Wahab v Allianz Australia Insurance Limited
[2024] NSWPICMP 405
•24 June 2024
DETERMINATION OF REVIEW PANEL CITATION: Wahab v Allianz Australia Insurance Limited [2024] NSWPICMP 405 CLAIMANT: Zurana Wahab INSURER: Allianz Australia Insurance Limited REVIEW PANEL MEMBER: Ray Plibersek MEDICAL ASSESSOR: Michael McGlynn MEDICAL ASSESSOR: Drew Dixon DATE OF DECISION: 24 June 2024 CATCHWORDS: MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a front seat passenger in a vehicle travelling on the Sturt Highway, Balranald, when a front tyre on the vehicle blew out causing the vehicle to lose control and roll over; original assessment found the claimant sustained total permanent impairment of 4%; the claimant’s injuries were assessed as face scarring and deformity (2%) and trigeminal nerve injury, left and right (2%); Held – original Medical Assessment Certificate set aside; facial scarring and deformity; total 8% permanent impairment for face disfigurement, scarring and deformity (2%); right trigeminal nerve injury (3%) and left trigeminal nerve injury (3%).
DETERMINATIONS MADE: CERTIFICATE OF DETERMINATION
1. The Review Panel revokes the certificate of Medical Assessor Geoffrey (Paul) Curtin dated 20 June 2023 regarding permanent impairment.
2. The Review Panel issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a permanent impairment of 8% which is not greater than 10%:
· facial disfigurement – scarring;
· right trigeminal nerve, and
· left trigeminal nerve.
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
1.On 24 December 2020 Zurana Wahab (the claimant) was a front seat passenger in a vehicle travelling on the Sturt Highway Balranald when a front tyre on the vehicle blew out causing the vehicle to lose control and roll over.
2.In her personal injury claim form dated 23 February 2021 Ms Wahab says that as a result of the accident she sustained numerous injuries.[1] She described her injuries as including: blow to head, laceration to forehead, right eye, neck, left shoulder, fractured left hand, lower back and psychological trauma.
[1] Insurer’s bundle R 2 p 13.
3.Ms Wahab has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
4.Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Wahab under the MAI Act.
5.Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
6.This dispute is in relation to whether the degree of permanent impairment sustained by Ms Wahab as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
7.A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
8.There were two disputes as to permanent impairment. One was referred to Medical Assessor Woo and the other to Medical Assessor Curtin.
9.Medical Assessor Woo assessed Ms Wahab and issued a certificate dated 21 March 2023.
10.Medical Assessor Curtin assessed Ms Wahab and issued a certificate dated 20 June 2023.
11.There has been two applications for review for these certificates. Both review applications have been accepted. There have been two medical review panels constituted to review each of the medical assessments by Medical Assessor Woo and Medical Assessor Curtin.
12.Medical Assessor Curtin assessed the degree of permanent impairment and found that the injuries caused by the motor accident did not result in permanent impairment greater than 10%. Medical Assessor Curtin found that the claimant’s injuries were caused by the subject motor accident and gave rise to a total permanent impairment of 4%. These injuries were assessed as: face-scarring and deformity – 2% whole person impairment (WPI); and trigeminal nerve injury, left and right – 2% WPI.
13.This review with its certificate and reasons is a review of the medical assessment of Medical Assessor Curtin. The Panel in this case is composed of Medical Assessors Michael McGlynn and Drew Dixon and Member Ray Plibersek.
14.A differently constituted Panel has been appointed to review the medical assessment of Medical Assessor Woo and will provide its certificate and reasons separately.
REVIEW PROCEDURE
15.An application for review of the medical assessment of Medical Assessor Curtin was lodged within 28 days of the date on which the certificate was made available to the parties.
16.On 5 October 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Medical Review Panel (the Panel).
17.The grounds for review advanced by the claimant included that Medical Assessor Curtin failed to provide reasons as to how he arrived at a reduction of 75% for his assessment of permanent impairment for damage to the ophthalmic division of the trigeminal nerve. The claimant also submits that the suggested reduction of 75% does not appear to be consistent with the balance of his comments in the reasons.
The current proceedings
18.Each of the two assessments under review arose out of the referral of a dispute to the Commission. The two Panels have determined the two review matters separately.
19.The two review proceedings were each commenced separately, at different times and were given a separate matter number by the Commission. The two proceedings were not consolidated under Rule 64 of the Personal Injury Commission Rules 2021.
20.The Panels have decided to issue separate decisions in each matter and a combined certificate will be issued.
1.RELEVANT LEGAL AUTHORITY
21.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).
22.The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
23.Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
2. “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
3. '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:
4.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
5.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'”
6. This, therefore, involves a medical decision and a non-medical informed judgement.
7. 6.7 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.”
24.In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[3] Justice Walton concluded that the question of causation was not about whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
8.ASSESSMENT UNDER REVIEW
[3] [2021] NSWSC 804, Kinchela. See also AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371.
25.The dispute was referred to Medical Assessor Curtin who assessed Ms Wahab on
16 June 2023 and issued a certificate dated 20 June 2023.26.Medical Assessor Curtin found there was noticeable facial scarring due to a laceration sustained in the accident. There was also injury to the ophthalmic division of the trigeminal nerve on both sides resulting in loss of sensation to part of the forehead and anterior scalp. He redefined the injuries in two parts as follows: face-scarring and deformity ; and trigeminal nerve injury, left and right.
27.Medical Assessor Curtin found that the claimant’s injuries were caused by the subject motor accident and gave rise to a total permanent impairment of 4%. The claimant’s injuries were assessed as: face-scarring and deformity – 2% WPI; and trigeminal nerve injury, left and right – 2% WPI.
28.Medical Assessor Curtin made his assessment of facial scarring using Chapter 13, Table 2 p 280, and the TEMSKI chart which Guidelines direct (paragraph 6 .264) is an extension of that table. He found the facial scarring falls into the Class 1 category of Table 2, and the Guidelines require that impairments in this class are assessed in accordance with the TEMSKI criteria. He further found that as the scar is slightly hypopigmented and visible and because of its prominent location the scar qualifies for the 2% WPI category.
29.Medical Assessor Curtin also referred to the Guidelines, p 113 paragraph 6.173, which state that sensory impairments of the trigeminal nerve must be assessed with reference to Table 9 p 145 AMA4. The words “sensory disturbance” should be added after “neuralgic pain” in the first category of that table. Table 9 indicates that 0 to 14% WPI can apply to mild impairment due to uncontrolled facial neuralgic pain or sensory disturbance.
30.Medical Assessor Curtin then wrote that:
9.“It would not be unreasonable to apply the maximum impairment rating of 14%. Paragraph 6.173 states that the Ophthalmic (1st) division of the trigeminal nerve can only attract 40% of whatever value is selected. This would reduce the impairment to 40% of 14% or else 5.6%, and this value should be reduced further by 75% because only a small part of the ophthalmic division is affected (only part of the forehead is affected, and other ophthalmic division branches pass to the cornea, upper eyelid and nose). The final impairment rating for facial sensory loss is therefore 1% WPI (after rounding) for each side, and therefore a total of 2% WPI.”
31.Medical Assessor Curtin then concluded that the combined impairments reached a total of 4% WPI.
EVIDENCE BEFORE THE REVIEW PANEL
32.The Panel issued Directions to the parties on 23 January 2024 requesting the claimant to attend for a re-examination by the Medical Assessors on the two Panels.
33.The Panel noted that each party had filed indexed and paginated bundles of documents in both matters.
10.Pre-accident treatment medical evidence
34.The pre-accident medical evidence in the available records for Ms Wahab showed that prior to the subject motor accident she had good health did not take any regular medications. There was no evidence or history of any previous facial injury or facial scarring.
11.Post-accident treating medical evidence
35.After the accident the claimant went by ambulance to the Royal Melbourne Hospital . The hospital records show that as a result of the accident Ms Wahab had a large facial laceration of her forehead, facial abrasions, upper front teeth missing, bilateral periorbital haematomas, and complaints of pain in her left wrist, left shoulder and lower back.[4]
[4] See notes from ambulance and Royal Melbourne Hospital in claimant’s bundle in matter M105322554/22-02-2.
36.The claimant’s facial laceration was sutured in the Emergency Department of Royal Melbourne Hospital under local anaesthetic. A CT scan showed a subtle fracture of the manubrium and fractures of the left side transverse processes of L1 and L2 spine vertebra. A CT scan of the face and cervical spine showed no evidence of any facial bone fractures. A CT scan showed a fracture of the left distal radius and a closed Bennett’s fracture of the left thumb. The fractured distal radius was operated on with a closed reduction and fixation of the Bennett’s fracture. Ms Wahab’s facial sutures were removed on the 1 January 2021. On 6 February 2021 the claimant had surgery to remove K wires removed from her left thumb. [5]
12.SUBMISSIONS
13.Claimant’s submissions
[5] Claimant’s bundle p 48.
37.The claimant’s solicitors made detailed submissions dated 28 August 2023.
38.The claimant’s solicitors applied for review of the decision of Medical Assessor Curtin dated 20 June 2023. The submission notes that the decision was not received by the claimant's solicitors until 18 August 2023.
39.The submissions state that there is no reasoning contained within the Medical Assessor's report to understand why he reached a conclusion that after considering 5.6% as the maximum impairment that can be allowed for damage to the ophthalmic division why there should be a reduction of 75% in this case.
40.The claimant's solicitors contended that the 75% reduction is not consistent with the balance of the comments in the Medical Assessor's report including that it would not be unreasonable to apply the maximum impairment rating of 14%. In this case, the submissions argue that the claimant suffered a very serious injury involving the trigeminal nerve which should be assessed at 14% WPI.
14.Insurer’s submissions
41.The insurer’s solicitor relies upon written submissions dated 13 September 2023.
42.In the submissions the insurer disputes that Medical Assessor Curtin erred and submits a clear path of reasoning was provided as Medical Assessor Curtin was required to assess this injury in accordance with the AMA4 and the Guidelines.
43.The insurer submits that Medical Assessor Curtin has applied the maximum impairment rating of 14% as a result of assessing mild impairment due to uncontrolled facial neuralgic pain or sensory disturbance. This was the maximum allowed for mild impairment. The impairment was weighted by 40% of 14%, totalling 5.6%, as required by cl 6.173 of the Guidelines for division 1 of the trigeminal nerve. This was appropriately further reduced by 75% to a total of 2% WPI for both sides (after rounding), as only a small part of the forehead of the ophthalmic division (1/4) was affected. Medical Assessor Curtin stated that the other ophthalmic division branches (3/4) pass to the cornea, upper eyelid, and nose, which were unaffected.
44.The insurer submits that Medical Assessor Curtin considered all relevant material, the history provided by the claimant and contained within the documents, to which Medical Assessor Curtin referred, as well as conducted a clinical examination, to conclude that the final impairment for facial sensory loss was 2%. This assessment was made following application of the AMA4 Guides and the Guidelines, as per the reasons provided. The insurer argues that is no error.
MEDICAL EXAMINATIONS
45.On Ms Wahab was examined by Medical Assessors Thomas Rosenthal and Michael McGlynn on 27 March 2024 at the Commission’s rooms, 1 Oxford Street, Darlinghurst.
46.A Malay interpreter attended via telephone, Rita Ormsby (NAATI No: CPN4KF05V).
15.HISTORY
47.Ms Wahab confirmed the history previously provided of the motor vehicle accident that occurred on 24 December 2020. She was the front seat passenger with her seatbelt on in a Toyota Prada. The car was travelling at some speed when a tyre blew out and caused the vehicle to roll four times. The accident occurred at Balranald near Mildura. She did not lose consciousness. An ambulance attended and she was taken by helicopter to Royal Melbourne Hospital.
48.She sustained a number of injuries as diagnosed initially by Royal Melbourne Hospital which included a large forehead laceration, a fracture of her dental plate upper. A left distal radius fracture and left thumb Bennett fracture required open reduction and internal fixation. An old right scaphoid fracture and manubrial fracture were diagnosed and transverse process fractures of L1 and L2.
49.She underwent repair of her forehead laceration and open reduction and internal fixation of the left distal radius fracture. She said a wire at the base of the thumb was subsequently surgically removed from the left Bennett fracture.
50.She was discharged after two weeks and then stayed with a friend in Robinvale.
51.At the time of the accident, she was working in a chicken factory.
16.Current symptoms
52.She could not recall a neck injury but says she gets occasional soreness, and is still getting some symptoms radiating from the neck down her left arm into the forearm region (non-verifiable radicular complaint).
53.She has been left with a painful left wrist and left thumb and has difficulty grabbing things with her left hand. She is right handed.
54.She said her tooth fracture has been repaired and is causing her no symptoms now.
55.She is still getting some low back pain but denies any radiation into her legs. The back pain comes on more after prolonged sitting and standing.
56.She also continues to state there is pain that radiates down into the left arm, stops at the mid forearm, described more as pins and needles, and numbness around her thumb, index and middle fingers which comes and goes.
57.She believes that her left shoulder was injured or dislocated. There are ongoing symptoms still present around the left shoulder with some pain and discomfort.
58.In regards to scarring, she reported numbness above the scar on her forehead and some pain around the scar on the volar aspect of her left wrist.
17.Current treatment
59.She takes Panadol when required.
60.She has not had any specialist treatment since her discharge from hospital.
18.Occupational history
61.She is currently working on an almond farm doing process work using a ride-on forklift. She does 46 hours a week.
62.She stopped working in the chicken factory in July 2023 because it was too cold and made her injuries worse.
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22.Social history
63.She lives in Robinvale in a house with a friend. She can do some household chores – cook, clean, wash. She goes jogging. She can drive. She can go shopping with her friend but avoids heavy lifting activities.
History
64.The history of the motor vehicle accident and subsequent injury treatment was the same as that reported by Medical Assessor Curtin.
Symptoms
65.Ms Wahab was concerned about visible scarring on her forehead. She styles her hijab and head scarf to partially cover the scaring. She stated she occasionally applies moisturiser to forehead scarring. She stated her forehead and anterior scalp above the forehead scar was numb. She occasionally felt throbbing discomfort in the numb area and takes Panadol for this.
Examination
66.There was a transverse curved scar on forehead that ran from right upper forehead near scalp, down to lower third of midline forehead, then up to middle third of left lateral forehead. The scar was 60mm x 2mm to 3mm wide, hypopigmented in its lateral thirds and hyperpigmented in the central third causing noticeable colour contrast, with visible stitch marks, no contour defect, minimal trophic features, and no adherence.
67.There was loss of sensation on the forehead and anterior scalp superior to the transverse forehead scar in sensory distribution of 1st divisions of right and left trigeminal nerves. Sensation of forehead below the scar, both upper eyelids, and bridge of nose was normal. Sensation elsewhere on the face was normal. There was normal movement of facial muscles.
Consistency
68.The Panel carefully examined and questioned the claimant about her recollection of her injuries, symptoms and treatment. The Panel was satisfied Ms Wahab gave a consistent and accurate account of the accident and her resulting injuries and symptoms.
Diagnosis, causation and summary of the Panel’s opinion
69.In the motor vehicle crash on 24 December 2020, Ms Wahab sustained a number of injuries caused by the motor accident including: sternum fracture, lumbar spine – transverse process fractures L1 and L2, cervical spine – soft tissue injury, left shoulder – soft tissue injury, left wrist – distal radius fracture, left thumb – Bennett fracture, facial laceration (forehead) and injury to the trigeminal nerves.
70.At the re-examination the Panel found the area of sensory loss is larger than 25% of the total sensory distribution of Trigeminal nerve Division 1. In the Panel’s opinion 50% deduction is an accurate estimate of area affected. Medical Assessor Curtin states that only a small part of 1st division is affected; “only part of the forehead is affected, and other ophthalmic division branches pass to cornea, upper eyelid and nose”. He does not note the 1st division supplies sensation to anterior scalp. In Panel’s opinion Medical Assessor Curtin has underestimated the size of the affected area resulting in a greater deduction than reasonable.
71.The Panel’s findings and conclusion about the facial scaring and trigeminal nerves are as follows.
Face scarring
72.When assessing facial scarring/disfigurement, Guidelines Version 9.1 paragraph 6.189 to 6.191 states, facial scarring and disfigurement are assessed separately to scarring elsewhere on the body. This scarring is combined with any other assessment of scarring and/or other permanent impairment assessments. Assessment of permanent impairment involving scarring of the face and may be undertaken using Chapter 13 ‘The Skin’ pages 279-280 AMA 4 Guides and/or section 9.2 ‘The Face’ pages 229-280 AMA4 Guides.
73.AMA4 section 9.2 pages 229-290 describes Class 1 Facial Impairment to be facial abnormality limited to a disorder of the cutaneous structures, such as visible scars or abnormal pigmentation. The impairment range is 0–5% WPI.
74.Paragraph 6.259 of the Guidelines states,
“The assessment of permanent impairment involving scarring of the face may be undertaken using Chapter 13 ‘The skin’ (pages 279–280, AMA4 Guides) and/or Section 9.2 ‘The face’ (pages 229–230, AMA4 Guides). Criteria for facial impairment are listed on page 229 of the AMA4 Guides. Specific facial disfigurements may also be assessed by reference to Table 4 (page 230, AMA4 Guides).”
Visible scarring of the skin is Class 1 skin impairment with a range of 0-9%WPI.
75.Paragraph 6.264 of the Guidelines Version 9.1 states, “When an assessor determines a skin disorder falls into Class 1, they must assess the skin disorder in accordance with the TEMSKI criteria”. Table 18, Table for Evaluation of Minor Skin Impairment (TEMSKI) on page 59 of the Guidelines, is then used to assess the scarring.
76.Zurana Wahab is conscious of visible forehead scarring. There is noticeable colour contrast with the surrounding skin . She is able to easily locate the scar. There are minimal trophic changes. Suture marks are visible . The anatomic location is visible with normal clothing/hairstyle. There is no contour defect . There is minor limitation of few ADL due to the scarring. No or intermittent treatment is required. There is no scar adherence.
77.Six of ten scar criteria fit 2%WPI TEMSKI zone; five 1%WPI and four fit 3-4% WPI zones. In the Panel’s opinion the best fit is 2%WPI.
Trigeminal nerves (right and left)
78.When assessing trigeminal nerve impairment the 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 and 3, 30% each).
79.In the Panel’s opinion the Trigeminal nerve impairment is mild with impairment 0% to 14% WPI; there is reduced sensation, paraesthesia and pain. Maximum for 1st division is 40% of 14% for mild impairment -> maximum of 5.6% for each side.
80.Trigeminal nerve 1st division supplies sensation to forehead and anterior scalp, upper eyelid, conjunctiva or eye, and nose bridge. In this instance the area affected is approximately ½ of the sensory distribution of the nerve. Accordingly, in the Panel’s opinion it would be reasonable to deduct 50% of the maximum for this particular injury.
81.The Panel’s assessment is as follows:
· right Trigeminal nerve 1st division 50% of 5.6% = 2.8% deduction -> 3% WPI (rounded), and
· left Trigeminal nerve 1st division 50% of 5.6% = 2.8% deduction -> 3% WPI (rounded).
82.The three WPIs, 2%, 3% and 3% combine using AMA4 Combined Values Chart. The total is 8% WPI.
83.There is no pre-existing injury or condition contributing to these impairments.
| Body Part or System | AMA Guides/ MAA Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident |
| Facial disfigurement - - scarring | MAA Guidelines para 6.189-6.191 AMA4 Chapter 9 Section 9.2, page 229 - 230 | Yes | 2% | 0% | 2% |
| Right Trigeminal Nerve – 1st division (partial) | MAA Guidelines Para 6.173 AMA4 Ch4, Table9, page145 | Yes | 3% | 0% | 3% |
| Left Trigeminal Nerve – 1st division (partial) | MAA Guidelines Para 6.173 AMA4 Ch4, Table9, page145 | Yes | 3% | 0% | 3% |
* %WPI = percentage whole person impairment
84.In summary the Panel assesses the claimant's permanent impairment facial scarring and injury to the trigeminal nerves caused by the subject matter accident is 8%.
85.The claimant’s other injuries will be assessed separately in another review decision made by a different Panel and a combined certificate will be issued.
CONCLUSION AND CERTIFICATION
86.As a result of the above findings the Panel revokes the certificate of Medical Assessor Curtin dated 20 June 2023 regarding permanent impairment and issues a replacement certificate in accordance with these reasons.
87.The new certificate is attached at the commencement of these Reasons.
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