Decision
Fitzsimmons v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 37
Sixty-Second-Or-Less Read
A Claimant successfully applies for a review of a primary WPI assessment. The Claimant’s facial scarring was assessed by a different primary medical assessor. The review application includes “facial disfigurement” in the list of injuries to be assessed.
Is any impairment caused by the Claimant’s facial scarring before the Review Panel?
In Fitzsimmons v IAG, the Medical Review Panel concluded that it was not required to assessed the Claimant’s scarring impairment. Its reasoning included the fact that the Claimant clarified in correspondence to the Commission that the term “facial disfigurement” was intended to refer to the facial nerve damage assessed by the primary medical assessor. Furthermore, facial nerve injury and facial scarring required different assessment methods.
In Brief
✅ A medical dispute is defined by all the correspondence between the parties and the Commission, including forms, submissions and other correspondence with the Commission during the life of the dispute.
Facts
The Claimant was injured in a motor accident on 18 January 2013 when he was a child. A dispute subsequently developed between the parties as to whether the Claimant’s accident-related injuries gave rise to an impairment exceeding 10%.
At first instance, the Claimant’s WPI was assessed at 9% by two primary Medical Assessors. The Claimant successfully sought a review of the first Medical Assessor’s assessment.
The Review Panel noted that the Claimant’s submissions listed a number injuries, including “mild facial disfigurement”. An issue arose as to whether the inclusion of “mild facial disfigurement” meant that “facial scarring” was an injury which the Review Panel had to assess.
The Review Panel’s Decision
The Review Panel concluded that “facial scarring” was not an injury which the Review Panel was required to assess for the following reasons:
🟪 The Court of Appeal held in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71, that a medical dispute is “a question of fact depending on the ambit of the dispute between the parties at the relevant time having regard to the competing claims made”.
🟪 The further evidence relied upon by the Claimant did not include any assessment of scarring and the expert the Claimant relied upon with respect to his facial disfigurement said that scarring was outside their expertise.
🟪 The Claimant’s scarring was previously assessed by a different primary Medical Assessor and the Claimant had not sought a further or review assessment of that injury.
🟪 Subsequent correspondence between the Claimant’s Solicitor and the Commission made it clear that the scope of the dispute was limited to a left facial nerve injury and did not extend to facial scarring.
🟪 The assessment of permanent impairment caused by facial nerve injury and facial scarring involves the application of different Tables in the relevant permanent impairment guidelines.
My Perspective
The decision in Fitzsimmons provides a useful reminder that in the post-Mandoukos world the parties must be vigilant in their correspondence with the Commission because that correspondence defines the scope of the dispute between the parties. A slip might result in the dispute being inadvertently restricted or expanded.
The Review Panel in Fitzsimmons made it clear, at [68], that the Commission will look beyond the application and reply forms lodged by the parties in order to ascertain the scope of the dispute. Subsequent submissions – or even a post made on the PIC Portal – has the capacity to help define the scope of the dispute.
PJH