AAI Limited t/as GIO v Pearce

[2024] NSWPICMP 773

DETERMINATION OF REVIEW PANEL

CITATION:

AAI Limited t/as GIO v Pearce [2024] NSWPICMP 773

CLAIMANT:

Jay Charlton Pearce

INSURER:

AAI Limited t/as GIO

REVIEW PANEL

MEMBER:

Anthony Scarcella

MEDICAL ASSESSOR:

Wayne Mason

MEDICAL ASSESSOR:

Yu Tang Shen

DATE OF DECISION:

18 November 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; alleged psychiatric/psychological injury; medical assessment of whole person impairment (WPI) by a Medical Assessor (MA) who determined that the claimant had a WPI not greater than 10%, that is, 7% WPI; further medical assessment of WPI by another MA determined that the claimant had a WPI greater than 10%, that is, 22%; review sought by insurer under section 63; clauses 1.5, 1.6, 1.7, 1.203 and 1.213 of the Motor Accident Permanent Impairment Guidelines in respect of mental and behavioural disorders considered and applied; Held – Medical Review Panel (Panel) revoked the certificate issued by MA Smith dated 21 April 2023; the Panel certified that the claimant sustained a post-traumatic stress disorder and persistent depressive disorder with anxious distress caused by the motor accident on 24 March 2017 that gave rise to a WPI which is not greater than 10%, that is, 8%.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

The Review Panel:

1.      Revokes the certificate issued by Medical Assessor Glen Smith dated 21 April 2023.

2.      Certifies that the claimant sustained a post-traumatic stress disorder and persistent depressive disorder with anxious distress caused by the motor accident on 24 March 2017 that give rise to a whole person impairment which is not greater than 10%, that is, 8%.

STATEMENT OF REASONS

BACKGROUND

1. The claimant, Mr Jay Charlton Pearce, is a 35-year old man who was involved in a motor accident on 24 March 2017 in an automotive workshop when a motor vehicle struck him and pinned him between its front bumper and a heavy metal tyre changing machine (the motor accident).

2. On 21 September 2017, Mr Pearce lodged a motor accident personal injury claim form in respect of the motor accident. The relevant compulsory third-party insurer was AAI Limited t/as GIO (the insurer).

3. Mr Pearce claims that he suffered physical and psychological injuries caused by the motor accident.

4. The claim is governed by the provisions of the Motor Accidents Compensation Act 1999 (MAC Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of benefits and compensation by way of lump sum damages (under Chapter 5) for persons injured in motor accidents in New South Wales.

5. A medical dispute about the degree of Mr Pearce’s whole person impairment (WPI) in respect of his claimed psychological injuries has arisen in connection with his claim, namely, whether his WPI is greater than 10%. This constitutes a medical assessment matter under s 58(1)(d) of the MAC Act.

6. A medical assessment matter is determined in accordance with Chapter 3, Part 3.4 of the MAC Act.

7. The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Glen Smith for a further assessment of the degree of permanent impairment. A previous assessment of 7% WPI had been made by Medical Assessor Anthony Samuels of the State Insurance Regulatory Authority’s Medical Assessment Service (MAS), as it was then known, on 18 September 2020.

8. On 21 April 2023, Medical Assessor Smith determined that Mr Pearce suffered a

   
   

   post-traumatic stress disorder and a persistent depressive disorder, with persistent major depressive episode, with anxious distress caused by the motor accident and assessed Mr Pearce as having a WPI greater than 10%, namely, 22% (the Medical Assessment).

REVIEW PROCEDURE

1. The insurer sought a review of the Medical Assessment in accordance with s 63 of the MAC Act (the Review).

2. On 12 July 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).

3. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.

4. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 63(3) of the MAC Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.

5. 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 Medical Assessor: s 41(2) of the PIC Act.

6. The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 63(3A) of the MAC Act.

7. 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: Rule 128 of the PIC Rules.

8. On 22 March 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle on which they relied in the Review.

9. On 13 May 2024, the Panel informed the parties that it considered a re-examination of Mr Pearce was required. Arrangements were made for Mr Pearce to be re-examined by Medical Assessor Wayne Mason and Medical Assessor Yu Tang Shen by video link (MS Teams) on 8 July 2024.

LEGISLATIVE FRAMEWORK

General provisions

1. Section 3 of the MAC Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.

2. Mr Pearce’s claim and entitlements to compensation are governed by the provisions of the MAC Act. An injured person can make a claim for both economic losses and non-economic loss damages.

3. However, s 131 of the MAC Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

1. Section 44(1)(c) of the MAC Act says Motor Accidents Medical Guidelines may be issued in respect of the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

2. The current Motor Accident Permanent Impairment Guidelines are effective from 1 June 2018 (the Guidelines). The Guidelines were developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with s 133(2)(a) of the MAC Act: cl 1.1 of the Guidelines.

3. The Guidelines adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 1.2 of the Guidelines. They apply under the MAC Act to the assessment of the degree of permanent impairment that has resulted from an injury caused by a motor accident occurring between 5 October 1999 and 30 November 2017 inclusive: cl 1.3 of the Guidelines.

4. Causation of injury is addressed in cls 1.5, 1.6 and 1.7 of the Guidelines.

5. Clause 1.6 of the Guidelines notes:

   “1.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

   This, therefore, involves a medical decision and a non-medical informed judgement.”

1. Clause 1.7 of the Guidelines states:

   “There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

2. Clause 1.203 of the Guidelines states:

   “The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA 4 Guides (pages 291-302) is to be used for background or reference only.”

3. Clause 1.213 of the Guidelines states:

   “The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based.”

4. The current edition of the DSM is the fifth edition text revision (DSM-5-TR).

5. In respect of the PIRS, cl 1.219 of the Guidelines states that the behavioural consequences of psychiatric disorders are assessed on the following six areas of function, each of which evaluates an area of functional impairment:

   (a)    self-care and personal hygiene (Table 11 of the Guidelines);

   (b)    social and recreational activities (Table 12 of the Guidelines);

   (c)    travel (Table 13 of the Guidelines);

   (d)    social functioning (relationships) (Table 14 of the Guidelines);

   (e)    concentration, persistence and pace (Table15 of the Guidelines), and

   (f)    adaptation (Table 16 of the Guidelines).

1. Tables 11 to 16 of the Guidelines identify the five classes of assessment within each of the six areas of function.

2. Clauses 1.225 to 1.228 and Table 17 of the Guidelines address the three step procedure involved in calculating psychiatric impairment.

3. Clauses 1.222 to 1.224 of the Guidelines address the adjustment for the effects of prescribed treatment to the assessment of WPI.

4. Clause 1.218 of the Guidelines states:

   “In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”

5. Pre-existing impairment is addressed in cls 1.31, 1.32 and 1.33 of the Guidelines.

6. The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 1.31 of the Guidelines.

7. Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 1.33 of the Guidelines.

8. Subsequent injury is addressed in cl 1.34 of the Guidelines which states:

   “The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”

EVIDENCE BEFORE THE PANEL

1. The evidence before the Panel consisted of the following:

   (a)    the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 30 April 2024 (insurer’s documents);

   (b)    the insurer’s further submissions lodged on the Commission’s portal on 2 May 2024 (insurer’s further submissions);

   (c)    Mr Pearce’s indexed and paginated bundle of documents lodged on the Commission’s portal on 9 May 2024 (claimant’s documents), and

   (d)    Mr Pearce’s Application to Admit Late Documents dated 16 June 2024 and attached documents (AALD).

ASSESSMENT UNDER REVIEW

1. Medical Assessor Smith examined Mr Pearce on 6 April 2023 and issued a further certificate under s 61 of the MAC Act on 21 April 2023.

2. Medical Assessor Smith was asked to assess the dispute between the parties about the degree of permanent impairment under s 58(1)(d) of the MAC Act in respect of psychological injuries – anxiety, depression, post-traumatic stress disorder and insomnia.

3. Medical Assessor Smith took a pre-accident history, history of the motor accident and history of symptoms and treatment following the motor accident that were generally consistent with that provided by Mr Pearce at the Panel re-examination on 8 July 2024.

4. Medical Assessor Smith noted that Mr Pearce denied a history of significant anxiety and depressive symptoms during his childhood, teenage years and early adulthood. He specifically denied a history of panic attacks, obsessions and generalised anxiety. He had not been prescribed any antidepressant medication and he had not received psychological therapy prior to the motor accident. He denied a known family history of mood, anxiety, addictive or psychotic disorders.

5. Medical Assessor Smith noted that Mr Pearce reported that, prior to the motor accident, he was generally medically well and denied a history of other major medical conditions, surgery and known allergies.

6. Medical Assessor Smith noted that Mr Pearce had not been involved in any other motor accidents or incidents resulting in subsequent injury since the motor accident.

7. In respect of Mr Pearce’s reported current symptoms, Medical Assessor Smith noted the following:

   (a)    feeling depressed;

   (b)    anxiety with diurnal mood variation;

   (c)    reduced interest and enjoyment of activities;

   (d)    right knee and hip pain with associated limitation in functioning;

   (e)    low back pain;

   (f)    right hand pain;

   (g)    insomnia;

   (h)    frequent intrusive memories of the motor accident at night;

   (i)    nightmares of the motor accident about every three nights;

   (j)    distress caused by a range of triggers such as walking down the street or watching shows in which motor accidents are depicted;

   (k)    hypervigilance with an exaggerated startle response to sounds, particularly when walking on the street;

   (l)    weight gain to 125kg (subsequently reduced to 110kg);

   (m)     difficulties with thinking and concentrating, and

   (n)    intermittent suicidal ideation.

8. On mental state examination, Medical Assessor Smith observed that Mr Pearce presented as anxious and distressed. Speech was accented but of normal volume and spontaneity. Thought form was generally circumstantial. Mr Pearce reported depressed and anxious mood. He rated his mood as 2 to 3/10 on a visual analogue scale. Affect was restricted to the depressed and anxious range with minimal appropriate reactivity. He described feelings of worthlessness, hopelessness and intermittent suicidal ideation but denied plans to act on those thoughts. There was no evidence of perceptual abnormality. He was alert and oriented to time, place and person. He performed reasonably on simple tests of short-term memory. There were no obvious deficits in concentration. He reported his weight as 110kg, height as 175cm and a body mass index of 35.9 (in the obese range).

9. Medical Assessor Smith reviewed and summarised the relevant documentation provided to him.

10. Medical Assessor Smith opined that Mr Pearce’s condition fulfilled the DSM-5-TR criteria for post-traumatic stress disorder and persistent depressive disorder, with persistent major depressive episode, with anxious distress. He went through each of the relevant criteria and provided his reasoning. He further opined that the identified psychiatric conditions were caused by the motor accident and provided his reasons.

11. Medical Assessor Smith calculated the degree of WPI of the injury caused by the motor accident in accordance with the PIRS as set out below and provided his reasons:

    (a)    self-care and personal hygiene: class 3;

    (b)    social and recreational activities: class 3;

    (c)    travel: class 3;

    (d)    social functioning (relationships): class 2;

    (e)    concentration, persistence and pace: class 2, and

    (f)    adaptation: class 5.

12. The above rating produced a median class value of 3 and an aggregate score of 18, resulting in a WPI of 22%. There were no adjustments for the effects of treatment. There was no apportionment for a pre-existing or subsequent impairment.

13. Medical Assessor Smith opined that Mr Pearce’s psychiatric condition had worsened since the assessment of Medical Assessor Samuels in 2020, which accounted for the assessment of a greater impairment at his assessment of Mr Pearce.

REVIEW OF THE EVIDENCE

Mr Jay Charlton Pearce’s evidence

1. In evidence, there are statements by Mr Pearce dated 20 March 2020[1] and 14 December 2021.[2]

   [1] Insurer’s documents at pages 102-108.

   [2] Claimant's documents at pages 13-23.

2. Mr Pearce stated that he was born in England and finished high school there at the equivalent of year 12 level. He then worked and trained as a motor mechanic in England for four years before migrating to Australia in April 2012. This was slightly inconsistent with the background he provided at the Panel re-examination.

3. Mr Pearce stated that he was employed by Purnell Volvo/Land Rover at Blakehurst as an engine specialist between April 2013 and January 2014; NRMA at Rockdale and Marrickville as a storeman and a motor mechanic between January 2014 and November 2014; Kmart Tyre and Auto Pty Limited at Sylvania as a store manager and motor mechanic between November 2014 and 31 July 2019; and EDT Global Pty Limited as a recruitment consultant from 27 October 2020 and was still so employed at the date of his statement.

4. Mr Pearce described the subject motor accident as follows:

   “On 24 March 2017, I was working at my usual employ at Kmart Tyre and Auto at Sylvania. I was standing at the tyre machine in the process of changing a tyre when a motor vehicle accelerated forward, hit a toolbox then collided into me, pushing me into the tyre machine and pinning me onto it with extreme force. The driver of the vehicle at fault did not brake and continued to accelerate, despite colliding into me. A fellow

   
   

   co-worker was forced to jump through the vehicle’s window to put the car in reverse.”[3]

   [3] Claimant's documents at page 13 at [5].

5. Mr Pearce stated that, immediately following the motor accident, he was in a state of shock and in significant pain in his right knee, right thigh, right leg and right hip. He also suffered a psychological injury due to the nature of the motor accident. A co-worker took him to Miranda Medical Centre where he consulted Dr Abdullah Zobair, general practitioner, who examined him and referred him for an ultrasound of his right thigh.

1. Mr Pearce stated that he sought a second opinion from his treating general practitioner, Dr Nasr Ismail, of Alzahraa Medical Centre on 20 April 2017 (the medical centre’s clinical records record the consultation taking place on 2 April 2017). Dr Ismail referred him for a right knee MRI scan after which, he referred him to Dr Mohamad Mourad, orthopaedic surgeon.

2. Mr Pearce stated that, on 21 June 2017, he underwent a drainage debridement to his right thigh by Dr Mourad.

3. Mr Pearce stated that, in respect of his right thigh injury, he came under the care of Dr Ilias Kotronakis, plastic surgeon. The right thigh is swollen and he is in constant pain. If he attempts exercise, he experiences a pulsing sensation in the area of the haematoma in his right thigh. Pain is exacerbated with prolonged walking, standing or sitting.

4. Mr Pearce stated that, as a result of the motor accident, he also experienced ongoing pain, stiffness and significant instability in his right knee and was referred back to Dr Mourad. On 12 July 2018, he underwent a right anterior cruciate ligament reconstruction and arthroscopic partial meniscectomy by Dr Mourad. Treatment following surgery consisted of physiotherapy, exercise physiology, hydrotherapy and gym-based exercise programs. Despite the surgery, he continued to experience a clicking of his patella. He gained a significant amount of weight, about 30kg.

5. Mr Pearce stated that, in early 2021, he experienced a notable deterioration in his right knee injury. He could not stand or walk for longer than 10 minutes at a time and continued to experience sharp pain, clicking, swelling and difficulty bending his right knee fully. He was referred back to Dr Mourad, who performed a right knee arthroscopic debridement on 7 April 2021.

6. Mr Pearce stated that, in August 2021, his right knee again deteriorated and he began experiencing “popping out”[4] which required him to push his knee back into place to be able to continue moving or walking. He was advised by his treatment providers that a partial subluxation was occurring spontaneously in gait. He consulted Dr Mourad who advised that he would require a right knee replacement in the future but recommended that such procedure should be delayed as long as possible due to his young age.

   [4] Claimant's documents at page 15 at [24].

7. Mr Pearce stated that he came under the care of Mr Kasim Abaie, psychologist, who diagnosed him with post-traumatic stress disorder, major depressive disorder and insomnia. Mr Abaie treated him with cognitive behavioural therapy, exposure therapy, problem-solving and anger management exercises to reduce his stress and unwanted thoughts. He found such treatment beneficial.

8. Mr Pearce stated that he is now under the care of Mr Joseph D’Silva, psychologist.

9. Mr Pearce stated that, on 18 September 2021, he consulted Dr Ismail for review and was referred to Dr Faiz Noure, consultant psychiatrist and specialist pain medicine physician, for chronic pain management and review. He consulted Dr Noure on 28 October 2021. Dr Noure recommended ongoing consultations for pain management and post-traumatic stress disorder. He also recommended an intensive rehabilitation pain management program.

10. Mr Pearce stated that, on about 29 August 2016, he fell off a trampoline and sustained a twisting injury to his right knee. He felt immediate pain and swelling in the right knee and presented to a local hospital emergency department the following day. Thereafter, he consulted Dr Ismail. He underwent medical imaging, including a right knee MRI scan. He was referred for physiotherapy and underwent one session. Over the next three months, he was treated with analgesia and home-based exercises. He took three to four weeks off work and then returned to his full pre-injury duties at Kmart Tyre and Auto. The pain in his right knee subsequently resolved and he regained a full range of movement.

11. Mr Pearce stated that, since the motor accident, he had become increasingly emotional and agitated. He experienced flashbacks of the motor accident and a fear that another misfortune could befall him. His mood had become depressed. He felt useless. He became socially withdrawn and lacked motivation to leave the house. At the time he made his statement, he was medicating on mirtazapine.

12. Mr Pearce stated that, in June 2019, he was certified fit for his pre-injury duties. However, due to his psychological injuries and ongoing symptoms caused by the motor accident, he was unable to cope with work. He had been suffering from ongoing major depression, severe anxiety and panic attacks since the motor accident and had mentioned this to his area manager at work on several occasions. He was scared of returning to work in the workshop and was struggling mentally. He had successfully returned to work on suitable duties in the office but was psychologically unable to return to the workshop. At work, he was told that the accident had cost the business and the store loss. He felt that his injuries were not being recognised. He was expected to return to his pre-injury physical duties.

13. Mr Pearce stated that he felt pushed by his area manager to return to work in the workshop after receiving the pre-injury duties medical certificate, despite having raised his concerns about returning to the workshop.

14. Mr Pearce stated that, on 31 July 2019, he was at work and was told to distribute his employer’s bi-annual safety booklet that was released for every team Australia wide. The booklet was about uncontrolled cars and another incident but did not include his accident. He felt that his accident should have been included in the booklet to ensure that such an incident did not occur to anyone else again. He felt as if his employer had ignored the extent of his injuries since the motor accident. As a result, he suffered a panic attack and left work early.

15. Mr Pearce stated that, despite the advice of his treating doctors, he attempted to return to work in the workshop and got back onto the tools for several weeks. However, his anxiety continued to heighten and he went off work.

16. Mr Pearce stated that, on 27 October 2020, he obtained employment with EDT Global Pty Limited as a part-time recruitment consultant, which involved basic office duties including answering and making telephone calls and computer work. As a result of a significant deterioration of his physical injuries, in particular, his right knee, Dr Ismail certified him totally unfit for work. He has been unable to work since 1 September 2021.

17. Mr Pearce denied the insurer’s submission that his ongoing psychological condition resulted from his area manager telling him to return to work in the workshop and not because of the motor accident. He further stated that he had undergone extensive treatment for his ongoing psychological injuries arising from the motor accident and leading up to June/July 2019.

18. Mr Pearce provided a detailed list of his physical and psychological motor accident related injuries and ongoing disabilities.[5] He listed his psychological injuries and ongoing disabilities as:

    [5] Claimant's documents at pages 21-23.

    (a)    post-traumatic stress disorder;

    (b)    post-traumatic anxiety;

    (c)    major depression;

    (d)    chronic adjustment disorder;

    (e)    acute stress disorder;

    (f)    panic attacks;

    (g)    insomnia;

    (h)    flashbacks;

    (i)    nightmares;

    (j)    intrusive memories and imagery;

    (k)    hypervigilance;

    (l)    avoidance behaviour;

    (m)     social withdrawal;

    (n)    loss of motivation;

    (o)    persistent flat and low mood;

    (p)    difficulty concentrating;

    (q)    irritable and emotional;

    (r)    ongoing need for psychological consultation and review, and

    (s)    ongoing need for pharmaceutical medication.

Motor accident personal injury claim form

1. On 21 September 2017, Mr Pearce completed a motor accident personal injury claim form in respect of the motor accident (the claim form).[6]

   [6] Claimant's documents at pages 24-31.

2. The claim form set out the basic particulars of the motor accident which were generally consistent with that provided by Mr Pearce at the Panel re-examination on 8 July 2024.

3. In the claim form, Mr Pearce described the injuries he sustained in the motor accident as a lateral meniscus tear and tendinopathy in the right knee; a haematoma, Morel-Lavallee lesion and degloving injury in the right thigh; musculoskeletal and soft tissue injuries to the right leg and right hip; and depression and post-traumatic stress disorder.

4. In the claim form, Mr Pearce denied having suffered any other injuries or illnesses to the same or similar parts of his body before or since the motor accident. This was inconsistent with Mr Pearce’s evidence in respect of his fall off a trampoline on about 29 August 2016 resulting in a twisting right knee injury.

5. The pro forma medical certificate that is page 11 of the claim form was completed and signed by Dr Ismail on 18 September 2017.[7] The certificate described Mr Pearce’s injury as a soft tissue injury to the right knee. No reference was made to any psychiatric or psychological injury having been suffered.

   [7] Insurer’s documents at page 22.

NSW Police Force

1. In evidence, there is the NSW Police Force letter dated 4 April 2018, which had attached to it the event report E 67848784 (the event report) produced on 3 April 2018.[8]

   [8] Claimant’s documents at pages 32-35.

2. The event report set out the basic particulars of the motor accident and accident description which were generally consistent with that provided by Mr Pearce at the Panel re-examination on 8 July 2024.

3. The event report referred to Mr Pearce having suffered injuries to his back and knee in the motor accident. No reference was made to any psychiatric or psychological injury having been suffered.

Relevant treating medical records and reports

Pre-accident

1. In evidence, there were Mr Pearce’s Alzahraa Medical Centre clinical records that were reproduced as at 9 May 2023. The first entry in those clinical records was dated 5 September 2016 and the last entry was dated 6 April 2023.[9] Mr Pearce’s usual general practitioner at that medical centre was Dr Ismail.

   [9] Claimant’s documents at pages 1,198-1,336.

2. On 5 September 2016, Mr Pearce consulted Dr Ismail reporting that he fell from a trampoline and twisted his right knee. On examination, the right knee was tender and swollen and the right calf was tender. Dr Ismail queried the possibility of an acute meniscal tear and deep vein thrombosis and immediately referred him for a right knee MRI scan and a right leg Doppler scan. Dr Ismail recorded that Mr Pearce returned with his scans which demonstrated a full-thickness meniscal tear in the right knee and deep vein thrombosis in the right leg. Mr Pearce was commenced on Warfarin 5mg and prescribed analgesia.[10]

   [10] Claimant's documents at page 1,313.

3. On 5 September 2016, Mr Pearce underwent a Doppler venous ultrasound of his right leg and a right knee MRI scan by Dr Melvin Chew, radiologist. The Doppler venous ultrasound demonstrated a deep venous thrombosis of the calf involving the medial gastrocnemius vein, soleal vein and perineal vein. The right knee MRI scan demonstrated a partial tear of the medial collateral ligament with loss of deep meniscofemoral ligament. There was an oblique tear of the periphery of the posterior horn and posterior body junction of the medial meniscus breaching tibial and femoral articular surfaces. There was a triradiate tear pattern of the anterior horn and anterior body of the lateral meniscus with horizontal and vertical components. There was post-traumatic joint effusion with diffuse synovitis. There was

   
   

   low-grade distal patellar tendinopathy.[11]

   [11] Claimant's documents at pages 1,356-1,357.

4. Thereafter, there were a number of consultations in Dr Ismail’s clinical records in respect of Mr Pearce which were focused on his deep vein thrombosis. There were no further complaints of right knee pain recorded by Dr Ismail until the entry in the clinical records on 2 April 2017 in respect of the motor accident. This was consistent with Mr Pearce’s evidence in this regard.

Post-accident

1. On 24 March 2017, Mr Pearce presented to Miranda Medical Centre complaining of painful swelling in his right thigh posteriorly and painful movement of the right lower limb as a result of an injury at work when a car moved and wedged his right thigh between the car and a tyre machine. On examination, the attending doctor observed “large bogg swelling right thigh with bruising and abrasions”.[12] Mr Pearce was referred for an ultrasound of his right thigh. There was no reference in the Miranda Medical Centre clinical records on this date to any psychiatric or psychological condition.

   [12] Claimant's documents at page 251.

2. On 2 April 2017, Mr Pearce consulted Dr Ismail reporting severe pain in the right knee following an accident at work. On examination, Dr Ismail observed that the right knee was tender, swollen and had a reduced range of movement. Mr Pearce was referred for a right knee MRI scan. There was no reference in the Alzahraa Medical Centre clinical records on this date to any psychiatric or psychological condition.[13]

   [13] Claimant's documents at page 1,311.

3. On 20 April 2017, Mr Pearce underwent a right thigh ultrasound and right knee MRI scan by Dr Chew, on the referral of Dr Ismail. The right thigh ultrasound demonstrated a degloving injury of the deep subcutaneous tissue planes of the posterior mid-thigh in keeping with a Morel-Lavallee lesion. The right knee MRI scan demonstrated a vertical tear of the anterior horn of the lateral meniscus with breach of the tibial and femoral articular surface and low-grade proximal patellar tendinopathy.[14]

   [14] Claimant's documents at pages 141-142.

4. On 28 April 2017, Mr Pearce consulted Dr Ismail, who explained the results of the right thigh ultrasound as demonstrating a Morel-Lavallee lesion and the right knee MRI scan as demonstrating a tear of the anterior horn of the meniscus and tendinopathy. There was no reference in the Alzahraa Medical Centre clinical records on this date to any psychiatric or psychological condition.[15]

   [15] Claimant's documents at page 1,310.

5. On 4 May 2017, Mr Pearce underwent a right thigh MRI scan by Dr Brian Lam, radiologist, on the referral of Dr Ismail. The MRI scan confirmed a subcutaneous collection along the posterior medial aspect of the right thigh with internal foci of fat consistent with a fat shearing lesion (Morel-Lavallee lesion).[16]

   [16] Claimant's documents at page 143.

6. On 9 May 2017, Mr Pearce consulted Dr Ismail, who referred him to Dr Mourad. There was no reference in the Alzahraa Medical Centre clinical records on this date to any psychiatric or psychological condition.[17]

   [17] Claimant's documents at pages 1,309-1,310.

7. On 18 May 2017, Dr Mourad reported to Dr Ismail that Mr Pearce had sustained a lateral meniscal tear of his right knee and degloving injury of his right thigh as a result of the motor accident. He recommended an arthroscopy and debridement of the degloving right thigh injury.[18]

   [18] Claimant's documents at page 152.

8. On 21 June 2017, Mr Pearce underwent a debridement and neurolysis of the right thigh haematoma by Dr Mourad.[19] On 28 June 2017, Dr Mourad reported to Dr Ismail that a collection had recurred and diagnosed a post-operative debridement wound haematoma. He recommended treatment initially by way of compression bandaging for a fortnight and then would decide on further decompression and insertion of a drain at the side of collection.[20]

   [19] Claimant's documents at page 153.

   [20] Claimant's documents at page 154.

9. On 20 July 2017, Mr Pearce underwent a further debridement and drainage of the right thigh collection by Dr Mourad.[21]

   [21] Claimant's documents at page 159.

10. On 15 March 2018, Dr Mourad reported to Dr Ismail that he had reviewed Mr Pearce and diagnosed an anterior cruciate ligament deficient right knee, right knee meniscus tear and healed degloving injury to the right thigh. He recommended surgery by way of arthroscopic partial meniscectomy and an anterior cruciate ligament reconstruction using a hamstring graft. He also recommended review by a plastic surgeon for further treatment of his right thigh swelling.[22]

    [22] Claimant's documents at page 160.

11. On 21 June 2018, Dr Mourad referred Mr Pearce to Dr Kotronakis, plastic surgeon.[23]

    [23] Claimant's documents at page 171.

12. On 12 July 2018, Mr Pearce underwent a right knee anterior cruciate ligament reconstruction with graft and a partial lateral meniscectomy by Dr Mourad. During the surgical procedure, Dr Mourad found synovitis, a displaced anterior horn tear of the lateral meniscus and a scarred, torn anterior cruciate ligament.[24] Dr Mourad referred Mr Pearce for post-operative rehabilitation at Waratah Private Hospital.[25]

    [24] Claimant's documents at page 172.

    [25] Claimant's documents at page 176.

13. On 26 July 2018, Dr Kotronakis reported to Dr Mourad that Mr Pearce had consulted him about his right thigh injury. He took a history of injury that was consistent with the evidence. On examination, Dr Kotronakis observed an oval-shaped lump that sat transversely over the scar on the posterior part of the right thigh which had the texture and firmness consistent with fat but did not appear to be displaceable like a lipoma. Dr Kotronakis recommended a lipoaspiration to improve the right thigh condition subject to Mr Pearce being at a stable weight. He added that Mr Pearce’s weight did not appear to be stable.[26]

    [26] Claimant's documents at page 177.

14. On 13 September 2018, Dr Mourad reported to Dr Ismail that Mr Pearce had made satisfactory progress two months post his right knee anterior cruciate ligament reconstruction. He reassured Mr Pearce of his satisfactory progress and advised him to continue rehabilitation and encouraged fitness and weight loss. Dr Mourad did not schedule Mr Pearce for further review.[27]

    [27] Claimant's documents at page 179.

15. The first entry in the Alzahraa Medical Centre clinical records in respect of psychiatric or psychological symptoms was on 3 October 2018, some 19 months after the motor accident. Dr Ismail recorded that Mr Pearce presented with severe anxiety after a work-related injury and reported insomnia, amotivation, and a marital problem. Dr Ismail diagnosed severe anxiety, post-traumatic stress disorder and depression and put Mr Pearce on a general practitioner mental health care plan of counselling and support.[28] Dr Ismail referred Mr Pearce to Mr Abaie for opinion and management in respect of his severe anxiety,

    
    

    post-traumatic stress disorder, major depression and a marital problem following a work-related injury.[29]

    [28] Claimant's documents at page 1,297.

    [29] Claimant's documents at page 182.

16. On 11 May 2019, Mr Pearce consulted Dr Ismail who noted severe anxiety and depression due to chronic pain. Mr Pearce was provided with a general practitioner mental health care plan. The reason for patient contact was recorded as major depression. Dr Ismail prescribed one Mirtanza (mirtazapine) 15mg tablet nightly and recommended counselling and support.[30]

    [30] Claimant's documents at page 1,292.

17. On 28 July 2019, Mr Pearce consulted Dr Ismail who again prescribed one mirtazapine 15mg tablet nightly.[31]

    [31] Claimant's documents at page 1,291.

18. On 2 August 2019, Mr Pearce consulted Dr Ismail complaining of severe anxiety and depression. Dr Ismail recommended counselling and support and again referred him to Mr Abaie for cognitive behavioural therapy. He recommended that Mr Pearce continue taking mirtazapine.[32]

    [32] Claimant's documents at page 1,290.

19. On 9 August 2019, Mr Pearce consulted Dr Ismail complaining of severe work-related anxiety and depression. Dr Ismail recommended counselling and support.[33]

    [33] Claimant's documents at page 1,290.

20. On 25 August 2019, Mr Pearce consulted Dr Ismail complaining of severe anxiety, recurrent panic attacks and depression. Dr Ismail recommended counselling and support.[34]

    [34] Claimant's documents at page 1,289.

21. On 1 September 2019, Mr Pearce consulted Dr Ismail complaining of severe work-related anxiety and depression. Dr Ismail recommended counselling and support.[35]

    [35] Claimant's documents at page 1,289.

1. In his report dated 4 September 2019, Mr Abaie, of Today Psychological and Consultancy Service certified that Mr Pearce had attended his second appointment for psychotherapy and counselling on that date.[36] Mr Abaie reported that Mr Pearce had demonstrated symptoms of anxiety and depression due to work-related injury and pain. He noted that the issues impacting on Mr Pearce’s well-being were back and right knee injury pain; stress and worry; social isolation; flashbacks of the traumatic events; sleep disturbance; low mood with low concentration; anger management issues; and financial problems due to the lack of financial support.

   [36] Claimant's documents at pages 189-191.

2. Mr Abaie opined that Mr Pearce was not at risk of self-harm or suicide. Mr Pearce reported no family history of mental illness. He denied any past history of psychological disorder prior to the motor accident. Mr Abaie noted that Mr Pearce was on the antidepressant medication mirtazapine 15mg.

3. Mr Abaie opined that Mr Pearce demonstrated symptoms of post-traumatic stress disorder, major depressive disorder and insomnia. He recommended psychotherapy and counselling. He noted that during his sessions cognitive behavioural therapy, exposure therapy,

   
   

   problem-solving and anger management were applied to reduce stress and unwanted thoughts.

4. On 7 September 2019, Mr Pearce consulted Dr Ismail complaining of severe anxiety and depression. Dr Ismail recommended counselling and support.[37]

   [37] Claimant's documents at page 1,289.

5. On 28 October 2019, Dr Mourad prepared a report at the request of Mr Pearce’s lawyers.[38] Dr Mourad opined that Mr Pearce’s prognosis was guarded. He was at a higher risk of developing degenerative joint disease later in life which could cause him to experience persistent symptoms of pain and loss of function from post-traumatic arthritis. If this were the case, he could require a total knee replacement as early as the age of 50 years. He confirmed that he had not reviewed Mr Pearce since September 2018.

   [38] Claimant's documents at pages 192-195.

6. On 9 January 2020, Mr Pearce consulted Dr Ismail who again prescribed one mirtazapine 15mg tablet nightly.[39]

   [39] Claimant's documents at page 1,286.

7. On 15 March 2020, Mr Pearce consulted Dr Ismail complaining of severe anxiety and depression. Dr Ismail recommended counselling and support.[40]

   [40] Claimant's documents at page 1,284.

8. On 17 March 2020, Mr Pearce consulted Dr Ismail who again prescribed one mirtazapine 15mg tablet nightly.[41]

   [41] Claimant's documents at page 1,284.

9. On 14 May 2020, Mr Pearce consulted Dr Ismail complaining of severe anxiety and depression and was provided with a general practitioner mental health care plan. Dr Ismail recommended that he continue with the prescribed antidepressant (mirtazapine) and referred him back to Mr Abaie.[42]

   [42] Claimant's documents at page 1,283.

10. On 27 August 2020, Mr Pearce consulted Dr Ismail who again prescribed one mirtazapine 15mg tablet nightly.[43]

    [43] Claimant's documents at page 1,280.

11. On 6 September 2020, Mr Pearce consulted Dr Ismail complaining of severe anxiety and depression. Dr Ismail recommended counselling and support.[44]

    [44] Claimant's documents at page 1,279.

12. On 13 September 2020, Mr Pearce consulted Dr Ismail complaining of severe anxiety and depression. Dr Ismail recommended that he continue cognitive behavioural therapy with his psychologist, Mr Abaie.[45]

    [45] Claimant's documents at page 1,279.

13. On 23 September 2020, Mr Pearce consulted Dr Ismail who again prescribed one mirtazapine 15mg tablet nightly.[46]

    [46] Claimant's documents at pages 1,278-1,279.

14. On 10 December 2020, Mr Pearce consulted Dr Ismail complaining of work-related severe anxiety and recurrent panic attacks. Dr Ismail diagnosed post-traumatic stress disorder and recommended counselling and referred Mr Pearce to Dr Joseph D’Silva, psychologist, for cognitive behavioural therapy.[47]

    [47] Claimant's documents at pages 1,276-1,277.

15. On 12 December 2020, Mr Pearce first consulted Dr D’Silva at the Alzahraa Medical Centre. Dr D’Silva noted in the clinical records that Mr Pearce had aggravated/exacerbated his psychological symptoms since 30 June 2019. He recorded that Mr Pearce had sustained a work-related injury (a severe injury to the right leg) on 24 March 2017. He noted that Mr Pearce stated that he had aggravated and exacerbated his psychological and anxiety symptoms since 30 June 2019. Mr Pearce reported that he was always in pain; had panic attacks; had high levels of anxiety; had low tolerance to stressors; was short tempered; had low tolerance to anger and frustration; was easily agitated; had mood swings; had outbursts of anger; cried and wept randomly; was unable to watch action movies with car scenes; had difficulty with concentration; felt emotionally drained; was unable to maintain focus; had poor memory; had issues with short-term memory; engaged in overthinking about the motor accident; had nightmares about the motor accident; had depressive symptoms; had low energy levels; had emotional fatigue; had reduced motivation; socially isolated himself; experienced flashbacks of the traumatic motor accident; had hygiene issues, in that, he went for days without a shower; had reduced libido; his spousal relationship had deteriorated; had mobility issues; had high levels of anxiety whilst in cars; had extreme feelings of embarrassment because he now walks with a limp; had difficulty completing household tasks; and had extreme feelings of guilt due to his inability to do things in the home. Dr D'Silva recommended cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[48]

    [48] Claimant’s documents at pages 1,274-1,275.

16. On 19 December 2020, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that his employer wanted him to attend the workplace where the motor accident had occurred to pick up his tools but he was unable to do so because of the traumatic impact the workplace had on him. As a result, his anxiety levels had been exacerbated. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[49]

    [49] Claimant's documents at pages 1,273-1,274.

17. On 26 December 2020, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that, whilst watching television, he saw a car crash and became emotionally disturbed as a result. It brought flashbacks of the traumatic motor accident. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[50]

    [50] Claimant’s documents at pages 1,272-1,273.

18. On 16 January 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that, he had suffered an aggravation and exacerbation of his psychological symptoms when the workers compensation self-insurer, Wesfarmers Limited, denied liability for his work-related injuries suggesting that there was a pre-existing injury. He was extremely stressed by the Wesfarmers Limited investigations of his social media, bank accounts, ABN records and other records, which he considered an invasion of his privacy. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[51]

    [51] Claimant’s documents at pages 1,271-1,272.

19. On 17 January 2021, Mr Pearce consulted Dr Ismail complaining of severe anxiety and recurrent panic attacks. Dr Ismail recorded a work-related post-traumatic stress disorder and prescribed Valium. He advised Mr Pearce to continue cognitive behavioural therapy with Dr D’Silva.[52]

    [52] Claimant's documents at page 1,271.

20. On 23 January 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[53]

    [53] Claimant's documents at pages 1,270-1,271.

21. On 30 January 2021, Mr Pearce consulted Dr Ismail complaining of worsening severe anxiety and depression. Dr Ismail increased the dosage of mirtazapine to one 30mg tablet nightly and provided another general practitioner mental health care plan.[54]

    [54] Claimant's documents at pages 1,269-1,270.

22. On 6 February 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that there had been a deterioration in his pain levels together with an exacerbation of his psychological symptoms when he was informed that the insurer was discontinuing payment for sessions of physiotherapy. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[55]

    [55] Claimant's documents at pages 1,268-1,269.

23. On 9 February 2021, Mr Pearce consulted Dr Ismail complaining of anxiety related insomnia. Mr Pearce also complained of severe chronic pain, recurrent panic attacks, major depression and suicidal thoughts. Dr Ismail prescribed one 30mg mirtazapine tablet nightly and one to two slow release 2mg melatonin tablets nightly. Dr Ismail referred Mr Pearce to Dr Keller, psychiatrist, for review and management. ^[56]

    [56] Claimant's documents at page 1,268.

24. On 11 February 2021, Mr Pearce underwent a right knee MRI scan by Dr Craig Harris, radiologist, on the referral of Dr Ismail. Dr Harrison observed an intact right anterior cruciate ligament graft. There was mild femoral tunnel widening, measuring up to 18mm in diameter, with a soft tissue rind up to 4mm in thickness around the graft in the tunnel. The graft was slightly bowed underneath the intercondylar notch, where there was mild spurring with the graft also abutting the intercondylar spines. Impingement could not be entirely excluded. There was minimal scarring to the anterior aspect of the intercondylar notch without discrete arthrofibrotic lesion.[57]

    [57] Claimant's documents at pages 146-148.

25. On 13 February 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce complained of an increase in his pain levels since physiotherapy sessions had ceased. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[58]

    [58] Claimant's documents at pages 1,266-1,268.

26. On 20 February 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that physiotherapy sessions had been re-instated. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[59]

    [59] Claimant's documents at page 1,266.

27. On 27 February 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that there had been a deterioration in the pain levels in his right knee which was affecting his gait and putting pressure on his right hip. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[60]

    [60] Claimant's documents at pages 1,264-1,265.

28. On 4 March 2021, Dr Ismail referred Mr Pearce back to Dr Mourad for further opinion and management.[61] He also prescribed one 30mg mirtazapine tablet nightly and one to two slow release 2mg melatonin tablets nightly.[62]

    [61] Claimant's documents at page 282.

    [62] Claimant's documents at page 1,264.

29. On 11 March 2021, Dr Mourad reported to Dr Ismail that Mr Pearce had presented with his recent right knee MRI scan. Dr Mourad opined that Mr Pearce had a right knee intercondylar notch spur and effusion 2.5 years post anterior cruciate ligament reconstruction. He opined that Mr Pearce would benefit from arthroscopic debridement of his right knee which would not be a permanent solution to his symptoms but would aim to resolve his mechanical and pain symptoms coming from the progressive degenerative spurs in his right knee.[63] On 23 March 2021, the insurer approved Dr Mourad’s proposed right knee arthroscopic debridement.[64]

    [63] Claimant's documents at page 283.

    [64] Claimant's documents at pages 286-287.

30. On 13 March 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that his knee surgeon had suggested surgical intervention in the form of arthroscopies every two years until the age of 50, at which time, he will need to undergo a total knee replacement. He took the news badly and it devastated him emotionally. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[65]

    [65] Claimant's documents at page 1,263.

31. On 13 July 2021, Mr Pearce underwent a right thigh MRI scan by Dr Tej Dugal, radiologist, on the referral of Dr Ismail. Dr Dugal concluded that there was a subtle area of fat contusion slightly superior and medial to the area of interest, which would be consistent with the history of injury. It was not associated with muscular tear, oedema or concerning sinister feature. The overall findings indicated improvement with maturation of the degloving type injury to the right thigh hamstrings. There was evidence of persistent low-grade altered signal in the subcutaneous fat in keeping with the history of fat trauma and stability without resolution of the small fat lobule since earlier examination. There was thickening and mild signal hyperintensity in the superficial fascia at the site of injury, given its persistence, suggesting the development of a superficial scar. The underlying musculature was normal.[66]

    [66] Claimant's documents at pages 149-151.

32. On 27 March 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he was experiencing heightened levels of frustration and anxiety as a result of dealings with the new rehabilitation provider who he found very unreasonable and argumentative. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[67]

    [67] Claimant's documents at page 1,262.

33. On 1 May 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had undergone surgery and he continued to experience a lot of pain. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[68]

    [68] Claimant's documents at pages 1,259-1,260.

34. On 15 May 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had damaged some property in the lift in his building by punching it as a result of anger and frustration. He had to pay $1,000 to fix it. He was experiencing financial distress. He was frustrated by the way the insurer had been treating him. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[69]

    [69] Claimant's documents at page 1,259.

35. On 15 May 2021, Mr Pearce also consulted Dr Ismail who prescribed one 30mg mirtazapine tablet nightly and one to two slow release 2mg melatonin tablets nightly.[70]

    [70] Claimant's documents at pages 1,258-1,259.

36. On 22 May 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[71]

    [71] Claimant’s documents at pages 1,257-1,258.

37. On 29 May 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had recommenced work three days per week, four hours per day and found that he was anxious whilst in the city. He was cautious whilst walking using a walking stick as he was fearful of falling. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[72]

    [72] Claimant's documents at pages 1,256-1,257.

38. On 5 June 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D’Silva noted that Mr Pearce’s psychological symptoms continued be exacerbated by pain issues. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[73]

    [73] Claimant's documents at page 1,256.

39. On 12 June 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D’Silva noted that Mr Pearce continued to be frustrated by pain issues. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[74]

    [74] Claimant's documents at pages 1,255-1,256.

40. On 26 June 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce complained of weight gain and extreme distress when advised that the insurer would not approve further psychological counselling after another eight sessions. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[75]

    [75] Claimant's documents at page 1,254.

41. On 30 June 2021, Mr Pearce consulted Dr Ismail together with a rehabilitation provider. Mr Pearce complained of severe right thigh and right knee pain. He was not sleeping well because of the pain and was anxious. Dr Ismail opined that Mr Pearce’s pain complicated his anxiety and depression. He recommended ongoing cognitive behavioural therapy and referral to a psychiatrist. Dr Ismail prescribed one 30mg mirtazapine tablet nightly and one to two slow release 2mg melatonin tablets nightly.[76]

    [76] Claimant's documents at pages 1,252-1,253.

42. On 3 July 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D’Silva noted that Mr Pearce’s psychological symptoms continued to be exacerbated by pain issues. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[77]

    [77] Claimant's documents at pages 1,251-1,252.

43. On 10 July 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. He noted that Mr Pearce was experiencing financial distress. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[78]

    [78] Claimant's documents at page 1,251.

44. On 10 July 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that surgery had been discussed in respect of his right hamstring. He stated that he was extremely disappointed about his medical and pain issues. Dr D’Silva noted that Mr Pearce’s psychological symptoms continued to be exacerbated by those issues. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[79]

    [79] Claimant's documents at page 1,250.

45. On 22 July 2021, Dr Mourad reported to Dr Ismail that Mr Pearce had again consulted him in relation to his right thigh injury. He noted the recent right thigh MRI scan which confirmed stable scarring with no sign of recollection. There was no pathology of the deeper structures, including his hamstrings. He recommended that Mr Pearce be reviewed again by Dr Kotronakis.[80]

    [80] Claimant's documents at page 295.

1. On 24 July 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had been referred to a specialist (Dr Kotronakis) in respect of his right hamstring issue. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[81]

   [81] Claimant's documents at page 1,249.

2. On 27 July 2021, Dr Ismail referred Mr Pearce back to Dr Kotronakis for further opinion and management.[82]

   [82] Claimant's documents at page 296.

3. On 31 July 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he was extremely disappointed and frustrated that physiotherapy had been declined due to the COVID-19 lockdown restrictions. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[83]

   [83] Claimant's documents at pages 1,248-1,249.

4. On 7 August 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that, because of his injuries, he and his wife had put having a child on hold. This made him feel guilty and he blamed himself for the emotional state of his wife. He felt like he had failed her. Dr D’Silva observed a skin rash all over Mr Pearce’s body, which he opined was due to stress. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[84]

   [84] Claimant's documents at pages 1,247-1,248.

5. On 14 August 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had jolted violently in his sleep and was having nightmares about the motor accident until his wife woke him up. He was suffering from heightened levels of anxiety and was experiencing severe financial distress. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[85]

   [85] Claimant's documents at pages 1,246-1,247.

6. On 21 August 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had dislocated his knee on two occasions when on a walk with his wife and had to push it back into place. Dr D’Silva opined that Mr Pearce’s psychological symptoms continued to be exacerbated by his issues with the insurer not supporting him in his recovery. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[86]

   [86] Claimant's documents at page 1,246.

7. On 1 September 2021, Mr Pearce consulted Dr Ismail together with a rehabilitation provider. Mr Pearce complained of severe pain in his right knee which was unstable and gave way. Dr Ismail prescribed one 30mg mirtazapine tablet nightly and one to two slow release 2mg melatonin tablets nightly.[87]

   [87] Claimant’s documents at page 1,245.

8. On 2 September 2021, Dr Mourad reported to Dr Ismail that he had a telephone consultation with Mr Pearce that day. Mr Pearce reported symptoms of giving way and instability of the right knee without having experienced any recent trauma. He referred Mr Pearce for X-rays and a right knee MRI scan.[88]

   [88] Claimant's documents at page 1366.

9. On 4 September 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had not slept for the past three nights since receiving an email that the insurer would not provide any further support in respect of medical treatment. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[89]

   [89] Claimant's documents at page 1,244.

10. On 11 September 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[90]

    [90] Claimant's documents at page 1,244.

11. On 18 September 2021, Dr D’Silva referred Mr Pearce to Dr Noore for opinion and management of his work-related right knee pain and swelling.[91]

    [91] Claimant's documents at page 314.

12. On 25 September 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[92]

    [92] Claimant's documents at page 1,242.

13. On 2 October 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had jolted violently in his sleep and was having nightmares about the motor accident until his wife woke him up. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[93]

    [93] Claimant's documents at page 1,240.

14. On 9 October 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had not slept in four nights and had experienced shaking in bed caused by nightmares. He was afraid and anxious about his upcoming appointment with an orthopaedic surgeon as he feared the findings could be very severe and require major surgical intervention. He was also extremely upset because of the insurer’s refusal to pay for a knee brace. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[94]

    [94] Claimant's documents at page 1,239.

15. On 9 October 2021, Mr Pearce also consulted Dr Ismail complaining of severe anxiety and major depression. Dr Ismail prescribed one 30mg mirtazapine tablet nightly and one to two slow release 2mg melatonin tablets nightly.[95]

    [95] Claimant's documents at pages 1,239-1,240.

16. On 16 October 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[96]

    [96] Claimant's documents at page 1,238.

17. On 23 October 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[97]

    [97] Claimant's documents at pages 1,236-1,237.

18. On 30 October 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had barely slept that week and that he experienced slight movement in his knee and that it had popped. He was in excruciating pain and it was getting worse. He also stated that he was experiencing severe financial distress. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[98]

    [98] Claimant's documents at pages 1,235-1,236.

19. On 2 November 2021, Dr Noore reported to Dr Ismail that Mr Pearce had presented on 28 October 2021 with a four year history of persistent pain, distress and disability as a result of a work-related motor accident. Dr Noore noted that Mr Pearce’s K10 mental health questionnaire score was 42/50 and that his post-traumatic stress disorder scored 78/80. His pain diagram showed low back, right leg, right thigh, right knee and right shin pain. His pain severity score was 7/10 and his pain interference score was 9/10. Dr Noore opined that Mr Pearce had persistent post-surgical right knee pain; an unstable right knee; low back and right hip pain secondary to altered gait; post-traumatic stress disorder with suicidal ideation; and significant medico-legal stressors. Dr Noore recommended further consultations for both pain management and post-traumatic stress disorder and that Mr Pearce participate in the Regain intensive pain management program.[99]

    [99] Claimant's documents at pages 428-429.

20. On 6 November 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that there had been an increase in the frequency of nightmares and that he had struggled to obtain sleep during the night. He was experiencing severe pain issues. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[100]

    [100] Claimant's documents at pages 1,234-1,235.

21. On 11 November 2021, Dr Mourad prepared a report at the request of Mr Pearce’s lawyers.[101] Dr Mourad opined that Mr Pearce’s current symptoms were a result of the right thigh degloving and right knee anterior cruciate ligament injury following the motor accident. He noted that Mr Pearce currently suffered from scarring and dysaesthesia in the right thigh following the degloving injury and the new onset of instability in the right knee caused by the motor accident. Dr Mourad opined that the requirement for further arthroscopic surgery and the prospect of right total knee joint replacement surgery is causally related to the

    
    

    work-related motor accident.

    [101] Claimant's documents at pages 508-512.

22. On 20 November 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had suffered a severe panic attack whilst watching television during a scene where someone got pinned to the wall by a car. He experienced an exacerbation of his psychological symptoms. He had had discussions with his wife about breaking up due to the severe emotional issues caused by his injuries. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[102]

    [102] Claimant's documents at page 1,234.

23. On 20 November 2021, Mr Pearce also consulted Dr Ismail who prescribed medications for his chronic right leg pain and one 30mg mirtazapine tablet nightly and one to two slow release 2mg melatonin tablets nightly.[103]

    [103] Claimant's documents at pages 1,233-1,234.

24. On 23 November 2021, Dr Noore reported to Dr Ismail that Mr Pearce had presented for his second consultation on 18 November 2021. He opined that Mr Pearce had pain oriented problems that included persistent post-surgical right knee pain; an unstable right knee; low back and right hip pain secondary to altered gait; post-traumatic stress disorder with suicidal ideation; and significant medico-legal stressors. He noted that Mr Pearce’s current medications included tramadol SR 50mg, oxycodone IR 5mg and mirtazapine 15mg. Dr Noore recommended that paroxetine be substituted for mirtazapine; that a buprenorphine transdermal patch be substituted for tramadol and oxycodone; and that he commence taking prazosin, if tolerated. He again recommended Mr Pearce’s participation in the Regain intensive pain management program.[104]

    [104] Claimant's documents at pages 1,195-1,196.

25. On 4 December 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. He noted that Mr Pearce continued to suffer from anxiety symptoms. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[105]

    [105] Claimant's documents at pages 1,231-1,232.

26. On 17 December 2021, Dr D’Silva prepared a report at the request of Mr Pearce’s lawyers.[106] Dr D’Silva reported that Mr Pearce had been consulting him since 12 December 2020 on the referral of Dr Ismail for the treatment of symptoms of psychological illness caused by a motor accident whilst at work. Dr D’Silva opined that Mr Pearce reported psychological symptoms that pointed to the diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood coupled with panic disorder.

    [106] Claimant's documents at pages 517-519.

27. In respect of current psychological symptoms, Dr D’Silva reported that Mr Pearce continued to display and report symptoms of high levels of anxiety; panic attacks; low mood; tearfulness; lack of motivation; lack of confidence; low self-esteem; extreme feelings of disappointment; feelings of hopelessness; mood swings; interrupted and insufficient sleep; constant emotional fatigue and physical lethargy; self-care and hygiene issues; social withdrawal; social isolation; low tolerance to stressors; increased irritability; low tolerance to anger and frustration; excessive worry and anxiety; difficulty controlling his temper; outbursts of anger; concentration difficulties; forgetfulness; negative thoughts; tension headaches; inability to travel independently; and difficulty completing daily chores due to chronic pain issues.

28. In respect of psychological treatment, Dr D’Silva reported that Mr Pearce continued to participate in cognitive behavioural therapy, progressive exposure therapy, anger management therapy (including trauma focused therapy), on a weekly basis in order to improve his ability to deal with symptoms of anxiety and panic disorder.

29. In respect of prognosis, Dr D’Silva reported that Mr Pearce continued to apply skills and strategies to assist him in coping with symptoms of psychological illness. Progress had been gradual due to severe chronic pain issues which continued to cause aggravation and exacerbation of symptoms of panic, depression and anxiety. He opined that Mr Pearce would require ongoing psychological treatment, including psychiatric treatment, as suggested by Dr Ismail.

30. On 18 December 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he was experiencing severe financial distress and had been advised by Centrelink to apply for a disability support pension. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[107]

    [107] Claimant's documents at page 1,231.

31. On 24 December 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he was experiencing severe tension headaches and that there had been no improvement in his levels of pain. He was paranoid about having another injury. Dr D'Silva noted that his psychological symptoms continued to be exacerbated by severe pain issues. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[108]

    [108] Claimant's documents pages 1,229-1,230.

32. On 31 December 2021, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[109]

    [109] Claimant's documents at pages 1,228-1,229.

33. On 8 January 2022, Mr Pearce consulted Dr Ismail who prescribed medications for his right leg and lower back pain and one 30mg mirtazapine tablet nightly and one to two slow release 2mg melatonin tablets nightly. Dr Ismail did not follow Dr Noore’s change in medication recommendation of 23 November 2021.[110]

    [110] Claimant's documents 1,228.

34. On 15 January 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had aggravated the pain levels in his knee and was unable to mobilise without the use of a walking stick. Dr D’Silva noted that Mr Pearce’s psychological symptoms continued to be exacerbated by pain issues. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[111]

    [111] Claimant's documents at page 1,227.

35. On 29 January 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D’Silva noted that Mr Pearce’s severe pain issues continued to exacerbate his symptoms of depression, anxiety and panic. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[112]

    [112] Claimant's documents at pages 1,226-1,227.

36. On 19 February 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that his knee was getting worse and needed to wear a knee brace in bed as well as during the day. Dr D’Silva noted that bruising on Mr Pearce’s knee was very visible. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[113]

    [113] Claimant's documents at pages 1,225-1,226.

37. On 5 March 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that there had been a deterioration in his pain levels. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[114]

    [114] Claimant's documents at page 1,224.

38. On 12 March 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that flashbacks had been causing panic attacks and that he was excessively worried, constantly checking his emails. Dr D’Silva noted that severe pain issues continued to exacerbate symptoms of depression, anxiety and panic. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[115]

    [115] Claimant's documents at page 1,223.

39. On 19 March 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that his aggression levels were getting higher and that he was constantly on edge. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[116]

    [116] Claimant's documents at pages 1,221-1,222.

40. On 26 March 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had experienced extreme feelings of restlessness and severe tension headaches over the past four to five days. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[117]

    [117] Claimant's documents at page 1,221.

41. On 2 April 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that someone had made fun of his injury and flashbacks and reminders were triggered with aggravated symptoms and anxiety and panic attacks. He was extremely distressed about the issue. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[118]

    [118] Claimant's documents at pages 1,220-1,221.

42. On 9 April 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Mr Pearce stated that he had watched a movie the previous night that depicted a motor vehicle accident. It brought back flashbacks of his injury resulting in heightened levels of panic. His aggression had been out of control. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[119]

    [119] Claimant's documents at pages 1,219-1,220.

43. On 16 April 2022, Mr Pearce consulted Dr D’Silva complaining of similar symptoms to those at the consultation on 12 December 2020. Dr D'Silva noted that Mr Pearce’s psychological symptoms continued to be exacerbated by pain issues and that he was paranoid about sustaining another injury. Dr D'Silva provided cognitive behavioural therapy, pain management therapy, exposure therapy and positive visualisation therapy.[120]

    [120] Claimant's documents at pages 1,218-1,219.

1. There were no significant discrepancies between Medical Assessor Smith and other medical examiners. All six specialist psychiatrists who had examined Mr Pearce since the motor accident, over a period in excess of six years, diagnosed him with motor accident related psychological injuries with conclusive diagnoses of post-traumatic stress disorder and major depressive disorder.

2. In the light of the contemporaneous medical history in evidence regarding the reporting and complaints of psychological injury, there was a clear and direct causal connection between the motor accident and Mr Pearce’s psychological injuries.

3. Medical Assessor Smith provided a comprehensive and thorough analysis of the evidence before him by considering all relevant factors and expert opinions in reaching his conclusions on the issues of causation, degree of permanent impairment, exacerbation, apportionment and the alleged subsequent intervening event in June/July 2019. He was under no obligation to specifically address each document. Medical Assessor Smith engaged with the insurer’s submissions.

4. Mr Pearce confirmed that he intends to participate in the Regain pain management program with Dr Noore as approved by the insurer on a without prejudice basis. However, he has been advised on several occasions by Dr Noore that he will only be able to participate in the pain management program after he has undergone all required surgeries as recommended by his medical specialists. Given that the insurer has refused and delayed approving treatment to Mr Pearce, he has been unable to complete his treatment, which has been denied by the insurer to date.

THE RE-EXAMINATION

Preamble

1. The Panel re-examination and assessment of Mr Pearce was undertaken via audio-visual link (MS Teams) on 8 July 2024. Medical Assessor Mason and Medical Assessor Shen undertook the re-examination and assessment jointly.

Personal details

1. Mr Pearce is a 35-year-old man who lives with his 37-year-old wife, Suzanne Constantino, in an apartment in a southern Sydney suburb. He said that he is not working due to the physical injuries he sustained in the motor accident. He is in receipt of Jobseeker Centrelink benefits with an exemption from work seeking. He said that he has a mobility parking sticker. His wife works part-time as a Pilates instructor and fitness trainer. They have no children.

Psychosocial history

1. Mr Pearce was born in South London, England. He described a normal birth and development. His 70-year-old father is a carpet cleaner and his 67-year-old mother worked as a receptionist and now assists in the family carpet cleaning business. He has two older brothers aged 47 years and 44 years and said that he was well cared for. He described a good childhood in a happy family. He denied any form of abuse throughout childhood.

2. Mr Pearce said that he was both dyslexic and dyspraxic during childhood and struggled with letters and numbers. He attended school to year 11 in England and his final year included training as a mechanic. He finished school at the age of 16 years with a C average. He then completed a mechanical apprenticeship with Toyota over 2.5 years and he remained in the same company for another year. He then worked with Volvo for 2.5 years and obtained further qualifications in that area of work as a master technician. He said that he met his wife Suzie in 2012 and that they moved to Australia together in 2013. They married in 2016. He is a permanent resident of Australia.

Pre-accident history

1. Mr Pearce was employed by Purnell Volvo and Land Rover at Blakehurst as an engine specialist from April 2013 until January 2014. He left that employment because there was no prospect of promotion and moving into management. He was then employed by NRMA as a foreman and motor mechanic for one year. In November 2014, he commenced employment with Kmart Tyre and Auto at Sylvania as a store manager and motor mechanic working 40 hours per week.

2. Leisure activities prior to the motor accident consisted of body building and power lifting. He said that he was in the gymnasium six days per week. In addition, he enjoyed going camping and hiking in the bush. He said that he did some reading but was mainly a physically oriented person. He is 180cm tall and that, at the time of the motor accident, he weighed 95kg and his body mass index was 29.3kg/m². He said that, at that time, he had no fat on his body. Prior to the motor accident, he had a wide circle of friends and was very socially active. He said that his concentration was extremely good. The relationship with his wife was positive and they had been trying to have a child and said that this is currently not possible because she has developed medical issues.

3. Mr Pearce described no previous claims for motor accident, workers compensation or personal injury matters. There was no history of problems with the law. With regard to medical history, there was a previous fall on a trampoline in 2016 which resulted in a slight meniscus injury to his right knee. He said that he had recovered within weeks and went back to power lifting. There was no surgery required. He denied any other medical problems.

4. With regard to substance use, Mr Pearce said he does not use cigarettes. He currently consumes 750ml of whisky either weekly or fortnightly, depending on pain. This equates to the consumption of between one and a half and three standard drinks of alcohol per day. He denied the use of recreational drugs and said that he did not gamble. He was questioned about the use of medicinal cannabis; he said that he had purchased two separate bottles of cannabidiol (CBD) oil to help with pain and sleep. He said that it was helpful but used it for only two months because he could not afford to continue.

5. Mr Pearce was questioned regarding a business of online sales of craft beer. He denied this was ever a business activity and said it was merely a venue for reviewing various types of craft beer. He was asked why the advertising included the slogan “Booze Delivered to U”; he said that no orders of alcohol were ever delivered to customers. It only delivered reviews.

6. Mr Pearce was also questioned about promoting a property investment business. He said that he and his wife had done a course with the organisation and had purchased an investment property in Queensland. His promotion was simply a testimonial to add his support to that business in appreciation for the help they had provided.

7. Mr Pearce’s current medications consist of Panadeine Forte, one tablet three times daily and oxycodone 5mg about three times weekly. He uses the antidepressant mirtazapine 15mg at night and melatonin 1mg at night. He said he briefly used mirtazapine 30mg and it made him feel like a zombie. Melatonin 1mg at night provides three or four hours of sleep.

History of the motor accident

1. The motor accident occurred on 24 March 2017. Mr Pearce said that the automotive workshop he was working in was busy and it was necessary for him to help out so, he was in the process of fitting a set of tyres. A car on the ramp behind him had just been serviced and the front and rear brakes had been replaced. The mechanic got into the car to reverse it out of the workshop but had selected drive rather than reverse. He said the car had to go over a speed hump and the mechanic accelerated for this purpose. The mechanic had not pumped the brakes to clear the air from the brake lines and when he tried to stop the car the brakes did not work. He said the car travelled 3m forward and the front bumper of the car impacted his right knee and shin and pinned it against a heavy metal tyre changing machine. He said there was a lip on the machine which meant the lower part of his leg was pushed backwards and his thigh moved forward. He appeared to be describing hyperextension of his knee.

2. Mr Pearce said he was pinned for about 15 seconds. The driver was in severe shock and another mechanic had to lean into the vehicle and put it into reverse. He said that he let out a scream and then fell down when the car moved away. The proprietor of a nearby fruit shop came to provide ice which was wrapped around his leg with plastic. A police officer who was present in the workshop rendered first-aid assistance. Mr Pearce said that there was a massive bulge on his lateral hamstring.

History of symptoms and treatment following the motor accident

1. Mr Pearce was initially asked to describe his physical injuries. He said that a staff member telephoned head office and that a manager from a nearby store was directed to take him to a local medical centre. He said that this was not particularly helpful and on the following day he attended his own general practitioner, Dr Ismail. Dr Ismail arranged an ultrasound scan and then an MRI scan and referred him to an orthopaedic surgeon, Dr Mourad, for treatment. He diagnosed a haematoma in his thigh and he was off work for about six weeks and then returned to work at Sylvania on light duties.

2. In July 2017, Mr Pearce underwent surgery to reduce the haematoma and this was required again two weeks later. He underwent a physiotherapy program and again returned to work on light duties. In June 2018, he had knee reconstruction surgery which consisted of a partial meniscectomy and augmentation of the anterior cruciate ligament with a replacement graft. This was followed by two weeks of rehabilitation in Waratah Private Hospital and then 12 weeks of physiotherapy treatment.

3. Mr Pearce again returned to work on light duties doing 16 hours per week at the Broadway Kmart Tyre and Auto store where there was a greater requirement for office related work. He said that he was then pressured to return to work in the workshop but that he could not manage this because of physical restrictions and anxiety. He said that he was pressured and told he would receive written warnings if he did not resume workshop duties. He said that he saw his general practitioner who provided certificates of capacity restricting his ability to lift. He said that he did try to move into the workshop and was under increasing pressure from his employer over two weeks to build up his hours and duties.

4. Mr Pearce said that, in around June or July 2019, the company released the biannual safety report on its Australia-wide operations to all employees which said no one had been injured in the last 24 months. Mr Pearce said that he contacted his regional manager who confirmed that his accident was referred to in the report as giving rise to no injuries. He said, at that point, he had a complete breakdown because he felt he could no longer trust them. He said that he immediately had to go home because he was being treated as if the accident never happened. He did not return to work and submitted certificates of capacity stating he was unfit for work. He said his employment was terminated in November 2019 and the workers compensation insurer ceased paying entitlements in January 2021.

5. Mr Pearce was then asked to describe his psychological injuries from the time of the injury. He said that, initially, he was shocked, traumatised and anxious on the day of the motor accident. He was fearful he might have lost his leg. He said that he had a nightmare that evening in which he re-experienced the accident. He said that he could hear the sounds of the accident and that he woke up in a sweat. He said that, initially, the nightmares were occurring every night. He also described re-experiencing phenomena of being trapped and constricted when he was walking down the street. He said if he rolls over in bed he experiences pain which triggers a nightmare.

6. Mr Pearce described flashbacks in which he sees, feels and hears the accident in the workshop. He said these can be set off by a movie on television of a car accident. He said they could also occur when he was walking down the street. He said that the sound of a scream or a car chase could set one off. He said that they were occurring a number of times per week and now occur approximately once weekly. He said events that remind him of the accident trigger him into thinking about it.

7. When asked about avoidance symptoms, Mr Pearce said that he tends to stay in his home and will not watch new movies because he does not know what he might see. He said that this can also set off "phantom pain". He said that, if he gets distressed while walking down the street, it is necessary for his wife to hold his hand and similarly, if they are crossing the street.

8. Mr Pearce noted significant anxiety in which he worries about the future. He is constantly asking “how long will this go on?” He said that he feels he has lost everything and does not know how anything can get any better.

9. Mr Pearce noted he was doing a recruitment job from home with a company called EDT Global Pty Limited in which he was finding people for telecoms jobs. He was doing four hours per day, three days per week and believes he did this for about six months. He said he could not continue because he was constantly being triggered because employees telephoned him about accidents they had at work or about car accidents. The clinical records indicate that he worked with EDT Global Pty Limited for about 11 months from October 2020 until September 2021. When questioned about this, he said he did not think it was for that long.

10. Mr Pearce went on to describe panic attacks in which he experiences shortness of breath and a sense of cloudiness in his head. He said that he feels trapped in his head. A panic attack could be set off by the sound of wheel spins and he is then in a mess. He said that he manages to calm himself down by seeking three different sensory points of contact as he had been taught to do by his psychologist.

11. Mr Pearce was asked about mood symptoms and he said that he is very angry and depressed. He said that he does not want to be here but his wife protects him from acting on suicidal impulses. He said that he has thoughts of self-harm or suicide approximately twice monthly. He was asked if he was able to enjoy anything and he said that he does enjoy the company of his wife. He said that he has stopped seeing all previous friends and has only one friend, an autistic man who lives in Brisbane. He said that his concentration is poor and that he has difficulty with planning and problem-solving. He said that, prior to the motor accident, he was an ambitious man who wanted to get ahead and he now feels very frustrated.

12. Mr Pearce was asked about treatment and he said that he spoke with his general practitioner about it from the beginning and that he was helping him deal with his trauma during his monthly visits. He said that, about six months after surgery on his knee, he was referred to a psychologist, Mr Kasim Abaie, for the treatment of anxiety and depression. He believes he had monthly counselling sessions with him for approximately eight months. He believes he was treated by another psychologist at the same practice following this. He said the name was Mr Kassim but there was no record of this treatment. The Panel noted the similarity to the first name of Mr Kasim Abaie. Mr Pearce had been commenced on the antidepressant mirtazapine 15mg by Dr Ismail. He also provided prescriptions of melatonin 1mg.

13. Mr Pearce was subsequently referred to a treating psychologist, Dr Joseph D’Silva and believes he attended 10 or 15 sessions on a monthly basis. He attended between December 2020 and March 2023. In early 2021, Dr D’Silva recommended referral to a psychiatrist and he was referred by Dr Ismail to Dr Faiz Noore, who is both a psychiatrist and pain management specialist. He said that he had two or three consultations with Dr Noore who suggested an increase in the dosage of mirtazapine to 30mg which Mr Pearce was not able to tolerate. Dr Noore also suggested participation in a Regain pain management program for 12 weeks but this was not funded by the insurer.

14. Mr Pearce said that Dr D’Silva had attempted to conduct eye movement desensitisation response (EMDR) treatments but he found them to be too triggering and he could not continue. He said that, in general, the treatment from Dr D’Silva helped reduce his suicidal ideation and gave him some tools to manage his anxiety.

Injuries or conditions since the motor accident

1. Mr Pearce said that there were no such injuries or conditions. He said that he has had a number of falls because of the instability of his right knee but no other injuries.

Current symptoms

1. Mr Pearce said that he continues to experience nightmares and flashbacks once weekly. He remains angry, unhappy and frustrated. He experiences suicidal ideation twice monthly and a panic attack, at least, weekly.

2. General anxiety continues. Insomnia is also a problem which usually consists of waking at around 4.00am and then intermittently dozing until he gets up around 7.30am. He said that he does not sleep during the day but is lethargic. He said that he tries to avoid sleeping during the day so he will not have a flashback or a panic attack. He remains socially avoidant. He stated that he experiences significant right knee instability.

Current and proposed treatment

1. There is no current or proposed treatment apart from monthly consultations with Dr Ismail.

Mental state examination

1. Mr Pearce is a 35-year-old right-hand dominant man whose appearance is consistent with his stated age. He was located alone in a room in his home in Rockdale. He was identified from his photograph on his New South Wales driver licence. He was interviewed using the Microsoft Teams application with a good internet connection. The interview commenced at 9.00am and concluded at 11.00am.

2. Mr Pearce was neatly casually dressed and well presented. His hair was neatly done and his beard neatly trimmed. He was wearing warm clothing. He displayed a full range of appropriate affective expression, including being able to smile and laugh. There was some pain behaviour evident, especially as he attempted to rise from his position to obtain his driver licence. Apart from this, there was very little in the way of pain behaviour.

3. There was no evidence throughout the interview of either depression or anxiety. He did not become tearful or distressed. He was affable throughout the interview and was not angry. There was no evidence of impaired concentration throughout the lengthy two hour interview with two psychiatrists. His rate and form of speech was normal.

4. Mr Pearce described nightmares and flashbacks arising from the motor accident. He also described avoidance phenomena and intrusive recollections of the event. He described negative cognition and mood and impaired concentration along with insomnia.

5. Mr Pearce was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.

Current functioning

1. Mr Pearce’s daily routine consists of getting up at around 7.30am and having coffee. He said that he mostly does not eat breakfast. He then sits and watches television for a few hours. When his wife comes home he may go out for a five minute walk or sit on the balcony with her. He also tries to read self-help books. He said that he does not really eat lunch but does have dinner which is prepared by his wife. He said that he is distressed by not being able to exercise or go to the gym.

Self-care and personal hygiene

1. Mr Pearce said that he showers once or twice weekly. He said that he does not shower more frequently because he is petrified he will fall in the shower due to his unstable right knee. He said that his wife needs to be with him while he showers to ensure his safety. He said that he does change his underwear and clothing daily or second daily. His nutrition is adequate but he has put on a significant amount of weight because he is much less active. From a psychiatric point of view he is mildly impaired.

Social and recreational activities

1. Mr Pearce said that he does very little. He has an autistic friend in Brisbane and he sees him once per year. Apart from that, there is very minimal socialising. He said that he and his wife might go out for a meal with friends approximately every two months. He said that he does not go out to hotels, clubs or entertainment venues but he did attend a concert by his favourite rock band, Nickelback, when they came to Sydney. Mr Pearce was extensively questioned by the Panel regarding social activities as indicated in the material provided by the insurer. The Panel concluded that he has been socially much more active than he indicated above. From a psychiatric point of view he is mildly impaired.

Travel

1. Mr Pearce is able to drive a car. He said that he does not like driving but can do so. He would prefer to drive rather than be a passenger. He said that in the process of driving he does become anxious and angry. He said that he is able to use public transport but is anxious about falling in a bus or a train due to the swaying and rocking motion because of his knee injury. He said that it is also difficult to walk more than 200m and he finds it difficult to manage stairs. He said that he has travelled by air to Brisbane on two occasions. He is mildly impaired.

Social functioning

1. Mr Pearce said that his relationship with his wife has deteriorated and they have been close to divorce. He said that she had actually left him on a couple of occasions because of his deterioration. He said that he is not able to participate in their intimate relationship because of pain. He has reduced contact with his extended family. As noted above, his friendships are reduced. He is moderately impaired.

Concentration, persistence and pace

1. Mr Pearce said that it takes him one hour to read a page of a book but he does try to read self-help books. He is able to watch a show called Modern Family on television for hours at a time. He said he feels safe with that show because he knows it does not contain triggers. His wife manages the household money. His ability to perform tasks is reduced and his pacing is reduced largely by his physical injuries. The Panel noted there was no concentration difficulty throughout the two hour interview. He is mildly impaired.

Adaptation

1. Mr Pearce is unable to work because of his physical injuries. He said that he is also unable to go back into a workshop because of his psychological injuries. His contribution to household activities is limited by pain. He is moderately impaired.

Consistency of presentation

1. Mr Pearce was questioned by the Panel regarding various inconsistencies in the evidence as set out below.

2. The Panel noted there were no references in the general practitioner clinical records to psychological symptoms or treatment for 19 months following the motor accident. Mr Pearce insisted that he obtained psychological counselling from Dr Ismail during that period. The Panel indicated that it was extremely unlikely that a general practitioner would have failed to record the presence of significant psychological symptoms and the provision of counselling. However, Mr Pearce’s claim form dated 17 September 2017 did refer to depression and post-traumatic stress disorder as well as his physical injuries.

3. When questioned about the “Booze Delivered to U” website, Mr Pearce said that this had been established by his wife.

4. When questioned about joining the Freemasons, Mr Pearce said that he had attended eight meetings at their central Sydney headquarters in Goulburn Street in 2020. He was taken by a friend but added he could not continue to attend or perform because of symptoms.

5. Mr Pearce confirmed that he did go hot air ballooning on two occasions (2019 and 2020).

6. Mr Pearce confirmed that he did travel to Fiji in 2018. He denied travelling to Canada in 2019. He said that his wife travelled to Florida in 2020 and that he did not accompany her.

7. Mr Pearce was informed by the Panel that the record of Medical Assessor Smith noted that he had commenced psychological treatment four months after the motor accident. He said he was having consultations with his general practitioner at that time.

8. Mr Pearce was informed by the Panel that, in the report of psychiatrist Dr Anderson, he advised that he had separated from his wife. Mr Pearce stated that this was accurate at that time and that they had separated on a few occasions.

9. Mr Pearce said that he could not remember if he had attended an Ed Sheeran concert on 17 March 2018.

10. Mr Pearce denied a trip to Byron Bay in November 2020 stating that he and his wife share the credit card and that the expenditure was hers.

11. Mr Pearce confirmed a three day holiday in the Hunter Valley in February 2021.

12. Mr Pearce confirmed the trip to Surfers Paradise in June 2021.

13. Mr Pearce said that a five day holiday in Byron Bay in September/October 2022 was taken by his wife and that he did not attend.

14. Mr Pearce said that a trip to Coolangatta in January 2023 was taken by his wife and that he did not attend.

15. Mr Pearce confirmed a visit to Wollongong in 2023.

16. Mr Pearce said that the visit to Canberra in November 2022 was taken by his wife and that he did not attend.

17. Mr Pearce confirmed cannabis (CBD oil) purchase in December 2022/January 2023.

18. Mr Pearce confirmed that he had attended a Nickelback rock concert at the Sydney Show Ground on 25 December 2021.

19. Mr Pearce was asked about his period of employment with recruitment consultants, EDT Global Pty Limited. He said that he believed he worked there for about six months. The documentation indicates employment from October 2020 until December 2021. He believes he left in September 2021.

20. The overall conclusion reached by the Panel was that Mr Pearce had significantly understated his ability to participate in social and recreational activities and there were inconsistencies in histories provided to various examiners.

Formulation

1. Mr Pearce was involved in an extremely frightening and potentially life threatening motor accident on 24 March 2017, which has left him with some degree of physical impairment and ongoing pain. Medical Assessor Wijetunga assessed physical WPI at 10% in October 2020. Medical Assessor Home arrived at the same figure for physical injuries in October 2023.

2. In addition to the examination by Medical Assessor Smith, Mr Pearce has been assessed by a number of psychiatrists. He was assessed by Dr Whetton on three occasions, Medical Assessor Samuels, Dr Anderson and Dr Noore. There was general agreement that post-traumatic stress disorder and a mood disorder had been caused by the motor accident. Similar conclusions had also been reached by treating psychologists, Mr Abaie and Dr D’Silva.

3. The Panel agreed with these diagnostic formulations. It was a frightening motor accident with a potential for extreme physical injury. Mr Pearce described symptoms consistent with both post-traumatic stress disorder and a persistent depressive disorder at the time of interview.

4. The Panel noted some concern that Mr Pearce did not appear in any way distressed, depressed, anxious or upset while describing the motor accident and the subsequent conditions. Nonetheless, the Panel accepts the symptoms described by Mr Pearce could have been caused by the motor accident.

5. The Panel also notes there were a number of inconsistencies in Mr Pearce's description of his ability to participate in social and recreational activities since the motor accident. There were also inconsistencies in histories provided to various Medical Assessors.

6. Despite these inconsistencies, the Panel has not drawn adverse conclusions regarding the injuries suffered by Mr Pearce.

DIAGNOSIS AND REASONS

1. The Panel has diagnosed Mr Pearce with both post-traumatic stress disorder and persistent depressive disorder with anxious distress.

2. Mr Pearce meets the DSM-5-TR criteria for post-traumatic stress disorder as follows.

   Criterion A

   Mr Pearce directly experienced the traumatic event.

Criterion B

Mr Pearce experiences intrusion symptoms consisting of nightmares and flashbacks.

Criterion C

Mr Pearce makes obvious efforts to avoid stimuli associated with the traumatic event.

Criterion D

Mr Pearce has negative alterations in cognition and mood.

Criterion E

Mr Pearce has alterations in arousal and reactivity consisting of irritability and angry outbursts, problems with concentration and sleep disturbance.

Criterion F

Duration of the disturbance has been greater than one month.

Criterion G

There has been significant distress and impairment in social and occupational functioning.

Criterion H

The disturbance is not attributable to the physiological effects of a substance (for example, medication or alcohol) or another medical condition.

1. Mr Pearce meets the DSM-5-TR criteria for persistent depressive disorder with anxious distress as follows:

   Criterion A

   Mr Pearce has described depressed mood most of the day for more days than not for at least two years.

   Criterion B

   Mr Pearce has described the presence of poor appetite, insomnia, low self-esteem, poor concentration and feelings of hopelessness.

   Criterion C

   The symptoms in criterion A and B have never been absent for more than two months at a time.

Criterion D

There may have been episodes of major depressive disorder since the motor accident.

Criterion E

There has never been a manic or hypomanic episode.

CAUSATION AND REASONS

1. The Panel concludes that the motor accident was capable of giving rise to a psychiatric condition.

2. Mr Pearce was involved in an extremely frightening and potentially life threatening motor accident, which has left him with some degree of physical impairment and ongoing pain and was capable of giving rise to a psychiatric condition.

3. At some time following the motor accident, Mr Pearce developed psychiatric symptoms. Mr Pearce’s evidence is that he discussed these symptoms with Dr Ismail from the beginning and that he was helping him deal with his trauma during his monthly visits. However, the doctor’s clinical records did not disclose an entry in respect of his psychiatric symptoms until 3 October 2018. Nevertheless, the Panel accepts that Mr Pearce was experiencing the symptoms complained of which commenced at some point after the motor accident.

4. There is no evidence that Mr Pearce suffered from such symptoms or suffered from any psychiatric condition prior to the motor accident.

5. Mr Pearce’s psychiatric condition is consistent with the stated cause. There is no evidence of any other causative factor.

6. Mr Pearce’s symptoms have persisted. He remains on psychotropic medication (mirtazapine 15mg at night and melatonin 1mg at night). He continues to consult Dr Ismail.

7. The absence of psychiatric symptoms prior to the motor accident and the development of and persistence of symptoms, persisting disabilities and need for ongoing treatment since the motor accident would indicate, on the balance of probabilities, that the motor accident did cause or contribute to Mr Pearce’s current symptoms to an extent that is more than negligible.

8. Accordingly, the Panel is satisfied that the motor accident did cause both post-traumatic stress disorder and persistent depressive disorder with anxious distress for the reasons stated above.

PERMANENCY OF IMPAIRMENT

1. Permanent impairment is defined by the AMA 4 Guides as impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially, that is, by more than 3% WPI in the next year with or without medical treatment.[182]

   [182] AMA 4 Guides at page 315 and cl 1.19 of the Guidelines.

2. The Panel considered the question of permanency of impairment and is satisfied that Mr Pearce’s psychiatric disorder caused by the motor accident has stabilised and is permanent within the meaning of the above definition.

DEGREE OF PERMANENT IMPAIRMENT

Psychiatric impairment rating scale

1. The degree of WPI of the injury caused by the motor accident is calculated in accordance with the PIRS as set out below.

Psychiatric diagnoses

1. Post-traumatic stress disorder.

2. Persistent depressive disorder with anxious distress.

Psychiatric treatment description

General practitioner consultation.

Psychological consultation.

Psychiatric consultation.

Psychotropic medication.

Category	Class	Reason for Decision
1.   Self-care and personal hygiene	2	Mr Pearce said he showers once or twice weekly. He said that he does not shower more frequently because he is petrified he will fall in the shower due to his unstable right knee. He said that his wife needs to be with him while he showers to ensure his safety. He said he does change his underwear and clothing daily or second daily. His nutrition is adequate but he has put on a significant amount of weight because he is much less active. From a psychiatric point of view he is mildly impaired.
2.   Social and recreational activities	2	Mr Pearce said that he does very little. He has an autistic friend in Brisbane and he sees him once per year. Apart from that, there is very minimal socialising. He said that he and his wife might go out for a meal with friends approximately every two months. He said that he does not go out to hotels, clubs or entertainment venues but he did attend a concert by his favourite rock band Nickelback when they came to Sydney. Mr Pearce was extensively questioned by the Panel regarding social activities as indicated in the material provided by the insurer. The Panel concluded that he has been socially much more active than he indicated above. From a psychiatric point of view he is mildly impaired.
3.   Travel	2	Mr Pearce is able to drive a car. He said that he does not like driving but can do so. He would prefer to drive rather than be a passenger. He said that in the process of driving he does become anxious and angry. He said that he is able to use public transport but is anxious about falling in a bus or a train due to the swaying and rocking motion because of his knee injury. He said that it is also difficult to walk more than 200m and that he finds it difficult to manage stairs. He said that he has travelled by air to Brisbane on two occasions. He is mildly impaired.
4.   Social functioning	3	Mr Pearce said that his relationship with his wife has deteriorated and they have been close to divorce. He said that she had actually left him on a couple of occasions because of his deterioration. He said that he is not able to participate in their intimate relationship because of pain. He has reduced contact with his extended family. As noted above, his friendships are reduced. He is moderately impaired.
5.   Concentration, persistence and pace	2	Mr Pearce said that it takes him one hour to read a page of a book but that he does try to read self-help books. He is able to watch a show called Modern Family on television for hours at a time. He said that he feels safe with that show because he knows it does not contain triggers. His wife manages the household money. His ability to perform tasks is reduced and his pacing is reduced largely by his physical injuries. The Panel noted there was no concentration difficulty throughout the two hour interview. He is mildly impaired.
6.   Adaptation	3	Mr Pearce is unable to work because of his physical injuries. He said that he is also unable to go back into a workshop because of his psychological injuries. His contribution to household activities is limited by pain. He is moderately impaired.
List classes in ascending order: 2, 2, 2, 2, 3, 3
Median Class Value: 2
Aggregate Score: 14
WPI: 7%

Apportionment

1. The Panel considered that there was no requirement for a pre-existing impairment apportionment. There was no evidence of Mr Pearce having experienced symptoms of any psychiatric disorder prior to the motor accident.

2. There was no evidence of any incident causing a psychiatric disorder since the motor accident that would require an impairment apportionment.

Adjustment for the effects of treatment

1. The Panel considered that it is likely that there is some benefit from the use of the antidepressants, mirtazapine and melatonin. Accordingly, a 1% treatment effect allowance is made.

Assessment of permanent impairment

1. The Panel assesses Mr Pearce’s permanent impairment as follows:

   (a)    current WPI: 7%;

   (b)    apportionment: 0%, and

   (c)    WPI adjustments for the effects of treatment: 1%.

2. Accordingly, the Panel assesses Mr Pearce’s final WPI as 8%.

FINDINGS

1. 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[183] and Insurance Australia Ltd v Marsh.[184]

   [183] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].

   [184] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].

2. The Panel adopts the re-examination findings and conclusions of Medical Assessor Mason and Medical Assessor Shen based on their examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.

3. The Panel determines that Mr Pearce sustained a post-traumatic stress disorder and persistent depressive disorder with anxious distress caused by the motor accident on 24 March 2017.

4. The Panel determines that Mr Pearce’s psychiatric disorder caused by the motor accident has stabilised and is permanent.

5. The Panel determines that there are no pre-existing impairments or any subsequent impairments requiring an apportionment of impairment.

6. The Panel determines that there is an allowance of 1% WPI to be made for the effects of treatment.

7. The Panel determines that the post-traumatic stress disorder and persistent depressive disorder with anxious distress caused by the motor accident on 24 March 2017 gives rise to a final WPI which is not greater than 10%, that is, 8%.

8. Accordingly, the certificate issued by Medical Assessor Smith dated 21 April 2023 is revoked.

CONCLUSION

1. The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.