AAI Limited t/as GIO v Hoolihan
[2023] NSWPICMP 367
•2 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Hoolihan [2023] NSWPICMP 367 |
| CLAIMANT: | Alexandra Hoolihan |
INSURER: | AAI Limited trading as GIO |
| REVIEW Panel | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Wayne Mason |
| MEDICAL ASSESSOR: | Alexey Sidorov |
| DATE OF DECISION: | 2 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury on 12 September 2018; the dispute related to the assessment of permanent impairment of psychological injuries; claimant re-examined; panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; claimant diagnosed with post-traumatic stress disorder; assessments made in accordance with psychiatric impairment rating scale (PIRS) categories; Held – claimant assessed at 8% permanent impairment for the psychological injury; original assessment revoked. |
| DETERMINATIONS MADE: | CERTIFICATE Certificate is issued under s 7.26(7) of the Motor Accident Injuries Act2017 The Review Panel revokes the certificate dated 6 May 2022 and issues a new certificate determining that: The following injuries caused by the motor accident give rise to a whole person impairment of 8% and NOT GREATER THAN 10%: · post-traumatic stress disorder . |
STATEMENT OF REASONS
BACKGROUND
Alexandra Hoolihan (the claimant) was 18 years of age at the time of the subject motor accident (the accident). The claimant was driving her boyfriend’s sedan on 12 September 2018 about 80 kilometres an hour at night. The road was a single lane each way. The insured vehicle was travelling in the other direction. It veered onto the claimant’s side of the road. It struck the car the claimant was driving almost head-on causing it to spin. The claimant could not open the driver’s door. Her boyfriend helped her out of the vehicle through the driver’s window. Ambulance, fire brigade and police officers attended. The claimant was taken to St George Hospital by ambulance. The claimant reports continuing neck and back pain as a result of the accident.
Immediately after the accident, when attempting to initiate sleep, the claimant would experience a visual flashback image of car headlights approaching. She began to experience nightmares about car accidents generally. The claimant describes what she believes to be panic attacks if she hears car horns. She reports anticipatory anxiety four hours prior to driving. The claimant had treatment with a psychologist from late 2018 to early 2021 which resulted in some improvement. The claimant ceased further treatment later in 2021 due to her driving anxiety. The claimant has not seen a psychiatrist nor been offered anti-depressants.
GIO (the insurer) insured the owner and/or the driver of the vehicle at fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act2017 (the MAI Act).
The issue presently in dispute is the degree of permanent impairment of the claimant that has resulted from psychological/psychiatric injury caused by the accident (including whether the degree of permanent impairment is great than a particular percentage).
THE REVIEW
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 of the MAI Act[TR1] , the claimant was referred for assessment by Medical Assessor Melissa Barrett who certified as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 16% and IS GREATER THAN 10%:
· post-traumatic stress disorder – chronic
Medical Assessor Barrett described the following class rating under the Psychiatric Impairment Rating Scale:
(a) Self-care and personal hygiene – class 2.
(b) Social and recreational activities – class 3.
(c) Travel – class 2.
(d) Social functioning – class 3.
(e) Concentration, persistence and pace – class 2.
(f) Adaptation – class 3.
Pursuant to the Motor Accident Guidelines, the above ratings give an aggregate score of 15 and a median score of 3, which produces whole person impairment of 15%. Medical Assessor Barrett added 1% whole person impairment for treatment effects.
The insurer sought a review of Medical Assessor Barrett’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the MAI Act, in a number of material respects.
The insurer noted that if one of Medical Assessor Barrett’s class 3 ratings was changed to class 2, there would be an aggregate score of 14, a median score of 2 and whole person impairment of 7% and therefore “not greater than 10% whole person impairment”.
The insurer submitted there is reasonable cause to suspect the history obtained by Medical Assessor Barrett in relation to social and recreational activities would be consistent with either class 1 or class 2 under Table 6.12 of the Guidelines, rather than class 3.
As to Social functioning, the insurer submitted there was evidence that the claimant had no difficulty forming and sustaining a relationship with her ongoing partner and has a good relationship with her family. The insurer submitted that there is reasonable cause to suspect this would be more consistent with either class 1 or class 2 under Table 6.14 of the Guidelines, rather than class 3.
As to Adaptation, the insurer submitted that the evidence before Medical Assessor Barrett would not support a class 3 rating for Adaptation.
The insurer’s application for review was opposed by the claimant on the basis that Medical Assessor Barrett made no reviewable error. It was submitted for the claimant that Medical Assessor Barrett had set out the reasons for her findings as to the matter certified to the requisite standard.
As to Social and recreational activity, it was submitted that the claimant has consistently self-reported experiencing a reduction in her social life that is consistent with a class 3 impairment. It was submitted that the evidence of the claimant’s leaving home to socialise only four to five times per year, for a person of her age, is appropriately characterised as rare, within the class 3 descriptor.
As to Social functioning, the claimant pointed to evidence that she has sustained multiple friendship losses.
As to Adaptation, the claimant pointed to evidence that she has been unable to return to her pre-accident employment, study and workload which, it was submitted, is consistent with a class 3 impairment.
President’s Delegate Ratula Gupta issued a Determination of an Application for Review of a Medical Assessment on 4 July 2022 which stated to the satisfaction of the President’s Delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was that the President’s Delegate agreed with the insurer that the medical assessor’s reasons appear to be incongruent with the examples provided to describe a class 3 impairment for social functioning.
The President’s Delegate did not deal with the other grounds of review as (impliedly) that was not thought to be necessary to properly discharge the statutory function of the President’s Delegate.
Statutory provisions
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including the degree of permanent impairment of the injured person that has resulted from injury caused by the motor accident.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a medical assessor pursuant to s 7.20 of the MAI Act and, pursuant to s 7.26 of the MAI Act, on review by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a panel, reviewing a decision of a medical assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Panel had no previous involvement with the claimant or with this matter.
The application for referral of the medical assessment of Medical Assessor Melissa Barrett was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment, for which the review is sought.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following medical material:
· Submissions to the President’s Delegate.
· Submissions to Medical Assessor Barrett.
· Claimant’s statement dated 5 February 2021.
· Report of Dr Thomas Oldtree-Clark, consultant forensic psychiatrist, dated 25 June 2020.
· Supplementary report of Dr Thomas Oldtree-Clark dated 24 August 2020.
· Report of Dr Doron Samuell, clinical and forensic psychiatrist, dated 24 August 2020, to the insurer.
· Report date 22 February 2019 by Shona Cassell, psychologist, to Dr Jacobs.
· Further report of Shona Cassell dated 14 July 2019.
· GP Mental Healthcare Plan.
· Clinical notes of Engadine Medical and Allied Health Group.
The insurer relied upon the following medical material:
· Submissions dated 7 June 2021 and 24 May 2022.
· Report dated 3 May 2021 by Dr Andrew Kellar, occupational physician, to the insurer.
· Report dated 24 June 2020 by Dr Doron Samuell, clinical psychiatrist, to the insurer.
· Supplementary report dates 6 July 2021 by Dr Samuell to the insurer.
The Panel has considered all that material. Relevant portions are referred to in the
RE-EXAMINATION section of these Reasons.“RE-EXAMINATION
ALEXANDRA HOOLIHAN
Brief Personal Details
Ms Hoolihan is a 23-year-old woman who lives with her mother and 15-year-old brother in a Southern Sydney suburb. She is not working but is in the process of completing a Diploma of Mental Health with TAFE NSW online. She is in receipt of a Centrelink student allowance.
Psychosocial and pre-accident history
Ms Hoolihan was born in Sutherland Hospital and described a normal birth and development. Her 54-year-old mother is employed by Woolworths. Her 56-year-old father is an electrician. Her parents separated when she was approximately 1 year of age, and she is the only child of her parents’ partnership. Her mother has a 27-year-old daughter from a previous relationship and a 15-year-old son from a subsequent relationship. She said she has maintained a good connection with her father; he visited her every Wednesday, and she spent every second weekend with him. He has not repartnered and has no other children. She did live with the father of her 15-year-old brother, and she was aware of domestic violence between him and her mother but said it did not directly affect her or her younger brother. She described a creative and free childhood in which she suffered no form of abuse.
She attended Miranda North primary School and then Kirrawee high school where she completed the HSC in 2017. She does not remember her ATAR but said she had been accepted by 2 universities before the end of year 12 so did not particularly apply herself to her studies after that. She was questioned about difficulties in years 7 and 8 when deliberate self-harm was reported. She said it was a tumultuous time and she was struggling to adjust to a much bigger school. She went on to explain she started school early at the age of 4 years and was relatively younger than her peers which caused some problems. She said she spoke about the issues with her mother, and they had resolved at the end of year 8. She noted she was anxious and stressed in year 11 and consulted a neurologist regarding recurrent migraines. She said investigations revealed no major underlying conditions and they were attributed to psychological stress. She said the migraines ceased when she gained university admission.
She went on to study nursing at Wollongong University. She completed the first semester of year 1 in 2018 and reported obtaining distinctions and high distinctions. The academic transcript indicates she achieved 2 distinctions, 1 credit and 1 pass in that term. She started the second semester and then the motor accident occurred on 12 September 2018, and she was not able to continue with her studies because of her physical and psychological injuries. She said she was deemed not medically fit to resume her studies. She was questioned about a report in the GP record that she was experiencing exam anxiety in August 2018, just prior to the motor accident. Ms Hoolihan said she does not remember consulting her GP but accepts it was the case if it was recorded in the medical record.
In the second half of 2019 she went on to complete semester 2 of year 1. She said she found it difficult to focus on her course work and she was having difficulty getting to and from University because she could not drive due to panic attacks. The academic transcript indicates 1 credit and 3 passes.
In 2020 she commenced semester 1 of year 2. She had changed from the Wollongong campus to the Loftus campus due to her travel anxiety so she could attend classes. She said she was being dropped off and collected by her mother and friends and at times using the train or bus. She said the curriculum had changed and she had not completed some areas of study so did not have the necessary academic foundation to master her studies. She said she had started full-time, cut back to part-time and had sat all the exams but was failing so withdrew from the course. She stated this was extremely disappointing for her because she had planned to complete nursing and then apply to become a paramedic, which had been her lifelong ambition. She added she had completed sufficient study in the area of nursing to be registered as an AIN.
In early 2020 she had commenced working on weekends as a casual weighbridge administrator with Benedict Industries at Chipping Norton. She drove to and from work which was a 20-minute trip. The work ceased in the middle of the year when she obtained full-time work as a telephone debt collector working in an office only 5 minutes from her home. This continued throughout 2021 and in 2022 she commenced the Diploma of Mental Health studies with TAFE NSW. In addition, she was in receipt of a carers benefit for looking after both maternal grandparents throughout 2021. This continued for 2 months looking after her paternal grandfather after her grandmother died.
The TAFE Diploma of Mental Health was done online. This consisted of 2 classes of 2 hours/day for 3 days/week. The total was 14 hours. She completed half of the course in 2022 and then deferred in June or July because she was behind in all subjects. She said she struggled with focus and although she tried to catch up on the holidays, she was not able to do so. She returned to complete the second half of the course this year. She hopes the diploma will enable her to work as an Assistant in Nursing (AIN) in aged care or perhaps as a youth worker.
Ms Hoolihan was asked about relationships. She said she had been involved in a
12-month relationship with Austin in 2019. She was living with her mother and Austin stayed over a bit. The relationship ended because of her anxiety. She was then involved with 27-year-old Anthony for 3 years from 2020 to December 2022. The relationship ended because she was too dependent on him, and he became uncomfortable with that. Again, they did not live together but did spend time at each other's homes. She said she was negatively affected by the break-up for approximately 4 weeks and then made a satisfactory recovery. She has not been involved in a relationship since then.Leisure activities prior to the motor accident consisted of going out to clubs, camping, bush walking and going on four-wheel drive trips. She said she was involved with a large group of friends who were all interested in motor vehicles.
Ms Hoolihan denied any past insurance claims and said she had not been in trouble with the law. She has been healthy and has not had any significant surgery. She denied any past psychiatric illness and said she was not aware of any family history of psychiatric illness. The panel note pre-existing psychological problems were explored during history taking above. She is not currently taking medications apart from St John's Wort which she said was for stress and anxiety.
Her substance use consists of smoking 25 cigarettes per day, and consuming 4 or 5 drinks of alcohol per week while watching football. She denied using recreational drugs and gambling.
History of the motor vehicle accident.
She said she had been hanging out with a group of friends in the local McDonald's car park. She was driving an ex-boyfriend’s car around a sweeping bend on Captain Cook Drive. She was aware of headlights coming towards her on the wrong side of the road. She swerved and there was an impact on the front right-hand side of the vehicle she was driving. She said the fact that she swerved enabled them to avoid a head-on collision. She was wearing a seatbelt and the airbags deployed. She believes she was "out of it" for approximately 30 seconds. She said the car had spun around and ended up at the bottom of a hill. The other vehicle had continued travelling and hit a second vehicle.
When she came to she said she thought there was a sheet over the steering well which was in fact the airbag. She said she could not figure out what had happened. Her ex-boyfriend asked her to turn the ignition off. She said she was slow to respond and when she eventually tried to do it the key would not turn. She said the entire dashboard of the car had been pushed backwards towards the seats. She tried to get out of the car, but the door would not open. Her ex-boyfriend got out and went around to her window, pushed out the shattered glass and lifted her out through the window. She was aware of a very painful neck but said she could talk. She said she heard the female driver of the second vehicle screaming and she went to render assistance; the woman was complaining of hip and abdominal pain. Other people helped move the woman to the grass and she said at this point her body gave out.
She said at some point she had phoned her father. She said she was sitting on the grass with a blanket over her and her neck was hurting. An off-duty paramedic put a brace on her neck. She was then aware of flashing blue and red lights from police cars and ambulances. She said she was put in an ambulance, given morphine and taken to St George Hospital. She said her ex-boyfriend had called friends and a girlfriend accompanied her in the ambulance.
History of symptoms and treatment following the accident
Ms Hoolihan remained in St George Hospital overnight. X-rays and scans were taken but no bony injuries were detected. She was discharged the following morning. She thought her jaw had been broken. She said there was a burn or gravel rash type injury on the anterior aspect of the neck and under her chin from the airbag impact. She said her entire back was sore but particularly the lower back. She said there was also neck pain and it has never been the same since. She used Endone 5 mg twice daily for approximately 6 months. She attended physiotherapy for almost 2 years, initially weekly and then fortnightly. She said it was helpful because it eased the pain. She said the physiotherapist had diagnosed a misaligned rib cage.
Psychological symptoms consisted of being terrified when in a vehicle. She said friends took her home from hospital in a terrified state. She remained terrified as a passenger and was unable to drive for 6 months. She said she was having nightmares every night which consisted of oncoming headlights. These continued and currently still occur every night, although not so frequently during the night. She said the nightmares gradually began to include the death of her parents in a motor vehicle accident. There were other nightmares that were not so specific. She said these nightmares caused her to wake up feeling panicky and a bit short of breath. She was able to get back to sleep. She also described flashbacks which consist of the visual image of the oncoming headlights. These came on immediately after the motor accident, and initially occurred daily, although after 2 or 3 years they had become less frequent. She described the development of extreme anxiety and panic attacks while driving or travelling as a passenger. She said she was unable to drive for approximately 6 months because of the anxiety. She described anxiety being triggered by driving, by being in a car or a bus, or even walking close to the road where she feels she might be hit and killed by any passing vehicle. She said she is able to drive but not at night and not in the rain. She had been able to drive to her father's home which is approximately 40 minutes away. This stopped 2 years ago when a Styrofoam box came off the back of a utility and hit her windscreen; she said it did not do any damage to her vehicle but dramatically increased her anxiety and since then she has not been able to drive to her father's home. She described symptoms of hypervigilance while in a car or near traffic. She also described an exaggerated startle response.
Ms Hoolihan said she did not have problems with sleep prior to the motor accident but now takes 2 hours to get to sleep and wakes multiple times throughout the night. She said she is able to get back to sleep each time. When asked about mood she said she did become very depressed because she was unable to pursue her work and study ambitions and gradually lost contact with all her friends because of her inability to go out due to anxiety. She said she did have vague suicidal thoughts but did not have any intentions of acting on them and did not have a plan.
With regard to treatment, she was referred to psychologist Ms Shona Cassell and saw her for approximately 15 sessions on a monthly basis. She found it very helpful in many aspects but not with the driving. She said she did teach her how to cope with panic attacks. She continues to get them but now has some capacity to manage them or defer them. When a panic attack occurs, she becomes tense, with sweaty palms and difficulty breathing. She said she can usually hold it together until she gets home and then will collapse in tears. She said Ms Cassell taught her how to control her breathing and to distract herself from the symptoms. She did not consult a psychiatrist or use psychotropic medication. She has not received EMDR treatment. She said she saw another psychologist called Hannah on 3 occasions more recently when she was caring for her grandparents. When asked why she consulted her she said she thought it would be good to have someone to talk to. However, she discontinued the sessions because the 7-minute drive became too much for her. When asked if she had used melatonin, she said she had tried her grandfather's melatonin but basically her family was against the use of psychotropic medication, so she did not continue.
Injuries or Conditions Since the Motor Accident
Ms Hoolihan said there had been no relevant injuries or conditions apart from the deaths of her grandparents. These caused normal grief from which she made a normal gradual recovery.Current Symptoms
These consist of the nightmares and flashbacks as described above. She continues to experience anxiety associated with driving. She experiences panic attacks while driving. She has difficulty going to sleep at night and is woken frequently throughout the night. She has withdrawn from social contact because of her difficulties with travel. She sees one friend every 3 months when he visits. She sees another girlfriend who lives in Canberra approximately once yearly. She said she talks mainly with her parents and family members. Her prior friendship group revolved around motor vehicles, and she is avoidant of them because of her symptoms.
Current and Proposed Treatment
There is no current or proposed treatment.
Mental State Examination
Ms Hoolihan is a right-hand dominant 23-year-old woman whose appearance is consistent with her stated age. She was located alone in a property at Ocean Shores which is just north of Byron Bay. She said she was house sitting for an uncle. She was identified from her photograph on NSW driver's licence 22291660 with expiry date 3 December 2026. She was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 9 AM and concluded at 10:50 AM.
Ms Hoolihan was casually dressed and well presented. Her hair was not neatly done, and she was not wearing make-up. She was cooperative with the interview and provided information willingly and without prompting. She was intelligent and appeared to have a good insight into her condition and the sequelae of the motor accident.
Her speech was normal in rate and volume. She was inclined to provide more information than was needed rather than less. She became tearful and at times struggled with panic as she described details of the motor accident and the impact it has had on her life. Her range of affective expression was full and appropriate. She did not appear to be depressed and did not describe current depressive symptoms.
Ms Hoolihan described symptoms consistent with post-traumatic stress disorder consisting of nightmares, flashbacks, panic attacks, being triggered by cues, hypervigilance and an exaggerated startle response. Ms Hoolihan was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology. She appeared to have a good level of insight and good degree of judgement.
Current Functioning
Self-care and personal hygiene: Ms Hoolihan said she showers every second day. When she does not go out she can spend the entire day in pyjamas and a hoodie. She does make efforts to wear clean clothes. She said she had lost approximately 3 kg after the motor accident but has managed to regain that. She currently weighs 50 kg. At 155 cm I calculated her BMI at 20.8 which is roughly in the middle of the normal range. She is able to live independently and look after herself adequately. She is mildly impaired.
Social and recreational activities: Ms Hoolihan said she sees friends only when they come to her. One friend visits every 3 months. Another calls in every week or two and sometimes takes her to the Bangor pub for trivia night. She said she would not go alone. She does not go out to clubs, coffee shops or restaurants. She does not meet with groups of friends. She sometimes accompanies her mother to Miranda Fair to shop for a specific item. Essentially, she does not go out without a support person and does not become actively involved. She is moderately impaired.
Travel: Ms Hoolihan said she can drive for a maximum of 30 minutes. She is limited by anxiety. She is able to use public transport. She is anxious in a bus but feels safer in a train. She recently flew to Byron Bay. She was delivered to the airport and collected at the airport. In essence she can travel only in a familiar environment without a support person. She is mildly impaired.
Social functioning: Ms Hoolihan gets along very well with family members. Her parents are happy to provide company and support. She has been involved in 2 different relationships since the motor accident. These have not been live in relationships, but it seems they have ended because of her anxiety symptoms and dependency arising from the motor accident. Her friendship group has been significantly curtailed. Previously established relationships have not been negatively affected. She is mildly impaired.
Concentration, persistence and pace: Ms Hoolihan said she finds study quite difficult. She said if they do not have a 10-minute break in her 2-hour TAFE classes she finds it difficult to sustain concentration. When she is completing assignments, she needs to take regular breaks. She is able to watch movies and series on Netflix. There were no obvious difficulties with concentration or memory throughout the interview. She is able to undertake a basic training course at a slower pace which she is currently doing. She is mildly impaired.
Adaptation: Ms Hoolihan has discontinued university studies but has been able to work full-time in a different environment with a debt collection agency and is currently in the process of completing a Diploma of Mental Health with TAFE. She said she does contribute to the household tasks at home within the limits of her back and neck pain. She is mildly impaired.
Consistency of Presentation
Ms Houlihan’s presentation was internally consistent, consistent with the documentation provided and consistent with the diagnosis made. Where inconsistencies were evident from the documentation these were raised with Ms Hoolihan and satisfactorily addressed.
Documentation Summary
Assessor Melissa Barrett issued a certificate dated 6 May 2022 in which she diagnosed chronic post-traumatic stress disorder giving rise to whole person impairment of 16% (232323). Ms Hoolihan was a 22-year-old woman in receipt of a carers pension for looking after her cognitively impaired grandfather. She had been in a relationship for 1 year. Her parents separated when she was a 1-year-old. She has an older half-sister from her mother’s previous relationship and a younger half-brother from her mother‘s subsequent relationship. She denied abuse or trauma throughout childhood. She had regular contact with her father. She completed the HSC at Kirrawee high school and was halfway through her first year of nursing when the motor accident occurred.
From early 2022 she has been studying a diploma of mental health at TAFE for 12 hours/week. There is no forensic history and no known family psychiatric history. She smokes 15 to 20 cigarettes/day and drinks alcohol sparingly; she denied other drug use. She acknowledged anxiety during high school in relation to friendships. There was DSH at about 13 years which she revealed to her mother and did not require medical or psychological treatment. She was active in social and recreational activities. Pre-accident university grades were all distinction or high distinction. The subject motor accident consisted of an almost head-on collision with a vehicle that had veered onto the wrong side of the road. She was travelling at 80 kph. She was taken by ambulance to St George Hospital. The car was written off. Physical injuries consisted of back and neck pain. She received physiotherapy and used alternating paracetamol and ibuprofen. She described visual flashback images of the car headlights commencing immediately after the accident. There were nightmares once or twice weekly. She did not drive for 6 or 8 months and experienced anxiety when she did. She was not able to drive at night, in the rain, on narrow roads or where the speed limit was greater than 80 kph. There was anticipatory anxiety prior to driving. Concentration was poor. She consulted a psychologist for longer than 1 year who taught her coping mechanisms. She saw a second psychologist between August and November 2021 but found the travel to appointments overwhelming so ceased. She has not seen a psychiatrist. Medication consisted of melatonin 2 mg approximately 2 or 3 times weekly to aid sleep. Subsequent to the accident she injured an ankle in June 2021 while playing netball. She was anxious during the interview, described reexperiencing symptoms and fears of having another accident. Concentration was reasonable as was insight.Self-care and personal hygiene: 2 She continues to care for her grandfather but other carers shower him, make his bed and clean the house. Her mother cooks for them. She can cook simple meals. She had not cooked previously. She does her laundry and puts her clothes away. She avoids the crowded supermarket carpark and prefers a small corner store. She showers daily and puts on clean clothes daily.
Social and recreational activities: 3 She plays computer games online alone and can watch a TV series. She can read a book. She has one friend who visits her at home; they have once walked to the local café for coffee. Her boyfriend collects her and takes her to his home where she spends weekends with him. They go out together once every 2 or 3 months.
Travel: 2 She can drive in the local area with anxiety and with other restrictions in place. She can use buses but not a taxi or an Uber. She is an anxious passenger and closes her eyes. She can travel by train.
Social functioning: 3 She separated from her previous boyfriend. She was unsuccessful in meeting subsequent partners online. She met her current partner one year earlier at her previous workplace and described the relationship in positive terms. She said she has lost all but one of her friends. Her former friendship group revolved around motor vehicles. She gets on well with her family who drive her to appointments.
Concentration, persistence and pace: 2 She had been unable to continue full-time studies for her nursing course 6 months after the motor accident. She is doing an online Diploma in Mental Health course requiring 12 hours/week and is currently passing. She said she needs to re-read material.
Adaptation: 3 She worked full-time as an online debt collector from August 2020 June 2021 but was struggling. She was able to do this because it was only 5 minutes from home. She said she was not meeting her KPIs. She stopped work after a netball injury to her ankle. She is currently studying and acting as a carer for her grandfather.
Ms Hoolihan provided a statement dated 5 February 2021. She provided a description of the accident, noted observation at St George Hospital and then treatment by her GP Dr John Jacob of Engadine. She was referred to psychologist Ms Shona Cassell and saw her every 2 or 3 weeks from February to December 2019. She also attended physiotherapy for about 8 months. She used Endone for pain for 6 months. Her nursing studies were interrupted by her physical symptoms and she was then unable to resume because of psychological symptoms. She returned a year later to complete semester 1 of second year which she completed full-time. She then continued part-time doing semester 1 of year 2. She is able to drive for 20 to 30 minutes. Her relationship with her partner ended because of her travel related problems. She obtained 14 hours of weekend work with Benedict Recycling Waste Management Centre in Moorebank as a weighbridge administrator.
Psychiatrist Dr Thomas Oldtree Clark provided an IME report dated 25 June 2020. He noted a history of deliberate self-harm at age 11. He diagnosed a major depressive disorder arising from the subject motor accident. He assessed whole person impairment at 15% (222333). For some inexplicable reason he deducted 10% for the pre-existing condition resulted in a final figure of 13%.
Psychiatrist Dr Doron Samuell provided an IME report dated 24 June 2020. He noted she had ceased treatment with a psychologist before Christmas because she was too busy. She was not using prescription medication. He obtained no history of psychological difficulty. She was working at Moorebank on the weekend and was able to drive there from Engadine. He concluded she may have had a post-traumatic stress disorder initially but did not satisfy criteria for that diagnosis at time of assessment. He diagnosed a specific phobia of driving. He did not believe her condition had stabilised so did not provide a whole person impairment assessment.
Treating psychologist Ms Shona Cassell of Engadine diagnosed post-traumatic stress disorder in a report dated 14 July 2019. DASS 21 scores on 1 March 2019 were severe for depression, extremely severe for anxiety and extremely severe for stress. Referral by GP Dr John Jacob noted she had been through a difficult time in the last 10 years because her mother suffered domestic abuse and her boyfriend has ADHD. Ms Hoolihan had worked in hospitality and retail since age 13.
The complete record of the Engadine Medical and Allied Health Group is dated 4 April 2019. The record commences on 12 October 2015.
22/03/2017 stressed with HSC mid-year examinations. Supportive management.
04/04/2017 migraines 2 to 3/week, present since 12 years of age. Stressed. MRI brain to investigate persisting headache with nausea.
30/06/2017 no pituitary adenoma on MRI; mild Chiari malformation.
08/02/2018. First sex age 13. Unprotected sex; discussion of contraception with implanon.31/08/2018 stressed and anxious at Wollongong University due to exams and assignments. Supportive counselling.20/09/2018 presents following subject MVA on 12 September 2018. Near head-on collision at 80 kph. Left jaw pain and C-spine tenderness. Anxiety when driving.
28/09/2018 feeling better; to reduce Endone use.
07/11/2018 also has anxiety when a passenger in a car. Anxious re driving. Query PTSD. Referred to psychologist Ms Shona Cassell for CBT and assessment.
30/11/2018 clearly pregnant following unprotected sex; wants termination.
23/01/2019 TOP and D&C on 6 December 2018; Implanon inserted. Living with boyfriend.
21/02/2019 wants to claim for MVA; mother wants her to have GPMHC.
28/02/2019 wants to defer nursing course semester 2 this year because of MVA.
01/03/2019 DASS 21 score depression severe, anxiety extremely severe, stress severe.
14/03/2019 GPMHC. Referred to psychologist Ms Shona Cassell.
Neurologist Dr Raymond Schwartz provided a report dated 5 July 2017 in which he diagnosed features suggestive of tension headache and migraine. He noted exacerbation by anxiety and stress in the setting of her HSC.
Clinical record of St George Hospital indicates Ms Hoolihan was admitted overnight on 12 September 2018 following the subject motor accident at high speed (80 kph). Symptoms were chest wall tenderness, right upper quadrant tenderness, ongoing
C-spine tenderness and left mandibular tenderness. Wearing seatbelt and airbags deployed.University of Wollongong academic transcript is dated 7 June 2021. Ms Hoolihan obtained 24 credit points in autumn semester 2018 and 24 credit points in spring semester 2019. There were 2 distinctions, one credit and one pass in autumn 2018. There was one credit and 3 pass scores in spring 2019. There was a credit for workplace experience in autumn semester 2020.
Insurer's PIC application for review.
A1. The insurer submitted there was reasonable cause to suspect the PIRS categories social and recreational activities, social functioning and adaptation were all either class I or class 2 rather than class 3.
A2. Records of Benedict Industries.
Ms Hoolihan was employed as a part-time casual weighbridge administrator at Chipping Norton commencing on 28 January 2020. Ms Hoolihan submitted her resignation on 30 July 2022 to end employment on 30 August 2020 because she had been offered a full-time job. She offered to be available on Sundays after 30 August. Pre-employment medical advice indicates a history of depression which had resolved and treatment had ceased. Postural neck and back stiffness also noted. Date employment ceased was 23 August 2020.
Diagnosis and Reasons
Ms Hoolihan presented with symptoms of DSM-5 post-traumatic stress disorder.
Criterion A is met in that she was in a potentially life-threatening motor accident.
Criterion B is met in that she experiences traumatic nightmares and flashbacks. She is triggered by cues which resulted in prolonged psychological distress and experiences panic attacks.Criterion C is met in that she persistently avoids stimuli associated with the motor accident.
Criterion D is met by a persistent negative emotional state, diminished ability to participate in significant activities and a sense of detachment or estrangement from others.
Criterion E is met by hypervigilance, an exaggerated startle response and sleep disturbance.
Criterion F is met; the disturbance has lasted more than 1 month.
Criterion G is met because it causes significant impairment in functioning.
Criterion H is met because it is not due to a substance or another medical condition.
The panel agrees with the diagnosis made by Assessor Barrett and Dr Thomas Oldtree Clark. The panel does not agree with the diagnosis of specific driving phobia made by Dr Samuell because of the current symptoms described by Ms Hoolihan.
Causation and Reasons
Ms Hoolihan was involved in a life threatening motor accident which was almost completely head-on. It resulted in the symptoms of post-traumatic stress disorder described above. The panel is satisfied the subject motor accident was capable of causing post-traumatic stress disorder and is in fact the substantial cause of her condition.
Whole Person Impairment
Psychiatric diagnoses
1. Post-traumatic stress disorder
2.
3.
4.
Psychiatric treatment description
Psychological counselling
Category
Class
Reason for Decision
1. Self-Care and Personal Hygiene
2
Ms Hoolihan said she showers every second day. When she does not go out she can spend the entire day in pyjamas and a hoodie. She does make efforts to wear clean clothes. She said she had lost approximately 3 kg after the motor accident but has managed to regain that. She currently weighs 50 kg. At 155 cm I calculated her BMI at 20.8 which is roughly in the middle of the normal range. She is able to live independently and look after herself adequately. She is mildly impaired.
2. Social and Recreational Activities
3
Ms Hoolihan said she sees friends only when they come to her. 1 friend visits every 3 months. Another calls in every week or two and sometimes takes her to the Bangor pub for trivia night. She said she would not go alone. She does not go out to clubs, coffee shops or restaurants. She does not meet with groups of friends. She sometimes accompanies her mother to Miranda Fair to shop for a specific item. Essentially, she does not go out without a support person and does not become actively involved. She is moderately impaired.
3. Travel
2
Ms Hoolihan said she can drive for a maximum of 30 minutes. She is limited by anxiety. She is able to use public transport. She is anxious in a bus but feels safer in a train. She recently flew to Byron Bay. She was delivered to the airport and collected at the airport. In essence she can travel only in a familiar environment without a support person. She is mildly impaired.
4. Social Functioning
2
Ms Hoolihan gets along very well with family members. Her parents are happy to provide company and support. She has been involved in 2 different relationships since the motor accident. These have not been live in relationships, but it seems they have ended because of her anxiety symptoms arising from the motor accident. Her friendship group has been significantly curtailed. Previously established relationships have not been negatively affected. She is mildly impaired.
5. Concentration, Persistence and Pace
2
Ms Hoolihan said she finds study quite difficult. She said if they do not have a 10-minute break in her 2-hour TAFE classes she finds it difficult to sustain concentration. When she is completing assignments she needs to take regular breaks. She is able to watch movies and series on Netflix. There were no obvious difficulties with concentration or memory throughout the interview. She is able to undertake a basic training course at a slower pace which she is currently doing. She is mildly impaired.
6. Adaptation
2
Ms Hoolihan has discontinued university studies but has been able to work full-time in a different environment with a debt collection agency and is currently in the process of completing a Diploma of Mental Health with TAFE. She said she does contribute to the household tasks at home within the limits of her back and neck pain. She is mildly impaired.
List classes in ascending order: 2 2 2 2 2 3
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 7%
*%WPI = Percentage Whole Person Impairment
Apportionment - Pre-Existing/Subsequent Impairment
There is no requirement for apportionment for pre-existing or subsequent conditions.
Effects of Treatment
Ms Hoolihan reports treatment with psychologist Ms Shona Cassell made it possible for her to return to driving limited distances. The panel makes a 1% treatment effect allowance.
Degree of Permanent Impairment Caused by the Motor Accident
7% + 1% = 8%.
Conclusion
In summary the panel agrees with the diagnosis made by Assessor Barrett but has arrived at a different whole person impairment of 8%. The difference arises from mild impairment scores for social functioning and adaptation.”
FINDINGS
The Panel conducts a new assessment of all the matter with which the medical assessment is concerned.[4] The Panel adopts the extensive reasons of the joint examination findings of the two Medical Assessors.
[4] Section 7.26(6) of the MAI Act.
The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[5] The Medical Assessors have explained the basis of their assessment which are different from those provided by other medical specialists. The medical assessment of permanent impairment is undertaken at the time of the examination. In that respect, the previous assessments are outdated and do not reflect current symptomatology.
[5] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 and Insurance Australia Ltd v Marsh [2021] NSWCA 31.
CONCLUSION
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Barrett should be revoked. The new certificate is attached at the commencement of these Reasons.
[TR1]Already abbreviated in [3] above
0
2
0