AAI Limited t/as GIO v Adnan

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Adnan [2024] NSWPICMP 89
CLAIMANT:	Syeda Ayesha Adnan
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Matthew Jones
DATE OF DECISION:	19 February 2024
CATCHWORDS:	MOTOR ACCIDENTS – Claimant’s brother killed in Australia in a motor vehicle accident; claimant lived overseas and later travelled to Australia.; claimant reported psychological injury caused by her brother’s death; original certificate found the claimant’s injuries were persistent depressive disorder with persistent major depressive episode and gave rise to a permanent impairment of 13%; Held – original medical certificate revoked; claimant did not sustain any psychological injury as a result of or caused by her brother’s death in the motor accident; claimant’s reported and demonstrated level of functioning, ability to support herself and to be independent in her day-to-day care, is not consistent with a psychiatric diagnosis; claimant did not meet criteria for a DSM-5 psychiatric diagnosis.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Samson Roberts dated 19 September 2022. 2. The Review Panel issues a new certificate determining that the claimant did not sustain any psychological injury as a result of or caused by her brother’s death in the motor accident on 12 October 2016.

STATEMENT OF REASONS

INTRODUCTION

On 12 October 2016 Shah Zaib, the brother of Syeda Ayesha Adnan (the claimant), was killed in a car accident in Australia. The accident was a head-on collision between two cars on the New England Highway at Kentucky New South Wales. At that time the claimant was living with her family in Pakistan and was 16 years old. After the accident the claimant has come to live in Australia and has reported psychological injuries which have been described as persistent depressive disorder with persistent major depressive episode.
The insured driver involved in the fatal accident was insured by AAI Ltd t/as GIO (the insurer) who had liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accidents Compensation Act 1999 (the MAC Act).
There is a dispute about whether the degree of permanent impairment sustained by the claimant as a result of psychological injury caused by an accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1] The degree of permanent impairment is referred to in sub-s 58(1)(d) of the MAC Act.
[1] Sections 57 and 58 of the MAC Act.
The current dispute is about a determination made by Medical Assessor Samson Roberts in a certificate dated 19 September 2022.
Medical Assessor Samson Roberts’ certificate concluded that the claimant’s injuries caused by the motor accident were persistent depressive disorder with persistent major depressive episode and gave rise to a permanent impairment of 13%.[2]
[2] Claimant’s bundle AD 5, pp 9-21.
A delegate of the President of the Personal Injury Commission (Commission) determined there was reasonable cause to suspect an error in the certificate of Medical Assessor Roberts dated 19 September 2022.[3] The President has now convened this Review Panel to review that certificate.
[3] Certificate dated 21 January 2022.

Review procedure

In this application for review the insurer is the applicant for the review.
The present application is a review of a medical assessment under s 63 of the MAC Act. The relevant medical assessment was conducted by Medical Assessor Samson Roberts dated 19 September 2022.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[4]
[4] Section 63(3A) of the MAC Act.
The Review Panel considered it appropriate for the assessment to review all matters with which the assessment of Medical Assessor Samson Roberts was concerned. Because the review involved the assessment of permanent impairment the Panel decided to medically examine Ms Adnan.
The Review Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered. The parties were subsequently advised that the claimant would be examined by the Medical Assessors on the Review Panel.
Ms Adnan was examined by Medical Assessor Friend and Medical Assessor Jones in person at the Commission’s medical examination rooms on behalf of the Review Panel. The Medical Assessors prepared a report about that examination which is contained later in these reasons.

Statutory provisions and Guidelines

Under sub-s 63(3A) of the MAC Act, a review of a medical assessment is not limited to a review of only what is alleged to be incorrect, it is a new assessment of all the matters with which the medical assessment is concerned. A review should also generally involve a re-examination of the claimant.
The Motor Accident Permanent Impairment Guidelines 2018 (the Guidelines) were issued under s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on 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 are followed.[5]
[5] Clause 1.2 of the Guidelines.
The Guidelines set out the procedure to be followed when assessing the degree of permanent impairment.
“1.18 An assessment of the degree of permanent impairment involves three stages:
1.18.1 a review and evaluation of all the available evidence including:
○ medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)
○ medico-legal reports
○ diagnostic findings
○ other relevant evidence.”
In regard to the issue of causation of injury, the Guidelines provide as follows:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘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:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’ This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 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.”
The Review Panel will now consider the Medical Assessment Certificate of Medical Assessor Samson Roberts.

Assessment under review

The certificate by Medical Assessor Roberts is dated 19 September 2022.
The certificate states that the injuries caused by the motor accident give rise to a permanent impairment of 13%, which is greater than 10%, that being persistent depressive disorder with persistent major depressive episode.
The history recorded by Medical Assessor Roberts is as follows.
Ms Adnan resides with her parents and three siblings and is currently undertaking a Bachelor’s Degree at the University of Western Sydney.
She did not know where her parents work. They had their own lives and “I don ‘t care what they do or don’t do”.
She did not know what her siblings were doing.
The relocation to Australia was prompted by the motor accident claim regarding the death of her brother. She did not want to come to Australia and she had not made any friends since arriving in Australia.
She was asked about her future plans, to which she replied, “I don’t have enough brain cells to think about it”.
Her eldest brother was killed in a head-on motor vehicle accident when she was 15 or
16-years-old.
Her family were living in Pakistan.
No-one actually knew what occurred.
Her brother’s body was returned to Pakistan and there was a funeral. She has a poor memory of that time.
Her mother did the cooking at home but we had servants for everything. They all “broke apart”.
She stated that following her brother’s death she was in hospital for the whole night. She was in shock, “that’s all I can remember”.
In the following months she struggled to live. Her friends were supportive but she did not attend school and had no contact with them. She then stated that she attended school two days each week but never felt like going to school.
She did not seek mental health treatment in Pakistan.
Even prior to moving to Australia she had insomnia, neglected her self-care and had no appetite. Her condition has worsened over time and she cannot do anything or go anywhere.
She feels emotionally dead, by which she means she does not want to do anything and she thinks about killing herself.
She has tried to self-harm but it did not work. “I think it was scissors or something”.
She does not interact with anyone, even at work, has poor appetite and only sleeps for four hours at a time.
She feels tired on waking and experiences nightmares. The theme of the nightmares is that she is dying. She has zero motivation and zero energy.
She was very close to her deceased brother.
She had been prescribed medication for sleep, depression and anxiety, but had never taken it because she cannot swallow medication.
She consulted a psychiatrist and psychologist in Australia who repeatedly asked the same questions, so she ceased.
She attended university 40 hours each week but only attends two to four hours each week and has no idea whether the university knows if she is attending.
She is failing all her subjects and did not know how far she had progressed in her degree other than for three years. She could not study.
She was working doing a customer service role, saying that she was working 15-17 hours or perhaps less sometimes. She was waitressing at a restaurant.
Away from work and study, she does not read or watch television and does not do anything.
She is driven to and from work by a friend.
It was put to her that this is inconsistent with not having any friends since coming to Australia. She then referred to the person as an acquaintance. She does not hold a driver’s licence.
She did her laundry every two weeks. She did not cook and ate whatever was in the refrigerator. She does not shower, groom or dress herself daily, estimating she showers every one to two weeks.
Medical Assessor Roberts noted that her level of ignorance with respect to her family’s activities considering that she lives with them, would be inconsistent with her account of formerly having close relationships.
Medical Assessor Roberts made a diagnosis of Persistent Depressive Disorder with Persistent Major Depressive Episode. He assigned a whole person impairment of 13%, assigning Class 1 to Travel, Class 2 to Self-Care and Personal Hygiene, Concentration Persistence and Pace, and Class 3 to the remaining three categories.

Insurer submissions

The insurer has produced three sets of written submissions. There are submissions dated 20 July 2021 addressed to the Medical Assessor Roberts, submissions to the Presidents delegate dated 4 October 2022 and supplementary submissions addressed to the Review Panel dated 3 October 2023.[6]
[6] Insurer’s bundle A 2 p 12 and A 1 p 4 and Insurer’s bundle of late documents R 1 pp 5-8.
In written submissions dated 4 October 2022 the insurer’s solicitors summarise a large number of inconsistencies identified by Medical Assessor Roberts and then submit that he failed to properly put these inconsistencies to the claimant and record her response.
In these submissions the insurer contends that Medical Assessor Roberts:
·        failed to undertake a review and evaluation of all available evidence as required by Guideline 1.18.1;
·        failed to apply Guidelines 1.40 and 1.41 and provide proper reasons;
·        failed to consider all of the inconsistencies within the material before him and the statements made by the claimant to him at the assessment;
·        failed to provide reasons as to why he accepted and based his diagnosis on the statements of the claimant notwithstanding the inconsistencies present in those statements and to totality of material available at the time of the assessment;
·        certificate and reasons contain internal inconsistencies, and
·        classifications contained within the PIRS is inconsistent with the totality of material before the Medical Assessor.
There are supplementary submissions addressed to the Review Panel dated 3 October 2023. In these submissions the insurer notes that the Medical Assessor was informed that the claimant engaged in no social or recreational activities. Whilst she was able to go out independently, she did not do so for social or recreational reasons. However the insurer points to bank records provided by the CBA which show that the claimant regularly attended food outlets in the cinema between September and November 2022. The insurer also points to international travel records which show that the claimant travelled to and from Hawaii and Sydney in 2022 and 2023.
The insurer then submits that Medical Assessor Roberts was told of fractured relationships within the family. However the insurer then points to the claimant’s Statement of Purpose to the Department of Home Affairs dated 23 September 2022. In this statement the claimant describes detailed discussions with her father and her family about conducting family’s business interests and also a large amount of money put aside by her father for the claimant’s education. Given this evidence the insurer submits that the family relations were not fractured.
The insurer submits that regarding the claimant’s ability to concentrate and apply herself to her academic studies is apparent from her Statement of Purpose that whilst there may have been some mild impairment at the time of the assessment on 20 July 2022, that by 23 September 2022, her condition had improved as is demonstrated by her improved academic performance at university.
The insurer notes that Medical Assessor Roberts was told by the claimant that she attended university for only four hours per week and participated in work for no more than 17 hours per week. The insurer then refers to university and financial records which show that by 23 September 2022 the claimant had returned to her normal study schedule and was due to complete her degree by 30 November 2023. The claimant's financial records seem to indicate that she worked for the financial year from 1 July 2021 until 30 June 2022 for an estimated 37 hours or more per week.

Claimant’s submissions

In written submissions dated 10 November 2022,[7], the claimant’s solicitors refute in great detail the submissions from the insurer that Medical Assessor Roberts failed to take into account all the documents provided him or failed to put a number of inconsistencies to the claimant and ask for her explanation.[8]
[7] Claimant’s bundle A4, pp 21-31.
[8] Claimant’s bundle A 4, pp 21-31.
The claimant submits that Medical Assessor Roberts addressed in great detail inconsistencies or incongruities he himself identified with respect to the claimant’s presentation to him and material provided to him for the purposes of the assessment. So much is apparent from the insurer’s own lengthy recitation of the Medical Assessor’s own observations and inconsistencies which he brought to the claimant’s attention during the course of the examination.
The claimant submits that any inconsistences identified by Medical Assessor Roberts did not diminish the extent to which the Medical Assessor accepted that there was symptomatology present to enable a diagnosis of psychiatric injury.
The claimant argues that the insurer’s reliance upon an aspect of the decision in Wingfoot is misguided. The job of the Medical Assessor was to formulate his own medical opinion on medical questions referred to him for opinion and to do so by applying his own medical experience and expertise (see AAI Limited v Fitzpatrick [2015] NSWSC 1108 at [28]). The claimant submits that the Medical Assessor has clearly done so.

MATERIAL BEFORE THE REVIEW PANEL

Both parties filed an indexed and paginated bundle of documents in response to the Review Panel’s Direction dated 11 October 2023.
There were also three Applications to Admit Late Documents made by the insurer. These applications were dated 4 and 5 October 2023. The documents attached to the applications included:
·        further submissions from the insurer;
·        financial and claimants expense records;
·        claimant’s immigration records;
·         statement of purpose from the claimant dated 23 September 2022, and
·         the claimant’s credit card and the Commonwealth banking records.
The Review Panel has considered the Applications to Admit Late Documents and reviewed the attached documents and decided to admit them in the interests of justice in accordance with the Personal Injury Commission Rules 2021 rule 67 and Procedural Direction PIC3- Documents and late documents.
The Review Panel also notes that there are extensive and voluminous medical records, medical reports, clinical notes, statements, immigration records and financial records describing the claimant’s psychological injuries and social, family and financial history. The Review Panel has read, discussed and carefully considered all of these medical records reports and all other documents before it.
The Review Panel has not referenced or summarised all of these records unless they are relevant or have some bearing on the consideration of his psychiatric injuries which are the subject matter of the Review Panel’s reassessment process. If some of those medical records or other records are not referred to in the Review Panel’s review, it should not be assumed that the Review Panel was unaware of that material or that the Review Panel failed to take the material into account. In its review the Review Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be just, quick and cost-effective resolution of the real issues in the proceedings.[9] Consistent with this guiding principle, the Review Panel has not referred to every item of medical or other evidence but has done its best to refer to them sufficiently but briefly.
[9] Sections 3 and 42 Personal Injury Commission Act 2020.
Set out below is some of the material that the Review Panel has before it.

Claim form

The Personal Injury Claim Form dated 3 April 2017 was completed by the claimant’s father was she was under 18 years of age.[10] The form listed the claimant’s injuries as psychological injury, nervous shock and post-traumatic stress disorder.
[10] Claimant’s bundle A 4, pp 21-31.

Statements made by the claimant

The claimant made a Statement of Purpose to the Department of Home Affairs dated 23 September 2023 in support of her Student Visa.[11] The claimant states that she has made the decision to return to Pakistan after finishing her education to manage the family’s properties and her father’s businesses whilst advancing her own career.
[11] Insurer’s bundle of late documents R 5 pp 73-77 and insurer’s bundle A 9 at p 66 and A 25 p 775. See also the statement of claimant’s mother Statement of Syeda Fizza Adnan A 19 at par 39 p 123.
It states that her father deposited $41,000 AU into his bank account to be held by the Commonwealth Bank of Australia to be used towards her study purposes.
It states that the father would not set aside such a large sum of money if the family relationships were fractured.
Her degree was scheduled to complete on 15 July 2022 but firstly because of the COVID-19 pandemic she could not pass some subjects and secondly because of her medical condition and psychological distress she had to reduce my study load to one subject.
The statement contains the comment: “I am completely fine now and have commenced my studies. I have completed more than half of my degree and look forward to completing the remaining of my study”.
The claimant’s Statement of Purpose confirmed that due the COVID-19 restrictions and her medical conditions, she reduced her study load to one subject but by 23 September 2022 she had returned to normal studies with anticipation of completion of the degree by 30 November 2023.
In the Statement of Purpose dated 23 September 2022 the claimant stated she could work 24 hours per week as permitted by the Student Visa.
The Statement of Purpose also states that the claimant plans to return to Pakistan after successful completion of the degree. It states the businesses are now thriving and striving for professionals who have business skills and international exposures. It states she sees herself as a successful manager of a business or brand developer at an international prestigious company.
It states her father who runs a textile business in Pakistan has sufficient resources and will provide financial support for her studies, living costs and travelling while she is residing in Australia. A sum of $41,000 has been deposited into this bank account held with the Commonwealth of Australia which she uses towards her study.
The claimant further states that:
“I also work 20 hours per week on my Student Visa to earn additional income to support myself.”
“I firmly intend to return to Pakistan after completing my studies to manage our family’s properties and my father’s businesses.”
“My entire family is currently living in Australia due to a compensation matter involving my deceased brother.”
“My parents decided not to compromise our education and required that we all enrol in universities and/or colleges to continue our education”.
[12] Insurer’s bundle of late documents R 5 pp 76 - 77
“Our ultimate goal is to return to our native country and resume our normal lives”.[12]

Claimant’s travel records

The International Movement Records from the Department of Home Affairs show that the claimant completed a large number of international trips between 2017 and 2023.
The travel records listed for the claimant includes:
·        travelling to the United States on 21 December 2017;
·        entering Australia on 16 August 2018;
·        departing on 30 August 2022;
·        on 9 January 2022 the claimant arrived in Australia on Flight HA451 which was an Hawaiian Airlines flight from Honolulu;
·        on 24 December 2022 she departed Australia and travelled on Flight HA452 to Hawaii, and
·        on 9 January 2023 she returned to Australia.[13]
[13] Insurer’s bundle of late documents pp 14-72.

Financial and bank records

The bank records provided by the Commonwealth Bank for the period September 2022 to the end of November 2022 show that the claimant regularly made payments at the Bluebird Café and Restaurant at Concord. She also made payments at the Event Cinema at Macquarie as well as other food outlet stores.
There is information produced by the Commonwealth Bank showing the claimant engaged in employment from a number of employers from April 2019 to December 2022 including at Red Rooster and Francos Concord. The records show that she earned a total of $46,357.03 for the financial year ending 30 June 2022.
The payslips for Red Rooster reveal a base hourly rate of $18.73 and a casual weekend hourly rate of $21.50.
An hourly rate of $22.50 would equate to 41.9 hours per week if she worked 52 weeks each year, and an hourly rate of $25 would still produce 37.2 hours per week. It indicates the ability of engaging in more work than was suggested to Medical Assessor Roberts.
The information provided by Mehmood Brothers Pty Ltd, apparently a franchisee of Red Rooster, for the pay period 15 July 2019 to 28 July 2019 states the base rate is $18.735 per hour and the weekend casual rate $22.485 per hour. The laundry allowance is $1.25.
There are deidentified bank records from 31 August 2018 to 15 December 2022 which show a pattern of repeated withdrawals from four or five six times each week and sometimes multiple withdrawals on the same day. It shows total withdrawals of $140,580 in that period of time and what appears to be a final balance of $45,080.31.
There are transaction records specifying where a credit card was used but without any dates. The records show transactions at Coles, Kmart, MacDonalds, Uber trips, Transport for NSW, Starbucks and IGA at Greenacre and various other places. There are multiple transactions at Red Rooster and Wentworthville. There are transactions at various supermarkets, in a butchery and at Betty’s Burgers in Parramatta. There are transactions at several service stations and repeated transactions to “Didi Chuxing Didi Au Pin”.
There is a transaction at the Bluebird Café and Restaurant at Concord on three occasions as well as Frangos at Edmondson Park. There appear to be more transactions at both these sites. Unfortunately, none of these transactions are dated.
There are a set of transactions from 4 August 2019 to 15 December 2022 which appear to show total withdrawals of $404,070.56. It appears to show a final balance of $296,590.05.
There are a set of transactions which appear to be related to deposits of salary which are undated and do not contain the amount of the deposit. They continue at least until 14 October 2022. There are repeated transfers of sums of money to Adnan Muhammad Ali.
The summary of bank deposits for Syeda Ayesha Adnan from 14 October 2019 to 12 December 2022 include the following.
Deposits from Wenty Pay listed approximately every two weeks from 11 April 2019 to 10 September 2020.
Deposits from Red Rooster Pay from 24 September 2020 approximately every fortnight from 24 September 2020 to 25 August 2022. Deposits labelled Salary from Ampol Retail approximately every two weeks from 25 May 2021 to 13 September 2022 with subsequent payments at various intervals up to 22 November 2022.Deposits labelled Salary from Frangos, Concord, from 5 September 2022 approximately every week to 12 December 2022.
There are multiple withdrawals from the same account from 15 September 2018 to 22 November 2022 and purchases at various retail outlets including K-Mart, MacDonalds, Oporto, Coles, Starbucks, IGA, 7 Eleven, Eat Greek, Hungry Jack’s, H&M, Krispy Kreme, Baskin Robbins, Officeworks, KFC, Woolworths, Bluebird Café and Betty’s Burgers. These purchases occur at various sites including Bankstown, Greenacre, Parramatta, Sydney, Circular Quay, Granville, Lakemba, Wentworthville, Lidcombe, Dee Why and Rhodes.

School and academic records

The claimant’s school and university records show a consistent attendance and level of achievement in education. The records are as follows.[14]
[14] Insurer’s bundle A 15-A 18 at pp 104-111 and A 20 at p 127.
The report from Queens School New York City Department of Education for Term 1, 2017-2018 states the final grades are 1/30 – 6/26. It shows Passes in all categories, grading of A achieved in four subjects, B+ in two subjects and a Pass in one subject.
The report from Tabani’s College Intermediate Examination 2017-2018 shows that she passed all subjects. It states this is a good result but still extra effort is required to get A+ grade.
The Application for a Student Visa dated 30 August 2022 states the highest level of schooling is the equivalent of completing Year 12 at The Queens School of Inquiry in the United States. She attained a Senior Secondary School Certificate.
The claimant was enrolled at Western Sydney University in a Bachelor degree in Science, Business and Technology in Business and Management from 19 July 2019 to 30 November 2023.
Records of Western Sydney University include the following academic transcript for Autumn 2020. The record is dated 8 July 2020 and shows the following results:
Public relations theory and practice – Pass.
Enterprise innovation and markets – Pass.
Enterprise leadership – Pass.
Corporate financial management – Fail.
Credit points gained 30.
Total credit points achieved in the course 70.
Total credit points required for course completion 240.
Grade point average 3.875.
The transcript record from Western Sydney University states the following.
·        Autumn 2021 – withdrew from Psychology Human Behaviour and failed Corporate Financial Management. Withdrew from Investment Management and Chinese 101.
·        Spring 2021 – Corporate Financial Management – Pass, Economy and Financial Modelling – Pass, Accounting in Context – Conceded Pass.
·        Autumn 2022 – Innovation Entrepreneurship and Society – Pass, Derivatives – Fail, Bank Management – Pass, Investment Management – Failed.

Treating and medico-legal medical records and reports

There is a short handwritten report by Dr Shamim Sohail dated 12 December 2017 but unfortunately the report is unreadable.[15]
[15] Claimant’s bundle A 6, pp 32.
There is a report by Dr Tom Newlyn, psychiatrist, dated 21 August 2018. This report states that when Ms Adnan heard about the accident in which her brother died, she fainted and was taken to hospital but returned home two hours later. There were many people present.
Her symptoms are that she feels very sad and was so stressed that she lost a lot of hair.
Nothing makes her happy and the sadness has increased over time and she cannot get over it.
The claimant is recorded in the report as stating:
“Everyone loved my brother unconditionally’”.
“My mind is working when I am sleeping. Sometimes I think about my brother and at other times random things and it’s hard to concentrate”.
“Sometimes people have to repeat what they said and I need to concentrate to understand. Sometimes when family are together, we feel he is there, and sometimes when I am studying, I feel he is helping me”.
Dr Newlyn makes a diagnosis of Bereavement. He states she does not meet criterion for a DSM-5 diagnosis and particularly does not meet criterion for a diagnosis of post-traumatic stress disorder.
There is a report by Dr Richa Rastogi dated 2 September 2018. This report states that the information for this report was obtained on 2 September 2017 at Northmead with an Urdu interpreter.
Ms Adnan gave the following history to Dr Rastogi.
Ms Adnan is currently living in Karachi with her parents and three siblings. She finished Year 11 at the Inquiry School, New York, where she attended from December 2017 to June 2018 and relocated to Karachi in June 2018 and is enrolled in Year 12.
Her brother Syed Shar Zaib Ali was deceased on 12 October 2016. He had come to Australia in August 2015 to study at the University of New England in Armidale in Business Accounting.
She was very close to her brother who was very overprotective and a father figure to her. He provided career advice and guided her academically.
Her grandmother passed away 12 days before her brother’s death. She was also close to her grandmother.
The claimant’s current symptomatology is listed as:
·        poor concentration and memory;
·        avoidance of social situations and crowded places;
·        significant weight loss and erratic periods;
·        poor performance academically;
·        intrusive memories of her brother;
·        ceased activities such as swimming and badminton;
·        socially reclusive, isolated and has lost friendships;
·        quiet and withdrawn, spending most of her time at home;
·        fearful of her parents’ health and becoming very clingy;
·        arousal and vigilance is passive and does not want to drive;
·        feelings of hopelessness and loss of confidence;
·        emotionally withdrawn and low frustration tolerance;
·        loss of identity and immense pressures and burden to look after family;
·        feeling numb and disconnected, and
·        loss of consciousness and usefulness and loss of purpose.
Dr Rastogi made a diagnosis of Grief Disorder with Bereavement, Generalised Anxiety Disorder with Panic Symptoms and Adjustment Disorder.
There are two reports referred to by Dr Newlyn from Dr Naresh Verma, consultant psychiatrist.[16] One report is dated 10 April 2019. This report diagnosed a Major Depressive Disorder caused by the death of her brother. Dr Verma prescribed fluoxetine [a serotonin reuptake inhibiting antidepressant medicine] and quetiapine [an atypical sedating antipsychotic medicine]. Dr Verma wrote that group family therapy would be of benefit. In a second report of Dr Verma dated 27 August 2019 he diagnosed Major Depressive Disorder, the claimant was pre-prescribed fluoxetine and prescribed olanzapine [an atypical sedating antipsychotic medicine].
[16] Insurer’s bundle A 6 at p 56.
There is a report by Dr Julian Parmegiani, psychiatrist, dated 14 October 2020.[17] This report states that Ms Adnan is currently living in Greenacre with her parents, brother and younger sister and is enrolled in a Diploma of Business course at the University of Western Sydney. It states that her brother Shar Zaib was killed in a head-on collision on 12 October 2016. Ms Adnan learnt of his death soon afterwards. Her father was in New York on business and he travelled to Australia to collect Shar’s body. Seven to eight thousand people attended his funeral in Pakistan.
[17] Claimant’s bundle A 12, pp 48-58.
Ms Adnan developed panic attacks one month after her brother’s death which had symptoms of palpitations and shortness of breath and occurred about twice each week.
She was more anxious in crowds and when she was away from her home.
She ruminated about her brother’s death and dreamt about motor accidents. She felt anxious travelling in motor vehicles. She has not obtained a driver’s licence. She is too scared to drive.
She had significant hair loss following her brother’s death and has had headlice on repeated occasions over the past three years.
She cries with minimal precipitant.
She only showers every one to two weeks when her father prompts her. She sleeps in her clothes and only changes her clothes after showering.
She does not contribute to domestic chores and does not prepare meals.
She has no contact with friends and does not visit recreational venues.
She studies online four hours per week.
She found part time employment at a fast food restaurant in 2019 and was sacked for poor performance after three weeks and has not undertaken subsequent employment.
Dr Parmegiani makes a diagnosis of Major Depressive Disorder with Panic Attacks.
Dr Parmegiani states her academic performance decreased after her brother’s death. She enrolled in a tertiary education course in Australia.
In a separate report dated 14 October 2020 Dr Parmegiani assigns a whole person impairment of 19%, assigning Class 2 to Travel, Concentration Persistence and Pace, Class 3 to Self Care and Personal Hygiene, Social and Recreational Activities and Social Functioning, and Class 4 to Adaptation.[18]
[18] Claimant’s bundle A 12, pp 48-58.
There is a supplementary report by Dr Julian Parmegiani dated 27 May 2021. This report is an assessment of whole person impairment.
It states it is based on information obtained from a report on 14 October 2020 but includes the additional information that Ms Adnan will not proceed with treatment.
Dr Parmegiani assigns a whole person impairment of 22% but the scores on the various Categories are identical with that dated 14 October 2020, but the statement of Classes in Ascending Order includes only Class 1 and four Class 3’s, as well as a Class 4.
When considering this report the Review Panel found it difficult to understanding the reasoning and see how Dr Parmegiani can find a whole person impairment of 22%.
There is a report by Dr Richa Rastogi, psychiatrist, dated 29 May 2020. This report states that Ms Adnan is currently in the fourth year of a Bachelor of Business degree at the University of Western Sydney and is working in customer service for 20 hours each week since 2019.
She did not complete Year 12 in Karachi but completed a bridging course in Sydney and commenced a Bachelor’s course.
Dr Rastogi lists the claimant’s current symptoms as:
·        sleep issues with initial and middle insomnia, social withdrawal, poor frustration tolerance;
·        poor concentration and motivation;
·        nightmares and flashbacks;
·        feeling a void and emptiness;
·        startled easily;
·        poor frustration tolerance;
·        marked avoidance behaviour;
·        socially disconnected and restricted;
·        feeling her life is meaningless and that she is existing;
·        hopelessness and worthlessness;
·        fear of future and petrified of deterioration;
·        emotional detachment and loss of control, and
·        lack of confidence and lack of motivation and drive.
It states with regard to daily function she has a Learner’s Licence but is not driving. She is using public transport and relies on extended family.
The claimant struggles to shower and attend meals. She has poor self-care and has lost significant weight. She skips meals and has a poor appetite.
She has no friends, relies on her family, is isolated and reclusive and hates being around others.
She is forgetful and struggles with multitasking needing reminders, is indecisive and struggles with day-to-day activities.
The claimant has failed subjects and her courses have been prolonged.
She has ongoing conflict with her siblings.
Dr Rastogi makes a diagnosis of Persistent Major Depressive Disorder with Anxiety.
There are two further reports from Dr Rastogi dated 29 May 2023.[19]
[19] Claimant’s bundle A 16, pp 64-75.
In the second of the two reports Dr Rastogi assigns a whole person impairment of 22%, assigning Class 2 to Self Care and Personal Hygiene and Travel, Class 3 to Social and Recreational Activities, Social Functioning, Concentration Persistence and Pace and Class 4 to Adaptation.[20]
[20] Claimant’s bundle A 16, pp 64-75.
In the Review Panel’s view Dr Rastogi appears to have made the same error as Dr Parmegiani. The Aggregate Score is 17 and the Median Score of 3, which would give a whole person impairment of 19%.
There is another report by Dr Tom Newlyn, psychiatrist, dated 8 February 2021.[21] The interview for the report was a telehealth assessment re-examination. It lists the same symptoms as previously but she states that now things are not fine and “I don’t know how I feel”. She described herself as sad and not wanting to talk. She sometimes sees or hears her brother. She did go to university but now does not feel like studying. She stated her work history is that she has not worked for some months, despite evidence that she worked at Red Rooster part time for the preceding eight months.[22] In terms of social functioning she stated: “I don’t remember going out. Maybe it was some years back.”
[21] Insurer’s bundle A 6 p 49.
[22] Insurer’s bundle A 6 at p 52.

Dr Tom Newlyn concluded that Ms Adnan does not meet criterion for a DSM-5 diagnosis. He also stated that the history obtained was inconsistent with a diagnosis of a clinical psychiatric disorder.
He found elements of folie à famille in which emotional symptoms are transferred from one individual to another.
Dr Newlyn noted that all five family members interviewed presented with similar unusual symptoms.

REVIEW PANEL’S RE-EXMINATION AND DIAGNOSSTIC FINDINGS

Ms Adnan was examined face to face at the Commission’s Medical Suites, 1 Oxford Street, Sydney 2000. The examiners were Dr Paul Friend, psychiatrist, and Dr Matthew Jones, psychiatrist.
Ms Adnan confirmed that her date of birth was 4 August 2000 and the accident occurred on 12 October 2016.

Psychosocial history and pre-accident history

Ms Adnan lives with her two brothers who are aged 17 and 26 years and her parents in a house in Greenacre.
She has an older sister who left home four years ago. She has no contact with her sister and does not know where her sister is living.
Ms Adnan stated that she does not talk to her family. She believes that her father doesn’t work. She believes that her younger brother goes to school but she does not know what her older brother does.
She thinks her mother may do some form of work.
Ms Adnan was born in Pakistan and grew up in Karachi.
She stated that prior to her brother’s death on 12 October 2016, everything was fine at home.
She had been sick two to three months prior to the motor accident, for about one month. She was febrile, had enlarged lymph nodes in the neck on the right side and also in her leg.
She would travel to hospital for medical attention but was not admitted to hospital. She had recovered prior to the time of the motor accident.
Her grandmother died two weeks before her brother’s death. She described herself as deeply hurt by her grandmother’s death because her grandmother had lived with her the whole of her life. She described feeling like a piece of herself was missing.
Ms Adnan is abstinent of tobacco, alcohol and illegal substances.
She consumes up to four cups of coffee each day, if she is stressed, and rarely has a cola drink but has no other intake of caffeine.
Ms Adnan denied any other physical illness or any other adverse events or upset prior to the motor accident.

History of the motor accident

The motor accident involved the death of her brother who was in Australia and studying.
She was told by someone, whom she cannot recall, that her brother had died. She was at home at the time. She fainted after hearing of her brother’s death.
She was taken to a hospital in Karachi where she remained for three to four hours. She cannot remember her treatment but believes she probably had an injection and intravenous fluids.
She described herself as feeling bad, in shock, sad and in denial that it had happened.
She subsequently lost a lot of her hair but was not bald. She thereafter was repeatedly sick with fevers, colds and struggled to concentrate.
She believes that she had one to two months away from school.
Ms Adnan stated that she subsequently resumed school in Pakistan. She had friends but life was difficult because of the shock of the death of her brother.
Ms Adnan and her family subsequently relocated to New York City where her father had a business. She attended the Queen’s School of Inquiry starting in Term 1 for the year 2017-2018. The New York City’s school’s account for that term showed that she passed all the subjects. She had one Pass, two grades of B+, four A grade Passes and one A+ Pass.
Ms Adnan believes that she lived in New York City for six to seven months and then returned to Pakistan.
The family relocated to Australia after being given legal advice that it would be better to be living in Australia if they were making a compensation claim for the death of her brother.
Ms Adnan enrolled in a Foundation Studies course at Western Sydney University, attending 29 October 2018 to 30 June 2019.
She subsequently enrolled in a Bachelor of Business at Western Sydney University, commencing on 19 July 2019.
The scheduled completion date for that degree was 15 July 2022. This was delayed because of the COVID-19 pandemic during which she took fewer subjects and at least during 2023 she failed two subjects, one in Semester 1 and one in Semester 2 which required her to repeat those subjects.
She is currently enrolled for 2024. She has eight subjects to complete which is a full caseload over two semesters and if successful then she would have completed her degree.
The Bachelor of Business degree was initially face to face in 2019 but it was online with the onset of the COVID-19 pandemic in 2020.
The lectures were delivered online, in 2023, but she had to attend face-to-face tutorials.
Ms Adnan commenced working in Australia in about April 2019, at a Red Rooster outlet working 20 hours each week. She was required to take orders, accept payment and hand out food across a counter. She did work in addition to a full academic load, at university.
Ms Adnan stated at this stage that she did not like being in Australia and was only living in Australia because she was required to be here for the compensation claim.
She stated that she had to try “really hard” to pass and that if she did not pass her course, she would not be able to remain in Australia.
The working restrictions on overseas student visas were relaxed during the COVID-19 pandemic.
Ms Adnan obtained a second job at a service station where she worked in the office. She was required to take payment for fuel and other goods purchased, operate a console and refill the shelves. She worked 20 hours each week in this job. She could not provide the total number hours she worked at the two jobs, but it was more compared to prior to the COVID-19 pandemic.
Ms Adnan left both jobs in 2022 and in late 2022 she obtained a new job at a Frango’s Portuguese Chicken outlet where she continues working to the present day, about 24 hours each week, over four days.
During 2023 she was enrolled in four subjects for Semester 1 of which she failed one subject, and for Semester 2, she was enrolled in three subjects, of which she failed one.
She needed to have a supplementary examination for the subject she failed in Semester 1 which she subsequently completed and passed.
She needs to repeat the subject that she failed in Semester 2.
Ms Adnan travelled overseas to Orange County, California in the United States for about 11 days from the end of about 2022 to early in 2023.
She travelled alone both ways. She was collected from the airport by her aunt and delivered to the airport to return by her aunt. The purpose of the trip was for her to attend her nephew’s wedding. There was a family obligation to attend.
The wedding was held over four to five days. She did very little when not at the wedding. It was cold. She did not go out because she was scared that she would get sick.
Ms Adnan was asked about treatment of her symptoms. She replied that she had attended a person apparently for counselling in Pakistan one to two times. She stated that she could not afford treatment in either the United States or in Australia but later stated she attended a psychologist once in 2018, in Australia, who advised her that she needed to try to get on with her life or resume her previous life.
She was prescribed medication by a doctor in Australia but did not take it.
She cannot swallow medication and generally avoids seeing doctors.

Details of any injuries or conditions sustained since the motor accident

Ms Adnan’s grandfather died in 2019. He was living in Pakistan and she was unable to see him before his death or attend his funeral. She described feeling hopeless and useless that she could not see him and apparently no-one could see him before he died.
Ms Adnan has had low back pain for the last three years. She consulted a doctor who advised her to have physiotherapy but she could not afford it.
She takes Panadol from time to time for the pain.
Ms Adnan denied any other medical events, being involved in motor accidents of any kind or that any other family members had died from misadventure.

Current symptoms

Ms Adnan states that her symptoms are much the same.
She continues to have hair loss and continues to have frequent colds. She continues to feel overwhelmed and does not want to do anything. She does not do anything that is good.
Her goal is to try to complete her studies but she cannot focus and has no interest. She feels empty and stressed.
She cannot talk but was unable to explain why.

Current and proposed treatment

Ms Adnan is not currently undergoing any treatment other than taking Panadol from time to time for the back pain.

Mental state examination

Ms Adnan was examined face to face by Medical Assessors Friend and Jones. She was dressed in a loose-fitting full-length dress with a headscarf loosely around her head, covering her hair. There appeared to be no obvious hair loss. She was not wearing makeup or jewellery but she had no body odour and was dressed in clean clothes.
Ms Adnan described being overwhelmed.
She does not feel like doing anything and does not do anything that is good.
She is trying to finish her studies but struggles to focus and feels empty.
She feels stressed and does not want to talk to others.
Ms Adnan did not describe being depressed, tearful or overly anxious.
Ms Adnan repeatedly stated that she had to support herself in Australia and apart from living in a house provided by her parents. She otherwise earned money to pay for her day-to-day needs. Her father paid the tuition fees.
Throughout Ms Adnan sighed frequently. She was not tearful.
She spoke softly and carefully. There was no evidence of thought disorder or psychomotor retardation.

Current functioning

Ms Adnan gets out of bed and leaves home six to seven days each week.
She only showers once each week and does not want to shower. She regards having a shower as a lot of work.
She wears her uniform when going to work. She wears what she referred to as loose clothing similar to what she was wearing today when she attends university.
She usually has coffee for breakfast because she does not have an appetite and often does not eat lunch.
She eats at home whatever is left over in the refrigerator. She does not do cooking. She stated she did not buy food, even takeaway food, but when asked, admitted that she could buy food at the Frango’s Chicken Shop where she works because she receives a discount on the price.
She dressed in clean clothes each day because, in her words, she did not want to frighten anybody because she smelled. She confirmed that she attended university two to three days each week and Frango’s four days each week, approximately six hours each day.
She washes her clothes about once every two weeks. She stated she does not care how she looks.
She was asked how she dressed prior to the death of her brother. She replied that she wore more fashionable clothing and liked to buy new clothes, although she always dressed modestly, similarly to how she dressed today, but that it was “nicer”.
She was asked if she purchased new clothes. She replied that she could only afford to purchase clothes at K-Mart. She could only afford to purchase new clothes if she had any leftover money.
Ms Adnan stated that she has had no friends in Australia and no friends when she was in the United States. She believes that she may have last attended the cinema two to three years ago. She does not want to go out if her parents invite her out but then stated that they do not often go out. She does not attend any clubs or groups at university.
She does not attend the mosque and prays at home if she feels like praying, which is usually no more than twice each day whereas her religion requires her to pray five times each day.
Ms Adnan lives in the suburb of Greenacre and travels 40-50 minutes by bus and train to the Parramatta City Campus of the Western Sydney University.
She travels alone in both directions.
She works in Concord and catches two buses to and from work. She also travels alone. She initially had to ask her aunty where to get off the bus when she commenced working at the job.
Ms Adnan obtained her Learner’s Drivers Licence in 2018. She tried to drive and had one session with the driving school but then gave up. She thinks that the Leaner’s Drivers licence has expired.
Ms Adnan stated that she does not talk much to her family because they do different things and she avoids them. She will fight with them. She was asked why she fought with them. She replied that it was because they would ask her to do something like get a glass of water or she would tell them to do something that they did not want to do. She spends most of her time, at home, in her bedroom.
She denied talking to anyone at university.
Ms Adnan attends the required tutorials although sometimes she will miss a tutorial. Her examinations are usually multiple choice quizzes every one to two weeks. Some subjects have a larger exam at the end of the semester which can be an open book exam or multiple choice questions.
She struggled with concentrating on the online lectures. It was better in the tutorials which were face to face.
Ms Adnan, as stated, is doing a full load at university apart from the second semester of 2023 but will be enrolling for a full load in 2024.
She works at Frango’s Chicken outlet, 24 hours each week. She has a customer service role and for each shift. She is given a specific role such as taking orders or taking money and then handing out food across the counter. At the end of the shift, she and the other employees are required to clean the windows, the salad bar and the counter. The face-to-face work is done behind a counter.

Review of documentation

Ms Adnan was asked about the Statement of Purpose for the Department of Immigration dated 22 September 2022 which states she works 24 hours as permitted by her visa. It states on third page, second paragraph, that subsequently she plans to return to Pakistan after completing her degree. She stated the businesses are thriving and there is a demand for people with business skills and international exposure. She saw herself as a successful business manager or brand developer at a prestigious international company.
Her father runs a textile business in Pakistan. When she returns to Pakistan after completing her studies, she would manage the family’s properties and her father’s businesses.
It also states in the second paragraph on page 3 that she will be targeting multinational companies such as Coca Cola, Nestle, Unilever, the Pakistan Tobacco Company, Toyota, KFC, Engro Corporation, etc.
It states on page 2 in the second paragraph that she could not complete her degree in the required time firstly because of the COVID-19 pandemic and also because of a medical condition, psychological distress owing to some personal issues. She reduced her study load and that she is now completely fine and commenced her studies.
Ms Adnan replied that she needed to provide such a Statement of Purpose because she needed to have a valid student visa to remain in Australia. The Statement of Purpose needed to be phrased in this manner.
She again stated that she never wanted to come to Australia. She stated that it hits you at times like this that you have lost a brother and a sister.
Ms Adnan, when asked, admitted that she obtained a scholarship either during or at the end of the first semester of her Foundation Studies because her grades were so good.
She did not subsequently qualify for such a scholarship because her grades were not sufficient, although she was overall passing.

Comments on consistency

Ms Adnan’s presentation during the examination was consistent in that she spoke slowly and carefully. She was not tearful and was not overtly distressed.
She did not appear to have any significant hair loss.
Her account of her symptoms and day to day functioning at the examination was inconsistent with the Statement of Purpose, working four days each week and attending university two to three three days each week.
Her account was also inconsistent in that she also said she showered only once each week which was difficult to reconcile when she needed to work four days each week and attend university two to three days each week even though she stated she was careful not to be malodorous.
She was dressed in clean clothes and was not malodorous.
Ms Adnan, despite her statement that she had poor concentration and needed to try very hard, had obtained a scholarship in the foundation studies course. She had passed most subjects in which she was enrolled, at the first attempt. She had completed secondary school in the United States before coming to Australia on a student visa.

DETERMINATIONS
Diagnosis and reasons

The Review Panel considered all the information before it, including the various supplied documents and Ms Adnan’s statements and the account of her history given to the Review Panel.
The Review Panel noted that Ms Adnan was working the equivalent of full time hours with her university studies and the paid work and she had worked mostly 20-24 hours each week since about April 2019 although there may have been breaks when she changed jobs.
She worked significantly longer hours during the COVID-19 pandemic restrictions when the work restrictions of overseas student visa were relaxed.
The Review Panel noted that Ms Adnan’s high school and university results showed that she performed well and was able to concentrate, adapt and cope with the requirements of academic study.
Ms Adnan presented in a very positive manner in her Statement of Purpose which was at odds with her statement that she never wanted to come to Australia and did not like it.
The Review Panel also noted that the account of not buying food or personal items was inconsistent with the multiple withdrawals from her bank account from 15 December 2018 to 22 November 2022 where she had attended many retail outlets as noted, including K-Mart, MacDonalds, Oporto, Coles, Starbucks, IGA, 7-Eleven, Eat Greek, Hungry Jacks, H&M, Krispy Kreme, Baskin Robbins, Officeworks, KFC, Woolworths, the Bluebird Café and Betty’s Burgers.
Ms Adnan stated that most of these were food outlets and she spent most of her money on food, and she would buy food when she was hungry. She reaffirmed that she rarely bought clothes.
The Review Panel taking account of all the available information determined that the inconsistency between what Ms Adnan reported and her demonstrated level of functioning, ability to support herself and to be independent in her day-to-day care, is not consistent with a psychiatric diagnosis. The determination was consistent with the reports of Dr Tom Newlyn who stated that she did not meet criterion for a DSM-5 psychiatric diagnosis.
The Review Panel gives reduced weight to the determinations made in the other reports by Dr Parmegiani and Dr Rastogi because those reports appear to be based on incomplete or inaccurate histories.

Conclusion

The Review Panel therefore concluded that Ms Adnan did not reach criterion for DSM-5 psychiatric diagnosis arising from the injuries sustained when her brother died in a motor accident on 12 October 2016.
The Review Panel concludes that the claimant was not psychologically injured as a result of the motor accident. The Review Panel finds there was no psychological impairment and no whole person permanent impairment attributable to the subject motor accident.
The replacement certificate is set out at the commencement of these Reasons.

[2024] NSWPICMP 89

19 February 2024