of symptoms and treatment following the motor accident
The only active surgery initially related to the right shoulder, where she underwent an internal fixation of her right clavicle and she remained in a sling for approximately a month post-surgery.
Her left wrist was immobilised in a plaster cast, and she didn’t undergo any specific treatment for the cervical spine. Other than the surgery to her fractured clavicle, she had no other immediate treatment.
However, the left wrist remained problematic, and Dr Damian Rye performed an ulnar shortening osteotomy on Ms McShane at North Shore Hospital in February 2020. He also performed an arthroscopy.
Dr Jhamb performed an arthroscopic repair on Ms McShane in July 2021. Dr Jhamb removed the plate and repaired the TFCC by arthroscope.
The left wrist has been problematic since and Dr Jhamb referred her to Dr Gilpin for a second opinion. However, she states she didn’t like Dr Gilpin, only saw him on one occasion and pursued no further treatment from him.
Dr Scougall performed further surgery on the left wrist in February 2022.
Her subsequent injury management in Queensland consisted of rehabilitation in Ipswich. As of the date of assessment she was continuing with hand physio doing stretching exercises, push-ups etc.
Current symptoms
Ms McShane feels that her neck is persistently stiff.
She has permanent left wrist pain, but she acknowledges the power is now reasonable.
Ms McShane had at least 1–1½ years of physiotherapy and remedial massage after the accident. She subsequently moved to Queensland to study at USQ, where she has continued with an osteopath, as well as a physiotherapist.
She takes Panadol for pain relief.
She is fully independent with regards to personal care, such as washing, dressing and toileting.
Post-accident, she didn’t drive for several months but is now back driving an automatic vehicle. She has recommenced in the gymnasium but is significantly reduced in capacity and has also ceased motorcycle riding.
Current and proposed treatment
No further treatment is planned, other than the continuance of soft tissue therapy.
Future employment details
She is hoping to become a paramedic and is currently at USQ completing a degree.
Clinical examination
General presentation
Findings on clinical examination including specific measurements of ROM (where applicable) of each of the injuries assessed.
Cervical spine
The cervical spine showed no muscle spasm, no dysmetria and no guarding. Symmetrically, there was reduced uniform range of motion (stiffness) but no asymmetry present.
No neurological deficit in either upper limb.
| MOVEMENTS | RANGE EXHIBITED |
| Flexion | 10% restriction |
| Extension | 10% restriction |
| Rotation to the right | 10% restriction |
| Rotation to the left | 10% restriction |
| Lateral bending to the right | 10% restriction |
| Lateral bending to the left | 10% restriction |
NEUROLOGICAL TESTS:
REFLEXES:
| REFLEX | LEFT | RIGHT |
| TRICEPS JERK | Normal | Normal |
| BICEPS JERK | Normal | Normal |
| BRACHIORADIALIS | Normal | Normal |
SENSATION: No obvious alteration in normal sensation.
MUSCLE POWER
| LEVEL | MOTOR POWER | LEFT | RIGHT |
| C4 | 5/5 | NORMAL | NORMAL |
| C5 | 5/5 | NORMAL | NORMAL |
| C6 | 5/5 | NORMAL | NORMAL |
| C7 | 5/5 | NORMAL | NORMAL |
| C8 | 5/5 | NORMAL | NORMAL |
| TA | 5/5 | NORMAL | NORMAL |
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
DURAL TENSION TESTS:
| TEST | RIGHT | LEFT |
| PASSIVE NECK FLEXION | Normal | Normal |
| BRACHIAL PLEXUS STRETCH | Normal | Normal |
Upper extremities
Right Shoulder
| Measurement | Reference (4th ed.) | Normal | Upper Extremity Impairment | |
| Flexion | 150° | Figure 38 (43) | 180° | 2 |
| Extension | 50° | Figure 38 (43) | 50° | 0 |
| Adduction | 30° | Figure 41 (44) | 50° | 1 |
| Abduction | 150° | Figure 41 (44) | 180° | 1 |
| Internal Rotation | 80° | Figure 44 (45) | 90° | 0 |
| External Rotation | 90° | Figure 44 (45) | 90° | 0 |
| Total | 4 |
Goniometer measured
4% x 0.6 = 2.4 rounded to 2% whole person impairment.
Left Shoulder
| Measurement | Reference (4th ed.) | Normal | Upper Extremity Impairment | |
| Flexion | 180° | Figure 38 (43) | 180° | 0 |
| Extension | 50° | Figure 38 (43) | 50° | 0 |
| Adduction | 50° | Figure 41 (44) | 50° | 0 |
| Abduction | 180° | Figure 41 (44) | 180° | 0 |
| Internal Rotation | 90° | Figure 44 (45) | 90° | 0 |
| External Rotation | 90° | Figure 44 (45) | 90° | 0 |
| Total | 2 |
Goniometer measured
ELBOWS
Measurements of the elbows were performed in accordance with the methodology described in Section 3.1I Elbow (38-41) of the AMA4.
Right Elbow
| Measurement | Reference (4th ed.) | Normal | Upper Extremity Impairment | |
| Flexion | 140° | Figure 32 (40) | 140° | 0 |
| Extension | 0° | Figure 32 (40) | 0° | 0 |
| Supination | 60 | Figure 35 (41) | 80° | 0 |
| Pronation | 80° | Figure 35 (41) | 80° | 0 |
| Total | 0 |
Left Elbow
| Measurement | Reference (4th ed.) | Normal | Upper Extremity Impairment | |
| Flexion | 140° | Figure 32 (40) | 140° | 0 |
| Extension | 0° | Figure 32 (40) | 0° | 0 |
| Supination | 60° | Figure 35 (41) | 80° | 1 |
| Pronation | 80° | Figure 35 (41) | 80° | 0 |
| Total | 1 |
WRISTS
Wrists measurements were performed in accordance with the methodology described in Section 3.1h Wrist (35-38) of the AMA4.
Right wrist
| Measurement | Reference (4th ed.) | Normal | Upper Extremity Impairment | |
| Flexion | 60° | Figure 26 (36) | 60° | 0 |
| Extension | 60° | Figure 26 (36) | 60° | 0 |
| Radial Deviation | 20° | Figure 29 (38) | 20° | 0 |
| Ulnar Deviation | 30° | Figure 29 (38) | 30° | 0 |
| Total | 0 |
Left wrist
| Measurement | Reference (4th ed.) | Normal | Upper Extremity Impairment | |
| Flexion | 50° | Figure 26 (36) | 60° | 2 |
| Extension | 50° | Figure 26 (36) | 60° | 2 |
| Radial Deviation | 15° | Figure 29 (38) | 20° | 1 |
| Ulnar Deviation | 20° | Figure 29 (38) | 30° | 2 |
| Total | 7 |
Seven per cent UEI for left wrist + 1% UEI for left elbow = 8% UEI x 0.6 = 4.8 rounded to 5% WPI.
SCARRING
There were two noteworthy scars. The most significant involved the left lower forearm just above the wrist. It was 11cm in length, slightly sensitive and certainly a roughened appearance. It was slightly discoloured, not necessarily pigmented. Though it was slightly reddened and fairly visible, certainly with normal clothing.
Medical Assessor Kenna asked Ms McShane whether she was conscious of the scar. She stated she was. There was slight pigmentary change. Clearly there were visible suture marks present and the anatomical location was visible with usual type of clothing. There was a minor contour defect, but no treatment or intermittent treatment was required and there was no adherence.
At the site of the surgery on the right shoulder, there was a 9cm surgical scar, well-healed but prominent. Slight contour defect, particularly at the distal end.
Consistency
Ms McShane was consistent in her presentation.
Review of Documentation
· 10 April 2019 – MRI left wrist confirmed healing fracture of the distal radius;
· 3 March 2020 – X-ray left wrist and forearm confirmed shortening osteotomy of the left ulna;
· 10 March 2020 – X-ray left wrist – Healing of the osteotomy;
· July 2020 – X-ray left wrist – Confirmed healing of the osteotomy;
· 7 September 2020 – MRI scan left wrist – Showed healing osteotomy. No evidence of damage to the TFCC or distal radioulnar joint, and
· 13 April 2021 – MRI left wrist – Impression: Suspected low-grade sprain of volar radiocarpal ligament, however TFCC is otherwise normal with no discrete tear identified. Extensor carpi ulnaris and tenosynovitis with in the six extensor compartment.
Medical Assessor Kenna’s conclusion was the current physical permanent impairment does not exceed 10%.
Clinical comments
It is evident that she will be left with some restriction pertaining to the right shoulder and some end range restriction pertaining to the left wrist. The right shoulder restriction is due to a fracture distal clavicle and the left wrist restriction is due to a fracture of the left distal radius.
Overall, she has made a good but slightly incomplete recovery. At this point in time, she is fit for moderately physical work as noted and is currently working as a bartender.
It is to be noted that there was no pre-existing impairment pertaining to either the right shoulder or left wrist and the scars were entirely as a result of surgery resulting from the accident.
Panel deliberations
The Review Panel adopted Medical Assessor Kenna’s examination report as evidence in the review.
The Review Panel found that the accident caused the following claimed injuries and gave rise to permanent impairment:
·clavicle – closed right distal clavicle fracture;
·wrist – closed left distal radius fracture, torn triangular fibrocartilage complex, and tendinosis in ECU tendon;
·cervical spine – soft tissue injury, and
·scarring – right clavicle, left wrist.
Pre-existing subsequent impairment
Nil.
Apportionment
Not applicable
Effects of treatment
Adjustment is not required.
Skin impairment
To assess the scarring the Panel used the TEMSKI chart, provided in the Guidelines at Table 6.18, and took into account the description of the two scars as noted, location and contour and ADL/treatment, as well as adherence to underlying structures.
Chapter 13 of the AMA4 Guides provide for assessing injuries to the skin. Table 2 identifies five classes of impairment ranging from class 1 which attracts a WPI of between 0 – 9% and class 5 which attracts a WPI of between 85 and 95%.
Class 1 contains a relatively wide range of percentage impairments.
It is the Panel’s view that the claimant’s scarring falls within class 1 because:
(a) there are two scars, which the claimant is aware of, and these are visible and noticeable with normal clothing;
(b) Ms McShane finds the sun and chemicals irritate the scars, and
(c) the scars occasionally limit her activities and require occasional treatment.
The assessment is based on her statement dated 28 March 2022[12] and Medical Assessor Kenna’s examination on 9 August 2022. Statement extracts are marked in quotes.
[12] A2
There are 10 criteria to be applied:
TEMSKI CRITERIA as per the table Relevant Evidence from The claimant and Examination Your rating and reasons Consciousness “extremely conscious of the scarring on clavicle and wrist. It is very obvious and irritating to claimant…embarrassed of the scarring and it impacts on daily activities. There is loss of sensation on and around the scarring.”
Examination: Ms McShane told Assessor Kenna she is conscious of her scarsClaimant is conscious of the scar(s) or skin condition.
2%
Colour Match “There is a distinct colour contrast between the scars and the surrounding skin.”
Examination: Assessor Kenna noted slight discolouration, not necessarily pigmented. Slightly reddened and fairly visible, certainly with normal clothingEasily identifiable colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes.
3%
Ability to locate “…able to easily locate both scars”
Examination: Assessor Kenna found the anatomical location was visible with usual type of clothing.
Claimant is able to easily locate the scar(s) or skin condition.
3%
Trophic changes “Trophic changes are visible. You can see where the scarring has become raised
in some areas as a result of trophic changes. Parts of the scarring is thicker and
other parts thinner than the surrounding skin, which can be visibly identified as well as felt.”
Examination: right shoulder, the site of the surgery, there was a 9cm surgical scar, well-healed but prominent. The left lower forearm just superior to the wrists. It was 11cm in length, slightly sensitive and certainly a roughened appearance.Trophic changes evident to touch
3%
Visibility of staple or suture marks “There are suture marks on my wrists, which are clearly visible.”
Examination: there were clearly visible suture marks present
Any staple or suture marks are clearly visible.
3%
Anatomical location “The scarring is usually and clearly visible with usual clothing. I would always have to wear clothing with long sleeves and a high neckline to cover my scarring.”
Examination: see above
Anatomic location of the scar(s) or skin condition is visible with usual clothing/hairstyle
3%
Contour defect Examination right shoulder; slight contour defect, particularly at distal end…left wrist: minor contour defect Minor contour defect 1% Effect on any activities of daily living “The scarring causes limitations in the performance of activities of daily living, including wearing a seatbelt. I experience irritation and pain on both the clavicle and wrist scarring when wearing clothing. I am unable to wear a normal bra and must wear a sports bra due to irritation. I must have padding on my seatbelt as this also causes irritation to the clavicle scar. Certain clothing fabrics hurt my wrist when I wear long sleeves or my wrist rubs against my clothes, preventing me from wearing certain fabrics. I used to wear a watch on my left wrist, but this causes constant agony now. In the cold my scarring causes greater pain and limitation, causing me to have to put heat packs on the scarring, especially the clavicle scar. I need to regularly reapply sunscreen on my scars as it causes great irritation to be in the sun. Noting that I live in a very sunny location, I often avoid going outside on very sunny days. I often have to apply cream to my scarring to avoid irritation.”
Examination: not addressed
Minor limitation in the performance of few ADL and exposure to chemical or physical agents (e.g. sunlight, heat, cold etc) may temporarily increase limitation.
3%
Treatment Claimant’s physiotherapist is providing treatment and claimant refers to extensive self-treatment she undertakes to reduce irritation and pain
Examination: no treatment required
No treatment, or intermittent treatment only, required.
3%
Adherence “There is some adherence to underlying structures under the skin, which can be felt on movement.”
Examination: no adherence
no adherence 2%
The average percentage is 2.6%, which taking into account rounding as well as how the scarring could subjectively effect Ms McShane it is a best fit of 3% permanent impairment.
Permanent impairment
The accident caused injuries that are assessed at 10% permanent impairments, which is not greater than 10%.
The degree of permanent impairment of the injuries was calculated as follows:
| Body Part or System | AMA Guides/ The Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical Spine DRE I | ch3,pgs102-107,AMA4 Tables 7 & 8 The Guidelines | Yes | 0 | 0 | 0 |
| 2 | Right shoulder | ch3, 3.1, pgs15-74 T 1-32 The Guidelines | Yes | 2 | 0 | 2 |
| 3 | Left wrist | ch3, 3.1, pgs15-74 T 1-32 The Guidelines | Yes | 5 | 0 | 5 |
| 4 | Scarring | TEMSKI | Yes | 3 | 0 | 3 |
* 10%WPI = percentage whole person impairment
This permanent impairment determination is made in accordance with the AMA4 and the Impairment Assessment Guidelines.
Permanent impairment ratings take symptoms into account; however the percentage WPI does not measure disability directly. A finding of 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
The Review Panel’s findings in relation to the degree of permanent impairment of the injuries caused by the accident are different to Medical Assessor Tamba-Lebbie’s findings.
Shoulder – closed right distal clavicle fracture
Medical Assessor Kenna’s measurement of the right shoulder only differed on adduction as 30° compared with Medical Assessor Tamba-Lebbie’s findings measurements at 40°. The difference on external rotation was 90° to 80° respectively. The permanent impairment was alike, rated at 2%.
Wrist – closed left distal radius fracture, torn triangular fibrocartilage complex, and tendinosis in ECU tendon
Medical Assessor Kenna’s measurement of the left wrist differed on extension as 50° compared with Medical Assessor Tamba-Lebbie’s findings measurements at 80°.
The difference on radial deviation was15° to 20° respectively.
The difference on ulnar deviation was 20° to 30° respectively.
The permanent impairment was rated at 5%, compared with 6% in the original assessment.
Cervical spine – soft tissue injury
Findings were identical and rated at 2%.
Scarring – right clavicle, left wrist
Medical Assessor Kenna’s assessed the length differently and applied the TEMSKI scale.
Medical Assessor Tamba-Lebbie’s did not address the TEMSKI table other than to refer to it when he wrote it into the permanent impairment table.
The Review Panel finds that the accident on 11 January 2019 caused an overall permanent impairment at 10%. This is an identical rating to the earlier assessment, but the percentage is distributed differently.
Accordingly, the Review Panel has determined that this certificate is to be revoked and the Review Panel will issue a new Permanent Impairment certificate.
Member O’Riain, Medical Assessor Kenna and Medical Assessor Gibson have viewed this certificate and confirmed that they are in agreement.
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