AAI Limited t/as GIO v Megaloudis
[2025] NSWPICMP 165
•14 March 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Megaloudis [2025] NSWPICMP 165 |
| CLAIMANT: | Maria Megaloudis |
| INSURER: | AAI Ltd t/as GIO |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Wayne Mason |
| DATE OF DECISION: | 14 March 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 21 December 2017; modest rear-end collision; the dispute related to whether the degree of permanent impairment was greater than 10%; claimant re-examined; claimant had previous motor accident in 2014 and prepared statements in 2017 relating to her psychiatric condition; inconsistency with evidence to Review Panel; Review Panel’s opinion that claimant downplayed previous injury and subsequent unrelated events such as traumatic death of her mother; assessment significantly based on reservations that the claimant is an accurate and reliable witness; claimant showed ability to travel overseas since the motor accident; ability to concentrate evident from her presentation during the clinical examination; assessment of pre-existing condition based on materials in 2017 including son’s statement in October 2017; no deduction made for post-accident events given claimant’s denials; Held – claimant’s degree of permanent impairment assessed at 8% less 5% for the pre-existing condition; original assessment of permanent impairment revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the Medical Assessment Certificate dated 19 July 2023 and certifies that the following injuries caused by the motor accident does not give rise to a permanent impairment greater than 10%: · exacerbation of pre-existing persistent depressive disorder with anxious distress, and · exacerbation of pre-existing panic disorder. |
REASONS
BACKGROUND
On 21 December 2017 Ms Maria Megaloudis (the claimant) was injured in a motor accident. The claimant was slowing down at traffic lights when the insured vehicle rear ended the vehicle behind which in turn collided with the claimant’s vehicle.[1]
[1] Claimant’s bundle, p 257.
AAI Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Megaloudis any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in this medical dispute are whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
Pursuant to Schedule 2, cl 2 of the MAI Act, disputes about whether the extent of impairment is a medical assessment matter. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[4] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[4] Section 7.20 of the MAI Act.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Shen and dated 19 July 2023 (the medical assessment certificate).[5]
THE REVIEW
[5] Insurer’s bundle, p 506.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for which the review is sought.[6]
[6] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[7]
[7] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration. A further late application attached clinical records.
The Panel provided a further direction dated 8 August 2024 when we stated:
“The Review Panel issues the following direction:
1. We observe that the following material is before the Panel:
(a) Claimant’s bundle - 790 pages;
(b) Insurer’s bundle - 752 pages;
(c) Insurer’s supplementary bundle - 118 pages.
Either party is to immediately advise the Panel if this is incorrect.
2. The Panel notes the assessment undertaken by Dr Parmegiani dated 2 March 2017 (Insurer’s bundle, page 368). The claimant is to advise and provide any other assessments of permanent impairment undertaken prior to the subject motor accident.
3. The claimant is directed to produce the clinical records of the treating psychologist, Ms Lisa-Maree Poynter.”
The claimant uploaded further medical records which predated the motor accident.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[11] See s 3B(2) of the CL Act.
[12] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor found that the motor accident caused post-traumatic stress disorder and persistent depressive disorder.[13]
[13][13] Insurer’s bundle, p 7.
The Medical Assessor assessed permanent impairment at 44% and deducted 5% due to a pre-existing psychologic condition. The deduction was based upon Dr Parmigiani’s report in light of inconsistent responses to questioning of the pre-existing functioning.
MATERIAL BEFORE THE PANEL
Pre-existing conditions
The records of the general practitioner prior to the motor accident show regular prescription of Zoloft and Valium.[14]
[14] Insurer’s bundle, pp 45 – 66 and 110-111, 213 (list of medications).
Dr Julian Parmegiani, psychiatrist, was qualified by the claimant’s lawyers for the previous motor accident and provided a report dated 2 March 2017.[15] The doctor noted a history of postnatal depression which relapsed some seven years previously. The claimant reported that she separated from her husband prior to the previous motor accident.
[15] Insurer’s bundle, p 368.
Dr Parmegiani opined that the previous motor accident precipitated a relapse of a pre-existing major depressive disorder resulting in lack of energy, concentration and motivation with a resultant increase in the doses from 50 mg to 100 mg per day. The doctor noted the claimant worked 10 to 30 hours per week, drove independently and perform domestic tasks with assistance from her father and brother because of reduced motivation. Specialist psychiatric treatment was recommended. There was otherwise reduced social contact with the claimant seeing friends only once per month.
Particulars provided for the previous motor accident on 23 May 2014 refer to “anxiety when driving”, “anxiety” “depression” and “loss of concentration and motivation”.[16]
[16] Insurer’s bundle, p 26.
The claimant provided a statement dated 20 July 2017 when she noted:[17]
[17] Insurer’s bundle, p 29.
(a) was in good health prior to the motor accident on 23 July 2014 with a history of post-natal depression after the birth of twins 15 years previously;
(b) suffered various injuries in that motor accident to the neck, low back and both shoulders;
(c) since that motor accident has increased dosage of Zolot and used Diazepam to sleep;
(d) some days had no motivation and the emotional state was so bad that the boys had to stay at their dad/s house;
(e) when the claimant was bad she sent the boys to her dad’s place;
(f) spent time with her boyfriend in September 2016 but the relationship “has diminished due to the long distance” and they were “now friends rather than in a romantic relationship”;
(g) rarely has the motivation to go to the gym;
(h) lucky to go out of the house and walk as an exercise more than once per week;
(i) the father has taken the reins of the boys activities “particularly on the weekends” and she had “trouble getting motivated, driving and staying outdoors for prolonged periods”, and
(j) finds it hard to get motivated at work and recently took a month unpaid leave.
Dr Matthew Jones was qualified by the insurer for the previous motor accident and provided a report dated 8 August 2017.[18] The doctor obtained a history that driving makes the claimant nervous and she prefers public transport or travelling as a passenger. The claimant described a “very bad memory” and was the currently taking anti-depressant medication.
[18] Claimant’s supplementary bundle.
Dr Jones noted that there were reports of depressed mood consistent with a pre-existing depression with no specific psychiatric disorder caused by the previous motor accident. The doctor did not assess any permanent psychiatric impairment.
On 25 August 2017 the claimant consulted the general practitioner (GP) for depression.[19]
[19] Insurer’s bundle, p 44.
A statement by the claimant’s son dated 14 October 2017 noted that since the previous motor accident in 2014 the claimant:[20]
(a) was less motivated, lacking energy and did not drive around as much, and
(b) struggled with household chores and tasks such as shopping and cleaning.
[20] Insurer’s bundle, p 749.
Medical records post-accident[21]
[21] Insurer’s bundle, p 408.
The GP records show list of prescriptions for psychological medication from 2015 to February 2022.[22]
[22] Insurer’s bundle, pp 213 – 218.
On 6 July 2018 the GP noted that the claimant had a new boyfriend and was “keen to become pregnant”.[23]
[23] Insurer’s bundle, p 337.
On 26 November 2018 the GP noted that the depression “gets worse recently”.[24]
[24] Insurer’s bundle, p 228.
The records of the treating psychologist commence on 14 January 2019. They refer to:[25]
(a) son’s anger issues;
(b) mother’s ill-health which caused the postponement of a trip to Greece for free dental work;
(c) travelled overseas in mid-2019;
(d) concern for COVID-19 (2020);
(e) mother’s health was a source of ongoing stress (2020), and
(f) file closed in June 2020 with improvements in anxiety.
[25] Insurer’s bundle, pp 408-410.
Dr St George, psychiatrist, provided a report dated 29 December 2020[26] noting an initial consultation on 10 December 2019.
[26] Insurer’s bundle, p 55.
The doctor noted that since the motor accident the claimant was unable to drive without a support person present, returned to work and developed an alcohol use disorder and benzodiazepine disorder. With appropriate treatment, the claimant was able to cease alcohol use and has started walking short distances as part of exposure therapy.
Mr Carl Neilsen, psychologist, provided a report dated 20 October 2021.[27] The psychologist noted intrusive symptoms caused by the motor accident which included insomnia, nightmares, night terrors, flashbacks, mood fluctuations, negative thoughts and unwanted memories, emotional disturbances, hypervigilance, low self-esteem, stress and anxiety. The psychologist opined that the claimant was suffering from post-traumatic stress disorder and had been terminated from her position at Woolworths one month after the motor accident.
[27] Claimant’s bundle, p 253.
Ms Lisa-Maree Poynter, psychologist, provided a report dated 1 February 2023.[28] The psychologist noted ongoing symptoms which included difficulty sleeping, nightmares, flashbacks, panic attacks, mood fluctuations, continuing stress, diminished confidence, poor concentration, social withdrawal and multiple panic attacks daily.
[28] Claimant’s bundle, p 255.
Ms Poynter noted the claimant was currently on Zoloft 150 mg and Valium occasionally. Due to the intensity and severity of the symptoms the claimant was unable to work or study for at least a further 24 months.
Other records
A claim form dated 23 January 2018 referred to the motor accident when the insured vehicle failed to stop and collided with the rear of the claimant’s vehicle which pushed her into the vehicle in front. The claimant stated that she was not suffering illness or injury at the time of the motor accident.[29]
[29] Claimant’s bundle, p 551.
The records of the GP refer to other medical conditions unrelated to the motor accident such as left wrist fracture when dancing (2021),[30] bowel issues,[31] skin and rash issues[32] and sarcoidosis (an autoimmune condition) which commenced around 2008.[33]
[30] Insurer’s bundle, p 350.
[31] Insurer’s bundle, p 343.
[32] Insurer’s bundle, p 578.
[33] Insurer’s bundle, p 610; Insurer’s further bundle, p 72.
Pay records provided by Woolworths show regular earnings in employment until the week-ending 2 December 2018.[34]
[34] Insurer’s bundle, p 405.
The claimant provided a further statement dated 10 May 2024.[35] The claimant referred to her previous motor accident when she experienced symptoms of headaches, disrupted sleep, difficulty getting out of bed, irritability, fluctuating mood, loss of memory, and loss of concentration. Reference was made to the opinion of Dr Allnutt dated 6 August 2020 that those symptoms were in remission at the time of the subject motor accident.
[35] Claimant’s bundle, p 256.
The claimant referred to ongoing symptoms which included anxiety, depressed mood, rumination, hypervigilance, avoidance, nightmares and flashbacks, intrusive thoughts, panic attacks, insomnia, appetite disturbance, weight fluctuations, catastrophise and, feelings of hopelessness, poor concentration, poor memory, diminished interest, decreased self-confidence and social withdrawal.
The claimant consumed Valdoxan 25 mg, Zoloft 150 mg, Valium 5 mg when needed and Sertraline 150 mg.
The claimant stated that she ceased work in 2018, but her employment was officially ceased on 9 October 2019 as she received leave payments until that date.
The claimant’s stated that prior to the motor accident she was domestically independent, was an active person and enjoyed going to the gym and for long walks on a regular basis. Since the motor accident the claimant stated that she has become socially withdrawn did not participate in leisure activities and hobbies of taking the dog out for walks. She was unable to watch television news programs as they increased her anxiety.
The claimant stated that she was unable to be motivated to look after herself and that her sons usually look after the home and go shopping for her. She had lost 10kg since the motor accident.
The claimant said that she rarely drove locally and disliked using public transport as that heightened anxiety. The only real exercise she got was taking a dog out for short walks.
The claimant noted that following the motor accident she engaged in self-medicating behaviour such as drinking every night. In late 2021 she reduced alcohol consumption, and she currently drinks one to two times per week.
The claimant described the death of her mother approximately two years ago as a shock to her and had an emotional impact on herself and the members of her family.
Qualified opinions
Dr Graham George, psychiatrist, was qualified by the insurer and provided a report dated
28 April 2020.[36] The doctor opined that the motor accident caused an exacerbation of a major depressive disorder with elements of post-traumatic stress disorder in combination with alcohol use disorder.[36] Insurer’s bundle, p 374.
Dr George noted that the abuse of alcohol had been controlled with psychological treatment and that, whist significant, was largely in remission.
Based on the findings of Dr Parmigiani, Dr George estimated the pre-accident ppsychiatric impairment rating scale (PIRS) as a median class 2 with an impairment of 4%. Class 2 assessments were made for self-care and personal hygiene, social and recreational activities and adaptation.
Dr George provided an assessment of impairment at 6% with an increase for adaptation (to class 3), concentration persistence and pace (class 2) and an allowance of 1% for treatment effects. The impairment after the pre-existing deduction was 2%.
Dr Stephen Allnutt, psychiatrist, was qualified by the claimant’s solicitors and provided a report dated 6 August 2020.[37] The doctor noted reasonable mood, inadequate sleep, appetite, energy and motivation and that the claimant was taking Zoloft, 50 mg at the time of the motor accident and was not regularly seeing a mental health professional. Dr Allnutt recorded a history that the claimant was “emotionally and psychologically … well at the time of the index injury [with] reasonable mood inadequate sleep, appetite, energy and motivation.”
[37] Claimant’s bundle, p 40.
The doctor noted a history that the applicant returned to work after the motor accident and lasted about two weeks due to anxiety and panic attacks.
Dr Allnutt diagnosed the claimant with chronic post-traumatic stress disorder secondary symptoms of depression. The doctor noted that if the claimant did not meet criterion A for the diagnosis of post-traumatic stress disorder than the diagnosis was a major depressive disorder with post-traumatic stress symptoms.
Dr Allnutt assessed permanent impairment at 15% with assessments of class 3 for adaptation, concentration persistence and pace and social and recreational activities.
Dr Allnutt provided a further report dated 9 December 2021.[38] The doctor noted a cessation of consultations with the psychologist and psychiatrist.
[38] Claimant’s bundle, p 58.
Dr Allnutt opined that the prognosis was unchanged, there was some improvement which was relatively limited, and the prognosis was poor. The assessments changed so that the doctor opined that the claimant was now assessed at class 3 for social functioning.
Other events
On 16 October 2018 the GP noted the claimant had “depression/anxiety” was “under stress” and the doctor referred to the “details in letter”.[39] That letter referred to the claimant being “extremely depressed” after an amount of $10,300 was “taken from her bank account without her permission”.[40]
[39] Insurer’s bundle, p 226.
[40] Insurer’s bundle, p 339.
SUBMISSIONS
Claimant’s submissions dated 13 July 2022[41]
[41] Claimant’s bundle, p 2.
These submissions addressed the motor accident and the ongoing psychological impact from the motor accident. The claimant conceded that her whole person impairment as a result of the physical injuries was not greater than 10%.
The claimant relied on the opinion of Dr Allnutt, qualified psychiatrist expressed in two reports in 2020 and 2021. It submitted that the pre-existing condition had largely resolved prior to the motor accident.
The claimant referred to the following supporting a diagnosis of psychiatric injury caused by the motor accident:
(a) 1 February 2018 reported to Dr Lim that she had flashbacks, anxiety when driving as well as avoidance of driving;
(b) 16 October 2018 Dr Pam observed that the claimant suffered a major depressive and anxiety disorder;
(c) 15 May 2019 Mr Buttel, psychologist, diagnosed the claimant with depression and anxiety;
(d) 20 May 2019 the GP noted that the physical injuries caused by the motor accident had resolved the claimant suffered from increasing depression and increased the dosage of Zoloft to 150 mg;
(e) 6 November 2019 Dr Lim noted severe psychological distress and increase the dosage of Zoloft to 200 mg;
(f) 10 December 2019 Dr St George noted the claimant suffered psychological symptoms including intrusive thoughts, insomnia, hypervigilance, irritability, positive effective blending, anxious ruminations with anxiety attacks, low mood, social withdrawal and avoidance behaviour;
(g) 7 January 2020 Nr McDonald, psychologist, noted the claimant was reliving the traumatic event;
(h) 4 February 2020 Dr St George noted that the claimant had started on Valdoxan the continued with Sertraline. Further clinical records of Dr St George recorded ongoing psychological symptoms due to the accident;
(i) 29 December 2020 Dr St George noted the claimant had responded well to medication and had become acutely destabilised as a result of increased exposure driving and recommended ongoing psychological treatment, and
(j) consultations with Dr Allnutt in 2020 and 2021 supported the ongoing impacts from the motor accident.
Insurer’s submissions dated 16 August 2023[42]
[42] Insurer’s bundle, p 1.
The insurer noted inconsistencies in subjective reporting when compared to treating records and referred to the following matters:
Travel
(a) Dr Allnut (December 2021) recorded that the claimant was capable of driving to familiar places on our own such as Woolworths;
(b) Dr George (April 2020) recorded that the claimant had resumed driving independently, and
(c) vocational capacity Centre report reported that the claimant owned an Audi which she drove on her own.
Social functioning
(a) the insurer referred to the history obtained by the Medical Assessor’s reported good relationships with both sons and the relationship with the father was “ok”, and
(b) a statement dated 20 July 2017 noted that the relationship with the long-distance partner, Abel, had diminished due to the long-distance and the relationship was described as a “friendship” rather than a “romantic relationship”.
Adaption
(a) the history obtained by the Medical Assessor was that the claimant ceased work a few weeks after the motor accident. The Woolworths payable payroll records show that the claimant worked until 9 October 2019, and
(b) the report of the vocational capacity centre by Mr Bright psychologist accepted suitable employment options for the claimant which included sales assistants, checkout operator and sandwich hand. There was no engagement with that opinion.
The insurer submitted that the Medical Assessor had adopted the findings of Dr Parmegiani without forming an opinion of the pre-existing condition based on the entirety of the evidence. In respect of the evidence concerning the pre-existing condition, the insurer referred to:
Social and recreational activities
(a) the claimant in a statement dated 20 July 2017 stated she was unwilling to see people at times following the previous motor accident, no longer went on walks or to the gym to the low motivation;
(b) Dr Parmegiani reported that the claimant’s contact with friends reduced to once a month following the previous motor accident, and
(c) these histories accorded with a class 2 or 3 impairment before the motor accident.
Social functioning
(a) the insurer submitted that the loss of partner does not yield a class for impairment and otherwise fail to reach his own conclusion.
The insurer submitted that the Medical Assessor failed to address the requirements set out in cl 6.222 of the Guidelines when assessing 1% adjustment for the effects of treatment.
Insurer’s submissions dated 9 August 2022[43]
[43] Insurer’s bundle, p 20.
The insurer noted extensive history of psychiatric symptoms reported to the GP prior to the motor accident including the reporting of symptoms of depression on 16 August 2011 and the prescription of Zoloft since that time. The claimant was involved in a motor accident on
23 July 2014 and was intermittently prescribed Valium thereafter.Dr Julian Parmegiani provided a report dated 2 March 2017 and noted previous histories of depression. Histories recorded to Dr Parmegiani included failed to shower daily, need for this domestic assistance, father and brother due to lack of motivation and loss of contact with friends reduced to once per month.
The insurer referred to the claimant’s statement dated 20 July 2017 where she complained of significant psychiatric symptoms.
The insurer referred to the opinion expressed by Dr George dated 28 April 2020. It noted that Dr Allnut did not make any abduction for pre-existing psychiatric impairment.
The insurer referred to multiple post-accident stresses that were unrelated to the accident and must be considered including:
(a) 16 October 2018 – fine taken out of the claimant’s bank account;
(b) 18 March 2019 – claimant’s mother hospitalised;
(c) 29 April 2020 – anxious due to COVID-19;
(d) 21 May 2020 – mother source of ongoing stress, and
(e) 16 March 2021 – witnessing mother pass away.
The insurer submitted that the cause of the psychiatric complaints must be considered in light of the claimant’s pre-accident and post-accident history.
The insurer submitted that there was no change in all PIRS categories save as to adaptation. It noted that the history with respect to adaptation is incorrect and the cessation of employment with Woolworths coincided with a period when the claimant’s mother fell ill.
RE-EXAMINATION
Ms Megaloudis was examined by both Medical Assessors on 23 October 2024. The examination report is as follows:
“Brief Personal Details
Ms Megaloudis is a 54-year-old woman who lives with her 23-year-old son in a granny flat at the rear of her father's home in a Sydney suburb. She stated she is not working and has been in receipt of the disability support pension for 12 months for the conditions post-traumatic stress disorder and major depressive disorder. She said her son is not working because he has to stay home to look after her all the time. She acknowledged he is not in receipt of a carers benefit.
Psychosocial and Pre-Accident History
Ms Megaloudis was born in a hospital in Newtown. She was unable to provide information about her birth. She described development as normal. Her 80-year-old father is a retired motor mechanic. Her mother died of a ruptured aortic aneurysm at 76 years of age in 2021. She has an older brother George aged 58 years; she described him as a heroin addict.
She described a happy normal childhood in which she suffered no form of abuse. She attended Undercliff public school and Kogarah high school. She left school before completing year 9. She denied any difficulties at school saying she was not bullied and was not unhappy. She stated she had no trouble with schoolwork.
She initially went to work as a sales assistant in a supermarket and from there progressed to work in the delicatessen departments of both Coles and Woolworths supermarkets. At the time of the motor accident she was employed on a permanent part-time basis by Woolworths doing 20 – 30 hours/week.
Ms Megaloudis seemed reluctant to provide details of her relationship with her ex-partner John. She believes they got together in 1992 when she was 22 years of age and they separated in 2016. It appears he made the decision to leave the relationship. She said she has not been involved in any relationships since then, stating that was ‘the last thing on her mind’.
Ms Megaloudis said leisure activities prior to the motor accident consisted of going to the gymnasium 3 times per week and meeting up with friends for coffee or getting their nails done. She said they visited each other at their homes. She also enjoyed getting out in nature and bush walking. She stated she did not have any hobbies.
When asked about previous motor vehicle accidents she said there had been a motor vehicle accident which resulted in a claim and a settlement for physical injuries to her neck and back. She also added she got ‘a little bit depressed’. She could not remember when this was. The records indicate the accident was on 23 July 2014. At that time she had been on Centrelink benefits for the previous 5 months. That motor accident occurred on Rocky Point Rd when an oncoming vehicle made a right-hand turn into Clarkes Road across her path and she was unable to avoid a T-bone collision with that vehicle. Psychiatric symptoms consisted of anxiety, disturbed sleep, loss of concentration and motivation, increased distress, susceptibility to worry, depression, and anxiety when driving. She consulted her GP 2 or 3 months later. She told the psychiatrist panel members that all the symptoms had settled prior to the subject motor accident. She said she could drive again, was happy, was back to running the household, was looking after the children and was getting back into work.
Previous work injury consisted of cutting a finger at work in 2014 which severed a tendon. She said she required surgical repair which was paid for by her employer and she was able to return to work.
Ms Megaloudis denied any history of problems with the law apart from parking fines.
With regard to medical history she reported her mother suffered from rheumatoid arthritis. Ms Megaloudis developed the autoimmune condition sarcoidosis which was diagnosed by liver biopsy in 2009. She was subsequently treated with both prednisone and methotrexate. She denied any history of hypertension or hypercholesterolaemia. Subsequent to the motor accident in May 2021 she said she “sprained” her left wrist. When further questioned she acknowledged she had suffered a left wrist Colles' fracture requiring open reduction and internal fixation. She said she tripped, whereas her doctor reported she had fallen while dancing. When questioned about this she insisted she had tripped. When specifically questioned she said there had been no further surgery or intervention.
Family medical history was initially denied. When questioned about the fact that she had requested CT scans because of fear of a cerebral aneurysm she acknowledged this arose from the fact that her mother's aortic aneurysm was thought to pose a genetic risk. She said her GP had advised her to have the scans. She acknowledged ongoing anxiety in relation to this issue.
When asked about past psychiatric history Ms Megaloudis denied this had been the case. The question was repeated on 3 further occasions and on each occasion she denied past psychiatric history. She also denied any family history of psychiatric illness apart from her brother’s heroin addiction.
Current medications consist of sertraline 150 mg daily prescribed by her general practitioner Dr Peng. She also uses diazepam 5 mg for anxiety approximately twice weekly or at night to help her sleep. She said she does not take any medication for her autoimmune condition.
Ms Megaloudis stated she had stopped using cigarettes 5 years ago but does use vapes; she appeared reluctant to indicate how frequently she vapes and it was not possible to get an estimate. She acknowledged using 2 or 3 glasses of wine or a Valium tablet per night immediately subsequent to the motor accident for approximately 12 months but said this has been significantly reduced for a number of years. She does not use recreational drugs, does not gamble and consumes only 1 cup of coffee per day.
History of Motor Accident
Ms Megaloudis said she was driving to work on King Georges Road and was stopped in a line of traffic with stationary vehicles both behind and in front of her. She could not remember the car she was driving. There was a loud bang when she was rear ended. Her seatbelt was worn but airbags did not deploy; she said airbags deployed in the car behind her. She believes she hit the car in front and thinks she hit her head on the steering wheel. She said 4 or 5 cars were involved in the accident; hers was vehicle 4 of 5. Police attended and she provided details. Her vehicle was towed away. She phoned her father who came and took her home. She said he talked to her and she was okay and she then felt normal for a few days.
History of Symptoms and Treatment Following the Motor Accident
Ms Megaloudis said she continued to work but in the second week she felt nauseous and began to experience anxiety. She remembers serving a customer when she broke out in a sweat as she was wrapping ham. She said she felt hot and had to run out of the store onto the street. She took deep breaths and then returned to work and finished her shift because she had to close the shop. Following that she said she was more easily startled. She said she had never had such an experience before in her life.
She described the ongoing development of anxiety and increasing panic attacks. She said she thought she was going mad and because of this was afraid to attend the doctor. She thought she might be declared insane and locked away. She also said she felt ashamed.
Ms Megaloudis spoke to a friend who advised that she was probably suffering from anxiety. She said she had never thought that might be the case. She said when an attack came on she had to wet her face to try to cool herself down. After an attack she said she felt thirsty and tired. She said she continued to go to work for a while but she struggled.
At some later point she developed flashbacks. She said these consisted of being woken from dreams of being chased by lions or being involved in a motor accident. She said she would wake up in a fright. These developed 1 or 2 months after the motor accident. She then began to experience intrusive thoughts of the motor accident. She said this happened during the day and she would see the whole thing happening in front of her. She did not describe these events being set off by any particular trigger or cue.
She repeated she was afraid the doctors would think she was crazy. She said she was scared all the time, did not want to cook and would have to have a shower after an attack. She again repeated she thought she would be locked away. When asked how long she continued to attend work she said she thought it was a few months.
She then started to say something about her father but forgot what it was. At this point she requested a break because of anxiety and she took a few brief moments to gather herself. She said she was doing the breathing exercises she had been taught.
Ms Megaloudis then remembered about her father. She said he was very concerned about the state of her teeth. She said he took her to Barcelona to have dental implants. She added her uncle in Greece was a dentist and they also travelled there. Her uncle tried to help her relax using hypnosis. She believes they were away for 2 months but she could not provide a timeframe. She offered August and September as a possible timeframe. She was advised the records indicate that she missed work in May and June 2018 but she did not seem to think she was away at that time.
It was difficult to obtain details of when she ceased work. She was extremely vague when questioned about this. She said she continued at work for a while and struggled with the symptoms of anxiety and panic attacks. She was informed the employment records from Woolworths indicated she continued working significant hours up until November 2018. She said she was unable to remember.
After returning to Sydney from Greece she said she attended Dr Peng and he told her to go to Workers Doctors Parramatta where she saw a lot of psychologists and a psychiatrist. At Workers Doctors she was treated by psychiatrist Dr Nirinjen St George and at least 8 different psychologists. Dr St George introduced agomelatine and continued sertraline. By May 2020 he noted nightmares and panic attacks had reduced and she was able to resume driving. Diagnosis was post-traumatic stress disorder and major depressive disorder and at some point, she was treated with quetiapine. She was continued on the antidepressant sertraline with dosages between 150 mg and 200 mg.
As noted above on 16 March 2021 she reported to GP Dr Peng that her mother had died suddenly due to rupture of an aortic aneurysm. Her father called her for assistance. She noted this was distressing and she was not able to stay in the room with her. However, she denied that it added significantly to her anxiety or depression. She said she thinks she may not have been able to grieve properly but denied that it had an impact on her mental health.
Ms Megaloudis complained that she had been seeing psychologists at Workers Doctors but after being assessed by Dr Graham George in April 2020 the insurer declined to continue funding psychological and psychiatric treatment.
She said she was then referred to psychologist Ms Lisa Maree Poynter in Marrickville. She saw her for 18 months for CBT treatment which she found helpful in containing anxiety symptoms. However Ms Poynter declined to provide further sessions after the insurer refused payment. In a report dated 1 February 2023 Ms Poynter indicated Ms Megaloudis was first seen on 23 March 2022 but she did not indicate how many sessions were attended. Ms Megaloudis was not able to remember but was distressed and hurt that Ms Poynter did not return her calls.
it was difficult to be sure, but it appears her last psychological treatment was during 2023. She did not receive psychiatric treatment apart from Dr St George when she was attending Workers Doctors. Since then, her psychotropic medications have been managed by GP Dr Peng.
Injuries and Conditions since the Motor Accident
Ms Megaloudis became distressed in October 2018 when $10,300 was removed from her bank account by State Revenue NSW. She said this was for accumulated unpaid fines. She employed a lawyer who she said was able to get the money refunded. She was also referred by GP Dr Peng to psychologist Mr Thomas Buttel for assistance in this matter. He apparently provided a report which assisted her greatly. She said she did not continue to see him because he had no interest in her apart from getting the money back.
On 14 November 2019 she was referred to IVF Australia for assistance with conception. When questioned about this she stated she was not in a relationship and was just saving her eggs in case she wanted to have another child.
On 16 March 2021 her mother died suddenly at home due to rupture of aortic aneurysm. Ms Megaloudis stated this did not really affect her. In March 2022 Dr Peng noticed she was under stress due to family issues, and she wanted to see a psychologist. Ms Megaloudis said this was not significant and did not elaborate. In May 2021 she suffered a Colles' fracture while dancing which caused significant physical difficulty; it required ORIF and being in a cast for a number of weeks.
Current Symptoms
Ms Megaloudis said she wakes up depressed. She stated there were some days when she does not want to exist, but she would not take her own life because of her son. She said he has totally given up his life to look after her and she could not do that to him.
She said she is anxious all the time and this interferes with her ability to be around people. She said she does not attend beauty or hair appointments because she could not care less about her appearance.
Loud unexpected noises startle her but she is able to walk to the park with her cavoodle Bella which she said calms her down. She said sometimes her son accompanies her but she is also able to go for walks on her own.
She complained of ongoing insomnia. She goes to bed at 1 or 2 or 3 AM and gets up around 11 AM. She said she does not take any naps during the day. She said she tries to avoid going to sleep because of fear of nightmares. During the day she is not interested in doing much and simply lies down on the lounge. She said she finds it difficult to enjoy anything but she does keep going for her sons or otherwise there would be no point in life.
When asked about panic attacks she said they can still occur twice daily and she remains generally anxious.
Current and Proposed Treatment
There is no current or proposed treatment apart from attending her GP and continuing to use sertraline 150 mg and diazepam 5 mg twice weekly. She said Dr Peng has made two further referrals to psychologist, but she could not be bothered phoning them. She put the referrals in her drawer and forgot about them. Effectively treatment remains the same as prior to the subject motor accident.
Mental State Examination
Ms Megaloudis is a 54-year-old right-hand-dominant woman whose appearance is consistent with her stated age. She was neatly dressed and well presented. She was located alone in a room in her lawyer’s office in the city of Sydney. She had travelled to the interview in an Uber. She was interviewed using the Microsoft Teams application with a good internet connection. She did not have any identification documents. The interview commenced at 9 AM and concluded at 11 AM.
She was cooperative with the interview to some degree. She initially complained that it was unfair the interview needed to be done again. She described anxiety at being inside a room with the door closed even though it appeared to be quite a spacious board room. She arranged with staff for the door to be left open. She had a tendency to speak over the top of the interviewer and to provide details which did not address the question being asked. She frequently responded to questions with ‘I do not remember’.
She was mildly depressed in appearance but displayed a full range of appropriate affect. On 3 occasions she asked for a break for a few minutes while she calmed herself down. She complained a number of the questions were distressing. She nonetheless provided a good account of the motor accident and the death of her mother without significant distress. Her memory for some events was meticulous while she was unable to remember the details of any event that did not present her in the light of a significantly distressed victim.
As noted above Ms Megaloudis appeared to struggle with claustrophobia and required the door of the meeting room to be open. She experiences anxiety in lifts but had used a lift to reach the lawyer’s offices. She appeared to be in a high-rise building near a window and when questioned about acrophobia stated it was not a problem.
There was no evidence of impaired concentration throughout the 2-hour interview and when held to task she was able to respond appropriately.
Ms Megaloudis was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.
Current Functioning
Self-care and personal hygiene: Ms Megaloudis said she showers every 2nd day. Her son does the laundry, and she wears clean clothing. She said she is not motivated to cook but she is able to do the vacuum cleaning. She relies on her son to do some of the housework. She is able to live independently and look after herself adequately. She is mildly impaired.
Social and recreational activities: Ms Megaloudis said she is able to take her dog Bella for a regular walk and have coffee. She is also able to go on a walk without her. One close friend visits intermittently. She said she does not go out for a meal and does not attend entertainment venues because of anxiety. She is moderately impaired.
Travel: Ms Megaloudis is able to drive in the local area if accompanied. She is able to travel in a motor vehicle driven by another person and she attended the interview in an Uber. She described being unable to use a bus or train because of fear of panic attacks. She has been able to travel overseas both before and after the subject motor accident. She is mildly impaired.
Social functioning: Ms Megaloudis was not in a relationship prior to the motor accident and said she has not been in another relationship since. She maintains a good connection to her ex-husband, her children and her father. Her friendship group has reduced. She is mildly impaired.
Concentration, persistence and pace: Ms Megaloudis described difficulty with her concentration. She said she was not able to watch a movie without losing focus. However, she was able to watch the news. She said she uses an app to improve her concentration. The app is called Word Trip which requires the solver to find hidden words in scrambled letters; she was able to identify 3 words. The panel noted she was able to maintain concentration throughout the 2-hour interview. She is mildly impaired.
Adaptation: Ms Megaloudis said she wants to return to work but at the moment cannot do so because of anxiety and fear of panic attacks. She receives the disability support pension. She is able to do some work in her role as a parent and housekeeper. She was unable to satisfactorily explain why she was able to work until December 2018. She is severely impaired.
Consistency of Presentation
There were multiple inconsistencies throughout her presentation.
· She told the panel she had not been involved in relationships since separating from the husband. The GP documentation indicates she was in a relationship with a man called Abel from Spain prior to the accident and that he had returned to Spain.
· The record of Dr Peng indicates she was referred to IVF Australia on a number of occasions which appeared to be related to the above relationship. On 6 July 2019 her GP Dr Peng recorded she had a new boyfriend and wanted to become pregnant. She denied such a relationship existed and said she was simply saving eggs in case she wanted to have another child.
· When asked about psychiatric symptoms following the 2014 motor accident, she diminished these by saying she was "a little bit depressed". Further and better particulars from Brydens Lawyers dated 23 May 2017 contained the following; ‘Psychiatric symptoms consisted of anxiety, disturbed sleep, loss of concentration and motivation, increased distress and susceptibility to worry, depression, and anxiety when driving.’ The statement of her son Raphael on 14 October 2017 confirmed these symptoms.
· When specifically questioned Ms Megaloudis denied any history of problems with the law. On further questioning she confirmed State Revenue had removed $10,300 from her bank account for accumulated unpaid fines. She required legal and psychological assistance to deal with this matter.
· When specifically questioned about surgery while obtaining past medical history she reported the Colles' fracture which she said did not occur while dancing as recorded by her GP.
· She did not report breast augmentation and liposuction obtained overseas in 2016. When questioned about this she acknowledged that it did take place.
· When specifically questioned about past psychiatric history on 4 occasions she stated there was none. Later in the interview she was questioned about this and acknowledged she had postnatal depression in 2002 when her sons were born. She indicated she soon recovered. When further questioned about the fact that she had used antidepressants constantly since then she reluctantly acknowledged this was the case. In her statement dated 10 May 2024 she acknowledged alopecia in one of her sons and diagnosis of sarcoidosis and cholecystectomy in 2008/9 resulted in exacerbation of depression.
· At interview she described the development of panic attacks caused by the motor accident and made the statement that “she had never had such an experience before in her life”. On 15 September 2010 she had presented to GP Dr Kirlous of Ramsgate with a panic attack, and he had prescribed diazepam 5 mg twice daily. When questioned about this she acknowledged it was the case.
· She was informed the employment records from Woolworths indicated she continued working significant hours up until November 2018. She said she was unable to remember.
· Ms Megaloudis said after she returned to Sydney from Spain and then Greece she attended Dr Peng who referred her to Workers Doctors. This would indicate she was referred in June or July 2018. The first mention of the motor accident in
Dr Peng's records was in 20 May 2019 when he diagnosed PTSD secondary to a motor accident 1.5 years ago. She was not able to explain this discrepancy.· The clinical record of Workers Doctors Parramatta dates from 1 February 2018 until 8 May 2023. She initially attended on 1 February 2018 and then did not return again until 6 November 2019, which was 21 months later. She was not able to explain why this was the case.
Diagnosis and Reasons
·Ms Megaloudis suffered from a pre-existing persistent depressive disorder with anxious distress commencing in 2002. At various times this condition reached the level of a major depressive disorder. She was first diagnosed with panic disorder in 2010. She has required treatment with antidepressant and antianxiety medication almost continuously since 2002. This treatment has largely been provided by her general practitioner.
·The panel does not accept that Ms Megaloudis has developed post-traumatic stress disorder. The subject motor accident does not meet Criterion A for diagnosis of that condition. The panel is aware she has been granted the disability support pension for symptoms of post-traumatic stress disorder and depression. The claimant does not meet DSM-5-TR criteria for post-traumatic stress disorder. The panel specifically disagrees with the diagnosis of post-traumatic stress disorder by the claimant's IME psychiatrist Dr Stephen Allnutt in December 2021.
·The panel concluded the appropriate diagnosis is exacerbation of pre-existing depressive disorder with anxious distress and exacerbation of pre-existing panic disorder. The panel note there has been no significant difference in the treatment she has received from prior to the subject motor accident and no significant difference in her symptoms.
·Ms Megaloudis meets DSM-5-TR criteria persistent depressive disorder with anxious distress as follows:
Criterion A: She described depressed mood most of the day for more days than not for at least 2 years.
Criterion B: She described insomnia, low energy and fatigue, low self-esteem, poor concentration and feelings of hopelessness.
Criterion C. The symptoms have never been absent for more than 2 months at a time.
Criterion D. Criteria for major depressive disorder have been intermittently met.
Criterion E. There has never been a manic or hypomanic episode.
Criterion F. The condition is not better explained by another major psychiatric disorder.
Criterion G. The condition is not due to a substance or another medical condition.
Criterion H. She described distress and impairment in social and occupational functioning.
The appropriate added descriptor is ‘with anxious distress’.·Ms Megaloudis meets DSM-5-TR criteria for panic disorder as follows:
Criterion A. She experiences recurrent unexpected panic attacks. She described palpitations, sweating, trembling, shortness of breath, nausea, heat sensations, and a fear of losing control.
Criterion B. She described persistent worry about additional attacks and a maladaptive change in her behaviour caused by the attacks.
Criterion C. It is not due to a substance or another medical condition.
Criterion D. It is not better explained by another mental disorderCausation and Reasons
· Ms Megaloudis was involved in a relatively minor motor accident 7 years and 3 months ago. She said she was rear ended and pushed into a car in front of her. While the accident may have caused distress it was not life-threatening. She did not describe the development of physical injury.
· The panel note that Ms Megaloudis was a vulnerable individual in that she suffered from pre-existing conditions of persistent depressive disorder with anxious distress and panic disorder. There had been a previous motor accident in 2014. Given her pre-existing vulnerability it is not unlikely the motor accident was of sufficient severity to cause a deterioration in her condition. The panel concluded the motor accident did cause an exacerbation of pre-existing persistent depressive disorder with anxious distress and panic disorder.
Whole Person Impairment Assessment
| Psychiatric diagnoses | 1. Exacerbation of pre-existing persistent depressive disorder with anxious distress | 2. Exacerbation of pre-existing panic disorder |
| 3. | 4. | |
| Psychiatric treatment description | GP consultation | |
| Category | Class | Reason for Decision |
| 1. Self Care and Personal Hygiene | 2 | Ms Megaloudis said she showers every 2nd day. Her son does the laundry and she wears clean clothing. She said she has no motivation to cook but she is able to do the vacuum cleaning. She relies on her son to do some of the housework. She is able to live independently and look after herself adequately. She is mildly impaired |
| 2. Social and Recreational Activities | 3 | Ms Megaloudis said she is able to take her dog Bella for a regular walk and have coffee. She is also able to go on a walk without her. One close friend visits intermittently. She said she does not go out for a meal and does not attend entertainment venues because of anxiety. She is moderately impaired. |
| 3. Travel | 2 | Ms Megaloudis is able to drive in the local area if accompanied. She is able to travel in a motor vehicle driven by another person; she attended the interview in an Uber. She described being unable to use a bus or train because of fear of panic attacks. She has been able to travel overseas both before and after the subject motor accident. She is mildly impaired. |
| 4. Social Functioning | 2 | Ms Megaloudis was not in a relationship prior to the motor accident and said she has not been in another relationship since. The panel found this history to be inconsistent with the documentation provided. She however maintains a good connection to her ex-husband, her children and her father. Her friendship group has reduced. She is mildly impaired. |
| 5. Concentration, Persistence and Pace | 2 | Ms Megaloudis described difficulty with her concentration. She said she was not able to watch a movie without losing focus. However she was able to watch the news. She said she uses an app to improve her concentration. The app is called Word Trip which requires the solver to find hidden words in scrambled letters; she was able to identify 3 words. The panel noted she was able to maintain concentration throughout the 2-hour interview. She is mildly impaired. |
| 6. Adaptation | 4 | Ms Megaloudis said she wants to return to work but at the moment cannot do so because of anxiety and fear of panic attacks. She receives the disability support pension. She is able to do some work in her role as a parent and housekeeper. She was unable to satisfactorily explain why she was able to work until December 2018. She is severely impaired. |
| List classes in ascending order: 2 2 2 2 3 4 | ||
| Median Class Value: 2 | ||
| Aggregate Score: 15 | ||
| % Whole Person Impairment: 8% | ||
*%WPI = Percentage Whole Person Impairment
Psychiatric Impairment Rating Scale – Pre-existing impairment
Ms Megaloudis is not regarded as a consistent historian. She stated there was no impairment in any PIRS category prior to the motor accident. Review of the documentation does not support this assertion. Histories obtained by IME psychiatrists Dr Parmegiani
(2 March 2017) and Dr George (28 April 2020) provide different information. The statement by her son Mr Raphael Megaloudis dated 14 October 2017 also provides different information.
| Psychiatric diagnoses | 1. Persistent depressive disorder with anxious distress | 2. Panic disorder |
| 3. | 4. | |
| Psychiatric treatment description | GP consultation | |
| Category | Class | Reason for Decision |
| 1. Self Care and Personal Hygiene | 2 | Ms Megaloudis stated there were no problems prior to the motor accident. The panel note her son's statement dated 14 October 2017 that she had no energy and could not attend to household activities and her twin sons had to help out after school. She was mildly impaired. |
| 2. Social and Recreational Activities | 1 | Ms Megaloudis stated she was seeing friends, and meeting them to have coffee and have her nails done. Dr Parmegiani reported she was more socially withdrawn and Dr George noted she had some anxiety going out prior to the 2017 motor accident. The panel accepted her account and recorded no impairment |
| 3. Travel | 1 | Ms Megaloudis stated she had returned to driving without anxiety. The panel accepted her account and recorded no impairment. |
| 4. Social Functioning | 2 | Ms Megaloudis had separated from her husband in 2016. She stated she was not in a relationship. However, the claimant maintained a good relationship with her children. She was mildly impaired. |
| 5. Concentration, Persistence and Pace | 2 | Ms Megaloudis stated there was no difficulty with concentration, persistence or pace prior to the motor accident. The statement of her son which we accept and immediately pre-dates this accident contradicts this assertion. |
| 6. Adaptation | 2 | Ms Megaloudis was working part-time between 20 and 30 hours/week. She was mildly impaired. |
| List classes in ascending order: 1 1 2 2 2 2 | ||
| Median Class Value: 2 | ||
| Aggregate Score: 10 | ||
| Pre-existing % Whole Person Impairment: 5% | ||
*%WPI
Apportionment – pre-existing impairment
Ms Megaloudis developed postnatal depression following the birth of her sons in 2002 and has required ongoing antidepressant and intermittent antianxiety medication ever since. There is a history of anxiety and panic attacks. She was involved in a previous motor accident in 2014. The panel has calculated 5% whole person impairment prior to the subject motor accident.
There were a number of traumatic events subsequent to the motor accident. A court case over an unpaid $10,300 debt required psychological counselling. She started she was not psychologically affected by the death of her mother. Ms Megaloudis denied these events had any significant psychological impact. The panel accepted there was no requirement for assessment of subsequent impairment
Effects of treatment
There is no evidence that treatment has been effective. Psychological treatment ceased some time previously. The claimant was on similar medication prior to the motor accident There is no requirement for a treatment effect allowance.
CONCLUSION – PERMANENT IMPAIRMENT
Degree of permanent impairment caused by the motor accident
8% - 5% = 3%
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[44]
[44] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[45] and Insurance Australia Ltd v Marsh.[46]
[45] [2021] NSWCA 287 at [40], [41] and [45].
[46] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the detailed examination report provided by the Medical Assessors supplemented by the following further reasons.
The Panel expresses reservations about the claimant’s account which downplayed or otherwise denied the clear pre-existing psychiatric condition and sought to downplay other events after the motor accident. Any event after the accident was downplayed by the claimant as not significant despite the records which suggested otherwise.
The claimant’s account is that a relatively modest rear end motor accident is now contributory of claimed significant functional incapacity assessed under the PIRS categories. Given the inconsistency between various recorded histories which were drawn to the claimant’s attention and her lack of recollection or denial in response, we have not accepted the claimant’s account at face value.
The statement by the claimant’s son dated 14 October 2017, probably prepared for the 2014 accident proceedings, is grossly inconsistent with the claimant’s account of her pre-injury condition. It is concerning and is an important factor in an adverse determination of her credit, that the claimant has brought a prior claim for the 2014 motor accident based on the statement evidence, resolved those proceedings and then denied, in these proceedings, the previous situation reflected in those statements.
It is the view of the Panel that the claimant would say anything that downplayed her past condition and downplayed subsequent events such as the death of her mother. The Panel felt that this event was of a distressful nature to the claimant based on their clinical expertise and because it was a very sudden and distressing event. The clinical records of the treating psychologist referenced earlier show that the claimant was significantly affected by other post-accident events including the poor health of her mother.[47]
[47] See [34] herein.
We have reviewed the various medical opinions which are summarised earlier in the history or in the examination report. These reports are outdated. Our assessment is also significantly based on our reservations that the claimant is an accurate and reliable witness.
The claimant has shown an ability to travel overseas. Other histories recorded in these reasons[48] include a resumption of travel and independent use of a vehicle. In these circumstances we do not consider an assessment other than mild (class 2) is warranted for travel.
[48] See [66] herein.
We are conscious that we must assess the claimant as she currently presents. However, the claimant’s portrayal that her travel is now as limited based on her current psychiatric condition is not accepted. There is no reason to accept that the claimant’s psychiatric condition limits her ability to presently travel as she has shown an ability to travel overseas since the accident and otherwise drive a vehicle.
The assessment of class 2 for concentration was particularly based on the clinical experience of the Medical Assessors when examining the claimant over two hours. Whilst there were breaks due to anxiousness from the personal nature of the questioning, the examiners did not consider that there was loss of concentration by the claimant during this examination. Indeed, it is clear to the Medical Assessors that the claimant was particularly focused in that she clearly limited her portrayal of her pre-accident psychiatric condition and downplayed any other event after the motor accident.
We have not made any deduction for subsequent events pursuant to cl 6.34 of the Guidelines.
Clause 1.34 of the Guidelines referable to the Motor Accidents Compensation Act 1999, which is identical to cl 6.34 of the Guidelines, was discussed by Wright J in Slade v Insurance Australia Ltd.[49] His Honour determined that the principles discussed by Malcolm CJ in State Government Insurance Commission v Oakley[50] apply in respect of the assessment under that clause.
[49] [2020] NSWSC 1031 (Slade).
[50] (1990) Aust Torts Rep 81-003.
Given the claimant’s denials, we cannot be satisfied that there is “objective” evidence that the various post-accident events referenced by the insurer result in a deduction in accordance with this provision. However, that conclusion does not detract from our adverse credit finding above.
The Medical Assessors explained why they have not allowed anything for the effects of treatment. Clause 6.222 to 6.224 of the Guidelines relates to the effects of treatment for psychiatric impairment. We are not satisfied that there is clear clinical evidence that the treatment has been effective in that the symptoms and/or functioning have improved. Indeed, our conclusion is that the assessment for adaptability has deteriorated. We further note that the claimant remains on similar medication to her pre-accident situation.
We are satisfied, particularly based on the clinical expertise of the Medical Assessors, that the impairment is permanent within the meaning of cls 6.19 and 6.20 of the Guidelines because the condition is well stabilised, and the claimant does not require a change in medication in the foreseeable future.
FURTHER APPLICATION TO ADDUCE EVIDENCE
After the examination the claimant filed evidence suggesting that the clinical record of the GP dated 23 May 2021 was incorrect. In a report dated 27 February 2025 Dr Peng stated that he may have misheard the claimant who now suggests that the Colles fracture occurred when she “tripped on the foot path”.
The Medical Assessors properly put the history of falling whilst dancing and sustaining a Colles fracture to the claimant who denied it. This history was before Medical Assessor Shen. Nothing had been raised by the claimant that this history was incorrect until after the recent examination undertaken by the Medical Assessors.
It is unacceptable that the claimant obtained further material post examination to reply to a matter which was clearly raised in previous submissions. However, we have proceeded on the basis that we will accept the material despite the obvious merit in the insurer’s objection and not taken this matter adversely into account in assessing the claimant’s credit. Our decision to ignore this apparent inconsistency does not affect our ultimate findings on the PIRS categories given the clear inconsistencies listed by the Medical Assessors in their examination report and otherwise commented by the Panel in these further reasons.
CONCLUSION
The medical assessment certificate for permanent impairment is revoked. A new medical assessment certificate is attached at the commencement of these Reasons.
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