MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; motor accident; claimant rear seat passenger of vehicle that collided with tree; assessment of whole person impairment for severe facial injuries; previous medical assessment of facial scarring at 7%; other medical assessment of 2% for left eye injury; present medical assessment by Medical Assessor assessed facial scarring at 5% and facial nerve injury at 2% resulting in combined impairment of 9%; whether facial scarring part of this medical dispute or as assessed in previous certificate; evidence relied upon in this medical assessment did not include an assessment of scarring; no application for a further assessment of facial scarring pursuant to section 62; written submissions in support of claim were for body parts not previously assessed; Mandoukos v Allianz Australia Insurance Limited applied; facial scarring not part of this medical assessment matter and not before Medical Review Panel; claimant developed hemifacial spasm caused by facial nerve palsy suffered in the motor accident; assessment of left facial nerve at 2% under Table 4 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th ed 1 March 2021, which coincides with assessment under review; Held - original assessment revoked; combined certificate issued greater than 10%.

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

The assessment made by the Review Panel under s 63(4) of the Motor Accidents Compensation Act 1999 is as follows:

1. The Review Panel revokes the certificate of Medical Assessor McGlynn dated 22 July 2025 and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%:
   • left facial nerve.

1. The Review Panel revokes the combined certificate of Medical Assessor McGlynn dated

29 July 2025 and issues a new certificate that the following injuries caused by the motor accident give rise to a whole person impairment which is GREATER THAN 10%: * left facial nerve; * visual system - mild left traumatic optic neuropathy, and * facial scarring.

1. Master Fitzsimmons (the claimant) was injured in a motor accident on 18 January 2013. The claimant was a back-seat passenger in a child restraint seat when the motor vehicle left the road and collided with a tree.[1] The claimant sustained facial lacerations caused by the motor accident.
2. Insurance Australia Limited t/as NRMA is liable to pay the claimant any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
3. The present dispute between the parties is whether the degree of permanent impairment as a result of certain injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
4. Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
5. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
6. The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor McGlynn on 22 July 2025 (the medical assessment). Medical Assessor McGlynn assessed the permanent impairment caused by the motor accident at 7%.[4]
7. Medical Assessor McGlynn issued a combined medical assessment certificate dated

29 July 2025 assessing overall impairment at 9%.[5] The additional 2% arose from the assessment for the visual system provided by Medical Assessor Wechsler in a medical assessment certificate dated 26 June 2025.[6] 8. The application for referral of a medical assessment certificate issued by Medical Assessor McGlynn to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[7] 9. The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[8] 10. Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).

1. This review is from the medical assessment undertaken by Medical Assessor McGlynn. The Medical Assessor determined that the motor accident caused injury to the ear, nose, throat and related structures and injury to the facial nerve on the left resulting in partial hemifacial spasm.
2. The clinical examination was described by the Medical Assessor in the following terms:[9]

There was zigzag readily visible scarring running from above zygomatic arch at level of eye down to level with the corner of the mouth. The scar then ran horizontal towards the corner of the mouth, and down the left lower lip and around the chin to submental region. The multiple scar segments were 60 mm x 5 mm, 55 mm x 5mm, and 55 mm x 5 mm.

The scarring was hyperpigmented with distinct colour, contrast colour slightly raised in firm due to scar hypertrophy, with clearly visible suture marks, palpable trophic features and no adherence.

When viewed from the front, there were soft tissue asymmetry of midface due to flattening of left sheet between left ankle of mouth and left middle cheek.

There was no visible facial skeletal, deformity or asymmetry.

At rest, there was midface asymmetry due to left nasolabial fold more prominently in the right. There was overactivity of the left facial muscles pulling the mouth literally and superiorly. This was accentuated when smiling. There was constant switching of left midface facial muscles scores are repeated active elevation the left side of upper lip and movement of the left alar base and adjacent check.

On command, he could elevate the forehead, close the eyes and smile effectively. However, his smile was asymmetric because of overactivity of left facial muscles.

There was normal sensation in all areas of. the face."

1. The Medical Assessor provided the following reasons of causation:[10]

"Thomas Fitzsimmons has left facial scarring left facial nerve dysfunction due to injuries sustained in a motor vehicle accident on 18 January 2013. They both contribute to his facial disfigurement. Facial disfigurement is assessed referencing both MAA permanent impairment guidelines version 1 (for injuries sustained between 5/10/99 & 1/12/2017) and AMA4 chapter 9 'Ear, Nose, Throat and Related Structures. AMA4 Section 9.2 'The Face' informs assessment of impairment of facial disfigurement caused by both facial scarring and facial nerve injury.

I have been directed to assess permanent impairment due to 'Face - Injury to the, nose, throat and related structures - injury to the facial nerve on the left resulting in partial hemifacial spasm.' Facial scarring is not specifically listed as an injury to be assessed; however, it significantly contributes to impairment your injury to the ear, nose, throat, and related structures. My opinion, my assessment must include impairment due to both facial scarring and facial nerve injury."

1. The Medical Assessor referred to the criteria for assessing facial impairment under AMA4 (section 9.2 at p 229) and paragraph 1.191 of the Guidelines. The latter noted that the assessment of the scarring of the face may be undertaken using Chapter 13 of the AMA4 (skin) and/or section 9.2 (the face).
2. The Medical Assessor noted paragraph 1.264 of the Guidelines which provides that Class 1 skin assessments must be assessed in accordance with the TEMSKI criteria. Applying the TEMSKI criteria, the Medical Assessor found that the best fit was 5%.
3. The Medical Assessor assessed the facial disfigurement caused by facial nerve injury by using Table 4 under section 9.2 of AMA 4 which refers to facial paralysis. The Medical Assessor noted that the claimant had facial nerve dysfunction rather than facial paralysis, assessed by analogy and described the condition as "unilateral and mild" effecting the midface. An assessment was made of 2% based on half the maximum of mild facial paralysis in Table 4.
4. The Medical Assessor provided an assessment of 7% for the combined assessment of facial disfigurement and left facial nerve injury.

1. Medical Assessor Wechsler issued a medical assessment certificate dated 26 June 2025.[11] The Medical Assessor found that there was injury to the visual system consisting of minimal loss of left visual field due to a mild left traumatic optic neuropathy and assessed permanent impairment at 2%.
2. There was no application to review this medical assessment.

1. Medical Assessor Curtin issued a medical assessment certificate dated 8 February 2023.[12] The Medical Assessor was requested to assess "face-scarring" and made the following examination findings:

"There was a noticeable band of scarring and pigmentation extending down the left side of his face from the left temple across the cheek to the corner of his mouth, and then proceeding along the side of his chin into the submandibular region. The scarring was generally about 10 mm wide, but areas on the cheek and beneath the chin were 20-25 mm wide. The scars were soft and flat although some induration could be felt in the tissues of the cheek beneath the scar. There was a distinct colour contrast of the scar with the surrounding skin because of prominent dark brown pigmentation, and much of the scar was also quite pink as well. Multiple suture marks could be seen, and the scar was partially adherent to deeper structures.

There was swelling in the region of the left zygoma which was probably sufficient to cause some obstruction to extreme left lateral gaze. (The swelling no doubt the result of partial lymphatic obstruction due to scarring).

There was no obvious weakness of the facial musculature, but Thomas did have an involuntary movement, a tic, in the left cheek which was in evidence repeatedly during the examination.

There was no sensory loss in the skin of his face."

1. The Medical Assessor found significant facial scarring resulting from the motor accident, the presence of an unrelated tic and a resolved nerve injury. The facial scarring was assessed using Chapter 13, Table 2 of AMA 4 at 7% for the following reasons:[13]

"ADLs are listed on page 317 of AMA 4. Of those listed, only social and recreational activities have been affected by the facial scarring. The scarring falls into the 5-9% WPI category for the following reasons. The claimant is conscious of the scarring, which is usually and clearly visible with usual clothing or hair style. There is a distinct colour contrast of the scar with surrounding skin due to pigmentation. Stable and suture marks are clearly visible and there is some adherence of the scar. There is a significant contour defect which is easily visible and which appears to cause a minor restriction of his field of vision. Thomas' complaints of social withdrawal are consistent with the extensive and disfiguring nature of the scarring. Although no treatment is required, the disfigurement merits a rating of 7% WPI."

1. Medical Assessor Newlyn issued a medical assessment certificate dated 8 May 2023.[14] The Medical Assessor diagnosed social anxiety disorder and post-traumatic stress disorder in partial remission caused by the motor accident. The Medical Assessor assessed whole person impairment of the psychological injuries at 5%.

1. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[15]
2. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[16]
3. The review is by way of new assessment of all matters with which the medical assessment is concerned.[17]
4. The parties filed respective bundle of documents on the Review.

1. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accident Injuries Act 2017 in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[18] In Raina v CIC Allianz Insurance Ltd[19] Campbell J stated:

"One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely."

"There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible."

Insurer's submissions dated 31 January 2025[20]

1. These submissions opposed the application for assessment of ophthalmological and ENT injuries.
2. We have not summarised the submissions relating to the assessment of ophthalmological injury.
3. The insurer disputed the findings of Professor Brew contained in the medical report dated

14 February 2024. It relied on the joint medical report of Dr Walker, neurologist dated

25 August 2021 when he opined that there was no neurological impairment caused by the motor accident.

Insurer's submissions dated 1 September 2025[21]

1. These submissions opposed leave to review the medical assessment of Medical Assessor McGlynn.
2. The insurer referred to the reasons of the Medical Assessor that facial scarring was not expressly listed but that it significantly contributes to the impairment of the injuries to the ear, nose, throat and related structures.
3. The insurer noted that section 9.2 of AMA 4 concerning the face "informs assessment of facial disfigurement caused by both facial scarring and facial nerve injury". The insurer submitted that the assessment of facial scarring and a facial nerve injury are "intrinsically linked and cannot be separated".
4. The assessment was otherwise based on clinical judgement with appropriate reasons.

Claimant's submissions dated 4 December 2024[22]

1. These submissions are headed "written submissions in support of an application for an assessment of permanent impairment in relation to injuries for physical injuries which have not previously been assessed".
2. We have not addressed those parts of the submissions relating to the assessment undertaken by Medical Assessor Weschler.
3. The claimant then described the injuries in accordance with what was discussed earlier including "injury to the face where the Claimant has mild facial disfigurement and minor weakness".
4. The claimant referred to the history of treatment which included:
   • five surgical procedures to the left side of the jaw;
   • ambulance report evidencing large avulsion/laceration trauma;
   • report of Dr Hussein dated 1 February 2013 which noted the claimant sustained a severe injury to left side of the face resulting in a washout repairing the broken bones of the facial nerve and the parotid duct on 19 January 2013;
   • report of Dr Farhadieh dated 10 June 2013 which reported that the claimant sustained at least three major facial lacerations affecting the left cheek, temple and lower third of the face extending to the left lip commissure, as well as multiple facial abrasions and smaller lacerations. It was noted that the lacerations were found to be through muscles facial expression with complete transection of both the superior and inferior buccal facial nerve branches, parotids major duct of Stenson was completely transected, the zygomatic and marginal mandibular components in the facial nerve were bruised but largely intact and the wounds were thoroughly washed out;
   • itchiness of the left side of the face was noted by the Plastics Clinic on

6 June 2014 and rehabilitation plans dated 25 August 2014 and

28 November 2014; * on 5 June 2015 the Plastics Clinic noted the scars had significantly reduced and there was function of all the facial nerves; * the claimant underwent further scar revision of the left side of the face on

2 October 2015; * on 15 January 2016 Dr Farhadieh opined that the claimant would require further scar revision with further review in six months; * on 26 October 2016 the claimant underwent further scar revision surgery on the left side of the face; * on 10 March 2017 Dr Farhadieh noted mild left-sided facial weakness and improvement in the facial scarring, and * on 28 June 2018 the claimant underwent further scar revision to the chin and neck.

1. The parties filed a respective bundle of documents for the Panel's consideration.

1. There was no evidence showing any relevant pre-existing condition.

1. The ambulance report noted the claimant sustained a "large avulsive/laceration trauma to left side of face".[23]
2. The hospital discharge summary dated 23 January 2013[24] noted full thickness lacerations and puncture type wounds deep to zygomatic bone, up to Vermillion border left side of mouth. The lacerations to the superior and inferior buccal mucous membranes were repaired.
3. In February 2013, Dr Hussain, plastic surgeon at Canberra Hospital noted that the claimant suffered a severe injury to the left side of the face and underwent a washout repair of the broken bones of the facial nerve and the parotid duct.[25]
4. In a report dated 10 June 2013, Dr Farhadieh, plastic surgeon, noted the motor accident caused major facial lacerations to the left cheek, temple and lower third of the face extending to the left lip commissure.[26] The cheek laceration extended from the anterior border of the parotid gland with a significant component of tissue loss including skin down to the superior border of the mandibular periosteum.
5. The doctor noted the extensive soft tissue injuries including muscles of facial expression, nerve and duct damage and the likelihood of permanent damage to their function and would likely require secondary scar surgery in the future to address the cheek wound scar.
6. The doctor noted the injury include a complete transection of both the superior and inferior buccal facial nerve trunks just anterior to the anterior parotid gland border. The parotid's major duct of Stenson was completely transected.
7. On 14 July 2014 Dr Farhadieh revised two facial scars.[27]
8. In a report dated 29 July 2016,[28] Dr Sud, plastic surgery registrar noted scar revision in October 2015 with a large hypertrophic scar over the left side of the face and normal facial nerve.
9. On 31 March 2017, Dr Singh, plastic surgeon, noted the most recent scar revision was on

26 October 2016. Review on this occasion noted mild left-sided facial weakness with further scar revision of the left side of the neck and chin proposed during the next year.[29]

1. Dr Grant Walker, neurologist, was qualified by the insurer and provided a report dated

25 August 2021.[30] The doctor did not examine the claimant and undertook a file review. 2. Dr Walker noted that at initial surgery the superior and inferior buccal branches of the facial nerve had been severed together with the parotid duct. Subsequent surgical procedures to minimise scar formation undertaken were in December 2015, October 2016 and June 2018. 3. Dr Walker opined that there was no evidence of any neurological impairment.

1. Associate Professor Batchelor was jointly qualified by the parties and provided a report dated 25 October 2024.[31] The doctor concluded that, at most, the claimant sustained a mild traumatic brain injury caused by the motor accident. The current disabilities do not reflect any neurological injury caused by the accident and were attributable to pre-injury development delay, repeated early childhood trauma and psychiatric disorder.

1. Associate Professor Haertsch was qualified and provided a report dated 15 September 2021 on the papers respect to an injury to the left face.[32] The doctor opined that the scars had reached maximum medical improvement, and further surgical intervention was not required. An assessment of 3% for the scarring based on no examination was provided.

1. Professor Brew AM, neurologist, was qualified by the claimant and provided a report dated

14 February 2024.[33] The doctor diagnosed injury to the facial nerves leading to partial hemifacial spasm. 2. Professor Brew AM assessed impairment based on mild facial disfigurement at 2% (Table 4, p 230, AMA4). The doctor did not assess impairment of the scars as it was outside his area of expertise.

1. In the Panel's initial direction dated 7 October 2025, we stated:

"The Panel notes that this review is in respect of the assessment conducted by Medical Assessor McGlynn dated 25 July 2025. There is no application to review the assessment of Medical Assessor Wechsler dated 26 June 2025 (assessment of 2% for visual system). The Panel notes the previous assessment of Medical Assessor Curtin dated 8 February 2023 which assessed facial scarring at 7% and found that the facial nerve injury had resolved. The claimant's submissions dated 4 December 2024 particularised the scope of the present medical dispute (at paragraph 33) as:

'Injury to the visual system - traumatic optic neuritis;

Injury to the optic nerve on the left side with temporal pallor and a loss of the visual field;

Injury to the ear, nose, throat, and related structures - Injury to the face where the Claimant has mild facial disfigurement but minor weakness.'

The reference to "mild facial disfigurement" suggests that facial scarring was to be assessed by the Medical Assessor as well as impairment by reason of the facial nerve injury.

Section 63(3A) of the Motor Accidents Compensation Act, 1999 provides:

'The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.'

Our preliminary view is that the assessment of facial scarring was part of the assessment before Medical Assessor McGlynn and is now before the present Panel. This means that any replacement combined certificate will include the assessment provided by Medical Assessor Wechsler but not that provided by Medical Assessor Curtin.

Any submissions addressing our preliminary views should be included in the bundles provided in accordance with the standard directions set out below. The parties are directed to the principles contained in Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71 at [78]- [82]."

1. The parties filed submissions in response to our direction. Those further submissions incorporated earlier submissions which we have summarised later in these Reasons.

1. The claimant referred to its submissions dated 4 December 2024 which was the basis for the medical assessment. The body parts for assessment were described as:
   • injury to the visual system; - traumatic optic neuritis;
   • injury to the optic nerve on the left side with temporal pallor and a loss of the visual field, and
   • injury to the ear, nose, throat and related structures - injury to the face where the claimant has mild facial disfigurement and minor weakness.
2. The claimant submitted that the submissions were "clear" and there was no request to assess facial scarring.
3. The claimant stated that the phrasing and wording of the injuries were taken from the reports of Dr Michael Jones and Professor Brew. He noted that neither doctor provided an assessment of facial scarring.
4. The claimant submitted that the insurer's reply submissions at paragraph 18 noted that facial scarring was addressed by Medical Assessor Curtin.
5. The claimant submitted that the "review should be confined to the certificate of Dr McGlynn and that the certificate of Dr Curtin and Dr Weschler ought not be disturbed".
6. The insurer submitted that Medical Assessor McGlynn was not in error and referenced its submissions dated 1 September 2025.[34] It submitted that the Panel's assessment "ought to include facial scarring noting the assessment of a facial nerve injury and facial scarring are intrinsically linked".

1. In Mandoukos v Allianz Australia Insurance Limited[35] the Court of Appeal discussed the scope of the medical dispute. Stern JA (with whom Leeming and Kirk JJA agreed) stated:

"Thus, the medical dispute 'about a medical assessment matter' will, in each case, be a question of fact depending upon the ambit of the dispute between the parties at the relevant time having regard to the competing claims made."

1. This construction was consistent with the meaning of medical dispute in the workers compensation legalisation considered by the Court of Appeal in Skates v Hills Industries Ltd[36] and Scone Race Club Ltd v Cottom.[37]
2. The scope of the medical dispute is not exclusively determined by the scope of the referral. In Skates the Court of Appeal noted that the referral document does not determine the scope of the dispute which is "crystallized by the correspondence"[38] making the claim.
3. The third bullet point of the referral was phrased broadly and suggested that it included an assessment of scarring because there is a reference to "disfigurement".
4. However, the further evidence relied upon by the claimant in respect of this medical assessment matter did not include an assessment of scarring. The claimant correctly submitted that the further reports relied upon for this assessment did not assess facial scarring and that Professor Brew specifically stated that the assessment of scarring was outside his area of expertise.
5. Furthermore, the claimant's scarring was previously assessed by Medical Assessor Curtin. There was no application by the claimant for a further assessment of scarring and no determination by a delegate of the President allowing a further assessment in accordance with s 62 of the MAC Act. There is no suggestion that the claimant had complied with any of the statutory pre-conditions to obtain a further assessment for the assessment of facial scarring. Accordingly, there would appear to be no statutory basis for the claimant to obtain a further assessment of the scarring.
6. Thirdly, the claimant's written submissions dated 4 December 2024 in support of the current medical assessment matter specified that they were for body parts "which have not previously been assessed." This submission made prior to the recent medical assessment is inconsistent with a further assessment for facial scarring.
7. Finally, the email from the claimant's solicitor dated 19 March 2025 attempted to confine the scope of the medical dispute. Following a query from the Commission, the claimant's solicitor stated in that email that the third bullet point for the injury description should read:[39]

"Injury to the ear, nose, throat and related structures - Injury to the facial nerve on the left resulting in partial hemifacial spasm."

1. This description is narrower than previously stated in the referral and reflects that the assessment is for left facial nerve injury and not for facial disfigurement. It is unfortunate that the referral was not amended to reflect this more accurate description of that aspect of the medical assessment matter.
2. The reasons provided by the original Medical Assessor that the issue of facial disfigurement and scarring were inextricably linked is incorrect. This is because the Medical Assessor assessed that facial nerve injury under a different Table to that used for the assessment of facial scarring.
3. Accordingly, on reflection having considered the further submissions and contrary to our expressed preliminary view, we have determined that the assessment of facial scarring was not before Medical Assessor McGlynn and is not before the Panel.

1. The claimant was medically examined by Medical Assessor Giles on 14 January 2026. The examination report is as follows:

"Timothy was a passenger in a car which was involved in a motor vehicle accident, in Gunning, on 18th January 2013. He sustained very significant lacerations to the left side of his face, which were repaired, by Dr Ross Farhadieh, Plastic Surgeon, at Canberra Hospital on 19th January 2013. According to a letter from Dr Farhadieh, dated 19th January 2013, he reported that, in addition to the facial lacerations, Timothy had sustained the following,

• Division of the left parotid duct which was repaired over a stent which was removed the following day.
• Division of the left superior and inferior buccal branches of the facial nerve, just anterior to the parotid border, which were repaired.
• Bruising of the zygomatic and marginal mandibular branches of the left facial nerve which were explored and found to be intact.

Timothy was discharged from hospital on 23rd January 2013 and his wounds healed, although the scarring was unsatisfactory.

When reviewed at the hospital on 5th June 2015, it was noted that there was almost complete recovery of facial nerve function.

He had the first scar revision on 2nd October 2015. He has had further surgical procedures.

Timothy was examined on 14th January 2026 in the presence of his stepfather, Gino Antoniazzo, and he complained of the following,

• The presence of extensive and disfiguring scarring on the left side of his face.
• The presence of a constant 'tic' on the left side of his face.

However, he had otherwise normal movement and sensation on the left side of his face.

On examination, Timothy was a pleasant, co-operative, well-presented young man of stated age. He had a fair complexion with freckles, and he had extensive scaring as shown in the photographs on the next two pages.

• There was a prominent, oblique scar, 6.0 cms long X 0.6 cms wide, extending from his left zygomatic arch down to the middle of his left cheek, where it joined another scar 1.5 cms long which in turn joined,
• Another oblique scar, 6.0 cms long X 1.0 cms wide on his left cheek which joined a transverse scar, 4.5 cms long X 1.2 cms wide.
• Extending from the left corner of his mouth and over his mandible, there was another scar, 5.5 cms long and up to 0.6 cms wide.

The scars were all soft and mobile, but still pink and slightly hyperpigmented. There were no contour deformities.

Timothy could close his eyes and smile normally as all facial movements were present. However, there was a constant 'tic', every couple of seconds, on the left side of face involving:

• Contraction immediately lateral to the lateral canthus of his left eye.
• The entire middle 1/3 of the left side of his face, elevating the left side of his nose, the left naso-labial fold and the left side of his upper lip.

Impairment: Timothy's scars have been present for many years, they have completed their maturation, they have the appearance of mature scars and thus they can be considered to have stabilised and to be permanent.

Although Timothy's left facial nerve has recovered, he still has a noticeable dysfunction because of the ever present 'tic'. This will be assessed with reference to Table 4, on page 230 of AMA4 but I will replace the word 'paralysis' with 'dysfunction', the range for a mild dysfunction is between 1% and 4% and I would place his problem in the middle of this range at 2%.

I have read the reports by two plastic surgeons, Dr Paul Curtin, dated 8th February 2023 and Dr Michel McGlynn, dated 22nd July 2025. I disregard the reports of Dr Grant Walker, neurologist, dated 25th August 2021 and Associate Professor Peter Haertsch, dated 15th September 2021, as neither examined Timothy. Rather their assessments were carried out on an examination of photographs which cannot show the extent of Timothy's problem. I note the report of Professor Bruce Brew, neurologist, who assessed Timothy's facial nerve dysfunction at 2% and I agree with his assessment."

1. The review is a new assessment of all matters with which the medical assessment is concerned.
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[40] and Insurance Australia Ltd v Marsh.[41]
3. The Panel has met following the recent medical examination undertaken by Medical Assessor Giles. We adopt the report provided by Medical Assessor Giles supplemented by the following reasons.
4. We have explained in our earlier reasons that the scope of the medical assessment matter before Medical Assessor McGlynn did not include an assessment for facial scarring. Accordingly, the review from that medical assessment is limited to an assessment of the left facial nerve.
5. Whilst there were no submissions suggesting error by Medical Assessor McGlynn of his assessment of the left facial nerve, the requirement to undertake a new assessment meant that that this Panel was required to assess the impairment of that body part.
6. The examination findings for the assessment of the left facial nerve made by Medical Assessor Giles largely coincide with the original medical assessment provided by Medical Assessor McGlynn. Further, the parties were aware that the Panel may assess by way of analogy because that is how Medical Assessor McGlynn assessed the impairment of the facial nerve. As we noted, there were no submission contradicting that aspect of the original medical assessment.
7. A not uncommon percentage of patients develop abnormal involuntary twitches, tics or spasms of the facial muscles following facial nerve palsy. Differing patterns of twitching can develop such as hemifacial spasm. This is what occurred in this matter. Our conclusion is consistent with the opinion of Professor Brew AM, neurologist, who opined that the tic was consistent with a restricted form of hemifacial spasm.
8. The assessment of 2% represents a mid-range estimate of unilateral total facial paralysis described as mild (range of between 1 and 4%) under Table 4, page 230 of AMA 4. As noted, the present dysfunction of the hemifacial spasm has been assessed by way of analogy representing a close relationship between the nature of the claimant's condition and the description used in Table 4.
9. We are satisfied, particularly based on the clinical expertise of the Medical Assessors, that the impairment is permanent within the meaning of cls 1.19 and 1.20 of the Guidelines because the condition is well stabilised, and the claimant does not require further treatment. The condition has stabilised and is unlikely to change by more than 3% within the next 12 months with or without treatment.
10. We attach two photographs of the claimant's facial scarring as Annexure A to these Reasons.

1. The certificate issued by Medical Assessor McGlynn is revoked as we have removed the assessment of facial scarring from this medical assessment matter. A replacement certificate is attached at the commencement of these Reasons.

1. The claimant's permanent impairment is based on an aggregation of the following medical assessments:
   • facial scarring - Medical Assessor Curtin - 7%;
   • mild left traumatic optic neuropathy - Medical Assessor Wechsler - 2%, and
   • left facial nerve - this Panel - 2%.
2. The claimant's overall impairment is 11%. Accordingly, the combined certificate issued by Medical Assessor McGlynn is revoked. A replacement combined certificate is attached at the commencement of these Reasons.

[18] See s 3B(2) of the Civil Liability Act 2002.

[19] [2021] NSWSC 13 (Raina) at [65].

[35] [2024] NSWCA 71 (Mandoukos).

[36] [2021] NSWCA 142 (Skates) at [30] per Basten JA and [44]-[50] per Leeming JA.

[37] [2024] NSWCA 34 at [47]-[48], [53] applying Skates at [44].

[40] [2021] NSWCA 287 at [40], [41] and [45].

[41] [2022] NSWCA 31 at [11], [21] and [64].