AAI Limited t/as GIO v BTU

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v BTU [2025] NSWPICMP 55
CLAIMANT:	BTU
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Brett Williams
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	31 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; insurer’s application for review of medical assessment under section 63; dispute about whether psychiatric impairment was greater than 10%; where Medical Assessor certified accident caused psychological condition gave rise to a permanent impairment that is greater than 10%; application by insurer for re-examination by medical members of the Review Panel to be undertaken in person rather than by audio-visual link; application of the rule in Jones v Dunkel in relation to a medico-legal report not served by insurer; Held – insurer’s application for in person examination rejected; no inference drawn in accordance with the rule in Jones v Dunkel; claimant had a pre-existing adjustment disorder and pre-existing impairment; accident resulted in aggravation of pre-existing condition; impairment as a result of accident not greater than 10%; certificate revoked and new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Canaris dated 28 July 2023. 2. Certifies that the degree of permanent impairment of the claimant as a result of the adjustment disorder caused by the motor accident on 22 March 2017 is not greater than 10%.

STATEMENT OF REASONS

BACKGROUND

BTU (claimant) was injured in a motor accident at Carnes Hill on 22 March 2017 (accident). Following the accident he made a claim for damages under the Motor Accidents Compensation Act 1999 (MAC Act) on AAI Limited t/as GIO (insurer).
There is a dispute between the claimant and the insurer as to whether, for the purposes of s 131 of the MAC Act, the degree of his permanent impairment as a result of psychological injury caused by the accident is greater than 10% (the dispute). The dispute is a medical assessment matter for the purposes of Part 3.4 of the MAC Act: s 58(1)(d) MAC Act.
The dispute was assessed by Medical Assessor Canaris, who gave a certificate and reasons dated 28 July 2023 (Assessment). The Medical Assessor certified that:
(a)    persistent depressive disorder (dysthymia) with persisting major depressive episode and anxious distress and somatic symptom disorder with predominant pain were caused by the accident;
(b)    the persistent depressive disorder (dysthymia) with persisting major depressive episode and anxious distress gave rise to a 20% permanent impairment;
(c)    somatic symptom disorder with predominant pain does not give rise to whole person impairment, and
(d)    the accident caused persistent depressive disorder (dysthymia) with persisting major depressive episode and anxious distress gives rise to a permanent impairment that is greater than 10%.
The insurer sought a review of the Assessment in accordance with s 63 of the MAC Act. The President’s delegate subsequently determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted, and the application referred to this review panel (Panel) for review.

THE REVIEW

The Panel is to conduct the review in accordance with s 63 of the MAC Act. Section 63(3) provides that the Panel is to consist of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
The review of the Assessment is not limited to a review of only 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 Assessment is concerned: s 63(3A) MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings: Rule 128.
Version 5 of the Medical Assessment Guidelines (Assessment Guidelines), effective from

12 February 2021, apply to the Review as does version 1 of the Motor Accident Permanent Impairment Guidelines effective from 1 June 2018 (Impairment Guidelines).

DIRECTIONS

On 21 August 2024 the Panel directed the parties to file a joint agreed bundle that contained all the material they relied on for the purposes of the Review, together with the submissions they relied on for the purposes of the Review. The parties subsequently provided a joint bundle comprising over 1,600 pages.
On 26 September 2024 the proceedings were listed for case management before Senior Member Williams on behalf of the Panel. The parties were directed to provide a revised joint bundle. That direction was made in circumstances where the initial joint bundle contained (contrary to the Panel’s directions) multiple sets of written submissions, duplicate documents, and material that did not appear to be relevant to the issues in dispute.
A revised joint bundle was lodged on 14 October 2024. The bundle included a medico-legal report from Dr George, psychiatrist, dated 19 December 2018.
On 13 November 2024 the Panel sought confirmation from the insurer as to whether it relied on the report of Dr George dated 19 December 2018. If so, the insurer was asked to confirm whether Dr George prepared a subsequent report, noting that arrangements were made for the claimant to be re-examined by the doctor on 5 June 2023. If a subsequent report had been prepared by the doctor, the insurer was asked to either provide the report to the Panel or confirm the basis upon which it declined to do so in circumstances where it sought to rely on the doctor’s earlier report.
The Panel also requested a copy of Dr Rosenthal’s report dated 10 December 2018. That report, while referred to in the index to the joint bundle, was not included in the bundle. Dr Rosenthal’s report was provided to the Panel on 18 November 2024.
On 18 November 2024 the insurer sent the following message to the Panel:
“The insurer confirms that it does not rely on the report of Dr George dated 19 December 2018.
The insurer acknowledges the further appointment with Dr George which occurred on 5 June 2023. The insurer has identified error in the opinion of Dr George and does not consider it appropriate to serve the report until the errors have been properly clarified by medical opinion.
The submission from the claimant, that an inference can be drawn that supports impairment above 10%, is incorrect. The effect of Jones v Dunkel has been concisely explained in Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61:
‘the rule in Jones v Dunkel does not permit an inference that certain evidence not called by a party would have been adverse to that party, nor does it operate to fill gaps in the evidence. Instead, it permits an inference that such evidence would not have assisted the party’
In any event, the insurer says that a Jones v Dunkel does not assist the review panel because the matters in issue can be resolved by the evidence relied upon by the insurer including medico-legal evidence.”
On 19 November 2024 the Panel informed the parties that it intended to undertake the Review on the basis that it would not consider the report of Dr George dated 19 December 2018, the insurer having confirmed that it no longer relies on the report. If the claimant wished to make any submission that the Panel should not proceed as it had proposed, he was directed to do so on or before 22 November 2024.
On 20 November 2024 the claimant informed the Panel that the report of Dr George dated

19 December 2018 should be considered by the Panel in the Review because it “offers a valuable medical opinion from a psychiatrist which is relevant to the upcoming [re-examination]”, and that the report will “provide the [Panel] with assistance in reaching their determination.” On 21 November 2024 the claimant informed the Panel that he sought to rely on Dr George’s report.
On 22 November 2024 the Panel informed the parties that it would take Dr George's report of 19 December 2018 into consideration in the Review.
On 16 December 2024 the claimant sought leave under rule 67C(3) to rely on a report from Dr Kuljic dated 27 November 2024. On 13 January 2025 the insurer confirmed that it did not object to the claimant's application to rely on the report. The report is from a treatment provider. The Panel is satisfied that the introduction of the report is necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings, and that leave should be given to the claimant to rely on Dr Kuljic’s report in the Review.

THE INSURER’S APPLICATION

By directions dated 22 October 2024 the Panel notified the parties that it considered a re-examination of the claimant was required, and confirmed that the examination would be conducted by Senior Medical Assessor Baker and Medical Assessor Hong on behalf of the Panel. The parties were informed that the examination would take place by MS Teams.
By correspondence dated 25 October 2024 the insurer objected to the examination being conducted by videoconference, and “requested” that the examination be conducted in-person (insurer’s application). In support of its application, the insurer noted that:
(a) it had raised issues with respect to the claimant’s credit, and submitted evidence that he has feigned symptoms during previous neuropsychological testing, and
(b) it had raised over-reporting of symptoms, invalid symptom reporting, “unequivocal” evidence of purposeful test failure, exaggeration, and self-limiting of performance.
In the insurer’s submission, these issues would require the Panel to assess the validity of the claimant’s psychiatric symptoms and the reliability of the examination findings. This, it argued, will “require an environment” where the Panel can “meticulously observe all aspects of the claimant’s presentation”. The insurer submitted that, in light of the issues it had raised, an in-person examination was “better placed for an assessment of the claimant’s presentation”.
In correspondence to the Commission dated 30 October 2024, the claimant objected to the insurer’s application. The claimant noted that:
(a)    there was no objection by the insurer to him being examined by Medical Assessor Canaris on 28 July 2023 via MS Teams;
(b)
at the request of the insurer he was examined by Dr George, psychiatrist, on

5 June 2023 via videoconference, and
(c)
at the request of the insurer he was examined by Mr Hart, psychologist, on

3 August 2023 via videoconference.
Reference was also made by the claimant to reports from a support worker about difficulties he experienced attending an in-person examination by Dr Rosenthal, including the impact on his physical and mental health.
The claimant argued that the insurer’s application was not necessary and had no substance. In his submission, the re-examination being conducted by MS Teams was both “sufficient and reasonable”.
On 5 November 2024 the Panel issued reasons to the parties addressing the insurer’s application. The Panel was satisfied that the matters raised by the insurer in relation to assessing the validity of the claimant’s psychiatric symptoms, and the reliability of the examination findings, could be appropriately addressed at an examination conducted by MS Teams. Further, the reasons record that, in the opinion of the medical members of the Panel, there was no medical reason why an in person examination would be superior to an examination conducted by audiovisual link. The Panel as a whole was satisfied that the re-examination of the claimant should proceed by MS Teams.

LEGAL FRAMEWORK

No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: s 131 MAC Act.
Section 132 of the MAC Act deals with the assessment of impairment. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a Medical Assessor under Part 3.4 of the MAC Act.
The method of assessing the degree of impairment is dealt with in s 133, which is in the following terms:
“133 Method of assessing degree of impairment
(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.
(2) The assessment of the degree of permanent impairment is to be made in accordance with—
(a) Motor Accidents Medical Guidelines issued for that purpose, or
(b) if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.
(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
Note—
See Part 3.1 for Motor Accidents Medical Guidelines”
Permanent impairment is to be assessed in accordance with the Impairment Guidelines. Clause 1.3 of the Impairment Guidelines states that they apply to the assessment of the degree of permanent impairment that has resulted from an injury between 5 October 1999 and 30 November 2017. 21. Clauses 1.5 – 1.7 of the Impairment Guidelines address causation of injury.
Impairment caused by mental and behavioural disorders is assessed in accordance with cl 1.201 – 1.228 of the Impairment Guidelines: cl 1.35 of the Impairment Guidelines.
In order to measure impairment caused by a specific event, Medical Assessors must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in cls 1.201 – 1.228 of the Guidelines, and subtract this value from the current impairment rating: cl 1.218 of the Impairment Guidelines.
Clause 1.34 of the Impairment Guidelines deals with subsequent injuries, and is in the following terms:
“Subsequent injuries
1.34 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
In relation to the situation covered by cl 1.34 of the Impairment Guidelines, there are common law principles that address the problem of subsequent injuries and impairment and how the values required to be calculated under that clause might be used to determine the degree of permanent impairment “as a result of the injury caused by the motor accident” where there are subsequent injuries or impairment: Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031 at [84].
Chapter 11 of the Medical Assessment Guidelines set out the assessment procedure including, at [11.1]-[11.5], the assessor’s role.

Causation

The Impairment Guidelines apply to the Review. Causation of injury is addressed at cl 1.5 as follows:
“Causation of injury
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[1]) 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.”
[1] Or Member of the Commission.
In Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 (Owen), Campbell J held at [27] that:
“[27] Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessors constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling[2] at p. 500 [87] that the Assessors will derive practical assistance from this part of the permanent impairment guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s.5 D.(See s.3B(2)).”
[2] Ackling v QBE Insurance (Australia) Limited (2009) 75NSWLR 482.
Campbell J held at [50] that:
“…in general terms (subject to 5D Civil Liability Act 2002[3]) it is sufficient if the injury ... 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.”
[3] (CLA).

ASSESSMENT UNDER REVIEW

On 28 July 2023 Medical Assessor Canaris certified that persistent depressive disorder (dysthymia) with persisting major depressive episode and anxious distress caused by the accident gave rise to a permanent impairment of 20%, and that the impairment was greater than 10%. He also certified that the accident had caused a somatic symptom disorder with predominant pain that does not give rise to whole person impairment.
In his reasons, the Medical Assessor recorded a history about health issues experienced by the claimant’s wife and his referral to a psychologist at the suggestion of his general practitioner (GP). The claimant reported that he had two visits and then felt he did not need further help. The claimant’s attention was drawn to a reference in the documentation to cocaine use, in response to which he “was emphatic that he had never said anything of the kind, adding ‘I have no idea why he made those comments’.”
The claimant gave a history that he had been self-employed since 2012 and that the business was going well. He said that after the accident he struggled with migraines and shoulder pain, and had “exploded” at a shareholder meeting, something he said was very out of character. He reported that his behaviour caused “a lot of problems” and he eventually had to put his business into voluntary administration “about two years ago” (2021).

The claimant described being in shock after the accident. He reported that he sustained injuries to his neck and left arm, and that his physical symptoms worsened over the ensuing hour after the accident. The claimant described being in physical pain every day, and said that he had not worked for over six years. He spent most of the day in his bedroom. The claimant reported suffering a heart attack a few months prior to the assessment.
The Medical Assessor’s reasons record that the claimant had not been happy for many years, that he was sad and cried every day, that he felt hopeless, helpless and worthless, that he experienced pain, has “brain fog” as a result of pain and medication, and has trouble sleeping. He described being irritable and isolated from his family. He reported being limited in his driving. He was highly anxious, depressed, irritable, and socially withdrawn.
The claimant was on “substantial” doses of three antidepressants, a mood stabiliser, and other medication for his physical problems.
With respect to consistency, the Medical Assessor said this:
“I found no evidence of inconsistency in his presentation which was fundamentally similar to what had been described in much of the documentation. I note Associate Professor Batchelor’s findings. It is my experience that patients with moderate to severe psychiatric disorders and particularly those with very high levels of anxiety often show evidence of so-called non-credible cognitive impairment on symptom validity testing.”
In Medical Assessor Canaris’ opinion, the claimant’s presentation was consistent with a diagnosis of persistent depressive disorder (dysthymia) with a persisting major depressive episode with anxious distress. There was, in his opinion, evidence of somatic symptom disorder with predominant pain.
In the Medical Assessor’s opinion the persistent depressive disorder and somatic symptom disorder “came on in the aftermath of the accident”.
After assigning various classes to each psychiatric impairment rating scale (PIRS) category, the Medical Assessor found there was a 19% impairment, to which he added 1% for treatment effects, giving a 20% permanent impairment. In his opinion there was no evidence of any pre-existing impairment or any subsequent condition.

EVIDENCE

Other than the reports referred to in the proceeding paragraph, the evidence relied on by the parties in the Review is contained in a joint bundle. The Panel has considered all the material in the bundle that comprises nearly 1,000 pages. Included in the bundle are chronologies prepared by each party. The chronologies have been considered by the Panel.
To be clear, the Panel has considered Dr George’s report dated 19 December 2018, Dr Rosenthal’s report dated 10 December 2018, and Dr Kuljic’s report dated 27 November 2024.

Records from treatment providers

The records from Allcare Carnes Hill Medical Centre have been considered. The progress notes include references to the following matters:
28 May 2014                 matters related to his wife’s illness
3 September 2014        agreed to start antidepressants
18 October 2015          “very distressed feel mentally drained stress feel tired--all the time used to training, cannt to it now affecting concentration mind cannt stop thinking need to sleep after eat been on project for business--alot of stress --contract out -- one part of it issues with that company. good response for new business”. “looks like more anxiety, mild depression”. Efexor proscribed. Mental Health Care Plan created. Advised to see a psychologist: “agreed”. Referral letter to Mr Svigir.
2 November 2015         for review. “doing well seeing psycologist feeling better efexor causing him nausea headaches get anxious”
25 May 2016 “presented with depressed mood anhedonia not sleeping awaking at mid night very tired known depression & anxiety seen by counsellor was on medication but did not continue it denied any suicidal idea good home support…moderate depression not keen for medication…”
22 March 2017 “MVA today car hit from behind, he was stationary at traffic lights, car hit him from behind and other hit the car and 2nd collision, c/o neck pain, pain radiating down to left houlder arm and hand keep streching arms, painful turning On Examination: no point Tender cervical spines, ROM painful tilting painful. ROM normal but painful, no neurlogical deficit.”
27 June 2017 “…Getting anxisuos depression cancel appointments h.o depression and anxiety --2 years ago --got better by itself lack of sleep falling behind stress now…coping Skills training for effective mood management discussed Relaxation strategies discussed counselling and support discussed…”
26 July 2017 “…2 Panic attack hyperventilation getting worse no wheeze started during MRI” Valium prescribed.
9 August 2017 “very much stressed shaky…2 Stress full situation teary cannt have surgery very upset cannt afford surgery shaky low mood, anxious argument at work place…coping Skills training for effective mood management discussed Relaxation strategies discussed counselling and support discussed sleep hygine discussed RISK assessment done –Safe mental health plan created advised psycologist”. Referral to Mr Svigir.
19 August 2017 “… Seen volado [Svigir] Circumtances with family Accident Work getting panic attacks sob, hyperventilation some time putting on weight ‘nothign in my control’…Having Major issues with company Other work Peolpe accusued --that he is on drug Had valium 2 tab so far feel insulted , lot of stressed smoks 6-7 per day never taken any drug wish to do drug testing private cost discussed.”
23 August 2017             “…started lexapro -- 5 days clinching jaw at night irritable with kids”
12 October 2017           “…not taking medication mentally feeling better…”
12 February 2018          “…Cannt concentrate very stressed no tolarence … couldnt tolerate lexapro after 3 weeks stopped advised efexsor trial low dose review 2 weeks continue psycologist …”
11 May 2018 “…Seen Valdo 4 sessions advised conitnue psyclogist stopped taking medication adv follow up psycologist …”
24 May 2018                 “…continue psycologist …”
31 May 2018 “…WORRIED ABOUT surgery Making him more anxious…contineu psycologist …”
7 June 2018                 “…seen vlado today helping insurance company requested his file mood wise improving still teary…”
20 June 2018                “…irritable, nevous short fused feel agitated insurace rejected physio getting angry…Reason for contact: Chronic neck pain anxiety depression, nervousness [sic]…”
27 June 2018                “…Run down havnt had sleep since last week waking up every hour, 4 times with pain weared dreams not been able to breath so restless right hip cannt sleep on back and stomach neck locked up short tempred with people finised psycologist sessions neurosurgeon booked in for Friday doesnt wat neck surgery with metal plate in neck havnt booked with psyciatrist arms goes numb, dead…”
3 July 2018 “…Here for Referral for Psychiatrist dr nermain not availbale need to change it get aggitated people cough outside –irratated paranoids symptoms Irratbility intolerace with normalk things…psychiatrist review continue psycologist…”
24 July 2018                  “…seen psychiatrist -- advised stop efexsor , started on Lmaictal 25mg…contineu psycologist…”
25 August 2018             “…getting nightmare seen psyciatrist advised she stop lamectil and started onother medication, -- pt not taking them…”
15 September 2018      “…seen psychiatrist they will approve psycologist…plan continue psycologoist…”
24 October 2018           “…continue psycologist…”
8 January 2019            “…seen psychiatrist mood chnaging getting more agitated…”
20 January 2019           “…depression not taking medication wish to have 2nd opinion new referral given for psychiatrist…”
4 March 2019                “…wish to see psycologist undermediare going to see psychiatrist --2 weeks ago istikar ahmed --advised lovan 20 on it for one week…”
5 March 2019                “…need to continue mental health plan anxiety issues getting worse worried anxious depression symptoms seen psychiatrist started on lovan…” referral to Vlado Svigir.
19 March 2019              “Getting pararoid hearing voices angry didnt see renal phycian --waited for long small things make him angry voices --some one call his name few times booked with psyciatrist on Tuesday refused to go to hospital…”
11 April 2019                 “…has been seeing psycologist last on the 2^nd…”
6 May 2019                  “…Anxiety Symptoms need referral for psycologist medicare session finished…” Referral to Darias Grazia.
31 May 2019                 “…getting more angary aggitated easily seen psycologist on medication…”
2 August 2019               “…mood is upset get angry easily…”
27 August 2019             “…seeing psychiatrist…”
28 April 2020                 “…anxiety , fear, nervous feeling dont wannt get out of the room…”
14 May 2020                 “…Hate every thing Tried Agittated and angry…”
16 June 2020                “…Seen dr ahmed, psychiatrist…”
25 November 2020       “…takign zaldiar prn --had chat with psychiatrist and discuss risk of serotonion syndrome --he is happy to continue…mentally bit better seening psychiatrist…’
6 December 2020          “…Getting frustrated Angary seen psychiatrist adv not to drive…”
12 August 2021           “…seen pain specialist and psychiatrist…”
8 September 2021         “…angry due to pain, hate every thing getting migraine attacks seen psychiatrist…”
14 January 2022           “…getting angry all the time…still seen psycologist…”
8 March 2022               “…ongoing neck pain radiating donw to both arm and hands irritable, cuasing arguments with family not sleepign well supressing pain…seeing psycologist…
30 May 2022                 “…pain speciliast put him on duloxetine , efexor , lyrica , seroquel for his nerver pain and depression…”
16 June 2022                “…need referral for psychiatrist and repeat medication ongoing symptoms…”
Dr Memon prepared a mental health plan dated 18 October 2015. The diagnosis recorded in the plan is generalised anxiety disorder. It is recorded that the claimant had not previously received mental health care. The plan records that the claimant:
“feel mentally drain
stress
feel tired
all the time
used to train, cannt [sic] to it now
affecting concentration
mind cannt [sic] stop think
need to sleep after eat
been on project for business--alot of stress --contract out -- one part of it issues with that company”
There is a subsequent mental health care plan dated 9 August 2017 completed by

Dr Memon. The provisional diagnosis recorded in the plan is “depression, pain related stress”. The patient history recorded is as follows:
“2 Stressful situation
teary, feel depressed
very upset
cannt [sic] afford surgery
shaky
low mood, anxious
argument at work place
not going out
gaining wt”
The plan records that the claimant’s affect, mood was “low”, and his sleep was “disturb”.
There are a number of referral letters in the records, many of which relate to physical injuries and conditions. All have been considered by the Panel. A referral to Mr Svigir dated 18 October 2015 was for “opinion and management on [sic] anxiety disorder”. He was again referred to Mr Svigir on 9 August 2017 for “opinion and management of depression, stress under mental health plan”. There is a further referral to Mr Svigir dated 5 March 2019 for “opinion and management if depression and anxiety under mental health plan”.
The claimant was referred to Dr Ismail on 20 June 2018 for opinion and management of “Anxiety, agitation [sic], depression symptoms, Insomia [sic]. H.O MVA last year, neck injury”.
A referral to Dr Nguyen dated 20 January 2019 for opinion and management of “anxiety, depression post MVA”. A referral to Mr Grazia dated 6 May 2019 is for “opinion and management of PTSD, anxiety symptoms.”
A referral to Dr Davies dated 14 January 2022 for management of chronic neck pain records:
“Pain is affectiing [sic] his daily living and mood. He gets aggitated [sic] and angary [sic] due to constant neck pain. BTU is also seeing a psychiatrist for pain management and psycological [sic] issues.”
The radiological reports contained in the records have been considered by the Panel.
Clinical records from Marketplace Mediclinic are before the Panel. The progress notes from the practice include references to the following:
9 January 2017 “…c/o can't sleep at nights for about 2 to 3 weeks a lot of stress ++ difficult relationship with wife + financial difficulty + got children and needs to care them had history of anxiety, depression before + and exercise makes him feel better felt low in mood, wake up tired and can't breathe in the morning low energy found psychologist and exforge not working for him before and doesn't want to try them again… Reason for contact: Anxiety depression…”
17 January 2017 “c/o low energy, guilty financially tight new bisiness and no income yet for 1 year and 3 months wife has gone through liver transplant in Oct 2016 and stayed at hospital for 5 weeks. happily married since 21 years of age. during his wife's hospitalisation, he needs to go through child care, transport and worried a lot about her due to big surgery. staying away from friends and doesn't want to talk to friends o/e clothing normal speak with low tone looks weak K10 scored 31/50 and referred to psychiatrist counselling started citalopram 20mg daily Reason for contact: Depression…”
The K10 test responses have been considered. The claimant scored 31/50.
The records from Dr Berger, cardiologist, include reports from, and referral to, the doctor together with hospital records. The doctor’s report dated 1 June 2023 is addressed to the claimant’s solicitors. The report states that the claimant presented to Liverpool Hospital emergency department on the evening of 24 February 2023 with sudden onset of severe chest pain and with changes on 12-lead ECG consistent with ST elevation myocardial infarction. He was in cardiogenic shock and went into a cardiac arrest in the emergency department requiring CPR and direct current cardioversion for ventricular fibrillation. He was urgently transferred to the cardiac catheterization laboratory and underwent a coronary angiogram, which identified an occluded left circumflex artery as “the culprit”. He underwent a successful angioplasty to this lesion, and an intra-aortic balloon pump was inserted due to his hemodynamic compromise. He was transferred to the intensive care unit but did not require ventilation at any point. The remainder of his hospitalisation was relatively uneventful and he was discharged on 28 February 2023. The doctor stated that “[a]s a cardiovascular specialist, I have no comment on the connection between the injuries reported by the client and the accident in 2017.” From a cardiovascular point of view, the doctor expected a full return to functional capacity. There were no ongoing angina or symptoms of heart failure, and the claimant should be fit to perform at least moderate physical activity. In the doctor’s opinion the claimant was at an increased lifetime risk of further cardiovascular events, including death. His overall prognosis was “quite reasonable, with the relatively preserved left ventricular function a good prognostic sign”.
In Dr Berger’s “estimation” the medication the claimant was taking prior to the myocardial infarction were not causative factors in the cardiac event in February 2023. He did, however, “feel” that there was a material contribution made by the chronic pain, depression and functional impairment that followed his injuries in 2017. The doctor stated that both chronic pain and depression are risk factors for the development of coronary artery disease.
In Dr Berger’s opinion functional impairment and depression led to a sedentary lifestyle, weight gain and ongoing smoking, all of which contributed to the claimant subsequently developing hypertension and dyslipidemia. It was his opinion that on balance the myocardial infarction suffered in February 2023 was materially contributed to by the injuries sustained in 2017. In his opinion “although clearly this was not a sole cause, it is more likely than not that but for the injuries and disability sustained in 2017, and the subsequent weight gain, tobacco addiction, chronic pain and depression, that the cardiac event may not have occurred”.
Records from Dr Noore, specialist pain medicine physician and consultant psychiatrist, are before the Panel. In a report dated 30 January 2020 the doctor recorded that the claimant suffered from persistent headaches, neck pain and bilateral arm pain caused by a motor car accident in March 2017. The doctor recorded that the claimant’s emotional reaction to his pain and circumstances include low mood, anxiety, anhedonia, worthlessness and episodes of rage, which “leave the witnesses of the rage shaken” and which have adversely affected the claimant’s relationship with his business partners. The report records that the claimant “has significant stressors”, such as: a failed business; a legal dispute with his business partner; and legal debts of greater than $150,000. His affect was restricted, and his mood was depressed. He spoke in a slow, soft voice, and was preoccupied with his pain, his losses, his financial circumstances, his weight gain since the accident, his loss of fitness and his cognitive side effects from medication. Among other things, the doctor diagnosed adjustment disorder with mixed emotional features of depression, anxiety and anger.
In his report dated 23 June 2020 Dr Noore referred to the claimant suffering from “persistent multi-site pain caused by a motor car accident”. His “pain oriented problems” included adjustment disorder with mixed emotional features of depression, anxiety and anger. The claimant presented in a distressed state, was drowsy, tearful, frustrated, and apologetic.
The clinical records of Dr Atapattu, psychiatrist, have been considered. A note dated

18 July 2018 refers to the claimant experiencing severe pain in a shareholder meeting and getting angry and verbally abusive towards a lawyer. He described “in great detail” the dispute and incidents that occurred during the process of establishing the company. It was noted that his wife underwent a liver transplant in October 2017. There is also reference to a complaint the claimant made to the Legal Services Commissioner, and legal action. He reported significant agitation, anger, and frustration. He experienced severe pain, poor sleep, nightmares and worries about his health issues and finances. He feels lost, worthless, helpless and reported lack of enthusiasm, interest and motivation. The doctor’s impression was that the claimant had a “mixed affective episode”. He was prescribed Lamotrigine.
On 15 August 2018 the doctor’s notes record that the claimant reported persistent mood dysregulation, anger outbursts, irritability, passive suicidal ideas, worthlessness and helplessness. His sleep was often disrupted, and he felt agitated “most of the time”. “[C]onsidering significant agitation and mood dysregulation” he was prescribed Olanzapine.
On 12 September 2018 the doctor recorded that while the claimant had “slightly improved” he still felt agitated, tense, and irritable most of the time. There were recent positive steps with his business, but he reported that he was unable to feel happy and that he was experiencing significant stress over the previous few weeks. The possibility of underlying depression was discussed. The claimant was reluctant to take any medication.
Dr Atapattu reported to Dr Memon on 28 November 2018. The report records that the claimant:
“…dates the onset of his current symptoms to early 2017 which appear to have been precipitated by several issues with his new business, conflicts with the business partners, motor vehicle accident in March 2017…and physical health issues with his wife who underwent a liver transplant in Oct, 2017. He is currently pursuing with legal actions and also experiences significant… [there is text missing from the report].”

The doctor reported that the claimant developed significant agitation, anger, and frustration associated with persistent severe pain, poor sleep, nightmares and vivid dreams. There were no previous mental health problems reported. It appeared to the doctor that the claimant “may be having symptoms of a mixed affective episode”. The claimant was prescribed medication that he was reluctant to take, and eventually stopped. He reported slight improvement “specially with some positive changes in his business problem”.
Vlado Svigir’s records include DASS 21 testing dated 11 January 2018. Mr Svigir’s clinical notes are handwritten and difficult to read. The notes include the following references:
20 October 2015 sold business 2012 and started company in same industry. Cocaine user, only for 1 year and 6 months, sep 2013. Wife going to liver surgery, brother‘s daughter diagnosed with leukemia. Has had financial pressures in the past 2 years.
2-3 week, symptoms of fatigue, nausea, increased heart rate, shallow breath, sweating, trembling. Sleep problems.
Provided relaxation strategies, Progressive muscle relaxation, information sheet given.
7 November 2015 feels confidence shattered, especially in business meetings. Encourage to challenge negative thought in writing.
The clinical records of Sydney Spine & Pain Rehab include the following references:
11 May 2022   “…Haven’t been talking to his wife and kids family pissed him off feels like he is a ghost in the house have no one to ring; no friends not dealing well…”
26 May 2022   “…Mood low, anxious and agitated, with at times tearful affect…Has been trying to manage his pain, but psych fx has deteriorated significantly. Feels numb, like a ghost watching other people go about their lives…Distressed++Socially isolated. Lonely++…depressed and needs to see his Psychiatrist (Dr Ifikhar Ahmad…) but cannot make appt bc insurance owe Dr upwards of $6k…”
16 June 2022 “…grunting in pain shuttering and struggling with words lacking pain ed pt have noticed his maladaptive behaviour…”
21 July 2022 “…Mood low and anxious. Pain beh+++(moving, jolting, sighing, rubbing, leaning)…Went back to see psychiatrist but was then asked to get backdated referral…unlikely he will see the psych again…myriad stressors…”
1 September 2022 “…Mood low and anxious. Grunting in pain…Has managed to get out a couple of times – to get medication, up the road; otherwise has not left the house…has not seen his psychiatrist in a long time – needs med review…”
23 September 2022 “…grunting in pain stuttering and struggling with words…”
14 October 2022 “…Mood ‘not good’. Sounded low, with flat affect. Grunting in pain…”
28 October 2022 “Mood ‘not to good’, sounded low, with flat affect. Intermittent grunting with pain, with at time dysfluent speech. Distressed, but engaged and cooperative…Had a letter from the insurer, which upset J very much. He was described as an ‘unreliable historian’ in regards his pain symptoms…he often feels overwhelmed with anxiety, especially when he has to attend to emails or other administrative tasks…”
8 December 2022 “…Mood ‘terrible’ appeared low and anxious. Drowsy, agitated…Still has no approval for Dr Ahmed. GP is doing scripts but is at a loss as BTU needs to see his psychiatrist for med review…recent distress relating to a letter that the insurer’s solicitor write [to the Commission] stating that BTU has engaged in cocaine use, which he stated he has never been involved in. He was most distressed by this claim…”
27 January 2023 “…Mood ‘not good’; appeared low and anxious. Some dysfluency of speech…Still has not seen his Psychiatrist…Ongoing frequent suicidal thinking, but denies plan or intent…States that he has completely withdrawn from the family. Spends most of his time alone, and when he is with his wife and children, there is no conversation…Is spending most of his time lying down, feels he is deteriorating, both physically and mentally. Is exhausted most days from doing nothing…”
17 February 2023 “Mood low and anxious, although improved on last session…Still has not seen his psychiatrist, and the pharmacy have stated that they will cease providing meds if they are not paid – stress++…”
16 March 2023   Heart attack 24 February 2023. “Saw the new Pain Specialist (2^nd opinion). His impression was that this event was a consequence of stress and anxiety Risk: Ongoing frequent suicidal thinking, but denies plan or intent…”
5 May 2023 “appeared anxious, agitated. Intermittently taking big gasping breaths…”
The clinical records of Dr Iftikhar Ahmed, psychiatrist, include handwritten notes that are difficult to read. A note recorded on 15 September 2020 refers to Quetiapine, Amitriptyline, Gabapentin and Celebrex. Problems with pain and sleep were reported, as was “extreme disappointment in insurance company”. It was noted that the GP refused to provide Endone. The typed notes dated 5 October 2021, 7 December 2021, 8 February 2022, and 4 December 2022 have been considered.
Dr Ahmad reported to the claimant’s lawyers on 3 September 2019. The report responds to a series of questions that are not recorded in the report. The doctor stated that the claimant was suffering from major depressive disorder, includes a description of the claimant’s reported symptoms, and confirmed the doctor’s treatment recommendations. His response to question 4 was: “Yes, it is one of the biggest on-going stresses, making his psychological health worse”.
Dr Ahmad reported to Dr Memon on 26 November 2019. The report records that the claimant presented with symptoms suggestive of major depressive disorder. He was unable to perform any activities/duties that he used to do, unable to enjoy anything, experienced extreme frustration and anger, or get a “few good hours” of sleep. His mental health deterioration started following a motor vehicle accident in March 2017, in which he sustained injuries and resulted in severe pain syndrome. The doctor reported that along with physical and mental health issues, the claimant was “struggling heavily with his financial situation. He was running a successful business, however currently facing a legal battle…”. In the past he was trialled on Fluoxetine, Citalopram, Escitalopram, Venlafaxine, Olanzapine, and Lamotrigine, “with different side effects profile from the majority of them”.
Dr Ahmad reported to Dr Memon on 14 January 2020. The claimant presented “almost the same with no major changes to his mental state. As usual, on-going issues with his physical health, in particular pain syndrome, as well as court/financial situation”.
A report from Dr Ahmad dated 17 April 2020 records that the claimant reported “the court case of his business is giving more troubles now; court asked for more security money to proceed with case, which he does not have”. He decided to “close the case”, and reported “deep sorrow that he not only lost his company but also a trade mark. He was quite disappointed with the justice system”.
Dr Ahmad reported to Dr Memon on 20 May 2020. The claimant presented with severe pain “everywhere”. He was “extremely disappointed with court case/hearing; talked about the injustice he is getting from business partners, as well as court. He was tearful when reporting that he is already in ‘debts of 130k’…He stated that at times he will be so frustrated that [he] thinks[s] about aggression towards business partner…”.
The doctor’s report of 20 June 2020 records that the claimant appeared in severe pain and talked about pain issues “in depth”. Along with an on-going court case there was a trademark issue. He presented with themes of anger, frustration, hopelessness and helplessness. His sleep and mood are directly related to his level of pain. The doctor reported again on 22 July 2020. The claimant appeared in severe pain, his mood remained depressed and frustrated with no progress in his court case.
Dr Ahmad reported on 8 March 2022. The claimant presented with depressed mood, no energy and motivation, and disturbed sleep, mainly from on-going pain. He was not socialising with friend or family members. The claimant reported that he can’t control his emotions. He denied psychotic symptoms and thoughts of harming himself.
Dr Ahmad reported again on 14 June 2022. The diagnosis was major depressive disorder – severe with anxiety symptoms and chronic pain syndrome. The claimant presented with depressed mood, no energy and motivation, disturbed sleep, mainly from on-going pain. He was not socialising with friends or family members, and was disappointed about how his family were treating him. He denied psychotic symptoms and thoughts of harming himself.
An Allied Health Recovery Request dated 19 July 2019 relates to a referral to a psychologist (Dariusz Grasza) for treatment of post-traumatic stress disorder and anxiety and depressive symptoms. Reference is made to “[o]ngoing stress related to his business. Relevant stress will have to be address[ed] as part of the treatment”.
A report of Mr Vlado Svigir, psychologist, records that the claimant attended 11 psychological therapy sessions presenting with severe stress symptoms “due to ongoing legal anomalies in regard to his business, financial pressures, pain management due to motor vehicle accident and in addition taking care of his family (wife undergone major transplant surgery)”.
A number of reports from Dr James Yu, interventional and medical pain specialist, are before the Panel. On 22 November 2019 the doctor reported to the insurer. The doctor stated that as a result of his accident caused injuries the claimant suffers from significant physical deconditioning and “psychological repercussions” such as low self-efficacy, severe catastrophising, fear avoidance, extremely severe depression, severe stress, anxiety, and affected sleep pattern. His “case” needed to be managed with a “multidisciplinary approach”.
In a report dated 14 January 2020 Dr Yu recorded that the claimant suffered from psychological issues with extremely severe depression, stress and anxiety. He saw a psychiatrist regularly, and had started seeing a clinical psychologist and pain physiotherapist.
On 16 April 2020 Dr Yu reported that the claimant continued to experience widespread pain, with associated significant sleep disturbance. On 6 May 2020 he reported that the claimant “has spiralled down the chronic pain vicious cycle”. He was suffering from extremely severe depression, moderate anxiety, severe stress, severe catastrophising, severe fear avoidance, significantly low self-efficacy and “moderate disability”. Occipital nerve blocks were recommended for the claimant’s persistent headaches. On 10 September 2020 Dr Yu reported that the claimant presented with widespread pain. He ceased seeing a psychologist but was seeing a psychiatrist. On 7 February 2022 the doctor recorded that the claimant presented with persistent occipital headaches, neck and upper limb pain. He continued to see a psychiatrist. There was significant sleep disturbance associated with his pain condition. The doctor’s reports dated 3 May 2022 and 27 September 2022 have been considered.
On 3 February 2023 Dr Yu reported to the claimant’s solicitors. In the doctor’s opinion the claimant’s pain and psychological symptoms were related to the accident. He thought that the claimant’s prognosis was poor given his widespread body pain with “physical and psychological decompensation”. He was not able to go back to his pre-injury role “anytime soon”.
In a report dated 30 January 2020, Dr Noore recorded that the claimant suffered from persistent headaches, neck pain and bilateral arm pain caused by the accident. The pain symptoms developed immediately after the accident and persisted despite intensive treatment. His emotional reaction to his pain and circumstances included low mood, anxiety and rage. He had “significant stressors” such as “[a] failed business; a legal dispute with his business partner; legal debts of greater than $150,000”. He suffered from adjustment disorder with mixed emotional features of depression, anxiety and anger.
In his report of 23 June 2020, Dr Noore recorded that the claimant had presented in a distressed state. He was drowsy, fearful, frustrated and apologetic.
Dr Memon, GP, reported to the claimant’s solicitor on 13 September 2021. He saw the claimant on the day of the accident, at which time he was complaining about neck pain radiating to the left shoulder, arm and hand. He reported feeling depressed and anxious for the first time on 27 June 2017. He had a history of depression and anxiety two years prior to the accident which settled down. The report contains details of the claimant’s progress and treatment. The claimant continued to report anxiety and depression symptoms. His progress “so far” was poor.

Dr Memon provided a report on 22 March 2022 wherein he recorded that the claimant was experiencing neck pain radiating to the left and right shoulder, together with anxiety and depression symptoms, and sleep disturbance. In a report dated 7 June 2022 the doctor expressed the opinion that the claimant’s low back and leg symptoms were “linked with his motor vehicle accident”. The doctor’s certificate’s dated 29 June 2022 and 13 September 2023 have been considered.
In a report to the claimant’s solicitors dated 1 February 2023, Dr Memon recorded that he had not treated the claimant for cocaine addiction, that he had never referred him to Mr Svigir in relation to cocaine or drug addiction, and that he had never consulted him in relation to criminal proceedings involving possession or use of any illicit drug. The doctor’s report dated 27 August 2023 lists the medications related to the accident.
Ms Melinda Myers, psychologist, reported to Dr Memon on 27 May 2022. She confirmed that the claimant had completed a series of eight sessions of psychology to address the impact of his persistent pain condition. He presented with depressed and deteriorating mood. His pain condition and associated distress and disability have also had significant negative impacts on every aspect of his functioning. The claimant would benefit from consultation with a psychiatrist for medication review and ongoing management.
Dr Kuljic, consultant psychiatrist, reported on 27 November 2024. The claimant reported that his psychological issues began in 2017 following a motor vehicle accident in which he sustained bodily injuries and chronic pain. He was initially under the care of Dr Iftikhar, psychiatrist, who prescribed antidepressants. He subsequently saw Dr Aly, who maintained the same medication and recommended inpatient psychiatric care. His current medication regimen included Duloxetine, Venlafaxine, Amitriptyline, and Quetiapine. The claimant reported symptoms of depression, including persistent sadness, anhedonia, and fatigue. There were also difficulties with concentration, and feelings of hopelessness and helplessness. In the doctor’s opinion the claimant’s presentation was consistent with major depressive disorder, panic attacks, and an “unspecified trauma and stress related disorder”. The doctor stated: “[i]t appears that the motor vehicle accident was a significant trigger for his symptoms, with chronic pain continuing to exacerbate his condition”. A significant challenge in his care had been the lack of continuity due to the changes in treating practitioners. The doctor provided his recommendations with respect to treatment.
The Medicare and PBS records have been considered by the Panel.

Medico-legal reports

Associate Professor Batchelor, clinical neuropsychologist, provided a joint report to the parties dated 30 June 2023, the claimant having been referred for neuropsychological assessment. Various tests were administered, as recorded at [5.2] in the report. The assessment included five independent measures of response validity. In A/Prof Batchelor’s opinion, the claimant’s results on each of those measures provided definite evidence of exaggeration. In this regard she said:
(a)    the Test of Memory Malingering (TOMM) result on Trial 1 (of 31/50) fell in the range of chance. Scores that fall in the range of chance would only be expected in association with a dense amnesia such that the individual is incapable of committing new material to memory. The information relayed on interview and when examined by other practitioners clearly indicates that he is not amnesic. His result on Trial 2 of the test fell well below the cut-score considered indicative of noncredible responding with a high degree of specificity. Also unusual was that he incorrectly responded to nine items on Trial 2 that he had correctly identified on Trial 1 of the test. Reference to psychiatric disorder, chronic pain, sleep disturbance, medication or even a combination of those factors could not explain the extremely poor performances or inconsistencies returned on the TOMM. The data provided definite evidence of a deliberate attempt to score poorly;
(b)    the Word Choice Test is also a forced-choice recognition memory test. The claimant’s result on that measure (30/50) fell in the range of chance. The degree of difficulty that he demonstrated on that “very simple” test of recognition memory was extreme and provided additional, unequivocal evidence of purposeful test failure;
(c)    the claimant’s scores on the California Verbal Learning Test-Second Edition (CVLT-II) were indicative of suboptimal performance. The very poor score returned on the simple Forced-Choice Recognition trial of that test was too extreme to be credible. Whereas 99.4% of normal samples obtain a score of at least 14/16 (and 100% a score of 13/16) on that trial, he obtained a score of only 12/16. Importantly, that form of recognition memory is rarely affected by psychiatric disorder, chronic pain, sleep disturbance, or medication. The deficit evident on the CVLT-II provided further indication of a deliberate attempt to enact memory disorder;
(d)    the degree to which the claimant endorsed the symptoms comprising the Neurobehavioral Symptom Inventory was strongly suggestive of overreporting, and
(e)    the claimant’s responses on the Inventory of Problems-29 were suggestive of noncredible responding with a probability of 96% and odds of 24 to 1. His result on that measure provided further evidence of invalid symptom reporting.
In A/Prof Batchelor’s opinion, considered in conjunction, the results returned on the tests indicated that the claimant’s responses did not represent a valid index of his actual level of ability. It would not be possible for him to provide the information that he did on interview or when examined by other practitioners if his memory was as disordered as the results suggested. Reference to psychiatric disorder, chronic pain, sleep disturbance, medication or even a combination of those factors could not explain the marked impairment of even simple recognition memory or inconsistencies evident on testing. The data provided unequivocal evidence of a deliberate attempt to exaggerate impairment (performance invalidity) and overreport symptomatology (symptom invalidity). The A/Professor explained that it was for that reason the full range of tests typically administered in a neuropsychological assessment conducted for medicolegal purposes was not included in the examination. A/Prof Batchelor stated that when test results do not accurately reflect actual ability, it is not possible to differentiate genuine cognitive disorder from exaggerated impairment. In other words, all scores must be considered potentially invalid.
The neuropsychological assessment revealed, in her opinion, unequivocal evidence of invalid responding. The finding of invalid responding precluded quantification of the presence, nature or degree of any genuine cognitive impairment the claimant may suffer. Although there is no history of traumatic brain injury, the A/Professor stated that it is possible the claimant suffers cognitive impairment secondary to psychiatric disorder, chronic pain, sleep disturbance, and medications. However, the findings of noncredible responding precluded quantification of the nature or degree of any genuine cognitive impairment.

In A/Prof Batchelor’s opinion the emotional, behavioural, and cognitive symptoms described by the claimant were consistent with those detailed in reports, although he described memory problems in excess of those reported to Ms Bell in August 2020. His neuropsychological test results were inconsistent with the ability that he demonstrated on interview and when examined by other practitioners. The doctor stated that testing of performance and symptom validity indicated that the claimant was enacting or exaggerating cognitive impairment and overreporting the symptoms experienced on a day to-day level. In her opinion it was not possible to arrive at a diagnosis in terms of the claimant’s cognition given the finding that he was not responding in a valid manner during the current neuropsychological assessment. The invalid responding evident during the neuropsychological assessment was not, in the doctor’s opinion, caused or contributed to by the accident but rather represented a deliberate decision by the claimant to exaggerate symptoms. The doctor thought that invalid responding evident during the neuropsychological assessment did not represent the result of any pre-accident injury, illness or condition.
In a report dated 21 August 2020 Ms Bell, occupational therapist, provided an opinion to the insurer addressing the claimant’s functional capacity. Among other things, Ms Bell noted that the claimant had been diagnosed in the past with reactive depression and anxiety and had been referred to a psychologist in October 2015, attending several treatment sessions “which were successful”. He reported having no anxiety prior to the accident.
The claimant and his wife reported that he had a low frustration tolerance and has difficulty controlling his temper, recalling episodes of his mood changing from “0 to 100 in one second.” He reported exploding in a restaurant and becoming verbally angry towards a treatment provider. Social outings had been curtailed due to the claimant’s mood and risk of outbursts. His mood is low and he stated his children tend to avoid him by staying in another part of the house. His low mood, level of distress and lack of coping skills are further exacerbated by poor sleep patterns. The claimant reported that his ability to concentrate, plan and organise are diminished significantly and his memory is “a little bit affected” which he believes results from medications, pain levels and his psychological state. He relies on his wife to book appointments and make all arrangements for him.
Ms Bell provided recommendations with respect to the claimant’s personal, domestic, home, garden, and vehicle care needs.
On 30 September 2020 Ms Bell provided a supplementary report in which she responded to a request for clarification with respect to her recommendations for personal care assistance for washing hair and grooming in light of the claimant’s range of motion and his reports that he can participate in more complex tasks such as light meal preparation, driving and light grocery shopping.
Dr Greenberg, general and gastrointestinal surgeon, reported to the claimant’s solicitors on

2 May 2022. The report records that the claimant reported that since the accident he required regular medication and has developed symptoms which he called “reflux”. Since requiring medication his bowels have changed and he has become constipated. An umbilical hernia had increased in size since the accident. The report records that long-term use of analgesics and antidepressants are recognised to alter bowel motility and have significant side effects. The claimant’s symptoms were related to the medication he requires as a consequence of his orthopaedic injuries. The doctor diagnosed gastro-oesophageal reflux disease, probable analgesic gastropathy, and medication-induced gastrointestinal motility disorder. The claimant’s medication regimen is a result of the accident. In the doctor’s opinion the combination of the claimant’s orthopaedic injuries and the adverse gastrointestinal symptoms are affecting his psyche and having a significant impact. The doctor provided recommendations for treatment, and assessed a 7% permanent impairment.
Mr Mangipudi, occupational therapist, reported at the request of the claimant’s solicitors on

2 May 2022. Among other things, the claimant reported a previous history of depression and that he had been prescribed antidepressants in 2016. He also received counselling and said he was able to recover from depression. He was concerned that the accident aggravated the symptoms of depression. He was referred to a psychologist and psychiatrist and was diagnosed with major depression, anxiety and commenced medication.
The claimant reported experiencing severe pain in his neck radiating to his right and left shoulder and lower back. He reported experiencing pain, and weakness in the left lower limb during prolonged standing, walking and when climbing stairs, and reported experiencing weakness and numbness in his right and left hand fingers. He also reported experiencing severe headaches, feeling heaviness in his head, and feeling disoriented and unstable when walking after the accident.
In Mr Mangipudi’s opinion, the claimant had reduced capacity to undertake self-care, activities of daily living tasks, domestic duties, child care and work related tasks. He made various recommendations about the provision of assistance to the claimant and home modifications.
Dr Ting provided a vocational and functional report dated 11 May 2022 to the claimant’s solicitors. In addition to physical symptoms, the claimant reported suffering from insomnia, depressed mood, lethargy, and panic attacks following the accident. Dr Ting recorded that the claimant broke down in tears in the course of the interview. The claimant reported that he suffered from depression that affected his judgment and ability to handle stress and emotions. He related that during a shareholder meeting in May 2017 he was abusing and yelling at one of his partners, which contributed significantly to the collapse of the partnership. There were disputes which were dealt with legally, and his company went into voluntary administration in 2020 or 2021. He reported that he was not able to work with people and lost his aura. He said he was “broken (by the injury)”. The claimant confirmed that he suffered from anxiety due to his wife’s health problems and liver transplant. He was prescribed some medication that he did not find useful. The claimant scored in the extremely severe range for depression, anxiety, and stress on the DASS 21 self-rating depression scale.
Dr Ting’s report includes details of the claimant’s vocational history prior to the accident, together with his findings on physical examination and functional testing. In his opinion the claimant’s accident caused injuries have impacted on his ability to participate in activities of daily living and work. Psychological difficulties and persistent pain have impacted negatively on his functional work capacity, self-care and personal hygiene, social and recreational activities, social functioning (relationships), concentration, persistence and pace, and employability and adaptability. The claimant was not “work ready”, and does not demonstrate “a real earning potential at this stage”. In Dr Ting’s opinion the claimant is not expected to ever return to gainful employment on the open labour market without significant improvement in his symptomatology, medical, and intensive rehabilitation services.
Dr Sheehy, neurosurgeon, reported to the claimant’s solicitor on 10 June 2022. The doctor diagnosed a significant aggravation of a pre-existing cervical degenerative condition at the C3/4 level with the development of neck pain, headache, and arm paraesthesia as a result of the accident. Neck pain, headaches and paraesthesia persisted. The claimant was incapacitated for his employment as a result of his persisting symptoms. In the doctor’s opinion the claimant needed to retire and was unfit for work indefinitely. His prognosis for improvement was “remote”.
Dr Dixon, orthopaedic surgeon, reported to the claimant’s solicitors on 3 August 2022. In the doctor’s opinion the claimant suffered cervical spine injury, shoulder injury, low back strain and post-traumatic stress disorder as a result of the accident. In Dr Dixon’s opinion the claimant was unable to return to his pre-injury duties and was unfit for any occupation. He suffered severe occipito-frontal migraine-like headaches which made it difficult for him to concentrate and has severe post-traumatic stress disorder, requiring psychotropic medications. He would have difficulty with cognitive function to run a company, is unfit for manual work due to shoulder brachialgia and low back pain, and has difficulty driving due to neck pain and stiffness. The claimant’s prognosis for returning to work is poor. The doctor assessed a 33% whole person impairment.
Dr Way, consultant psychiatrist, reported to the claimant’s solicitor on 2 May 2022. The claimant reported sustained depressed mood with irritability and frequent rage attacks since having spinal surgeries, associated with sleep disturbances. He also reported low self-esteem and self-confidence and admitted to bouts of crying when he was on his own. He reported anhedonia (loss of enjoyment) and feeling of hopelessness. He denied any previous history of significant anxiety disorder, depression, or psychiatric admissions. Dr Way recorded that the claimant’s mood was depressed and affect restricted. There was no formal thought disorder or overt psychosis. He was preoccupied with obsessive worries and feelings of hopelessness. His concentration and attention were poor. He showed good insight into his problems. The doctor diagnosed persistent depressive disorder that was caused by the accident. The prognosis was guarded. The claimant’s symptoms of anxiety and depression had run a chronic course, complicated by unresolved emotional conflict related to the unsuccessful outcome of his surgery and the associated disability. The psychological effects of the accident could impede the claimant’s opportunities to establish, expand, and develop his business. From a psychological perspective he will not be able to reengage in his business activities or re-establish his preinjury business, given the high functioning level required. The doctor provided recommendations about treatment and care, and assessed a 19% permanent impairment.
Dr Way reported again on 23 July 2023. The doctor was asked to comment on the report of A/Prof Batchelor. Based on the reported clinical history, and his observations and objective findings during the mental state examination of the claimant on 2 May 2022, the doctor formed the opinion that the claimant’s performance at the time of the neuropsychological assessment conducted by A/Prof Batchelor may have been adversely affected by his chronic anxiety and depressive symptoms associated with cognitive dysfunction. Given the severity of his depressive illness, it was unlikely that the claimant was deliberately attempting to enact or exaggerate impairment on tests of memory and overreport symptomatology on subjective questionnaires as stated by A/Prof Batchelor.
Dr George, psychiatrist, reported to the insurer on 19 December 2018. The claimant reported that he was in a state of shock after the accident, and that his mood has suffered enormously since the accident. He indicated that he feels down much of the time, and finds he is unable to enjoy activities. His wife has complained about his irritability and low frustration tolerance. He had been prescribed antidepressant medication but was unable to persist with the medication due to side effects. The claimant had seen a psychiatrist but could not afford to continue to do so. He was apprehensive driving and reported poor concentration. He reported a history of seeing a psychiatrist for anxiety symptoms four years ago [2014]. He said he only had a few sessions and that treatment was successful. The claimant reported he had no anxiety prior to the accident.

The doctor recorded that the claimant’s affect was sad and he was tearful during the course of interview. His mood was depressed and he kept on emphasising that he was in a “very bad place”. He said there have been days when he has woken up and wished he was not alive. He related this to chronic pain. Dr George diagnosed major depressive disorder with anxiety. In his opinion, “[t]here is no doubt that there has been an impact on his mental health subsequent to the accident.” The claimant’s condition had not stabilised, and he required further treatment. If his pain was adequately controlled, he could be engaged in “at least” part-time sedentary work. Referral to a pain specialist would be important from the point of view of his ongoing care.
Dr Rosenthal, occupational physician, reported to the insurer on 10 December 2018. The doctor recorded a history of the accident, the claimant’s subsequent symptoms and treatment, and his past medical, social, and occupational history. The claimant appeared to be distressed on examination. The report records that the claimant’s request to record the examination was refused by the doctor.
Dr Rosenthal diagnosed an aggravation of asymptomatic disc osteophyte complex at C3/4 causing radiculopathy in the left upper limb and myelomalacia as a result of the accident. The injuries had not stabilised. The claimant’s condition is consistent with a rear end collision causing a flexion extension movement in his neck. The doctor recorded that the claimant “… is impacted by pain and his medical condition affecting his functionality and mobility at present”. A surgical decompressive procedure is reasonable and clinically justified. In the doctor’s opinion the claimant’s disability “appears to be a direct result” of the accident. The claimant could do some office based duties at least for three to four hours per day, five days a week. In a further report of the same date the doctor recorded that, as the claimant’s condition had not stabilised, it was not appropriate to assess his whole person impairment.
Dr Rosenthal reported to the insurer on 25 September 2019. The claimant reported neck and left shoulder pain following the accident. His pain in the left arm pain appeared to be in a radicular pattern following the C6 nerve root. He reported weakness in his left hand and he is dropping cups. He suffers from severe headaches. The claimant reported that his neck and left shoulder pain had deteriorated and he underwent a C3/4 laminectomy/discectomy in January 2019. There was no improvement following the surgery with pain increasing. There had been a referral to pain management.
The claimant reported that he was being treated by Dr Ahmed, psychiatrist, who has him taking Seroquel 25mgs three times a day and Amitriptyline 25mgs three times a day. The Efexor has been stopped. On examination he appeared to be in some distress. He walked with a slightly hunched posture and stiff gait.
Dr Rosenthal diagnosed an aggravation of pre-existing disc osteophyte complex of C3/4 causing radiculopathy and myelomalacia, resulting in the laminectomy performed by

Dr Parkinson. The claimant has been left with chronic pain. His injuries have not stabilised. Treatment would, in his opinion, have appeared to be reasonable and necessary although the surgery appeared to have been unsuccessful “for reasons unknown”. The injury “appears to be” a direct result of the accident. The claimant “still probably could run a home office business but the chronic pain and depression is having a significant impact”. In the doctor’s opinion the claimant had the capacity to work four hours per day five days a week performing office based duties in a “paced situation”. There were restrictions in his ability to perform home duties. In a separate report of the same date the doctor assessed a 5% permanent impairment as a result of the cervical spine injury.
Dr Rosenthal reported to the insurer’s solicitor on 28 August 2023. The claimant reported chronic neck and left arm pain. Dr Rosenthal reported inconsistencies on examination related to the range of motion demonstrated in the left arm and lumbar back movements. In the doctor’s opinion the accident caused the original aggravation of cervical spondylosis which led to the surgery performed by Dr Parkinson. The claimant subsequently developed chronic pain and left upper arm radicular symptoms. The relationship of the low back pain to the accident was “unclear”. The symptoms in his right upper limb may be due to the effects of the surgery performed by Dr Parkinson. The claimant had developed a pain syndrome with secondary depression. He had become deconditioned and his prognosis remains poor. A multidisciplinary pain management program with major input from a psychologist is required to assist with pain management. In his opinion, A/Prof Batchelor’s findings about invalid responses “puts into question the severity of [the claimant’s] condition and the alleged reported disabilities.”
In Dr Rosenthal’s opinion the claimant was fit for office-based duties and the administration side of his business for up to 20 hours per week. At no stage was he fit for his full pre-accident duties. Due to his chronic pain state, he is restricted to working administrative or office-based duties four hours a day, five days a week. He is not fit to undertake full pre-accident work until retirement age. The doctor provided recommendations with respect to domestic assistance and provided an assessment of permanent impairment.
Dr Gorman, pain medicine specialist, reported to the insurer on 3 September 2020. The doctor assessed the claimant by video. The claimant reported that he had been under a great deal of psychological distress, that he struggles to deal with people, and has a great deal of anger. He reported ongoing neck, arm and low back pain, and migraines. In Dr Gorman’s opinion the claimant suffered a flexion and extension injury causing nerve root compression and myelomalacia on the background of severe cervical spondylosis, persisting pain post spinal decompression, and major depression with significant anger and suicidality. In the doctor’s opinion the psychiatric illness in particular as well as his cervical spinal pain has led to severe deconditioning and fear avoidance behaviours.
Dr Gorman thought that the claimant’s condition was “consistent”. He had many outside stressors, particularly financial and also related to his wife's illness, that are likely to have exacerbated his response to the injury and surgery. The claimant had become increasingly disabled “particularly psychologically” and worsened by his business problems. His treatment has been appropriate, reasonable and necessary. He needs to continue his psychological and psychiatric therapy. In the doctor’s opinion the claimant’s disabilities were the direct result of the accident. It would be difficult for him to undertake his pre-accident employment with his ongoing pain and depression. The most he could do is two hours a day three days a week in his sedentary office-based employment. It would be difficult for him to fully return to heavier aspects of home duties and cleaning activities. He could not do jobs such as the lawn mowing, and would have trouble carrying heavy shopping.
The claimant underwent a functional and vocational assessment at the Vocational Capacity Centre. He was assessed by Dr Farag, a physiotherapist, and Mr Hart, psychologist.
In his report dated 28 August 2023, Dr Farag recorded that the claimant attended the assessment with a support person. The report records details of the claimant’s injuries, symptoms and treatment, including psychological intervention. The claimant attributed the “downfall” of his business to the events “surrounding” the accident. He reported a range of symptoms, including migraine, neck pain, thoracic spine pain, pain in both shoulders and arms, left costovertebral pain in the anterior chest wall, intermittent low back pain and numbness in his left leg.

The Medical Assessors discussed with the claimant the following matters that arose from his treatment records before and after the accident:
(a)    the K10 score of 32 on 25 May 2016;
(b)    the K10 score of 31 on 17 January 2017;
(c)    the K10 questionnaire with a score of 31[21], which is undated but presumed to be 17 January 2017 as the scores are the same, in which:
(i)he endorsed “most of the time” - tired for no good reason, hopeless, depressed, everything is an effort, worthlessness, and
(ii)he endorsed “some of the time” - nervousness, feeling so sad nothing cheers him up;
(d)    the accident was on 22 March 2017;
(e)    the K10 score of 28 on 9 August 2017, ie symptoms were less severe after the accident, and
(f)    the insurer’s submission that his pre-accident PIRS would have impairment in at least the categories of social and recreational activities, social functioning, concentration, persistence and pace and adaptation. In this regard, the insurer referred to entry 18 October 2015.
[21] Joint bundle page 300.
The Medical Assessors noted the GP entries referred to by the insurer and discussed the entries with the claimant, in particular the following recorded symptoms before the accident:
(a)    18 October 2015 – “very distressed feel mentally drained stress feel tired--all the time used to training, cannt to it now affecting concentration mind cannt stop thinking need to sleep after eat been on project for business--alot of stress --contract out -- one part of it issues with that company. good response for new business”. “looks like more anxiety, mild depression”. Efexor proscribed. Mental Health Care Plan created. Advised to see a psychologist: “agreed”. Referral letter to Mr Svigir;
(b)    9 January 2017 – “…c/o can't sleep at nights for about 2 to 3 weeks a lot of stress ++ difficult relationship with wife + financial difficulty + got children and needs to care them had history of anxiety , derpession before + and exercise makes him feel better felt low in mood, wake up tired and can't breathe in the morning low energy found psychologist and exforge not working for him before and doesn't want to try them again… Reason for contact: Anxiety depression…”, and
(c)    17 January 2017 – “c/o low energy, guilty financially tight new bisiness and no income yet for 1 year and 3 months wife has gone through liver transplant in Oct 2016 and stayed at hospital for 5 weeks. happily married since 21 years of age. during his wife's hospitalisation, he needs to go through child care, transport and worried a lot about her due to big surgery. staying away from friends and doesn't want to talk to friends o/e clothing normal speak with low tone looks weak K10 scored 31/50 and referred to psychiatrist counselling started citalopram 20mg daily Reason for contact: Depression…”
As noted previously, the Medical Assessors discussed the above treating team entries with the claimant during the assessment and noted his response.

Diagnosis and reasons

The claimant has a well-documented pre-accident history of psychiatric disorder with psychological symptoms recorded by different GPs and in self-reported questionnaires. These symptoms were recorded as recently as two months before the accident, in January 2017. The claimant did not agree with the evidence related to his pre-accident psychiatric history. Greater weight was given to the contemporaneous clinical records.
After a relatively minor accident, the claimant suffered physical injuries and chronic pain. In the context of his physical injuries he developed chronic depression and anxiety symptoms. Whilst he maintains some motivation to do things, physically he is quite restricted and has very little capacity to carry out what he wants to do.
The Medical Assessors were satisfied that the claimant suffered from a pre-existing adjustment disorder related to his wife's illness. This condition has been aggravated by the accident.

With reference to the DSM-5-TR diagnostic criteria for the pre-existing adjustment disorder:
Criterion A:     The claimant developed emotional and behavioural symptoms in response to identifiable stressors, occurring within 3 months of the onset of the stressor.
Criterion B:     His psychological symptoms are clinically significant, as evidenced by marked distress that is out of proportion to the severity or intensity of the stressor. The external context and the cultural factors that might influence his symptom severity and presentation have been considered.
Criterion C:     This is not merely an exacerbation of an underlying condition and does not meet criterion for another disorder.
Criterion D:     His symptoms do not represent normal bereavement reaction.
Criterion E:     Once the stressor (and its consequence) is terminated, his psychological symptoms should resolve within 6 months.
The Medical Assessors were satisfied that there was a more than negligible contribution from the accident to the claimant’s current psychological condition. He described increased distress in the context of pain arising from his accident caused physical injuries with increased subjective anxiety and depressive symptoms and evidence of increased impairment which is causally related to the accident.
The Medical Assessors concluded the claimant does not have persistent depressive disorder as his depressive symptoms are related to his physical injuries and pain and not a separate disorder. An adjustment disorder is a better explanation for his psychological injury. This is because he does not have depressive symptoms most of the day, more days than not, for more than two years that are not related to the reaction to his physical injuries and pain, and therefore criterion A of the DSM5TR diagnostic criteria for persistent depressive disorder is not met.
The Medical Assessors have considered the post-accident business issues, including the financial issues and litigation. The Medical Assessors were not satisfied that these events gave rise to a new psychological condition, or that they have resulted in a permanent aggravation or worsening of the adjustment disorder. The Medical Assessors are not satisfied, on balance, that these events gave rise to an injury or condition resulting in permanent impairment.

Psychiatric Impairment Rating Scale

Current PIRS

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	2	The claimant said he has two meals a day and his weight has been stable for more than 12 months now. He avoids some foods but binge-eats. He showers a few times a week and does not need prompting, but needs physical assistance. His physical injuries and pain are not assessable in the PIRS. There is no evidence of significant neglect of self-care on mental state examination. He has a mild impairment.
2. Social and Recreational Activities	2	The claimant wants to do things and go fishing, but cannot do it physically. His physical injuries and pain are not assessable in the PIRS. He can enjoy regular activities which do not aggravate his physical injuries and pain such as watching TV. From a psychological perspective, there is mild impairment.
3. Travel	1	He can drive everywhere from a psychological perspective. His driving is only limited by his physical injuries and pain, which are not assessable in the PIRS. Medication side effects are not assessable. There is no psychological deficit.
4. Social Functioning	2	The claimant’s relationship with his wife and children have deteriorated but remain intact. He is close to his parents but not his siblings. He does not talk to any friends. He tried to reach out but they did not respond. He has a mild impairment
5. Concentration, Persistence and Pace	2	The claimant’s medication causes concentration difficulties, and these are not assessable in the PIRS. Off Seroquel and Amitriptyline, he exhibited reasonably good concentration, persistence and pace during the assessment for 90 minutes, which is an intellectually demanding task. He has a mild impairment.
6. Adaptation	3	The claimant worked after the accident until physically he could not continue his business. He has been on a disability support pension from Centrelink for around 2 years for his physical injury and psychological injury. From a psychological perspective, he has a partial work capacity, and can contribute to the family life roles, around 20 hours per week. He has a moderate impairment.
List classes in ascending order: 122 223
Median Class Value: 2
Aggregate Score: 12
% Whole Person Impairment: 6 %

*%WPI ^{= Percentage Whole Person Impairment}

Psychiatric impairment rating scale

Pre-existing and subsequent impairment

The claimant had a pre-existing adjustment disorder. He has not sustained a subsequent injury or impairment.

Pre-accident PIRS

Category	Class	Reason for Decision
Self-care & Personal Hygiene	1	The claimant had no impairment before the accident. He said he was fit and trained. There was no deficit.
Social & Recreational Activities	2	He said he had no impairment or any psychological symptoms before the accident. The Medical Assessors noted objective evidence in the K10 score and endorsed symptoms, including depressive symptoms and being unable to cheer up, and concluded there were some impairment in his capacity to enjoy. Exercising their professional judgement, the Medical Assessors concluded he had a mild impairment.
Travel	1	No impairment before the accident.
Social Functioning	2	He said there were no previous problems. The Medical Assessors noted evidence related to relationship difficulties and stress. A clinical note from Marketplace Mediclinic dated 9 January 2017 records – “…c/o can't sleep at nights for about 2 to 3 weeks a lot of stress ++ difficult relationship with wife + financial difficulty + got children and needs to care them had history of anxiety , derpession before + and exercise makes him feel better felt low in mood, wake up tired and can't breathe in the morning low energy found psychologist and exforge not working for him before and doesn't want to try them again… Reason for contact: Anxiety depression…” A clinical note from Marketplace Mediclinic dated 17 January 2017 records that the claimant was “staying away from friends and doesn’t want to talk to friends”. Exercising their professional judgement the Medical Assessors determined that there was a mild impairment.
Concentration, Persistence & Pace	1	The claimant was asked about his concentration, persistence and pace prior to the accident. He said he had no problems concentrating, persisting with complex tasks and continuing with a task at a reasonable pace. The Medical Assessors noted that prior to the accident the claimant could perform complex tasks of daily living in various roles. The claimant was required to perform intellectually demanding tasks which he could complete without error or impairment. For these reasons it was determined that there was no impairment suffered by the claimant prior to the accident.
Adaptation	1	No impairment before the accident. He was working full-time and engaged in a volunteer role.

List classes in ascending order:

Median Class Value: Aggregate Score:

Whole Person Impairment:

Apportionment

Pre-existing impairment = 1%

Effects of Treatment

In the opinion of the Medical Assessors’ the claimant’s treatment has had negligible effect in symptomatic relief and in functional improvement. Should the claimant’s prescribed psychiatric medication be weaned and withdrawn the Medical Assessors are of the opinion that the psychological injury would be unlikely to deteriorate. For these reasons the assessment of treatment effect was assessed as 0% whole person impairment.

Conclusion

The degree of permanent impairment caused by the motor accident is 5% (6%-1%).

PANEL DETERMINATION

Dr George’s second report

At the insurer’s request the claimant was re-examined by Dr George, psychiatrist, on

5 June 2023. The insurer has not served the report prepared by the doctor following the re-examination, and does not rely on the report in the Review. The report has not been provided to the Panel. The insurer’s position is that it has “identified error in the opinion of Dr George and does not consider it appropriate to serve the report until the errors have been properly clarified by medical opinion.”
The claimant’s position is that the insurer has failed to particularise the error in Dr George’s report, and has failed to provide a sufficient reason as to why it should “continue to supress this report”. The claimant “presse[d]” for the report of Dr George in connection with the appointment on 5 June 2023. The insurer has declined to provide the report.
In the event the insurer “continue[s] to withhold and suppress” the report from

Dr George, the claimant submits that the Panel is entitled to draw an inference, “pursuant to the rule in Jones v Dunkel” [1959] HCA 8, 101 CLR 298 (Jones v Dunkel), “that when there is an unexplained failure by a party to call evidence, to call a witness or to tender documents or other evidence, the court may draw an inference that the uncalled evidence would not have assisted the party.” In the claimant’s submission, the Panel can infer that the subsequent opinion from Dr George is not of assistance to the insurer “in the sense that he opines the [c]laimant exceeds the Whole Person Impairment threshold”.

Neither party has drawn to the Panel’s attention authorities that address whether the rule in Jones v Dunkel applies to a Panel conducting a review of a medical assessment in accordance with s 63 of the MAC Act. The insurer has not submitted that the rule does not apply in a review of this nature.
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case.[22] It permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.[23] It follows that the Panel rejects the claimant’s submission that it can infer the subsequent opinion from Dr George is not of assistance to the insurer “in the sense that he opines the [c]laimant exceeds the Whole Person Impairment threshold”. That is not an inference that can be drawn in accordance with the rule in Jones v Dunkel.
[22] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 (Heydon, Crennan and Bell JJ) at [63].
[23] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 (Heydon, Crennan and Bell JJ) at [634].
Further, contrary to the claimant’s submission, the insurer has explained why it does not rely on the report provided by Dr George following his assessment of the claimant on

5 June 2023. The insurer says that it has identified error in the report. While the precise nature of the error(s) has not been identified, there has been an explanation for why the report has not been served and is not relied upon by the insurer.
For the foregoing reasons the Panel declines to draw an inference that the report prepared by Dr George following his assessment of the claimant on 5 June 2023 would not have assisted the insurer.
Even if the Panel had drawn the inference that the subsequent opinion from Dr George is not of assistance to the insurer, the drawing of the inference would not have caused the Panel to reach a different conclusion about whether, for the purposes of s 131 of the MAC Act, the degree of permanent impairment of the claimant as a result of psychological injury caused by the accident is greater than 10% because:
(a)    its function under s 63 is to determine for itself (i) whether there was an “injury caused by the motor accident” and, if so, (ii) the degree of permanent impairment resulting from the injury;[24]
(b)    its function is to form and to give its own opinion on the medical question referred for its opinion. The function is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise;[25]
(c)    the evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment,[26] and
(d)    the clinical judgement of the medical members of the Panel, both of whom are psychiatrists, is the most important tool in the application of the PIRS.[27]
[24] Jarvis v Allianz Australia Insurance Limited [2022] NSWCA 232 (Basten AJA, Bell CJ agreeing) at [51].
[25] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]. See also Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
[26] Impairment Guidelines cl. 1.21.
[27] Impairment Guidelines cl. 1.217.

The claimant’s reliability

In the insurer’s submission the evidence demonstrates the claimant is not a reliable historian and he presents inconsistently during examinations. The insurer’s submissions at [45]-[55] address the evidence it relies on in support of this submission. These submissions and the evidence relied on by the insurer have been considered by the Panel. The evidence includes the test results referred to by, and the opinion of, A/Professor Bachelor, together with the opinions of Dr Farag and Mr Hart.
In reaching a state of satisfaction about whether the accident has caused a psychiatric injury, the diagnosis of that injury, and the claimant’s permanent impairment as a result of that injury, the medical members of the Panel have reviewed and considered the evidence, re-examined the claimant, and exercised their professional judgement. As recorded in the re-examination findings, the medical members of the Panel raised inconsistencies in the claimant’s psychiatric history with him. The Panel as a whole agrees with and adopts the findings of the medical members of the Panel with respect to these matters.
In arriving at its findings, the Panel as a whole has considered the totality of the evidence, including the history provided by the claimant and symptoms he reported when he was re-examined by the medical members of the Panel.

Did the claimant suffer from a pre-existing psychiatric condition?

The Panel is satisfied that prior to the accident the claimant experienced and was treated for psychological symptoms. In this regard, the Panel gives weight to: the clinical notes from Allcare Carnes Hill Medical Centre that record the claimant attended the practice and reported psychological symptoms on 18 October 2015 and 25 May 2016; the matters recorded by Dr Memon in the mental health plan dated 18 October 2015, including the diagnosis of generalised anxiety disorder; and the evidence that he was referred to a psychologist, Mr Svigir, for treatment.
The Panel also gives weight to the progress notes from Marketplace Mediclinic recorded on 9 January 2017 and 17 January 2017, some two months prior to the accident. Those notes include reference to psychological symptoms and record that the “reason for visit” was “Anxiety depression” (9 January 2017) and “Depression” (17 January 2017). Further, there are the K10 scores referred to in the clinical notes dated 25 May 2016 (32/50) and 17 January 2017 (31/50).
The Panel is satisfied that prior to the accident the claimant was suffering from an adjustment disorder. The Panel agrees with and adopts the reasons given by the medical members of the Panel in support of their finding that the claimant satisfied the diagnostic criteria in the DSM-5-TR for an adjustment disorder.

Was there a pre-existing impairment?

The Panel is satisfied that there is objective evidence that the claimant suffered from an adjustment disorder up to the time of the accident and that there was a pre-existing impairment within the meaning of cl 1.31 of the Impairment Guidelines. The evidence that supports this finding is contained in the documents before the Panel to which reference has previously been made, including the matters referred to by the medical members of the Panel in their PIRS assessment of pre-existing impairment.
The Panel agrees with and adopts the specific findings of the medical members of the Panel with respect to pre-existing impairment, including the PIRS ratings they assigned.
The Panel finds that the pre-existing impairment arising from the adjustment disorder is 1%.

Did the claimant suffer a psychological injury as a result of the accident?

The Panel is satisfied the claimant suffered injury to his neck as a result of the accident, and that he experiences pain as a result of that injury. On the day of the accident he saw Dr Memon and reported neck pain and radiating pain in his left shoulder, arm, and hand. He has continued to report pain in these regions. The claimant described anxiety and depressive symptoms after the accident due to his accident caused physical injuries and pain. The Panel accepts that he experienced these symptoms.
The Panel is satisfied on the totality of the evidence that the accident could have and did make a more than negligible contribution to the worsening of the pre-existing adjustment disorder. The Panel is satisfied that the claimant experienced, and continues to experience, increased distress in the context of pain arising from his accident caused physical injuries, with increased subjective anxiety and depressive symptoms and increased impairment. The Panel finds that the accident caused an aggravation of the pre-existing adjustment disorder.

Is there a permanent impairment as a result of the accident caused psychological injury?

The clinical judgement of the medical members of the Panel, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 1.217 Impairment Guidelines. The Panel notes that the evaluation of impairment should only consider the impairment as it is at the time of the assessment: cl 1.21 Impairment Guidelines.
The Panel agrees with and adopts the precise examination findings and conclusions of its medical members based on their examination of the claimant, and their specific findings with respect to each PIRS category and permanent impairment. The Panel finds that the claimant has a permanent impairment of 6% as a result of the adjustment disorder.
The Panel agrees with and adopts the finding by its medical members that there is no subsequent impairment.
After deducting the pre-existing impairment of 1% from the current impairment, as required by cl 1.218 of the Impairment Guidelines, the Panel finds that the claimant has a 5% permanent impairment as a result of the psychological injury caused by the accident. It follows that the Panel finds that the degree of permanent impairment of the claimant as a result of the accident caused psychological injury is not greater than 10%.

The certificate of Medical Assessor Canaris is revoked

Given the findings it has made, the Panel revokes the certificate of Medical Assessor Canaris dated 28 July 2023, and certifies that the degree of permanent impairment of the claimant as a result of the adjustment disorder caused by the accident is not greater than 10%.

[2025] NSWPICMP 55

31 January 2025