Stott v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 133
•3 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Stott v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 133 |
CLAIMANT: | Michael Stott |
INSURER: | IAG Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Michael McGlynn |
MEDICAL ASSESSOR: | John Giles |
DATE OF DECISION: | 3 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Curtin dated 16 July 2024 finding a whole person impairment (WPI) of 8% which combined with an assessment of Medical Assessor Cameron of 2% for physical injuries gave a combined assessment of 10% WPI; claimant injured in an accident on 14 April 2023 when travelling as a passenger in a car which collided with an electricity pole and suffering facial injuries with consequent reconstructive surgery; the claimant lost some teeth but this did not affect his mastication; claimant medically examined and found to have suffered a fracture of the left zygomatic maxillary complex, a fracture of the mandible and dental injury, and a left infra orbital nerve injury; Held – claimant assessed by Review Panel as having a 9% WPI; combined with the assessment of Medical Assessor Cameron of 2% gave a total WPI of 11%; Medical Assessment Certificate revoked and a new combined certificate issued with assessment of 11% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Panel revokes the certificate of Medical Assessor Curtin dated 16 July 2024. 2. The Panel finds that the following injuries caused by the accident and assessed by the panel give rise to a total whole permanent impairment (WPI) of 9%; (a) face – 5% (b) trigeminal nerve – left 4% (c) mastication – 0% 3. The Panel revokes the combined certificate dated 16 July 2024 and issues a new certificate determining the following injuries caused by the motor accident give rise to a WPI assessment of 11%; (a) certificate of this Review Panel at 9% WPI, and (b) certificate of Medical Assessor Cameron dated 11 June 2024 for assessment of physical injuries arising out of the accident at 2% WPI. 4. Using the Combined Values chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment, fourth edition, the combined impairment is 11% WPI. |
STATEMENT OF REASONS
INTRODUCTION
This is a review of a certificate of Medical Assessor Curtin (the Medical Assessor) dated
16 July 2024 with respect to facial injuries. Medical Assessor Cameron assessed the claimant with respect to other physical injuries and concluded the claimant had a 2% WPI.
The Medical Assessor concluded that the claimant had 8% WPI for his facial injuries.
The Medical Assessor provided a joint certificate on 16 July 2024 with respect to the assessment of Medical Assessor Cameron and his own assessment amounting to a total of 10% WPI.
The claimant has sought a review of the certificate and reasons of Medical Assessor Curtin only.
The Medical Assessor found that the following injuries caused by the accident gave rise to a permanent impairment of 8 %:
(a) fracture left zygomatic maxillary complex
(b) fracture of the mandible and dental injury
(c) left infra orbital nerve injury.
This is a dispute between the claimant and the insurer about the degree of permanent impairment under Schedule 2, s 2(a) of the Act.
The following injuries were referred by the Personal Injury Commission (the Commission) for assessment:
(a) Fractures of the pterygoid and zygomaticomaxillary complex as well as a right parasymphyseal mandibular fracture, requiring surgical reconstruction, with sensory change in the branches of the left maxillary nerve, a branch of the trigeminal nerve
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel have read all the documentation. If a particular document is not referred to by the Review Panel, this does not mean that the Review Panel or a Review Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Review Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Review Panel has come to its own conclusion and has taken its own history.
The accident
Dr Herkes in his report of 14 April 2023 referred to having been provided with a copy of the police report of the accident. No document of this nature was provided to the Review Panel. Dr Bodel also referred to this in his report of 7 February 2023.
Dr Bodel reported “The police report then indicates that the vehicle continued to yaw for 29.5m before impacting with an electricity pole on the N/W side of the roadway. The vehicle rotated anti-clockwise 1.7m before coming to rest on the nature strip. Rear passengers and driver injured, all four occupants conveyed to the John Hunter Hospital for treatment.”
Dr Bodel said that technically the “yaw” word that is used here is a rotational movement around a vertical axis. The vehicle therefore was spinning in what is called a flat spin on its wheels, then striking the electricity pole.
Dr Bodel said that the claimant had been told that his injuries to his facial bones occurred when he was thrown forward, while wearing his seatbelt, and he struck the “B pillar” between the front and back doors of the vehicle”.
The Ambulance notes record that the claimant was a rear seat passenger.
Dr Pennington in his report of 13 May 2022 said the claimant was on the left side of the car in the rear seat.
Claimant’s submissions
The claimant contends that there is reasonable cause to suspect that the Medical Assessor’s
assessment is incorrect in a material respect because:
(a) after finding that the impairment to the trigeminal nerve should be reduced to 4.2%, he further reduced the impairment percentage to 3% when there was no basis at law to do so, and
(b) he failed to set out his path of reasoning for reducing the impairment percentage from 4.2% to 3%.
Regarding what the claimant says the impairment percentage should be, he relies on and refers to paragraph 6.173 of the Motor Accident Guidelines (the Guidelines), which the claimant submits relevantly says:
“Trigeminal nerve assessment: Sensory impairments of the trigeminal nerve must be assessed with reference to Table 9 (page 145, AMA4 Guides). The words or sensory disturbance are added to the table after the words neuralgic pain in each instance. Impairment percentages for the three divisions of the trigeminal nerve must be apportioned with extra weighting for the first division (for example, division 1 – 40%, and division 2 and 3 – 30% each). If present, motor loss for the trigeminal nerve must be assessed in terms of its impact on mastication and deglutition (page 231, AMA4 Guides)”.
The claimant then referred to table 9 of the American Medical Association Guides to the Evaluation of Permanent Impairment – 4th edition (AMA 4) which provides that “Mild impairment due to uncontrolled facial neuralgia provides pain” gives rise to 0 – 14% whole person impairment.
The claimant then referred to the Medical Assessor stating:
“Guidelines (para-6.173) suggest that sensory impairments of the trigeminal nerve must be assessed with reference to table 9 page 145 AMA 4. Paragraph 6.173 also states that the words “sensory disturbance: can be added to the “mild impairment” section of table 9, Table 9 indicates that 0 – 14% WPI can apply to mild impairment due to uncontrolled facial neuralgic pain or sensory disturbance. It would not be unreasonable to apply the maximum impairment rating of 14%, but paragraph 1.73 states that the maxillary (2nd) division of the trigeminal nerve can only attract 30% of whatever value is selected. This would reduce the impairment to 30% of 14% or else 4.2%, and this value should be reduced further because only part of the maxillary division appears to be affected. The final impairment rating for facial sensory loss is therefore 3% WPI.”
The claimant submits that the Medical Assessor did not explain the basis for his assertion that the impairment “should be reduced further” from 4.2% or why he reduced this to 3%.
The claimant submits that there is nothing in the Guidelines or AMA 4 which requires or permits the impairment to be reduced further. The claimant says that the exercise in doing so appears to be arbitrary or is otherwise inadequately explained.
The claimant submits that there is material cause to suspect that the Medical Assessor has erred in reducing the impairment from 4.2% to 3%.
The claimant submits that as he presently has been assessed at 10% (WPI) if the impairment had not been reduced from 4.2% he would have a combined WPI of greater than 10% and would entitled to damages for non-economic loss.
The claimant’s submissions regarding the original application for assessment of WPI have not been provided,
Insurers submissions
The insurer submits that the findings and path of reasoning of the Medical Assessor are consistent with the available medical evidence. The insurer noted that Dr O’Neill, neurologist, in his report for the insurer dated 2 April 2024, assessed 4% WPI with respect to the trigeminal nerve and stated:
“I assessed numbness in the territory of the left infraorbital nerve using AMA4, table 9, page 145. There would have been a 14% whole person impairment if the whole of the left trigeminal nerve was involved but, in this case, we are talking only about involvement of the infraorbital nerve which incorporates the greater part of the maxillary branch of the left trigeminal nerve. Using guidelines November 2022, point 6.173, the maxillary division of the trigeminal nerve should be counted as approximately 30% of the whole nerve. 30% of 14% is 5% (rounded up).
Hence, I think a 4% whole person impairment would be most appropriate.”
The insurer submits that the reasoning of the Medical Assessor is not unreasonable. The insurer says that he has adequately applied his clinical judgment to form his conclusion upon the circumstances revealed to him during his clinical examination. The insurer says that this is because the prescribed assessment criteria in table 9, page 145 of the AMA4, is used to assess the trigeminal nerve in its entirety. The insurer noted in its submissions that the trigeminal nerve contains three branches, the ophthalmic branch (V1), the maxillary branch (V2), and the mandibular branch (V3).
The insurer submits that the Medical Assessor has appropriately concluded that as only part of the maxillary branch had been impacted, being the infra-orbital nerve injury, then it is appropriate to reduce WPI from 4.2% (being the maximum percentage awarded) to 3% WPI.
The insurer submits that the Medical Assessor’s assessment is not incorrect in a material respect.
Medical Evidence
The Medical Assessor provided a certificate dated16 July 2024.
The Medical Assessor noted that imaging revealed multiple fractures involving the left zygoma and maxilla. The fractures extended into the left orbit, maxillary alveolus and pterygoid plates. There was a minimally displaced right parasymphyseal mandibular fracture
The Medical Assessor referred to surgery on 30 July 2018 when the claimant’s facial fractures were repaired under general anaesthesia. He reported that the left zygoma was reduced and fixed with plates to the Z-F suture and buttress. The mandible was reduced and fixed with two lower border plates and an arch bar to the dentition. He was then placed into inter-maxillary fixation.
The claimant reported that he was aware of altered sensation on the left side of his face and involving his upper lip. He was also aware of some clicking of his temporomandibular joints, mainly on the left side, there was a slight lag of the left lower eyelid causing the vertical dimension of the palpable aperture to be slightly greater on the left side than the right. There was also some minor flattening of the left malar prominence compared to the right. Sensory testing of the facial skin was carried out using a 10 g monofilament, a 40 g sharpness test and a cotton bud. Sensation was altered and reduced in the distribution of the left-infra orbital nerve (left upper lip, left side of nose anterior aspect of the left face but only partial involvement of the lower eyelid). The only visible facial scar was about 2 cm long, flat, soft and pale. He had a full range of jaw opening with no chin deviation and with only very faint crepitus from the right TM joint.
Regarding his method of assessment, the Medical Assessor said:
“The Motor Accident Guidelines direct that facial scarring and disfigurement are assessed separately to scarring elsewhere on the body, and that assessment using AMA 4 could either be undertaken using Chapter 13 which deals with the skin generally, or section 9.2 which refers to facial deformity. As there is little direct involvement of the skin itself it would be reasonable to use section 9.2. As the deformity does involve some “loss of supporting structure” the impairment falls in the Class II category (5-9% WPI), but at the lower end of the scale at 5% because the overall deformity is mild.
The Guidelines look at jaw injuries from the point of view as to whether the injury has resulted in any impairment of mastication (para 6.194-6.198) which directs the assessor to Table 6 of page 231 in AMA 4. Table 6 provides an impairment range which is dependent on the extent to which diet has been disrupted by the injury. Paragraph 6.197 states that when considering dietary restrictions in Table 6, the first category (diet limited to semisolid/soft foods) should be in the range 0-19% rather than 5-19%. As Mr Stott stated that he was not aware of any restrictions on his diet as a result of his jaw injury, and considering the findings on examination, impairment is assessed at 0% WPI.
Guidelines (para-6.173) suggest that sensory impairments of the trigeminal nerve must be assessed with reference to table 9 page 145 AMA 4. Paragraph 6.173 also states that the words “sensory disturbance” be added to the “mild impairment” section of table 9. Table 9 indicates that 0 to 14% WPI can apply to mild impairment due to uncontrolled facial neuralgic pain or sensory disturbance. It would not be unreasonable to apply the maximum impairment rating of 14%, but paragraph 6.173 states that the maxillary (2nd) division of the trigeminal nerve can only attract 30% of whatever value is selected. This would reduce the impairment to 30% of 14% or else 4.2%, and this value should be reduced further because only part of the maxillary division appears to be affected. The final impairment rating for facial sensory loss is therefore 3 % WPI.”
The Medical Assessor assessed the total whole person impairment at 8% and provided a summary table as follows:
| 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 | fracture left zygomatic maxillary complex | AMA 4 Ch9 p229 para9.2 Guidelines para 6.189-6.191 p121 | Yes | 5% | 0% | 5% |
| 2 | 35. fracture of the mandible and dental injury | AMA4 Ch9, p231 para9.3b and Table 6 Guidelines P117-118 para 6.194—6.198 | Yes | 0% | 0% | 0% |
| 3 | 36. left infra orbital nerve injury | AMA4 P145 Table 9 Guidelines 2023 p113 Para 6.173 | Yes | 3% | 0% | 3% |
A report dated 2 April 2024 from Dr O’Neill, neurologist, found that the left trigeminal nerve injury resulted in 4% WPI. Dr O’Neill, however, gave little information in his report of examination of this area of injury. The Review Panel notes that Dr O’Neill reached the correct figure of 4% assessment for the trigeminal nerve injury but he achieved this with incorrect methodology. He has assessed at 14% and then divided by 3 giving a 4.2% assessment but he has rounded up to 5% which is incorrect. He then took off 1% and ended up with a 4% assessment.
Medical Assessor Cameron assessed the claimant as having 2% WPI for his physical injuries.
Dr Bodel for the claimant, provided a report of 7 February 2023 and assessed 9% WPI for the claimant’s physical injuries. This was for the claimant’s left lower leg.
Dr Porteous, for the claimant, provided a report of 21 February 2023 and assessed 6% WPI for the claimant’s left lower leg.
Dr Curtis, an oral and maxillofacial surgeon, provided a report of 23 February 2022 and assessed a total WPI of the claimant of 16%. He assessed a Class II facial disfigurement at 7% WPI, a trigeminal nerve injury at 5% W PI and a temporomandibular joint (TMJ) dysfunction at 4% WPI.
Dr Herkes, a neurologist, provided a report of 14 April 2023 for the claimant. Dr Herkes is a Queensland practitioner. The Review Panel does not understand that he is an authorised health practitioner.
With respect to his numbness of the left face, Dr Herkes said that the claimant had a definite sensory change in the branches of the left maxillary nerve, a branch of the trigeminal nerve, and for which he rated him at 5% WPI. The remainder of his report dealt with other physical injuries.
There are other medical reports and records forming the bundles of documents of the parties but these go directly to physical and psychiatric disabilities and which are not relevant to this assessment.
Medical examination
The claimant was examined by Medical Assessor McGlynn on 3 February 2025. His report follows:
BACKGROUND
Michael Stott was examined at PIC Suites 1 Oxford Street on 3/02/2025
History was the same as that reported in Assessor Curtin’s MAC dated 16/07/2024.
SYMPTOMS
Michael Stott stated his face looks different to before the accident; the right side of the face looks flatter.
He is not conscious of any facial skin scarring.
He has reduced sensation in the left side of the face including left side of nose, left upper lip, and left lower eyelid. Light touch in this area produces tingling discomfort.
Michael Stott stated his ability to eat has not changed the following the accident. He was missing several teeth prior to the accident and lost another two after the accident; however, the loss of these two teeth has not affected his diet. He stated his front teeth fitted differently before the accident.
EXAMINATION
Michael Stott was examined on 3/02/2025.
His identity was checked and confirmed.
He was 187 cm tall and weighed 99 kg.
The examination focused on his face injuries.
a. Face:
There was mild flattening of the left cheek with palpable step in the left inferior orbital rim with depression of the lateral maxillary segment. The visible deformity was mild and best seen when viewed from above; it might not be noticed by a casual observer.
There was no visible facial scarring. I assumed there had been a surgical incision lateral to the left eye over zygomaticofrontal suture, however it was not visible with magnification and Mr Scott was unaware of a visible scar at this site.
There was normal movement of facial muscle, both spontaneously and when requested.
b. Left trigeminal nerve:
There was significantly reduced sensation in the left middle face including lower eyelid, left side of nose and left upper lip in sensory distribution of the infraorbital nerve, the terminal branch of 2nd division of left trigeminal nerve. Light touch in this area produced apparent discomfort.
c. Dental:
His mouth opened to 52 mm between the anterior teeth, normal distance. In the upper jaw there were nine teeth remaining. In lower jaw there were seven teeth.
OPINION
a. Face:
Damage to the facial bones causing deformity, is a Class 2 facial impairment with the range of 5%WPI-10%WPI. On page 229 of AMA4 Class 2 Facial Impairment is described as loss of supporting structure of part of the face, with or without a cutaneous disorder. In my opinion Mr Stott has mild deformity due to facial fractures causing depression of left maxilla causing 5% WPI, at the lower end of the range for Class 2.
b. Trigeminal nerve:
History and examination are consistent with injury to left infraorbital nerve, a branch of 2nd division of left trigeminal nerve. The nerve travels in the floor of the orbit and is frequently injured with fractures of orbit and maxilla. Symptoms and physical signs are consistent with mild impairment of trigeminal nerve with a range of 0% to 14% WPI. There is mild painful dysaesthesia and sensory loss.
MAA Guidelines Version 9.1 paragraph 6.173 directs that “or sensory loss” be added to AMA4 Table 9, page 145. Also, that impairment percentages for the three divisions should be apportioned with extra weighting for the first division (e.g. division 1 40%, divisions 2 & 3 30% each).
Mr Stott has injury causing dysaesthesia and sensory loss in distribution of 2nd division of left trigeminal nerve. 30% of 14% = 4.2%, which rounds to 4% WPI. In my opinion this causes 4% WPI.
Assessor Curtin using similar reasoning stated the maximum impairment for mild trigeminal nerve impairment affecting 2nd division of the nerve was 4% WPI. He reduced this to 3% WPI for Mr Stott’s infraorbital nerve injury, stating only part of trigeminal nerve 2nd division sensory distribution was affected. In his examination he stated only part of the left lower eyelid was involved: however, I found there was reduced sensation in the entire left lower eyelid.
The 2nd (maxillary) division of trigeminal nerve supplies sensory function to lower eyelid and conjunctiva, inferior posterior nasal cavity, mid face, lateral nose, upper lip, upper teeth and gingiva. Mr Stott’s injury is to the infraorbital nerve that supplies sensation to the mid face.
The infraorbital nerve supplies sensory innervation to almost all anatomical areas receiving sensory innervation from the 2nd division of trigeminal nerve. Severity of facial neuralgic pain or dysaesthesia is not necessarily determined by the sensory area that triggers it. In my opinion Mr Stott has loss of sensation to the entire left mid face together with painful dysaesthesia that causes the maximum impairment allowed using the relevant Guidelines.
The injury to left trigeminal nerve 2nd division causes 4% WPI.
c. Mastication:
Following the injury Mr Stott has had no change in his diet. He is missing several teeth which would have some effect on eating hard and firm food: however, this has not changed following the accident. There is 0% WPI due to dental conditions.
The two whole person impairments, 5% & 4%, combine using AMA4 Combined Values Chart. The total is 9% WPI.
There is no pre-existing injury or condition contributing to the impairment. There is no deduction.
Body part
Or System
Chapter, Page & Paragraph Number in MAA Guidelines
Chapter, Page, Paragraph, Figure & Table Numbers in AMA 4 Guides
% WPI
%WPI from pre-existing OR subsequent causes
%WPI due to motor accident
Face
para 6.189-6.191
para 6.258-6.267
Chapter 9 Section 9.2, page 229 - 230
Chapter 13, Table 2, page 280
5%
0%
5%
Trigeminal nerve- - left)
Para 6.173
Ch4, Table 9, page145
4%
0%
4%
Mastication – dietary restriction
Para 6.194 to 6.198 page 44
Para 9.3b & Table6 page130
0%
0%
0%
Total 0% WPI (The Combined Tables Values of all sub-total/s)
9% WPI
The Review Panel adopts the report and findings of Medical Assessor McGlynn.
Causation
The claimant was a rear seat passenger in a car which impacted with an electricity pole. He was apparently wearing his seatbelt but in the course of the impact, he struck the B pillar between the front and back doors of the car in which he was travelling.
It is the experience and understanding of the Panel that it would not be unreasonable to consider that a sudden impact/sudden deceleration incident would cause the claimant to be thrown about within his seat and for his unprotected head to hit obstacles within a car.
The Panel is satisfied that the injuries claimed by the claimant to have been suffered by him as a result of the accident including:
(a) fracture left zygomatic maxillary complex
(b) fracture of the mandible and dental injury
(c) left infra orbital nerve injury.
are attributable to the accident.
Reasons
The 5% WPI assessment at the low end of the range is because there is no skeletal deformity. It is subtle and not really noticeable. There is definitely a deformity and it is palpable on touch but it is not obvious. The eye on that side of the claimant’s face looks more open because of this minor deformity.
With the trigeminal nerve, this was assessed at the upper end of the range at 14%. There is a loss of sensation. This assessment concerns the infraorbital nerve which affects the entire left lower eyelid disabilities.
Regarding the deduction made by the Medical Assessor, he said that it was because the entire lower eyelid was not affected. That may have been the case when the claimant was examined by the Medical Assessor but when he was examined by Medical Assessor McGlynn, the eyelid was affected.
Conclusion
The Review Panel finds that the claimant has 9% WPI for his facial injuries.
Determination
The Panel revokes the certificate of Medical Assessor Curtin dated 16 July 2024.
The Panel finds that the following injuries caused by the accident and assessed by the panel give rise to a total whole permanent impairment (WPI)of 9%;
(a) face – 5%
(b) trigeminal nerve – left 4%
(c) mastication – 0%
The Panel revokes the combined certificate dated 16 July 2024 and issues a new certificate determining the following injuries caused by the motor accident give rise to a WPI assessment of 11%;
(a) certificate of this Review Panel at 9% WPI, and
(b) certificate of Medical Assessor Cameron dated 11 June 2024 for assessment of physical injuries arising out of the accident at 2% WPI.
Using the Combined Values chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment, fourth edition, the combined impairment is 11% WPI.
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