Stanton v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 376
•20 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Stanton v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 376 |
| CLAIMANT: | Annalysse Stanton |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Michael McGlynn |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 20 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 31 May 2014; the dispute related to the assessment of permanent impairment arising from skin scarring at multiple sites; application of Motor Accident Permanent Impairment Guidelines 1 June 2018; Class 1 skin disorder assessed under the TEMSKI; claimant re-examined to assess effects of scarring upon activities of daily living; Panel require to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applies; Held – claimant assessed at 4% permanent impairment as best fit due to scarring; original assessment revoked. |
| DETERMINATIONS MADE: | CERTIFICATE Certificate is issued under s 63 of the Motor Accidents Compensation Act1999 The Review Panel revokes the certificate dated 26 June 2022 and issues a new certificate determining that: The following injuries caused by the motor accident give rise to a whole person impairment of 4% and IS NOT GREATER THAN 10%: · class 1 skin disorder assessed under TEMSKI at 4% as best fit for application of the prescribed assessment criteria. |
STATEMENT OF REASONS
introduction
Annalysse Stanton (the claimant) was 9 years of age at the time of the motor accident and was then in Grade 4 of Primary School. There was no history of any prior accident or injury. The claimant enjoyed good health although she did suffer from asthma, for which she took medication, which never resulted in any hospital admission. The claimant apparently enjoyed sporting activities prior to the accident.
The claimant sustained injuries on 31 May 2014 in a motor vehicle accident at Coffs Harbour. She was a rear-seat passenger in a car driven by her mother. It was involved in a high-speed head-on collision. The claimant was wearing a seatbelt and was asleep at the time of the accident. She has no memory of it.
The claimant was taken by ambulance to Coffs Harbour Hospital where she underwent an emergency laparotomy (via a mid-line abdominal incision) in order to manage a lacerated liver. She sustained a pelvic fracture which was managed conservatively. There was a fracture of the right humerus managed in a long arm cast. She sustained a laceration to the upper part of her left leg which was sutured. Her condition deteriorated about a week later. The claimant required a further laparotomy performed at the site of the original abdominal incision[BG1] .
Thereafter the claimant’s recovery was uncomplicated. She was discharged home on 24 June 2014. There have been no relevant injuries or conditions sustained since her discharge from hospital.
The claimant is concerned about disfigurement from scarring on her abdomen and left upper anterior thigh. The claimant no longer plays sport. She completed her HSC last year.
NRMA (the insurer) insured the owner and/or the driver of the at-fault vehicle or liability to pay to the claimant any damages under the Motor Accidents Compensation Act1999 (the MAC Act).
The issue presently in dispute is the degree of permanent impairment of the claimant that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage).
Assessment under review
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of the review was conducted by Medical Assessor Geoffrey (Paul) Curtin on 24 June 2022. Medical Assessor Curtin was to assess the degree of permanent impairment under s 58(1)(d) of the MAC Act arising from skin-scarring. Medical Assessor Curtin certified on 26 June 2022 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 2% and NOT GREATER THAN 10%:
· Skin scarring
THE REVIEW
The application for referral of the medical assessment of Medical Assessor Curtin to a Review Panel (the Panel) was made by the claimant on 2 August 2022, within 28 days after the parties were issued with the original Certificate for the medical assessment, for which the review is sought.
On 11 October 2022, the President’s delegate referred the medical assessment to the Panel, as the President’s delegate was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. It was not clear to the President’s delegate that Medical Assessor Curtin adequately considered the impact of the skin disorder on the claimant’s activities of daily living, which should be the primary consideration in determining the class of impairment, pursuant to Table 2, page 280 of the American Medical Associations Guides to the Evaluation of Permanent Impairment (4th Edition) (AMA 4).
STATUTORY PROVISION
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two (2) 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 Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
All members of the Panel had no previous involvement with the claimant or this matter.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
MATERIAL BEFORE THE REVIEW PANEL
Review Application
The claimant lodged an Application for a Review of a Medical Assessment (Review Application) on 2 August 2022 with the Commission. The claimant submitted that the Proper Officer should be satisfied that there is reasonable cause to suspect the assessment was incorrect in a material respect having regard to the following particulars:
(a) failure to consider at all the psychological impact of the claimant’s scarring on the limitation of her activities of daily living;
(b) Medical Assessor Curtin failed to give sufficient weight to the opinion of
Dr Arianayagam that the scarring fell within Class 2 category of Table 2 on page 280 of AMA 4 and/or did not properly consider the application of a Class 2 impairment to the claimant’s circumstances;(c) Medical Assessor Curtin made no inquiry about the psychological aspects of the claimant’s scarring, and how they may have manifested, going beyond being largely confined to dressing restrictions;
(d) failure to consider properly “social and recreational activities” among the prescribed list of activities of daily living, and
(e) Medical Assessor Curtin did not have available relevant medical reports from psychiatrists and the statement from the claimant’s mother which go to the adverse effect the claimant’s scarring had on her activities of daily living.
Reply Submission
The claimant’s application for review was opposed by the insurer. It was submitted that Medical Assessor Curtin took a detailed history on the day of the assessment and correctly applied the TEMSKI criteria. The insurer submitted there was no cause to suspect the Certificate was incorrect in a material respect.
The Panel is mindful that the impact of skin disorders on the claimant’s activities of daily living should be the primary consideration in determining the impairment class. The Panel also is mindful that, in assessing the impact on activities of daily living, it is necessary to separate physical and psychological restrictions. Examples of activities of daily living described in the Table at page 317 of AMA 4 are in fairly objective terms and are not exhaustive.
Supporting documents
The following documents were relied upon by the claimant:
(a) report dated 4 November 2020 by Dr Chandran Arianayagam, specialist plastic surgeon. He found that the claimant’s “extensive and disfiguring, very significant scarring has the potential to cause her much grief and psychological stress in an ongoing manner” and that “her scarring falls within Class 2 (10% to 24%) impairment, using Chapter 13 of AMA 4”;
(b) report dated 21 September 2020 by Dr Patricia Jungfer, consultant psychiatrist, who diagnosed an adjustment disorder with anxious mood, specific phobia and post-traumatic stress symptoms. Dr Jungfer assessed 4% whole person impairment on the PIRS;
(c) report date 11 November 2020 by Dr Christopher Rickard-Bell, psychiatrist, who assessed the claimant for the insurer. Dr Rickard-Bell diagnosed a chronic adjustment disorder and a sub-clinical post-traumatic stress disorder for which he assessed 7% whole person impairment, and
(d) undated statement by the claimant’s mother.
In his report to the insurer, Dr Rickard-Bell references various MAS Certificates relating to the claimant’s physical injuries and impairments, as well as reports from treating and qualified specialists, hospital and treating doctors’ clinical notes. It is not necessary to detail the contents of those documents in an assessment of skin scarring.
RE-EXAMINATION
The re-examination was conducted by Medical Assessor Michael McGlynn on
26 June 2023 on behalf of the Panel. The findings and reasons of Medical Assessor McGlynn are set out below:“ANNALYSSE STANTON
HISTORY
On 31 May 2014 Annalysse Stanton sustained injuries in a motor vehicle accident, when she was nine years old. She was a rear seat passenger in the vehicle driven by her mother that was involved in a head-on collision. She was taken by ambulance to Coffs Harbour Hospital.
At Coffs Harbour Hospital she underwent emergency laparotomy and repair of left upper anterior thigh laceration. As a result of her injuries and surgical treatment she has visible scarring.
CURRENT STATUS
Annalysse Stanton stated she is conscious of visible scarring.
She dresses to hide the scarring from others.
She avoids getting dressed in view of her partner because she is embarrassed about visible scarring.
She feels unable to wear a bikini or crop-op because they expose her scarring.
She avoids some recreational activities such as swimming where thigh scarring remains visible in a one piece costume.
She says the abdominal scarring feels tight limiting hyperextension of her thoracolumbar spine.
The scarring is intermittently itchy; she said this is provoked by clothes rubbing on the scarring.
She is having no current treatment for her scarring; she does not apply anything to the scarring.
PAST MEDICAL HISTORY
Annalysse Stanton stated she has mild asthma and uses Ventolin when necessary. She had no pre-existing visible scarring.
Annalysse Stanton was examined on 26 June 2023.
Her identity was checked and confirmed.
She was 164 cm tall and weighed 60 kg.
She had a fair skin colour.
The examination focused on scarring.
a.Abdomen –
On midline abdomen there was a longitudinal scar from xiphisternum to mid lower abdomen passing to the right of umbilicus, 230 mm x 3 mm, hypopigmented with easily identifiable colour contrast, clearly visible stitch or staple marks, slightly raised and firm on palpation, with no scar adherence. The scar became tight on hyperextension of thoracolumbar spine.
On right mid abdomen, there was an oblique drain site scar 10 mm x 4 mm, hypopigmented with easily identifiable colour contrast, with no visible stitch or staple marks, slightly raised and firm on palpation, with no scar adherence.
b.Left Thigh –
On left upper anterior thigh 40 mm below the groin, there was a transverse-oblique scar 100 mm x 5 mm, hypopigmented with hyperpigmented margin causing easily identifiable colour contrast, with visible stitch marks, slightly raised and firm on palpation, with no scar adherence.
There was no apparent tenderness on palpation of the scars.
OPINION
Skin scarring is assessed as a skin condition, as directed in MAA Guidelines Version 1 paragraphs 1.258 to 1.267 (for injuries sustained between 5/10/1999 & 1/12/2017), using AMA4 Table 2, page 280 & the Table for Evaluation of Minor Skin Impairment (TEMSKI) – Table 18, page 59 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 gives examples of nine separate ADL.
ADL are self-care, communication, physical activity, sensory function, hand functions, travel, sexual function, sleep, social and recreational activities. Ms Stanton describes limitation of three ADL - Social & Recreational Activity (she avoids some activities), Physical Activity (with back extension abdominal scarring is tight), and Sensory Function (scarring has uncomfortable itch when clothing comes into contact). This is limitation of “few” ADL.
Ms Stanton stated she has no current treatment for scarring.
Paragraph 1.264 page 58 of the MAA Guidelines Version 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 18, Table for Evaluation of Minor Skin Impairment (TEMSKI) on page 59 of the MAA Guidelines, is then used to assess the scarring.
TEMSKI Criteria -
She is conscious of the scarring.
There is easily identifiable colour contrast with the surrounding skin.
She is able to easily locate the scarring.
There are palpable trophic changes.
Staple/suture marks are clearly visible on the abdomen.
The anatomic locations are clearly visible with usual summer clothing.
There is minor contour defect .
There is minor limitation in performance of few ADL and physical agents such as clothing rubbing on scarring may temporarily increase the limitation
No treatment is required
There is no scar adherence.
Seven of ten scar criteria fit the TEMSKI 3-4%WPI zone; six fit 2-3%WPI zone and four fit 5-9%WPI zone. The best fit is in the 3-4%WPI zone. Because there is scarring at multiple sites and scars are long and readily visible, in my opinion the best fit is 4% WPI due to scarring.
Discussion:
Assessor Paul Curtin in his Further Medical Assessment dated 24 June 2022 described similar symptoms due to scarring, “Ms Stanton is concerned about disfigurement resulting from scarring on her abdomen and left leg. She is embarrassed by the scarring and likes to keep the affected areas covered when she is not at home. The scar on her abdomen feels tight when she extends her back. She said that the scars are sometimes "“a bit itchy"”, but otherwise are not a source of discomfort. The scars are not aggravated by extremes of temperature.”
Assessor Curtin reported similar examination findings, “There was a noticeable scar in the midline of her abdomen extending for 25 cm from the rib cage margin to well below the umbilicus. The scar was generally pale, soft and flat, but the upper third of the scar was slightly thickened and could be seen to tighten when she overextended her back. The scar skirted around the umbilicus without significantly distorting it. The scar was a good colour match to the surrounding skin apart from some minor pigmentation just above the umbilicus, where there was also some loss of the normal abdominal contour. The scar was not adherent to deeper tissues but there were noticeable suture marks. On the right side of the upper abdomen there an additional small raised scar extending for 1 cm. On the upper part of the left anterior thigh near her groin there was a pale flat transverse scar extending for 10 cm. The scar was slightly raised with noticeable suture marks and was not adherent to deeper structures. None of the scars were tender to gentle palpation and were not associated with any significant alterations in sensation.”
Assessor Curtin does not use exact TEMSKI terminology when describing scar criteria. Whilst his examination findings are similar to mine It is difficult to exactly compare them. For example he describes scarring to have good colour match, but visible pigmentation, without describing how obvious the colour contrast is; some, noticeable, easily identifiable or distinct. He describes stitches to be noticeable rather than barely visible, visible or clearly visible.
Assessor Curtin states, “The scarring in this instance clearly falls into the Class 1 category (0%-9% WPI) of Table 2 because there is limitation of few activities of daily living, those activities being largely confined to dressing restrictions. There is very minor discomfort from the upper part of the abdominal scar during certain physical movements but this does not appear to restrict physical activities in any significant way. Following referral to the TEMSKI chart, the scarring most closely fits into the 2 % WPI category because the claimant is conscious of the scars and is able to easily locate them. The scars would be visible with the sort of clothing that teenagers often wear. Some parts of the scar make a colour contrast with the surrounding skin due to pigmentation, but generally there is a good colour match with the surrounding skin. Suture marks and contour defects are clearly visible and there is minor limitation in the performance of few ADL. There is no adherence and intermittent treatment only is required . Exposure to chemical or physical agents does not temporarily increase limitation.”
I agree the scarring causes Class 1 Skin Disorder with an impairment range 0-9% WPI. I disagree with 2% WPI Assessor Curtin assigns. Applying his history and examination description of scars to the TEMSKI, I found five scar criteria fitted both 1% and 2% zones, and four scar criteria fitted both 3- 4% and 5-9% zones. In my opinion the best fit based on Assessor Curtin’s assessment would be higher than the 2% assigned by him. Please see the below table:
Table for the Evaluation of Minor Skin Impairment (TEMSKI)
| Criteria | 0% WPI | 1% WPI | 2% WPI | 3 - 4% WPI | 5 - 9% WPI* |
| Description of the scar(s) and/or skin condition(s) (shape, texture, colour) | Claimant is not conscious or is barely conscious of the scar(s) or skin condition Good colour match with surrounding skin and the scar(s) or skin condition is barely distinguishable. Claimant is unable to easily locate the scar(s) or skin condition No trophic changes Any staple or suture marks are barely visible | Claimant is conscious of the scar(s) or skin condition Some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes. Claimant is able to locate the scar(s) or skin condition Minimal trophic changes Any staple or suture marks are visible | Claimant is conscious of the scar(s) or skin condition Noticeable colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes. Claimant is able to easily locate the scar(s) or skin condition Trophic changes evident to touch Any staple or suture marks are clearly visible | Claimant is conscious of the scar(s) or skin condition Easily identifiable colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes. Claimant is able to easily locate the scar(s) or skin condition. Trophic changes evident to touch Any staple or suture marks are clearly visible | Claimant is conscious of the scar(s) or skin condition Distinct colour contrast of scar(s) of skin condition with surrounding skin as a result of pigmentary or other changes Claimant is able to easily locate the scar(s) or skin condition Trophic changes are visible Any staple or suture marks are clearly visible |
| Location | Anatomic location of the scar(s) or skin condition not clearly visible with usual clothing/hairstyle | Anatomic location of the scar(s) or skin condition is not usually visible with usual clothing/hairstyle. | Anatomic location of the scar(s) or skin condition is usually visible with usual clothing/hairstyle. | Anatomic location of the scar(s) or skin condition is visible with usual clothing/hairstyle. | Anatomic location of the scar(s) or skin condition is usually and clearly visible with usual clothing/hairstyle |
| Contour | No contour defect | Minor contour defect | Contour defect visible | Contour defect easily visible | Contour defect easily visible |
| ADL / Treatment | No effect on any ADL. No treatment, or intermittent treatment only, required | Negligible effect on any ADL. No treatment, or intermittent treatment only, required | Minor limitation in the performance of few ADL. No treatment, or intermittent treatment only, required | Minor limitation in the performance of few ADL AND exposure to chemical or physical agents (for example, sunlight, heat, cold etc.) No treatment, or intermittent treatment only, required | Limitation in the performance of few ADL (INCLUDING restriction in grooming or dressing+) AND exposure to chemical or physical agents (for example, sunlight, heat, cold etc.) may temporarily increase limitation or restriction. No treatment, or intermittent treatment only, required |
| Adherence to underlying structures | No adherence | No adherence | No adherence | Some adherence | Some adherence |
This table uses the principle of ‘best fit’. You should assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment. A skin impairment will usually meet most, but does not need to meet all, criteria to ‘best fit’ a particular impairment category.
* Skin impairments that fall into this range should be assessed by a plastic surgeon.
+ Restrictions to grooming or dressing (including restriction to usual clothing/hairstyle) should relate to physical restrictions and not to reasons of self-image.
Copyright © Medical Assessment Service, Motor Accidents Authority of NSW, Level 19, 1 Oxford Street, DARLINGHURST, NSW, 2010.
Table 2. Impairment Classes and Percents for skin disorders.* (reproduced from p.280 AMA 4 Guides.)
| Class 1: 0%-9% impairment | Class 2: 10%-24% impairment | Class 3; 25%-54% impairment | Class 4: 55%-84% impairment | Class 5: |
| Signs and symptoms of skin disorder are present or only intermittently present; and There is no limitation or limitation in the performance of few activities of daily living, although exposure to certain chemical or physical agents might increase limitation temporarily; and No treatment or intermittent treatment is required. | Signs and symptoms of skin disorder are present or intermittently present; and There is limitation in the performance of some of the activities of daily living; and Intermittent to constant treatment may be required | Signs and symptoms of skin disorder are present or intermittently present; and There is limitation in the performance of many of the activities of daily living; and Intermittent to constant treatment may be required | Signs and symptoms of skin disorder are constantly present; and There is limitation in the performance of many of the activities of daily living that may include intermittent confinement at home or other domicile; and Intermittent to constant treatment may be required | Signs and symptoms of skin disorder are constantly present; and There is limitation in the performance of most of the activities of daily living, including occasional to constant confinement at home or other domicile; and Intermittent to constant treatment may be required |
* The signs and symptoms of disorders in classes 1 and 2 may be intermittent and not present at the time of examination. The impact of the skin disorder on daily activities should be the primary consideration in determining the class of impairment. The frequency and intensity of signs and symptoms and the frequency and complexity of medical treatments should guide the selection of an appropriate impairment percentage and estimate within any class (see chapter introduction)”
FINDINGS
The Panel conducts a new assessment of all the matter with which the medical assessment is concerned.[1] The Panel adopts the extensive reasons of Medical Assessor McGlynn with which Medical Assessor Rosenthal concurs.
[1] s 63(3A) of the MAC Act
The Panel, comprised of specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[2] and Insurance Australia Ltd v Marsh[3]. The Medical Assessors have explained the basis of their assessments which are different from those provided by other specialists. Further, the medical assessment of permanent impairment is undertaken at the time of the examination. In that respect, the previous assessments are somewhat outdated and do not reflect current symptomatology.
[2] [2021] NSWCA 287 at [40], [41] and [45].
[3] [2021] NSWCA 31 at [11], [21] and [64].
CONCLUSION
For these reasons, the Panel concludes that the Certificate issued by Medical Assessor Curtin should be revoked. The new Certificate is attached at the commencement of these Reasons.
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