AAI Limited t/as GIO v Reid (nee Smith)
[2025] NSWPICMP 94
•18 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Reid (nee Smith) [2025] NSWPICMP 94 |
CLAIMANT: | Leah Reid |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | John Baker |
MEDICAL ASSESSOR: | Michael Hong |
DATE OF DECISION: | 18 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; psychological injury; review of medical assessment of permanent impairment; claimant was a passenger in a motor vehicle travelling at 110 kph when a tyre blew out causing the vehicle to hit the shoulder of the road, spin around, and to come to rest in the middle of the highway; original Medical Assessor found that claimant sustained a psychological injury (post-traumatic stress disorder) caused by the motor accident that gave rise to permanent impairment of 19%; Held – claimant sustained a psychological injury (major depressive disorder) of mild severity caused by the motor accident that gave rise to permanent impairment of 7%; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 63(4) of the Motor Accidents Compensation Act 1999 The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Determination 1. The Review Panel revokes the certificate of Medical Assessor Gerald Chew issued on 2. The Review Panel issues a new certificate determining that the following injury caused by the motor accident gives rise to a permanent impairment which is NOT GREATER THAN 10% (that is 7 %): · major depressive disorder of mild severity. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Leah Reid, was involved in a motor accident on 20 April 2016 near Goulburn, when the vehicle in which she was travelling as a passenger, hit a sandstone wall on the shoulder of the road, spun around and finally came to rest in the middle of the roadway.
The claimant claims that she sustained physical injuries in the accident and subsequently developed a psychological injury. This dispute concerns only the psychological injury.
The claimant made a claim under the Motor Accidents Compensation Act1999 (MAC Act) for common law damages against QBE, the insurer of the vehicle in which she was travelling.
As part of her claim, the claimant pursued damages for non-economic loss. According to s 131 of the MAC Act, no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer disagreed that the claimant’s impairment arising from her psychological injury caused by the accident, exceeded that threshold.
According to s 57 and sub-s 58(1)(d) of the MAC Act, such a disagreement constitutes a “medical dispute” about one of the “medical assessment matters” that may be referred to the Personal Injury Commission (Commission) for assessment.
Pursuant to s 60 of the MAC Act, the claimant made the application to the Commission for a medical assessment. The Commission referred the matter to Medical Assessor Gerald Chew for assessment.
On 1 February 2024, the Medical Assessor issued a certificate finding that the injury post- traumatic stress disorder, was caused by the accident and gave rise to a permanent impairment of 19%.
THE REVIEW APPLICATION
On 6 March 2024, pursuant to s 63(1) of the MAC Act, the insurer made an application to the President of the Commission to refer the medical assessment to a review panel for review. The Commission accepted that the review application was made within the time prescribed by s 63(7) of the MAC Act and the application was filed on 11 March 2024.
The President referred the application to a review panel (the Panel) for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application. [1]
[1] Section 63(2B) of the MAC Act.
CONDUCT OF THE REVIEW
According to s 63(3) of the MAC Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor John Baker, Medical Assessor Michael Hong and Member Maurice Castagnet.
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.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 63(3A) of the MAC Act.
RELEVANT LEGISLATION, GUIDELINES AND LEGAL PRINCIPLES
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[5]
[5] Clause 1.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[6] In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[6] Section 3B(2) of the CL Act.
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, they provide useful guidance to the presently constituted Panel.
Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[7]
MEDICAL ASSESSMENT UNDER REVIEW
[7] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The claimant was initially assessed for permanent impairment of her psychological injury by Medical Assessor Angelo Virgona on 19 December 2018.[8] He issued a certificate on
23 January 2019, finding that the claimant sustained an injury –– chronic post- traumatic stress disorder with secondary depression, caused by the accident, which gave rise to a permanent impairment of 8%.[9][8] The certificate was issued by the Commission’s predecessor, the State Insurance Regulatory Authority (SIRA).
[9] Pages 277 and 288 of the claimant’s bundle.
On 23 January 2023, the claimant made an application for a further medical assessment. On this occasion, the matter was referred to Medical Assessor Gerald Chew for assessment.
On 8 June 2023, Medical Assessor Chew issued a certificate finding that the claimant sustained an injury – post- traumatic stress disorder, caused by the accident. He considered that impairment arising from the injury was not permanent and therefore he declined to make an assessment. [10]
[10] The certificate of Medical Assessor Chew dated 8 June 2023 did not form part of the parties’ bundle but was available to the Panel from the Commission on the portal.
On 1 February 2024, the claimant was re-assessed by Medical Assessor Chew. On this occasion, in a certificate issued on the same date, he found that the injury caused by the accident – post- traumatic stress disorder, gave rise to a permanent impairment of 19%.
MATERIAL BEFORE THE PANEL
The Panel considered the material filed by the parties. The claimant’s bundle of evidence comprised of 289 pages and the insurer’s bundle of evidence, 404 pages.
INSURER’S SUBMISSIONS
The insurer noted that the claimant’s application for a further medical assessment was based on a deterioration of her psychiatric condition since the determination of Medical Assessor Virgona and that the claimant relied on several reports from psychiatrist, Dr Jonathan Phillips in support of her application. The insurer submitted that the alleged deterioration was not causally related to the accident. For this contention, the insurer relied on the report of psychiatrist, Dr Samuel Lim.
CLAIMANT’S SUBMISSIONS
The claimant submitted that Dr Lim’s opinion on causation does not support the insurer’s cause. Dr Lim said:
“I believe she continues to present with a Somatic Symptom Disorder with predominant pain that is causally related to the subject motor vehicle accident. However, I believe that any disabilities she experiences from this condition would be subsumed under those that occur as a result of her physical injuries. I believe that she also presents with an Adjustment Disorder. The main disabilities relating to this condition relate to impacts on her interpersonal interactions and on her social and recreational activities. I believe that the predominant cause of her Adjustment Disorder is the loss of her employment. However, whilst I note that the disruption in her ability to continue working is multifactorial, a significant proportion is due to the deterioration in her physical functioning as a result of injuries she attributes to the subject motor vehicle accident.”
On that basis, it can be said that Dr Lim accepted that the conditions he diagnosed were causally related to the motor accident. Clause 1.7 of the Guidelines provides that “the motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible.” As such, even if the insurer was able to establish the presence of other contributing causal factors, its own evidence establishes that the accident was one of those contributing causes which is more than negligible.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The Panel considered all the documents that were before it. The evidence that was of most significance to the matters under review, may conveniently be summarised as follows.
Post accident treatment records
The claimant was referred to clinical psychologist, Jennifer Hampson, for treatment by her general practitioner (GP) on 14 November 2016. The referral was for “psychological treatment of “Post-Traumatic Stress following a motor vehicle accident on 20 April 2016.”[11]
[11] Page 219 of claimant’s bundle.
In a report dated 12 December 2016, Ms Hampson diagnosed post- traumatic stress disorder as consistent with her findings on presentation and clinical assessment. Ms Hampson observed and noted that the claimant was tearful, feels overwhelmed, tired, has difficulty with decision making, is making mistakes in her work as a nurse and has problems with attention and concentration, in addition to being in chronic pain as a result of her physical injuries sustained in the accident.[12]
[12] Page 219 of the claimant’s bundle.
Ms Hampson recommended that the claimant take a month’s leave of absence from work and attend regular psychological treatment. She proposed to provide Eye Movement Desensitisation Reprocessing (EDMR) therapy.[13]
[13] Page 291 of the claimant’s bundle.
According to the reports of Ms Hampson dated 6 April 2017, 26 May 2018 and 10 July 2018, the claimant attended further treatment sessions in 2017 and 2018.[14]
[14] Page 220 – 224 of the claimant’s bundle.
In her report dated 10 July 2018, Ms Hampson expressed the opinion that the claimant required a concentrated episode of psychological treatment in order to recover from her mental health injuries arising from the accident.[15]
[15] Page 225 of the claimant’s bundle.
Medicolegal evidence
On 31 January 2017, the claimant was assessed by psychiatrist, Dr Graham George at the request of her employer, Southern NSW Local Health District, for the purpose of considering her fitness for duty as a nurse. In his report on the same date, Dr George expressed the opinion that the claimant was suffering from chronic post- traumatic stress disorder. He said that the claimant was also suffering a prolonged bereavement reaction in relation to the death of a friend’s child, three years earlier.[16] However, he believed that the psychiatric disorder was the primary factor in her presentation and current difficulties at work.[17]
[16] Page 162 of the claimant’s bundle
[17] Page 162 of the claimant’s bundle
On 15 March 2017, the claimant was assessed by psychiatrist, Dr Klaas Akkerman at the request of her lawyers. In a report of the same date, Dr Akkerman diagnosed post- traumatic stress disorder, major depression and specific phobia (traffic), which he believed were all caused by the accident.[18] Dr Akkerman assessed those injuries as giving rise to a permanent impairment of 26%.[19] His assessment was re-confirmed following a re-examination of the claimant on 15 November 2017.
[18] Page 244 of claimant’s bundle.
[19] Page 245 of claimant’s bundle.
On 20 October 2017 the claimant was assessed by psychiatrist and pain management consultant, Dr Graham Vickery, at the request of the insurer. In a report of the same date,
Dr Vickery was of the opinion that the claimant sustained a psychiatric injury – post- traumatic stress disorder, as a result of the accident. He believed that her injury had not stabilised and that she required treatment for post- traumatic stress disorder.[20][20] Page 181 of the insurer’s bundle.
On 26 June 2018, the claimant was assessed by psychiatrist, Dr Johathan Phillips AM, at the request of her lawyers. In a report dated 16 August 2018, Dr Phillips expressed the opinion that the psychological shock associated with the accident overwhelmed the claimant’s coping mechanism leading to her psychological decompensation and subsequent developments of a new chronic and pervasive adjustment disorder with mixed anxiety and depressed mood and possibly a co-existing somatic symptom disorder.[21] Dr Phillips assessed the claimant’s injuries as giving rise to a whole person impairment (WPI) of 19%.[22] It was not clear to the Panel whether the impairment was assessed by Dr Phillips as being permanent.
[21] Page 266 of the claimant’s bundle
[22] Page 271 of the claimant’s bundle
The claimant was re-assessed by Dr Vickery on 29 October 2018. In his report dated
7 November 2018, he found that the post- traumatic stress disorder related symptoms had partially resolved but stabilised.[23] Dr Vickery assessed permanent impairment at 4%.[24][23] Page 195 of the insurer’s bundle.
[24] Page 201 of the insurer’s bundle.
The claimant was re-assessed by Dr Vickery on 9 February 2021. On this occasion, in his report dated 22 April 2021, Dr Vickery was of the opinion that there was no relationship between the claimant’s complaints and the accident based on her symptoms. He was of the opinion that the claimant was suffering from a somatic symptom disorder which was not due to the accident but rather, due to “excessive health concerns”.[25]
[25] Page 209 of the insurer’s bundle.
Dr Phillips re-assessed the claimant on 22 February 2021. In his report dated
30 March 2021, his diagnosis remained relatively unchanged. He was of the opinion that the claimant was suffering from an adjustment disorder with mixed anxiety and depressed mood, co-existing trauma-induced symptoms, and a somatic symptom disorder. He believed that the motor accident has made a material contribution to these psychological problems.[26] On 23 September 2021, Dr Phillips issued a report stating that on his assessment of the claimant on 22 February 2021, he found that her psychological injuries gave rise to a WPI of 13%.[27] It was not clear to the Panel whether the impairment was assessed by Dr Phillips as being permanent.[26] Page 98 of the claimant’s bundle.
[27] Page 98 of the claimant’s bundle.
Dr Philips was asked to give an opinion on the claimant’s episode of Bell’s Palsy in September 2019. In a report dated 23 September 2021, he said that this is a reversable disorder caused by a failure of conduction in the seventh cranial nerve (known as the facial nerve). It is generally restricted to one-half of the face. It is also known as Idiopathic Seventh Cranial Nerve Palsy. It principally affects facial movement but can affect various non-muscular areas which are innervated by branches of the nerve. He said that the cause of Bell’s Palsy is not fully understood. It is possible that a virus dormant within the nerve is reactivated at the time of onset symptoms. He noted there has been considerable debate regarding the possible role of stress in the causal pathway leading to a person developing Bell’s Palsy. On the balance of probabilities, he was of the opinion that the stress in the claimant’s life (particularly the motor accident) may have reduced her immunity, which in turn played a crucial role in the development of Bell’s Palsy.[28]
[28] Pages 99 -100 of the claimant’s bundle.
The Panel has reviewed two further reports issued by Dr Phillips on 27 July 2022 and
29 December 2022 respectively, that addressed the assessment of permanent impairment.[29] There was no re-examination of the claimant. Again, it was not clear to the Panel from these reports whether the impairments assessed were permanent.[29] Pages 104-115 of the claimant’s bundle.
On 1 December 2023, the claimant was assessed by psychiatrist, Dr Samuel Lim, at the request of the insurer. In his report of the same date, Dr Lim expressed the opinion that as a result of the accident, the claimant developed an acute stress disorder or post- traumatic stress disorder caused by the accident which resolved following treatment.[30] At the time of his assessment, Dr Lim believed that the claimant presented with a somatic symptom disorder with predominant pain, causally related to the accident.[31]
[30] Page 294 of the insurer’s bundle.
[31] Page 294 of the insurer’s bundle.
Dr Lim believed that following the subsequent loss of employment in October 2021, the claimant developed a further deterioration in her mental state which he considered to be an adjustment disorder. He considered that the loss of her employment is multifactorial and a significant component of this has been as a result of the persistent pain and disability arising from the physical injuries sustained in the accident.[32]
[32] Page 295 of the insurer’s bundle.
RE-EXAMINATION
The claimant attended this assessment by video conference using MS Teams. The claimant was assessed alone. Medical Assessors Hong and Baker attended by MS Teams for the duration of the assessment.
Psychosocial history and pre-accident history
The claimant was born in 1985. At the time of this assessment she was 39 years of age. At the time of the accident the claimant was 31 years of age.
The claimant lives with her husband who is unemployed. He had worked as a small motor mechanic. She has one child to this union aged 7 years. She also lives with her father-in-law, aged 74 years. She said her child to this union was born after the motor accident.
The claimant was born in Bankstown Hospital. Her father was 63 years and worked as an electrician. Her mother was 64 years and was fully occupied with home duties. She said her father had three other children to different unions aged 43, 39 and 27 years.
The claimant said that she was educated at Milperra public school, South Highlands public school, a high school in Canberra ACT and she completed her Year 10 education at Holdsworth High School.
The claimant reported entering the work force at about 16 years of age. She worked for McDonalds fast-food restaurant. She changed her employment when she was aged 17 years and worked for AIM. She then found employment with Hammond Care at Hammondville near Moorebank, NSW. She worked in aged care, providing personal services for about eight years. She was successful in acquiring her Assistant in Nursing (AIN) certificate III after completing the NSW TAFE course for this qualification. She continued to study nursing and attended university and completed her Bachelor of Nursing. She qualified as a registered nurse in 2014. She completed her new graduate year in 2015.
The claimant said that she was in her first relationship with her first husband until about 2014 when the relationship ceased. She said that the father of her children to this union was a truck driver. He was 60 years of age. Her children to this union were aged 19 and 17 years and lived outside of her home with her second husband and her 7-year-old child.
The claimant said that she had been working at the Chisholm Ross Centre for mental health in Goulburn since 2015 as part of her new graduate nursing program before the motor accident. The centre is the acute psychiatric ward in the public hospital.
Inquiry into the claimant's pre-existing psychiatric conditions
The claimant provided consistent medical history with the record on direct questioning. She stated that in her first marriage she had used intravenous heroin. She said that she was using one injection daily. She said that she was referred to the Fairfield outpatient drug and alcohol service where she was treated with oral methadone. She reported that she was at a maximum of about 100 mg of methadone daily and that she was slowly withdrawn from this medication over the following three years. She reported that she regularly attended the clinic and benefited from the services. She stated that towards the end of her weaning process, she was encouraged to use sublingual Buprenorphine, and she was weaned to about 4mg daily before ceasing treatment. The claimant said that she has not relapsed in relation to her opiate use disorder which has remained in remission after the subject accident. She said that she had not had any restrictions on her nursing registration prior to this re-examination. She said that her intravenous drug use was related to the nature of her relationship with her first husband. From the Panel Medical Assessors’ clinical experience working with this drug use population, the description provided by the claimant is consistent with current practice and understanding of the condition.
The claimant reported that she experienced difficulties with her daughter. She said her daughter was thought to have attention deficit hyperactivity disorder but this has never been formally diagnosed. The claimant reported that a report in her records dated 9 August 2016 was not in relation to her mental health, and that she had informed her lawyer that this was an incorrect record.
The claimant said that her daughter had taken an apprehended violence order against her second husband. She said the police had applied for the apprehended violence order against the claimant’s second husband and not her. The claimant said that she no longer communicates with her daughter. She reported that in 2019, her daughter moved to live with her father, the claimant's first husband. The department of family and community services were involved in organising this arrangement. On direct inquiry, the claimant said that the deterioration in the relationship between her second husband and her daughter was not related to the motor accident.
The claimant said that she had no complications during her pregnancies or birth of her children. She said that she did not have any surgical procedures prior to the motor accident.
History of the motor accident
The claimant said she was the front seat passenger with her second husband driving at the speed limit at about 110 kmph. She was wearing her seat belt, and they were heading towards Goulburn. Unexpectedly, the left rear tyre of the car they were travelling in, failed. The tyre, “blew out”. She said her husband lost control of the car. She said the car crashed into the left-hand side cutting on the shoulder of the highway where the motor accident happened.
The claimant said that she commenced screaming and she believed that the car spun three of four times before coming to rest on the highway. She said that this was the first motor accident she had ever experienced. She said she was frightened and distressed. She said that she had tremor of her hands and was able to undo her seat belt clasp to exit the car. Her husband had exited the car by himself and came to assist her.
The claimant said that her husband assisted her in sitting on the ground in safety away from the car. She had chest pain. The ambulance arrived and she was transferred to Canberra Hospital for investigations and treatment.
The claimant said that she had injured her sternum and was told she had a fractured sternum. She said that she had pain in her right knee. She said that the pain did not settle over the few days and she had a follow up X-ray which showed a right tibial plateau fracture of her right knee.
The claimant said that she returned to work on 21 April 2016, which was under 24 hours from the motor accident. She said looking back on this, she did not give herself enough time to recuperate before returning to work in the acute care unit of the mental health facility where she was working as a new nursing graduate.
History of symptoms and treatment following the motor accident
The claimant said she continued to experience pain and after about three to four days, the medicine provided by Canberra Hospital had finished. She reported that she was distressed at work on most days, she became depressed and persisted with her work as she wanted to be successful as a registered nurse. She said that she became unreliable in the workplace and was unable to attend morning shift as her sleep was poor. She reported that she first attended a psychologist in relation to the motor accident on 1 November 2016.
The Panel notes that in her clinical notes on 1 November 2016, Ms Hampson recorded “PTSD post MVA”.[33] In her first report to the GP, Dr Maria Alvarez on
12 December 2016, Ms Hampson stated that a diagnosis of post- traumatic stress disorder was consistent with her findings, the claimant’s presentation and her clinical assessment. She indicated that she proposed to do “some…EDMR”.[34] While this suggests that the claimant was investigated for the post- traumatic stress disorder, a review of the clinical notes does not show that the claimant received EDMR (which is a common psychological treatment for post-traumatic stress disorder). A self report questionaire on 24 January 2017 showed that claimant’s symptoms were consistent with a major depressive disorder with written depressive themes including, “never be happy again…physical and mental”, “scared” (of losing her job as a registered nurse), “anxious and worrried.”[35][33] Page 114 of the insurer’s bundle.
[34] Page 43 of the claimant’s bundle.
[35] Page 109 of the insurer’s bundle.
The claimant gave birth to her son now aged 7 years. She took maternity leave and then returned to work. By 17 February 2018, the clinical notes of Ms Hampson recorded that the claimant working about 50% of her normal hours. The claimant said that she was becoming low in her energy and felt depressed in her mood and “ground down”. Later in the treatment she is recorded as being tearful. Her DASS score documented by her psycholgist demonstrated the following: “DASS: D (depression) severe, A (anxiety) moderate and S (stress) mild to moderate.”[36] She was documnted by Ms Hampson to have had a relaspe in her mental state with increase in her antideprerssant medication about 25 March 2020.[37]
[36] Page 66 of the insurer’s bundle.
[37] Page 50 of the insurer’s bundle.
The claimant reported that she remained in treatment with her psychologist in relation to her psychological injury caused by the motor accident. At the re-examination, she confirmed her depression had fluctuated since the motor accident.
The claimant said that in 2020, she attempted to adapt to her circumstances since her motor accident by applying for work in child and adolescent mental health. She said she was working about one to two days per week but she was unsuccessful in winning this employment.
The claimant did not offer symptoms consistent with post-traumatic stress disorder unprompted. She did report the following symptoms consistent with depression and anxiety that fluctuated over the years since the motor accident and was documented in the medical record. She would have panic attacks, tremor, chest pain with hot and cold sweats. She reported that she also had a pervasive depressed mood. The claimant’s reported symptoms meet DSM-5-TR criteria for a major depressive disorder as follows:
· depressed mood most of the day come and nearly every day as indicated by the claimant’s report of feeling sad and hopeless most days since the motor accident. She said that she felt sad and hopeless as she was unable to recover and return to her career and lifestyle, she had prior to the motor accident;
· insomnia nearly every day, she said she would experience poor sleep and dreams that were disturbing to her about the motor accident;
· psychomotor agitation nearly every day, as reported by the claimant with her suffering subjective feelings of persistent restlessness and irritability;
· fatigue and loss of energy nearly every day. This is evidenced by the claimant's inability to perform morning shift due to her low energy each morning causing her attendance at morning shift to become less since the motor accident, and
· diminished ability to think or concentrate, as reported by the claimant with her decreased ability to read for extended periods which she could have done and continued to progress with her career.
The claimant said that she had been treated for major depressive disorder with Endep (amitriptyline) 50mg tablet, two tablets at night. She said that she had received evidence-based pharmacotherapy for her psychologically injury sustained in the motor accident. She was later to have her Endep 50mg increased to 50mg in the morning and 100mg at night.
The claimant said that she had also been treated with evidence-based cognitive behaviour therapy for her depression. She reported that her mental state failed to recover and on
16 December 2021 her GP notified her superannuation fund that she was totally and permanently unfit for work. On 1 January 2022 her GP recorded the completion of the report regarding total and permanent inability to work. The recorded reason for the inability to work as a nurse was “Trigeminal Neuralgia”. This is a chronic pain condition affecting the claimant’s trigeminal nerve. The claimant did not cease work as a Registered Nurse on the basis of a psychological injury diagnosis.[38][38] Page 154 of the insurer’s bundle.
The claimant said that her depressed mood had not fully remitted. She was not prescribed repetitive transcranial magnetic stimulation. She was not referred to a psychiatric hospital for treatment of her psychological injury sustained in the motor accident.
The claimant had her physical injuries treated. She was treated with Panadeine forte (codeine phosphate with paracetamol), carbamazepine, Lyrica for her physical injuries. She was not admitted to hospital as an inpatient for her physical injuries. She had been treated by a physiotherapist and a chiropractor.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant was asked about a workplace incident on 9 August 2016 when the claimant was attacked by a resident of Southern Cross Care. This incident was subject to a compensation claim with Catholic Church Insurance.
The claimant reported that she was able to utilise an injury management plan issued on
12 October 2016 and she said she returned to work with temporary physical restrictions. She did not report psychological or psychiatric injury from this event.The claimant was asked about an incident at work on 12 September 2018 when the claimant had an ECG machine thrown at her by a patient at Goulburn Hospital.
The claimant said that she was working in the psychiatric acute care unit. She said that a mentally ill patient had picked up an ECG machine and threw it towards her. She said she was not physically or psychologically injured and that the ECG machine did not touch her. The claimant said she did not have a psychological injury or impairment from this incident.
Review of the medical records is consistent with this report. On 25 September 2018, GP,
Dr Alvarez, documented that the claimant was back to baseline and that she could go back to work after prescribing rest and analgesia on 17 September 2018.The claimant was asked about the diagnosis of Bell’s Palsy in September 2019 and the subsequent mental health plan created by her GP for low mood stemming from that diagnosis, two weeks ahead of her wedding.
The claimant said that she suffered from Bell’s Palsy affecting the left side of her face. The aetiology of Bell’s Palsy is commonly a viral infection affecting the functioning of the 7th cranial nerve of the face and tongue. The condition frequently remits either partially or in full. During the early phase of illness, a low mood is common. A symptom of low mood is insufficient to find a psychiatric or psychological diagnosis as the claimant must have an associated impairment.
The Panel notes that the claimant continued on with her wedding plans and was not socially impaired by this acute illness and she remained married to her second husband at the time of this re-examination. The claimant demonstrated a mild droop affecting the left cheek. She said that she was aware that she has reached maximum medical improvement in relation to her symptoms and physical condition relating to her Bell’s Palsy.
The claimant was asked about witnessing a patient self-harm at work on 15 October 2020.
The claimant reported that she worked in the acute care area of the mental health centre. She said that all the patients were severely ill and suffering from severe psychiatric and psychological illness. She reported that whilst she attempted to keep all her patient’s safe occasionally some patients are capable of self-harm whilst under strict supervision in a controlled environment. She did not report any permanent psychological or psychiatric impairment for this incident. She said the woman was resuscitated on the ward and did not die.
Current symptoms
The claimant’s current of symptoms were consistent with DSM-5-TR F32.0 major depressive disorder of mild severity and were defined as follows:
(a) depressed mood most of the day come and nearly every day as indicated by the claimant’s report of feeling sad and hopeless most days since the motor accident. She said that she felt sad and hopeless as she was unable to recover and return to her career and lifestyle she had prior to the motor accident;
(b) insomnia nearly every day, she said she would experience poor sleep and dreams that were disturbing to her about the motor accident;
(c) psychomotor agitation nearly every day, as reported by the claimant with her suffering subjective feelings of persistent restlessness and irritability;
(d) fatigue and loss of energy nearly everyday. This is evidenced by the claimant's inability to perform morning shift due to her low energy each morning causing her attendance at morning shift to become less since the motor accident, and
(e) diminished ability to think or concentrate, as reported by the claimant with her decreased ability to read for extended periods which she could have done and continued to progress with her career.
Current and proposed treatment
The claimant continued to attend her GP, and clinical psychologist for treatment. She attended appointments in person. She remains compliant with pharmacotherapy for both her physical and psychological conditions.
The claimant does not expect to be recommended for inpatient psychiatric treatment. She is not planning to be prescribed esketamine, evidence-based treatment for major depressive disorder. She is not planning to be treated with electroconvulsive therapy or other physical therapies.
The claimant’s pharmacotherapy was changed to sertraline 150mg daily. She reported that she had weaned of all antidepressant medication as she had too many side-effects.
Mental state examination
The claimant presented as a tearful and distressed woman who looked her stated age. She was assessed alone by video conference. She wore clean clothes. She reported that she would wash herself with a washer and basin of water most days and shower weekly. Her rate of speech was slow. Her volume of speech was normal. She did not demonstrate any form of thought disorder. She reported her rate of thinking was reduced with her making more unintended errors than she previously would have made prior to the onset of this psychological injury.
The claimant was orientated in time, place, and person. Her concentration during the assessment was reduced. She would have intrusive depressive thoughts that slowed her pace of thinking. She would cry throughout the assessment whilst talking about her nursing career and reasons for stopping work. She would wander off topic and required prompting to remain on task.
The claimant reported suffering from a depressed mood most of the day for most days. Her affect was mood congruent, and she was tearful when talking about the loss of her employment and inability to recover from this psychological injury. She did not report any psychotic symptoms and did not demonstrate any delusional ideas at the assessment. She was insightful into her condition and her judgement was normal. She did not report any suicidal thoughts or plans.
Current functioning
The claimant was independent in herself-care and personal hygiene. She said she would prefer to wash by use of a cloth washer and basin. The claimant did cook and prepare food. She had lost interest in her grooming. She was able to attend the local shop and purchase food for her, her husband and her son. She was able to contribute to the maintenance of the home and care of her son’s daily needs. She said was actively managing her nutrition. She was assessed as having a mild impairment, Class 2 for self-care and personal hygiene.
The claimant reported that she would purchase Christmas and birthday gifts for her 7-year-old soon. She said she would prepare a cake for his birthday. She would not participate in wedding anniversaries or home entertainment. She said that she would not draw as she had prior to the motor accident. She reported she spent time playing simple games such as candy crush after dinner. She did not share entertainment events with her husband and had lost interest in following serial television events. She was assessed as having a mild impairment, Class 2 for social and recreational functioning.
The claimant reported that she was able to travel without a support person and to walk outside her family home without support. She would usually travel with her husband. He would usually drive their son to school. He would also usually driver her to the shops. She did not travel to unfamiliar locations alone. She was assessed as having a mild impairment, Class 2 for travel.
The claimant reported that her relationship with her husband was strained. She reported that she was not expecting to become divorced or separated. She said she did not experience domestic violence within the home. The claimant reported warm and affectionate feelings towards her 7-year-old son. She said she also was able to sustain her relationship with her eldest son.
The claimant said the separation between her and her daughter was not related to the motor accident and was between her and her husband. She said as a consequence of the AVO against her husband, she was estranged from her daughter. She was assessed as having a mild impairment, Class 2 for social functioning.
The claimant reported that she had lost interest in reading and did not read more than a few lines of text from snippets on her mobile phone. She could cook. She did participate in drawing or hobbies. Her concentration during the assessment was reduced. She would have intrusive depressive thoughts that slowed her pace of thinking. She would cry throughout the assessment whilst talking about the changes in her lifestyle since the motor accident. She was assessed as having a mild impairment, Class 2 for concentration, persistence, and pace.
The claimant was able to work less than 20 hours per week in a different role in a different and less stressful environment for a different employer after the motor accident. The role would be less stressful and less demanding than prior roles.
The claimant had deteriorated in her physical condition as noted by her GPs. The claimant had documented that she suffered from Trigeminal Neuralgia and she had been treated for this painful condition with carbamazepine, a known treatment for this painful condition. Pain and physical conditions have not been included in the assessment of the claimant’s adaptation assessment in compliance with the Guidelines:
· 6.214 Impairment due to physical injury is assessed using different criteria outlined in other parts of these Guidelines, and
· 6.215 The PIRS must not be used to measure impairment due to somatoform disorders or pain.
For the above reasons she was assessed as having a moderate impairment, Class 3 for adaptation.
Comments on consistency
The claimant’s presentation was consistent with prior presentations to other independent psychiatric assessors and medicolegal consultants. I note that at times the claimant’s presentation was more documented as focused more on pain. At other times the diagnosis of post-traumatic stress disorder was documented without a supporting definition to explain what symptoms the assessor had relied on.
The claimant provided a history that was consistent with a major depressive disorder of mild severity. She may have had fluctuation in depressive symptom severity whilst she was suffering from acute changes in her physical condition. Clinically this is a common presentation and for this reason the claimant’s psychological injury sustained in the motor accident must reach maximum medical improvement.
The behaviour documented by the claimant that is inconsistent with post-traumatic stress disorder is that the claimant did not avoid work, travel in a car that was drive by the driver at the time of the accident. The claimant reported she travelled most days with her husband driving. Post-traumatic stress disorder is one of the possible outcomes from trauma. Depression is the second most common psychological injury associated with trauma. For these reasons the diagnosis of major depressive disorder was preferred. After reaching maximum level of medical improvement her major depressive disorder was of mild severity using DSM-5-TR criteria at F32.0.
The claimant’s pre-existing condition of Opioid Use Disorder was spoken about in a straightforward and understandable manner. The site that the claimant reported as receive her daily treatment was a known treatment location with the NSW Health System. The severity of her Opioid Use Disorder and treatment program was in keeping with standard practice. The change in living circumstances is often associated with the condition not relapsing whilst the claimant is socially supported within her family and focused on other lifestyle goals such as reported by the claimant as her focusing on university education and career. For these reasons document above the claimant was diagnosed with an Opioid Use Disorder in sustained remission prior to the motor accident, as defined at DSM-5-TR F11.11.
Diagnosis and reasons
The diagnosis of the psychological injury sustained because of this motor accident is DSM-5-TR F 32.0 major depressive disorder of mild severity defined by the following:
Criterion A: five (or more) of the following symptoms have been present during the same 2-wake. An represent a change from the previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
(a) Depressed mood most of the day come and nearly every day as indicated by the claimant’s report of feeling sad and hopeless most days since the motor accident. She said that she felt sad and hopeless as she was unable to recover and return to her career and lifestyle, she had prior to the motor accident.
(b) Insomnia nearly every day, she said she would experience poor sleep and dreams that were disturbing to her about the motor accident.
(c) Psychomotor agitation nearly every day, as reported by the claimant with her suffering subjective feelings of persistent restlessness and irritability.
(d) Fatigue and loss of energy nearly every day. This is evidenced by the claimant's inability to perform morning shift due to her low energy each morning causing her attendance at morning shift to become less since the motor accident.
(e) Diminished ability to think or concentrate, as reported by the claimant with her decreased ability to read for extended periods which she could have done and continued to progress with her career.
The above symptoms are consistent with a major depressive episode.
Criterion B: The symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning. Criterion B is evidenced by the claimant remaining significantly clinically depressed with inability to socialise with her husband and eldest son, as well as inability to return to her prior occupation.
Criterion C: The episode is not attributable to the physiological effects of a substance or another medical condition. Criterion C is evidenced from the medical records never documenting physiological effects of a substance or another medical condition. The claimant remained in sustained remisison from her opioid use disorder.
Criterion D: At least one major depressive episode is not better explained by schizoaffective disorder and is not superimposed on schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders. Criterion D is evidenced from the medical records never documenting any of these disorders.
Criterion E: there has never been a manic episode or a hypomanic episode. This is evidenced from the medical records never documenting a manic episode or hypomanic episode.
Permament Impariment
The claimant suffered a psychological injury caused by the motor accident on 20 April 2016.
The claimant’s condition had been treated with evidence-based pharmacological and psychological treatment. The claimant attempted various physical treatment to sustain her physical capacity to remain at work as a nurse. The claimant was not able to remain at work due to the Trigeminal neuralgia as documented by her general medical practitioner clinical note when writing to the claimant’s Total and Permanent Disablement (TPD) insurer in 2022. The claimant had not planned for any further treatment.
The claimant’s psychological condition at the time of this re-examination is about two years after her GP completed the claimant’s TPD form in relation to her physical conditions preventing her working. The claimant’s psychological injury is now well stabilised and unlikely to change substantially and by more than 3% in the next year with or without medical treatment. The claimant had ceased antidepressant pharmacotherapy on her report at the re-examination. The claimant’s psychological injury’s impairment is now a permanent impairment that has become static and well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
Causation and reasons
The motor accident on 20 April 2016 was clinically significant and did cause clinical distress in the claimant. Whilst the claimant did have an opioid use disorder in sustained remission this disorder did not relapse even whilst she experienced severe pain from her Bell’s Palsy and trigeminal neuralgia. The motor accident did cause physical injuries with a fracture to the claimant’s sternum and right tibial plateau.
The diagnosis of major depressive disorder of mild severity episode could be caused by the motor accident and the severity of symptoms suffered by the claimant since the motor accident on 20 April 2016. This diagnosis recognises that the severity of reported psychiatric and psychological symptoms has fluctuated in intensity.
The major depressive disorder also had contribution from the claimant suffering from Trigeminal Neuralgia after the motor accident. Trigeminal Neuralgia is a physical condition that causes pain. Pain can exacerbate depressive symptoms. The contribution of pain and the physical condition Trigeminal Neuralgia was not included in the assessment of the claimant’s psychological impairment due to the motor accident. The timeline of events shows that the diagnosis of the psychological injury was in 2016 and prior to the onset of the initial phase of the claimant’s pain related physical conditions sustained in the motor accident and acquired after the onset of this psychological injury.
The claimant’s had experienced various other intercurrent conditions and events in the workplace and elsewhere. The effects of these intercurrent events were not casual in the onset of the psychological injury first documented by her psychological on 1 November 2016. The claimant’s condition had taken an extended period to reach maximum medical improvement. The reasons for this were mainly to the various intercurrent events that occurred whilst the claimant attempted to persist with her registered nursing career.
In the opinion of the Medical Assessors of the Panel, the motor accident did cause the onset of this psychological injury and is best defined as DSM-5-TR F 32.0 major depressive disorder of mild severity.
In the opinion of the Medical Assessors of the Panel, the claimant’s behaviour soon after the motor accident was not consistent with the expected findings of a claimant with severe trauma. The behaviour of the claimant on discharge from Canberra Hospital did not display the behaviour of a person who thought they had been exposed to actual of threatened death or serious injury. For these reasons the claimant does not meet DSM-5-TR F43.1 criterion A for post-traumatic stress disorder.
The claimant’s return to her usual role within 24 hours of the motor accident, also showed her psychological response is unlikely to be associated with post-traumatic stress disorder. Similarly, the nature of the motor accident was that the claimant was a passenger in the car that crashed. The driver remains her husband.
The claimant had not avoided being a passenger since the motor accident and in her re-examination stated that she usually travels with her husband as the driver when they attend the shops or her son’s school. She also reported that after the motor accident she could drive five minutes to work in the period where she was attempting to remain employed as a registered nurse. The claimant’s clinical presentation at re-examination after careful review of the available evidence, is more in keeping with major depressive disorder of mild severity which is prolonged and this has been exacerbated by intercurrent conditions from the date of the motor accident to the date of the re-examination.
Diagnosis
The following injuries were caused by the motor accident:
· DSM-5-TR F32.0 major depressive disorder of mild severity.
Degree of permanent impairment psychiatric impairment rating scale
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
| Psychiatric diagnoses | DSM-5-TR F32.0 Major depressive disorder of mild severity |
| Psychiatric treatment description | The claimant continues to be treated by her general practitioner, and psychologist. She had been treated with antidepressant medication and psychological treatment. She had not been treated as an inpatient of a psychiatric hospital for this psychological injury. |
| Category | Class | Reason for Decision |
| 1. Self Care and Personal Hygiene | 2 | The claimant was independent in herself-care and personal hygiene. She said she would prefer to wash by use of a cloth washer and basin. The claimant did cook and prepare food. She had lost interest in her deportment and grooming. She was able to attend the local and purchase food for her, her husband and her son. She was able to contribute to the maintenance of the home and care of her son’s daily needs. She said was actively managing her nutrition. |
| 2. Social and Recreational Activities | 2 | The claimant reported that she would purchase Christmas and Birthday gifts for her 7-year-old soon. She said she would prepare a cake for his birthday. She would not participate in wedding anniversaries or home entertainment. She said that she would not draw as she had prior to the motor accident. She reported she spent time playing simple games such as candy crush after dinner. She did not share entertainment events with her husband and had lost interest in following serial television events. |
| 3. Travel | 2 | The claimant reported that she was able to travel without a support person and to walk outside her family home without support. She would usually travel with her husband. He would usually drive their son to school. He would also usually driver her to the shops. She did not travel to unfamiliar locations alone. |
| 4. Social Functioning | 2 | The claimant reported that her relationship with her husband was strained. She reported that she was not expecting to become divorced or separated. She said she did not experience domestic violence within the home. The claimant reported warm and affectionate feelings towards her 7-year-old son. She said she also was able to sustain her relationship with her eldest son. |
| 5. Concentration, Persistence and Pace | 2 | The claimant reported that she had lost interest in reading and did not read more than a few lines of text from snippets on her mobile phone. She could cook. She did not participate in drawing. Her concentration during the assessment was reduced. She would have intrusive depressive thoughts that slowed her pace of thinking. She would cry throughout the assessment whilst talking about the changes in her lifestyle since the motor accident. |
| 6. Adaptation | 3 | The claimant was able to work less than 20 hours per week in a different role in a different and less stressful environment for a different employer after the motor accident. The role would be less stressful and less demanding than prior roles. |
| List classes in ascending order: 2, 2, 2, 2, 2, 3 | ||
| Median Class Value: 2, 2, 2, 2, 2, 3 | ||
| Aggregate Score: 13 | ||
| % Whole Person Impairment: 7% | ||
*%WPI = Percentage Whole Person Impairment
Psychiatric Impairment Rating Scale – Pre-existing impairment
| Psychiatric diagnoses | DSM-5-TR F11.11 Opioid Use Disorder in sustained remission |
| Psychiatric treatment description | The claimant continues to be in sustained remission and did not relapse as a consequence of the motor accident. |
| Category | Class | Reason for Decision |
| 1. Self Care and Personal Hygiene | 1 | The claimant was independent in her selfcare and personal hygiene. She was able to sustain her independent lifestyle without assistance prior to the motor accident. |
| 2. Social and Recreational Activities | 1 | The claimant was able to socialise with her friends, family and extended family. She enjoyed nature walks, drawing and socialising with her friends. She would attend special events when invited by her friendship circle. |
| 3. Travel | 1 | The claimant could drive and attend her university, employment sites and other locations as needed without impairment prior to the motor accident. She was able to travel to unfamiliar locations alone. |
| 4. Social Functioning | 1 | The claimant was able to socialise with other members of her family as well as her friendship circle. The claimant reported she was in the relationship with her current husband prior to the motor accident. |
| 5. Concentration, Persistence and Pace | 1 | The claimant had completed a Bachelor of Nursing prior to the motor accident. |
| 6. Adaptation | 1 | The claimant reported that she was working as a registered nurse prior to the motor accident. She had been in sustained remission of opioid use disorder. |
| Median Class Value: 1 | ||
| Aggregate Score: 6 | ||
| Pre-existing % Whole Person Impairment: 0% | ||
Apportionment – pre-existing/subsequent impairment
The claimant had a pre-existing condition. When she was in sustained remission for many years prior to the motor accident. The motor accident did not result in relapse of her opioid use disorder.
The assessment of the claimant’s pre-existing condition was 0% WPI.
Effects of treatment
The claimant had been treated with various psychological, pharmacological and physical treatment to treat her psychological condition. She reported little improvement from the various pharmacological treatments she had trialled. She is unlikely to deteriorate should all treatment be withdrawn. For these reasons, the claimant was assessed with a treatment effect of zero (0%WPI).
Degree of permanent impairment caused by the motor accident
The assessed WPI for the claimant’s psychological injury caused by the motor accident is 7%. ( 7% WPI – 0% WPI for pre-existing condition + 0% WPI treatment effects = 7% WPI).
Summary
The summary of permanent impairment assessed by the Panel is:
· current percent permanent impairment 7%
· pre-existing/subsequent percent permanent impairment Nil
· adjustments percent for effects of treatment Nil
· percentage WPI 7%.
The Medical Assessors of the Panel are satisfied that the claimant did not have a pre-existing condition at the time of the accident.
The Medical Assessors of the Panel have considered whether the impairment assessment should be adjusted for the effect of treatment. Clause 6.222 of the Guidelines provides that an adjustment may be made if all of the following requirements are met:
(a) there is research-based evidence that the prescribed treatment is effective for the psychiatric condition;
(b) the treatment has been appropriate and the example is given that medication has been taken in the appropriate dose and duration;
(c) clinical evidence shows that the treatment has been effective in that the person’s symptoms or functioning has improved, and
(d) it is the clinical judgment of the Panel that ceasing treatment will cause the symptoms to deteriorate or worsen.
The Medical Assessors of the Panel find that criterion (c) has not been met. The claimant continues to experience symptoms from her assessable psychiatric condition at the time of this re-examination. There is therefore no clear clinical evidence that the treatment has been effective.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
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: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the conclusions and findings of the Medical Assessors of the Panel.
The Panel finds that the degree of permanent impairment of the claimant as a result of the psychological injury caused by the motor accident is 7% which is not greater than 10%.
CONCLUSION
The certificate of Medical Assessor Gerald Chew dated 1 February 2024 is revoked. The Panel issues a replacement certificate which is attached to these reasons.
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