DETERMINATION OF REVIEW PANEL	
	
CITATION:	Pearce v AAI Limited t/as AAMI [2023] NSWPICMP 370	
		
CLAIMANT:	Luke Pearce	
		
INSURER:	AAI Limited trading as AAMI	
		
REVIEW Panel	 	
		
MEMBER:	Alexander Bolton	
		
MEDICAL ASSESSOR:	Michael McGlynn	
		
MEDICAL ASSESSOR:	Chris Oates	
		
DATE OF DECISION:	2 August 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) dated 2 July 2022; MA determined a whole person impairment (WPI) of 2% with respect to scarring of the claimant’s right knee, right forearm, right foot, right elbow, right ankle and right shoulder; the claimant was injured in an accident on 3 November 2018 when riding his motorcycle which collided with a car; the claimant had surgery on admission to hospital and thereafter fractional laser therapy treatment for approximately 12 months post-accident; scarring remains sensitive and required desensitisation therapy; the claimant submitted that the MA failed to apply TEMSKI descriptors but following examination by the Appeal Panel the TEMSKI descriptors were not deemed appropriate and assessment was applied adopting the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, and limitation of performance of several activities of daily living (ADL); Held – Appeal Panel assessed the claimant at WPI greater than 10%. 
	
DETERMINATIONS MADE:  	REPLACEMENT CERTIFICATE OF DETERMINATION
Issued under Part 3.4 of the Motor Accidents Compensation Act 1999
determination 
1.	The Panel revokes the Certificate of Medical Assessor Curtin dated 2 July 2022.
2.	The Panel finds that the injuries suffered by the claimant in the accident on 3 November 2018 are causally related.
3.	The Panel finds a total whole person impairment of 10% for his physical injuries  being scarring to his right knee, right foot, right elbow, right ankle and right shoulder not including his injuries to his right leg – right knee soft tissue injury including lateral femoral condyle bruising and right hand – right 5th metacarpal fracture dislocation, avulsion fracture of the hamate, non-displaced fracture of the base of the 4th metacarpal
4.	The Panel revokes the combined certificate of Medical Assessor Curtin dated 6 July 2022 and issues a new combined certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%:
i.	Scarring to right knee, right foot, right elbow, right ankle and right shoulder
ii.	Right leg – right knee soft tissue injury including lateral femoral condyle bruising
iii.	Right hand – right 5th metacarpal fracture dislocation, avulsion fracture of the hamate, non-displaced fracture of the base of the 4th metacarpal
5.	The combined whole person impairment for these injuries is 15%.
6.	The combined whole person impairment assessments of 10% by the Panel and 6% by Medical Assessor Menogue is 15% applying the combined tables.

	

STATEMENT OF REASONS
THE DECISION REVIEWED
7.	Medical Assessor Curtin (the Medical Assessor), in his certificate of 2 July 2022, found the following injuries caused by the motor accident gave rise to a permanent impairment of 2%:
a)	skin-scarring: right knee, right forearm, right foot, right elbow, right ankle, and right shoulder.
8.	The claimant applied for a review of the decision of the Medical Assessor.
9.	The Panel requested the parties provide respective bundles of documentation upon which they relied and these have been provided, including submissions. The Panel have read all of the documentation within each bundle of documents.
The accident and immediate post-accident treatment
10.	The accident occurred on 3 November 2018. The claimant was riding a motorbike, wearing a helmet, gloves, and no other protective gear. The claimant was confronted with a car suddenly appearing on his right. A collision occurred, and the claimant was thrown onto the road, hitting his right leg and knee and sliding along the road with his motorbike on top of him. Amongst other things, the claimant suffered scarring as well as physical injuries.
11.	The claimant was admitted to St George Hospital by ambulance. He had deep lacerations to the right knee and the plantar surface of the right foot and multiple abrasions of the right ankle and foot, the right shoulder, elbow and forearm.
12.	The claimant had surgery on 3 November 2018 and again on 9 November 2018.
13.	Following discharge from the hospital, the claimant had extensive scarring on his right forearm, which was treated with fractional laser therapy approximately 12 months after the accident. The claimant complains that scars on his right arm and right leg remain sensitive and required desensitisation therapy from a physiotherapist.
Claimant’s submissions
14.	The claimant submits that he has the subsequent scarring due to the accident, as described by Dr Linsell, that requires assessment:
a)	right knee
i.	7cm obvious oblique scar of the lateral aspect of the right knee which merges with a 1cm diameter circular scar over his patella. This scar has trophic changes which are evident to touch and are also clearly visible.
b)	right foot
i.	2cm linear scar on the ball of his right foot between the second and third toes.
ii.	1cm diameter reddish scar.
iii.	1cm x 0.4cm discoloured scar with trophic changes.
c)	right forearm
i.	19cm x 4.5cm obvious scar over the proximal aspect of the right forearm, with mottled appearance that differs in colour and texture from the surrounding skin.
d)	right elbow
i.	7cm x 1cm scar over the lateral aspect of the elbow that is obvious and reddened.
e)	right bicep
i.	0.5cm scar over the lower lateral aspect of the right bicep that is discoloured.
f)	right shoulder
i.	1cm linear scar just above the clavicle.
15.	The claimant submits that the Medical Assessor failed to explain the basis for disagreeing with the opinion of Dr Malcolm Linsell, the plastic surgeon who assessed 7% whole person impairment (WPI) for scarring. In this regard, the claimant relies on comments by Brereton JA in Lederer v Insurance Australia Limited trading as NRMA Insurance A.C.N 000016722 [2022] NSWSC 322 (Lederer).
16.	The claimant submits that Medical Assessor Curtin failed to:
(a)	address all TEMSKI scale descriptors; and
(b)	address the effect of the claimant’s scarring on the performance of his activities of daily life (A.D.L.); and
(c)	address whether exposure to chemical or physical agents temporarily increased the claimant’s limitation of A.D.L., and
(d)	identify a clear path of reasoning in relation to the application of the TEMSKI.
17.	The claimant relies on Richardson bht Richardson v .B.E.Q.B.E. Insurance (Australia) Ltd [2020] NSWSC 366 (Richardson), where Wright J sets out (at [65]) the process of assessing and providing reasons in relation, to the Plaintiff’s scarring including, inter alia:
“1. 	Assessing the degree of impairment by reference to the extent to which the scarring caused limitation in the performance of activities of daily living and including in the assessment an explanation ‘or a history that sets out any alterations in activities of daily living’ of the types listed in the American Medical Association Guides to Permanent Impairment 4th edition (A.M.A. 4 Guides) Table on page 317; cll1.13 and 1.260; [now 6.13 and 6.260 respectively of the current Permanent Impairment Guidelines (the Guidelines)]
2. 	…
3. 	If the scarring is found to fall into class 1 in Table 2, assign it one of the five “categories” or sub-classes in Table 18 (or TEMSKI) … by reference to:
1.	The ‘criteria’ in TEMSKI … ; cl1.264 [now 6.264 of the current Guidelines]; and
2.	All of the ‘10 descriptors’ in TEMSKI … ; cl1.264 [now 6.264 of the current Guidelines]; but
3.	While the scarring is to be assessed using the principle of best fit, it does not need to meet all of the ‘criteria’ with the chosen ‘category’ or subclass in order to satisfy that principle; cl 1.265 [now 6.265 of the current Guidelines]
And then
4.	providing:
1.	reasons as to why this ‘category’ or sub-class was selected; cl1.265 [now 6.265 of the current Guidelines]; and 
2.	reasons that clearly linked their clinical judgment to the impairment value selected (from the range of values available in the TEMSKI ‘category’); cl 1.265 [now 6.265 of the current Guidelines].”
18.	The claimant provided a table setting out the differences (identified by underlining) between the descriptors for the 2% and 5-9% categories in the TEMSKI, as well as Medical Assessor Curtin’s findings in relation to those descriptors. This follows:
TEMSKI CRITERIA (TABLE 6.18 OF THE GUIDELINES)	TEMSKI DESCRIPTORS FOR 2% .W.P.I. (AS ASSESSED BY ASSESSOR’S CURTIN), TABLE
6.18	TEMSKI DESCRIPTORS FOR 
5-9% W.P.I., TABLE 6.18	ASSESSOR CURTIN’S FINDINGS	
Description of the scar(s) (shape, texture and colour)	Injured person is conscious of the scar(s)	Injured person is conscious of the scar(s)	“The claimant is conscious of the scarring”	
	Noticeable colour contrast of scar(s) with surrounding skin as a result of pigmentary or other changes	Distinct colour contrast of scar with surrounding skin as a result of pigmentary or other changes	“There are noticeable colour contrasts of the scarring with the surrounding skin as a result of pigmentary changes”	
	Injured person is able to easily locate the scar(s)	Injured person is able to easily locate the scar(s)	“Is able to easily locate [the scarring] on his body”	
	Trophic changes are evident to touch	Trophic changes are visible	[unaddressed]	
	Any staple or suture marks are clearly visible	Any staple or suture marks are clearly visible	“suture marks are visible”	
Location	Anatomic location of the scar(s) or skin condition is usually	Anatomic location of the scar(s) or skin condition is usually and clearly	“The scars are located in areas which are usually visible with
usual clothing”	
	visible with usual clothing/hairstyle	visible with usual clothing/hairstyle		
Contour	Contour defect visible	Contour defect easily visible	“There are no visible contour defects”	
A.D.L./treatment	Minor limitation in the performance of few A.D.L.	Limitation in the performance of few A.D.L. (in addition to restriction in grooming and dressing) and exposure to chemical or physical agents (for Example sunlight, heat, cold, etc.) may temporarily increase limitation or restriction	“…there is minor limitation in the performance of few A.D.L.”	
	No treatment required, or intermittent treatment only required	No treatment required, or intermittent treatment only required	“No treatment for the scars is required”	
Adherence to underlying structures	No adherence	Some adherence	“No adherence”	

19.	The claimant submits that the Medical Assessor has failed to address the descriptor relating to trophic changes. The claimant expanded on this,saying the criteria relating to trophic changes varies between the category for 2% W.P.I. and 5-9% as set out in the table above and consideration of this descriptor was capable of altering the outcome of the assessment.
20.	The claimant says that assessing the impairment against each criterion in TEMSKI is crucial to determine which impairment category best fits (or describes) the impairment, as stated in the notation to Table 6.18 (TEMSKI).
21.	The claimant also submits that the Medical Assessor has failed to address each of the criteria. Thus, the claimant submits that his assessment of the category that best fits the claimant’s impairment is flawed.
22.	The claimant says that the TEMSKI scale does not take into account or measure well multiple scars. The claimant says that where there are scars, although they cannot be individually addressed and combined, the Medical Assessor is nonetheless to regard the totality of the scarring.
23.	The claimant submits the accumulative effect of the scars has not been considered appropriately by the Medical Assessor if at all.
24.	The claimant says that the Medical Assessor disregarded the claimant’s evidence as to his restrictions and fell into error.
25.	Concerning addressing all TEMSKI scale descriptors and the effect of the claimants scarring on his activities of daily life, the claimant submits the Medical Assessor failed to regard the following history provided by the claimant, and failed to consider how the extent to which the scarring caused limitation in performance of activities of daily living:
a)	“I am unable to kneel and arise from a seated position on the ground due to the scar on my knee. This restricts me when dressing, tying shoelaces and cleaning” (at paragraph 63 (f) of claimant’s statement).
b)	“I am prevented from bending and retrieving low-lying objects due to the tightness of the scarring on my knee” (at paragraph 63 (g) of claimant’s statement).
c)	“…my scarring is irritated in direct sunlight. I break out in a hive-like, red rash in sunlight” (at paragraph 63 (k) of the claimant’s statement).
d)	“My intimate relations with my partner have suffered because of scar hypersensitivity and my partner’s touch is physically irritating to the skin” (at paragraph 63 (j) of the claimant’s statement).
e)	“He said that the scarred area was also tentative [sic: sensitive] to various detergents and cleaning agents. He is careful to protect all the scars from undue exposure to sunlight and always uses sunscreen to protect his skin”. (at page 3 of the Certificate)
f)	“He said that the scar on the front of his right knee remains sensitive and feels tight when he bends his knee. He completely avoids kneeling on the right knee because of discomfort within the knee joint and because he said the knee is stiff. He said that the scar on his knee is sensitive to the point of keeping him awake at night sometimes.” (at page 3 of the Certificate)
g)	“He said that the scarred area on his forearm is very sensitive to casual knocks and bumps.” (at page 3 of the certificate)
26.	The claimant says that the Medical Assessor:
a)	failed to consider this evidence in his assessment; and
b)	failed to include in his assessment a history that sets out alterations in A.D.L. (per Richardson at [65] and 6.260 of the Guidelines), and
c)	failed to explain how the injury impacts A.D.L., as he was required to do (per Richardson at [65] and 6.13 of the Guidelines).
27.	The claimant says that the Medical Assessor states, in paragraph 23 of the certificate, “There is limitation of few activities of daily living, those activities being largely confined to dressing restrictions”.
28.	The claimant says that the Medical Assessor failed to consider the claimant’s evidence, which clearly demonstrated limitations in performing activities of daily living that are not limited to (that is, in addition to) grooming and dressing.
29.	The claimant submits that despite identifying restrictions in A.D.L.s beyond grooming and dressing, the Medical Assessor assessed the 2% W.P.I. category for the criteria for A.D.L.s. The claimant submits the Medical Assessor erred in assessing 2% W.P.I., in circumstances where the category for 5-9% would be the best fit as it states there are limitations in A.D.L.s (in addition to grooming and dressing).
30.	The claimant says that the Medical Assessor also failed to consider whether the increase of limitation caused by exposure to chemical or physical agents increases the claimant’s limitation of A.D.L.s.
31.	The claimant refers to the Medical Assessor stating, at paragraph 13 of the certificate, “The claimant is careful to protect all the scars from undue exposure to sunlight and always uses sunscreen to protect his skin”.
32.	The claimant submits that in his statement, he said, “…my scarring is irritated in direct sunlight. I break out in a hive-like, red rash in sunlight” (paragraph 63 (k)). The claimant says that common sense would suggest that “a hive-like, red rash in sunlight” would impact the claimant’s ability to perform outside maintenance, gardening and outdoor sporting and leisure activities. The claimant submits that the Medical Assessor failed to take a history of alterations in A.D.L.s arising from the effect of the sun on his scarring and in failing to do so fell into error.
33.	The claimant says thatcl 6.265 of the Guidelines states that the TEMSKI should be used following the principle of best fit.Clause 6.265 further states that the skin disorder should meet most, but does not need to meet all, of the criteria within the impairment category in order to satisfy the principle of best fit. The claimant says that cl 6.265 states the Assessor must provide reasons as to why this category has been selected.
34.	The claimant submits that with reference to Chapter 13 of A.M.A. 4 Guides and the Guidelines, using the principle of best fit (set out in part 6.265 of the Guidelines), several factors warrant the allocation of 5-9% W.P.I. rather than 2% W.P.I. as assessed by the Medical Assessor).
35.	The claimant submits he meets the majority of the 5-9% descriptors and this category should have been found to be the best fit as it was by Dr Linsell.
36.	The claimant further submits that the Medical Assessor erred in properly categorising the claimant’s impairment using the best fit principles in the Guidelines in particular failing to have regard to the effect the scarring has on his A.D.L., and whether exposure to chemical or physical agents may temporarily increase limitation or restriction. The claimant says that the Medical Assessor’s reasons for finding 2% fail to address these TEMSKI descriptors.
37.	The claimant says that the Medical Assessor has not truly engaged with Dr Linsell’s opinion because his reasons for disagreement are invalid; he has failed to consider the entirety of the history provided by the claimant.
38.	The claimant says that consistent with the decision of Brereton JA in Lederer, the Medical Assessor was required to engage with the opinions of Dr Linsell. At [44] Brereton JA comments:
“I agree that the Assessor was not required to respond word by word to Dr Steel’s analysis. But he was required to consider, and to show that he had considered, the question of whether pre-existing age-related degenerative illness was aggravated and/or rendered symptomatic by the accident.”
39.	Brereton JA continues at [46]:
“[The Assessor] accepted that [the plaintiff] incurred a soft-tissue injury to her cervical spine in the accident. However, he nowhere addressed the question of whether the pre-existing disease was aggravated or rendered symptomatic by the accident.
In so doing he failed to engage with and evaluate Dr Steel’s report, and he failed to engage with the substance of the plaintiff’s case, or to give reasons which explained why he rejected it.” (Claimant’s emphasis)
INSURER’S submissions
40.	The insurer says th Medical Assessor also took a history from the claimant and referred to page 3 of his certificate, which says:
“Mr Pearce said that the extensive scarring on his right forearm was treated with fractional laser therapy about 12 months after the accident, and this treatment substantially improved the appearance of the scarring. He said that the scars on his right arm and right leg remained quite sensitive initially and required desensitisation therapy from a physiotherapist.”
41.	The insurer says the Medical Assessor, at page three of his certificate identified the following:
(a) 	the claimant reported sensitivity on the sole of his right foot, right knee and forearm, which was associated with scaring;
(b) 	the claimant reported that he was conscious of the scar on his right forearm, and
(c)	the claimant reported that the scarred area was tentative to various detergents and cleaning agents.
42.	The insurer says that the examination revealed:
(a) 	Scarring on the plantar surface which was described as a fine line 4cm in length. There was a slight callous formation.
(b) 	Scarring on the lateral malleolus which was described as soft, flat and pink which was 20 x 7mm.
(c) 	The scar at the right knee which was described as a flat pale area of scarring 8cm in length with fine suture marks visible. There was a good colour match. There was also a smaller scar extending 15 x 5mm and lightly pigmented.
(d) 	Scarring at the right forearm which was described as a broad patch of faint pale scarring extending from the elbow to mid forearm. There was altered skin texture which was slightly paler in colour.
(e) 	Scarring at the elbow was described as lightly pigmented but faint with a good colour match extending 80 x 10mm.
(f) 	Scarring of the upper arm was described to be a very faint pale patch of soft and flat. There was some irregularity extending 20 x 10mm.
(g) 	Scarring of the shoulder was described as a fine line which was pale and flat extending 2cm surrounded by a faint area of lightly depigmented skin.
43.	The insurer says that it is evident the Medical Assessor considered all of the above in his discussion on page six of the certificate.
44.	The insurer says the Medical Assessor formed a view that the findings on examination best fit within Class 1 of Table 2 on page 280 of the A.M.A. 4 Guides. The relevant commentary is as follows:
“The claimant is conscious of the scarring and is able to easily locate them on his body. The scars are located in areas which are usually visible with usual clothing. There are noticeable colour contrasts of the scarring with the surrounding skin as a result of pigmentary changes. Suture marks are visible and there is minor limitation in the performance of few A.D.L. There are no visible contour defects, no adherence, and no treatment for the scars is required.”	
45.	The insurer says that it is evident the Medical Assessor considered the impact on the claimant’s activities of daily living. Comments by the Medical Assessor regarding the impact on the claimant’s daily living can be seen on page three of his certificate under the subheading “current symptoms” and page six. The insurer says that, importantly, limitations were confined mainly to dressing, according to the Medical Assessor.
46.	The Medical Assessor’s commentary is consistent with a finding of a minor limitation on the claimant’s activities of daily living.
47.	The insurer says that regarding failing to consider the effect of chemical agents, sunlight and heat or cold, the Medical Assessor made various comments on page three of the certificate. He accepted that there was sensitivity to detergents, cleaning agents and sunlight.
48.	The insurer says to fall within the 3-4% category, there needs to be an increase in the limitation of activities of daily living due to the exposure of chemicals and sunlight. In concluding that the best fit for the claimant’s impairment is the 2% category, the insurer says the Medical Assessor accepted that there was no added restriction on the claimant’s activities due to his sensitivity to sunlight and detergent. The insurer says that finding is consistent with the commentary under the subheading “current symptoms”.
49.	The insurer says that medical assessors must ensure that right knee movement restrictions, if any, are assessed under scarring or orthopaedic criteria but not under both criteria. The insurer confirms that assessors will fall into error if the same movement restriction is assessed twice.
50.	The claimant relies on a report by Dr Malcolm Linsell dated 1 November 2021. 
Dr Linsell assessed 7% impairment due to scars at the right knee, right foot, right forearm, right elbow, right bicep, and right shoulder.
51.	Dr Powell for the insurer assessed 4% impairment from scarring to the right knee that limited full range of motion. He concluded there was no impairment at the right foot, right forearm and right elbow scars as these healed with no observed issues.
52.	Dr Negus also found 4% impairment for scars to the right foot, right ankle, right knee, right forearm, right elbow, right bicep, and right shoulder.
53.	The insurer says that medico-legal evidence contains differing opinions on the physical features of scarring. Dr Negus accepted there were contour defects, pigmentary changes and trophic changes. However, Dr Linsell only referred to trophic changes and concluded no contour defects. Dr Powell recognised contour and pigmentation defects, with no reference to trophic changes.
54.	Dr Linsell reported restrictions on activities of daily living due to scars on the right knee, right forearm, right elbow and right foot. This included the inability to bend the right knee, which impacted dressing and picking things up from the floor, limits on outdoor activity due to reactions to sunlight, scar sensitivity that interfered with sleep, intimacy with his partner, and using a computer for work. The insurer notes that these restrictions are similarly addressed in the claimant’s statement dated 
3 November 2021.
55.	The insurer says that the functional restrictions identified by the claimant and 
Dr Linsell is inconsistent with the assessments of Dr Powell and Dr Negus:
(a) 	Dr Powell did not identify scar-related impact on the claimant’s ability to dress, do outdoor activities, sleep, or engage in partner intimacy.
(b) 	The insurer says that, notably, Dr Powell reported that the claimant removed his shoes and socks during his examination, which contradicts 
Dr Linsell’s report that noted an inability to put on shorts or footwear.
56.	The insurer says that the treating evidence and evidence relating to the claimant’s resumption of work is persuasive and does not support the claimant or Dr Linsell’s reports of extensive functional limitations due to scars at the right knee, right foot, right forearm and right elbow:
(a) 	Right knee – Dr Molnar’s report on 5 August 2020 noted it was suitable for the claimant to perform unrestricted activities.
(b) 	Right foot – Dr Yoshio Hinde’s report dated 1 May 2019, on behalf of 
Dr Symes noted that the claimant could develop right foot scar sensitivity in the future that would result in pain. However, there are no treatment records to suggest any right foot symptoms that Dr Hinde speculated.
(c) 	Right forearm – Dr Nabarro provided a report on 23 January 2019 that noted the claimant’s right forearm scars were softening and non-tender. There is no evidence of issues or symptoms concerning right forearm scarring.
(d) 	Right elbow – No records are referring to issues or symptoms arising from right elbow scars.
(e) 	The certificate of capacity dated 7 March 2019 certified the claimant fit for pre-injury duties since 1 February 2019. As there were no restrictions in the claimant’s work capacity, the insurer says that this further demonstrates that his activities of daily living were not significantly affected.
(f) 	It is clear the treating evidence does not contain any records of scar-related impact on activities of daily living, and functional capacity has not suffered to the extent reported by the claimant and Dr Linsell.
57.	The insurer says that the treating evidence indicates Dr Linsell’s report and the claimant’s statement exaggerate scar-related restrictions on activities.
58.	Further, the insurer says that Dr Linsell provides a conflicting opinion concerning permanency of scar symptoms. Dr Linsell concluded that the claimant’s scars had stabilised, and he reached maximum medical improvement. However, Dr Linsell also said that the claimant had a reasonable prognosis and that “the sensitivity of his scars will diminish over time”. The insurer submits that this suggests the symptoms will improve but the insurer says that Dr Linsell does not specify the extent of improvement and its effects on permanent impairment.
59.	Finally, the insurer submits that the defendant’s whole person impairment does not exceed the threshold.
MEDICAL EVIDENCE
60.	The claimant relies on a report dated 10 September 2021 from Dr Negus, orthopaedic surgeon. He found 4% WPI due to scarring. 
61.	Dr Herald referred to TEMSKI criteria stating that there was an easily identifiable colour contrast of the scars and easily visible contour defect.The Medical Assessor responded to this and said that neither of these as present during his examination.
62.	Dr Negus recommended that scarring be assessed by a plastic surgeon as he found the skin impairment to be at a high level.
63.	The claimant also relied on a report dated 8 January 2021 from Dr James Powell, orthopaedic surgeon. He also found 4% W.P.I. due to scarring. However, his examination was carried out on 11 November 2020. The report described the scarring as pigmented and associated with contour defects and tethering to deeper tissues. Dr Powell felt that scarring of the knee, in particular, was likely to restrict activities such as squatting or kneeling. In response to this the Medical Assessor said it seemed likely the scarring had improved substantially since that time of examination. The Medical Assessor said that the scars were now soft and flexible, and despite the claimant’s complaints, did not appear to be sensitive or tender. The Medical Assessor said that any restriction of knee movement did not appear to be related to scarring.
64.	Report dated 1 November 2021 by Dr Linsell, plastic surgeon. Dr Linsell rated impairment at 7% W.P.I. due to scarring. The report also addressed TEMSKI criteria, stating that there were visible trophic changes and limitations in the performance of a few activities of daily living (A.D.L.s), including restriction of dressing and exposure to  chemical and physical agents, which temporarily increased limitations.
65.	The Medical Assessor commented that this report did not specify the nature of the trophic changes, nor was there any detail provided regarding the effect of chemical and physical agents other than the history the claimant gave. The Medical Assessor also noted that the report stated that the scars are “soft and smooth and not attached to underlying deeper tissue” and “the scars are not ulcerated, depressed or elevated”. Therefore, the Medical Assessor said these findings were unlikely to be associated with impairment rated at 7%. The Medical Assessor said that the report also noted that several of the scars were noticeably pigmented, a finding which was not present at the time of the assessment by the Medical Assessor.
66.	Regarding the Medical Assessor’s certificate, he said that the Motor Accident Guidelines (paras 6.258 - 6.266 pp 134-5) indicate that Table 2 p 280 AMA 4 Guides provides a method for assessing impairment due to skin disorders. Paragraph 6.264 of the Guidelines further states that when the skin disorder falls into Class I of Table 2, the skin disorder must be assessed following TEMSKI criteria. The Guidelines also require that multiple scars should not be assessed individually but should assess the total effect of the scarring on the skin as a separate organ.
67.	The Medical Assessor said that the scarring in this instance fell into the Class 1 category (0%-9% W.P.I.) of Table 2 because there is a limitation of few daily living activities, which are largely confined to dressing restrictions. The scarring on the plantar surface of his right foot was likely to be the source of some discomfort if he walked barefoot on rough or uneven surfaces. The Medical Assessor noted that the claimant is happy to walk barefoot within the confines of his home. 
68.	Following referral to the TEMSKI chart, the Medical Assessor said the scarring most closely fitted the 2% W.P.I. category for the following reasons:
(a)	The claimant is conscious of the scarring and can quickly locate them on his body. 
(b)	The scars are located in areas which are usually visible with usual clothing. 
(c)	There are noticeable colour contrasts of the scarring with the surrounding skin due to pigmentary changes. 
(d)	Suture marks are visible, and there is a minor limitation in the performance of few A.D.L.s.
(e)	There are no visible contour defects, no adherence, and no treatment for the scars is required.
69.	The Medical Assessor completed the following table of assessment
	Body Part or System	AMA4 Guides/ Guidelines References
(chapter/ page/table)	Permanent (YES/NO)	Current
%WPI*	% W.P.I.* from pre-existing OR
subsequent causes	%WPI*
due to motor accident	

1	Skin- scarring	AMA 4 Ch13 p 279-282, para
13.2-13.5 and 13.7 and table 2.

Guidelines p134-135 para 6.258-
6.267 and table 6.18 p136 (TEMSKI).	Yes	2%	0%	2%	
70.	No adjustment was made for treatment however, the Panel noted otherwise, in the following examination report.
PANEL MEDICAL EXAMINATION
71.	The claimant was examined by Medical Assessor McGlynn on behalf of the Panel. His report follows: 
“EXAMINATION ON 27 FEBRUARY 2023 BY ASSESSOR MICHAEL MCGLYNN
Symptoms / Complaints
•	He is conscious of visible scarring at multiple sites.
•	He says the scarring attracts unwanted attention from others.
•	He dresses to cover the scarring to avoid embarrassment 
•	The scarring on right forearm feels tender and is fragile; it is irritated by sun exposure, heat, contact with some plants, and contact with many chemicals.
•	Scarring on the back of the right elbow and forearm is tender. This interferes with sexual relations because he cannot take weight on the elbow and forearm due to pain.
•	The scarring on the front of his right forearm is itchy and disturbs sleep.
•	The scarring on the front of the right knee is tender, and pressure on it causes pain. This limits knee flexion and kneeling due to exacerbation of pain with flexion. He always protects this scar with elastic knee support. This relieves discomfort from trousers pressing on the scar and helps reduce discomfort when flexing the knee. 
•	The scarring on the sole right foot is tender causing pain and limiting mobility unless he wears soft sole shoes.
Treatment
•	He applies sunblock to scarring on the front of the right forearm whenever outdoors to protect it from sun damage.
•	He always wears elastic support over the right knee to avoid pain and discomfort from pressure on the scarring.
Examination (scarring)
Luke Pearce was 182 cm tall and weighed 80 kg.
He had a fair skin colour with light suntan on exposed areas.
There was a black elastic support over the right knee. This was removed for the examination.
a. 	Right Shoulder – scar 25 mm x 4 mm, hypopigmented and pink with noticeable colour contrast, slightly raised, firm on palpation due to hypertrophy, no visible stitch marks and no adherence.
b. 	Right lateral elbow and forearm - superficial abrasion scar 140 mm x 60 mm, extending from 40 mm above the elbow to mid-forearm, hypopigmented with easily identifiable colour contrast, flat, with minor trophic features, no visible stitch marks, and no adherence. The scarring had reduced sensation, and pressure caused apparent discomfort.
c. 	Right posterior elbow - a longitudinal scar 80 mm x 10 mm, hyperpigmented with easily identifiable colour contrast, flat, with minor trophic features, no visible stitch marks, and no adherence.
d. 	Right hand – barely visible scarring on the ulnar border of the right hand at sites of two K-wire insertions.
e. 	Right knee – transverse-oblique scar on the front of the right knee crossing the patella to the lateral side of the lower leg, 85 mm x 5 mm to 10 mm wide, hypopigmented with noticeable colour contrast, flat, with clearly visible stitch marks, minor trophic features and no adherence.
There was a 150 mm long circumferential band of suntan-free skin surrounding the knee, matching the dimensions of the elastic knee support he stated he always wears to protect knee scarring.
f. 	On the posterior aspect of the right calf, a 10 mm diameter hyperpigmented scar with easily identifiable colour contrast, flat, with minor trophic features, no visible stitch marks, and no adherence.
g. 	Right ankle – immediately above the lateral malleolus, there was a hyperpigmented scar 15 mm in diameter, with easily identifiable colour contrast, flat, with minor trophic features, no visible stitch marks, and no adherence.
h. 	Right Foot – on the sole of the right foot between 2nd and 3rd MTP joints, there was a longitudinal scar 30 mm x 3 mm, hypopigmented with noticeable colour contrast, flat, with no visible stitch marks, no trophic features, and no adherence. Pressure on the scar caused apparent discomfort.
i. 	There were barely visible scars on dorsum of the right toes.
Opinion
Diagnosis – multiple scars on right upper and lower limbs as a result of injuries sustained in a motor vehicle accident on 3 November 2018.
A.D.L.:
A.M.A. 4 – Glossary Table page 317 lists nine A.D.L.
These are self-care, communication, physical activity, sensory function, hand functions, travel, sexual function, sleep, social and recreational activities. 
Luke Pearce described limitation in performance of some A.D.L. due to scarring–
a. 	Social & recreational – embarrassed by appearance and always covers arm with long sleeve
b. 	Sensory – altered sensation & hypersensitivity of scars on forearm, knee, and sole of foot.
c. 	Physical – knee scar tender with exacerbation caused by knee flexion.
d. 	Sexual - tender posterior right proximal forearm scar interferes with sexual relations due to pain when taking his body weight using the forearm. 
e. 	Sleep is disturbed by scar itch discomfort.
.A.M.A. 4 describes 9 different A.D.L. There is no guidance in M.A.A. Guidelines or A.M.A. 4 on use of ‘few’, ‘some’ and ‘many’. It seems reasonable to describe 3 or fewer A.D.L. as ‘few’; 4, 5 or 6 A.D.L. as ‘some’; and 7, 8 or 9 A.D.L. as ‘many’.
Treatment:
Luke Pearce applies sunblock to scarring when outdoors in daylight. He always wears an elastic support over the right knee, as evidenced by the lack of suntan in that area compared to the rest of his leg. His scarring requires intermittent to constant treatment.
Impairment
Skin scarring is assessed as a skin condition as directed in A.M.A. Guidelines Version 9.1 paragraphs 6.258 to 6.267, using A.M.A. 4 Table 2 and the Table for Evaluation of Minor Skin Impairment (TEMSKI – Table 6.18 of Medical Assessment Guidelines).
Luke Pearce has skin disorder signs and symptoms present, and there is a limitation in the performance of some A.D.L., and intermittent to constant treatment is required. Therefore, this falls into Class 2 Skin Disorder with impairment range of 10%WPI to 24% WPI, and not Class 1. Therefore, an assessment on TEMSKI categorisation is not relevant.
Trophic changes are described in the TEMSKI as absent, minor, palpable or visible. The descriptors are required if using TEMSKI for Class 1 Skin Disorder. They are not used in that format for Class 2 and higher, rather, one describes scarring as hypertrophic or atrophic if those features are present.
The claimant's scarring causes Class 2 Skin Disorder because of the limitation of some A.D.L. & Intermittent to constant treatment; the scarring descriptors are not relevant.
A.M.A. 4 Chapter 13, Skin Class 2, Example 2, page 283, describes a thermal burn to the neck affecting 1% of body surface area. The scarring and limitation of activities are similar to those seen in Luke Pearce’s presentation. The Example case is assigned 10%WPI. Luke Pearce’s scarring and limitation of activities are less extensive than A.M.A. 4 Chapter 13, Skin Class 3, Example 3, page 285, where there are burns to both hands and feet requiring skin graft repair. The Example is assigned 30% WPI. 
The reasons for this assessment differing from that of Assessor Curtin are –
•	A more detailed history of scarring effect on activities of daily living was obtained at the re-examination.
•	A more detailed history of scar treatment was obtained at the re-examination.
Following discussion at the second teleconference, the Panel finds his scarring from injuries sustained in the motor vehicle accident causes 10% WPI.
	Body Part or System	A.M.A. 4 Guides/ Guidelines References
(chapter/ page/table)	Permanent (YES/NO)
	Current %WPI*	% W.P.I.* from pre-existing OR subsequent causes	% W.P.I.* due to motor accident	
1	Skin – scarring Class 2	AMA 4 Guidelines para 6.258-6.267 
Table 6.18
AMA 4 Table 2, page 280	Yes	10%	0%	10%	
*  % W.P.I. = percentage whole person impairment.”
72.	The Panel adopts the findings of Medical Assessor McGlynn.
73.	Based on clinical assessment and judgment, the Panel accepts the complaints of the claimant going to restrictions of his A.D.L. It is evident from the examination of the claimant that he would be affected in various A.D.L.s as noted in those activities observed in the examination report above. The scarring is visible, it is tender to touch, it is likely to be itchy at times, it is likely to disturb his sleep, pressure on the scarring would impact activities taking his body weight using his forearm and scarring on the right knee would limit flexion and extension and kneeling on the knee, and due to scarring on the right foot which is tender, the claimant would need to wear soft sole shoes to increase his mobility.
74.	These restrictions of A.D.L.s also come about by evidenced trophic changes, causing restrictions as noted in paragraph 67.
75.	The claimant applies sunscreen to avoid solar irritation to the forearm scar and uses elastic support to protect the knee scar from physical abrasion and solar irritation, as evidenced by the band of untanned skin at the knee. Scar fragility contributes to the limitation of Social & Recreational activity, limiting participation in some social and leisure activities to avoid damage to scarring.
76.	Similarly, sensitivity to sunlight, heat, and contact with some plants/chemicals contributes to the limitation of Social & Recreational activity, limiting participation in some social and leisure activities to avoid irritation.
CONCLUSION
77.	The Panel determines that the claimant has a whole person impairment of 10%.
determination 
78.	The Panel revokes the Certificate of Medical Assessor Curtin dated 2 July 2022.
79.	The Panel finds that the injuries suffered by the claimant in the accident on 3 November 2018 are causally related.
80.	The Panel finds a total whole person impairment of 10% for his physical injuries  being scarring to his right knee, right foot, right elbow, right ankle and right shoulder not including his injuries to his right leg – right knee soft tissue injury including lateral femoral condyle bruising and right hand – right 5th metacarpal fracture dislocation, avulsion fracture of the hamate, non-displaced fracture of the base of the 4th metacarpal
81.	The Panel revokes the combined certificate of Medical Assessor Curtin dated 6 July 2022 and issues a new combined certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10%:
i.	Scarring to right knee, right foot, right elbow, right ankle and right shoulder
ii.	Right leg – right knee soft tissue injury including lateral femoral condyle bruising
iii.	Right hand – right 5th metacarpal fracture dislocation, avulsion fracture of the hamate, non-displaced fracture of the base of the 4th metacarpal
82.	The combined whole person impairment for these injuries is 15%.
83.	The combined whole person impairment assessments of 10% by the Panel and 6% by Medical Assessor Menogue is 15% applying the combined tables.