AAI Limited t/as GIO v Rocchi
[2023] NSWPICMP 557
•6 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Rocchi [2023] NSWPICMP 557 |
| CLAIMANT: | Richard Rocchi |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Gerald Chew |
| MEDICAL ASSESSOR: | Wayne Mason |
| DATE OF DECISION: | 6 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant suffered injury in a motor vehicle accident on 21 November 2017; Medical Assessor (MA) determined whole person impairment (WPI) at 25%; MA diagnosed post-traumatic stress disorder, persistent depressive disorder, with intermittent major depressive episodes, and alcohol use disorder; Medical Review Panel (MRP) determined that the claimant met the diagnostic criteria for post-traumatic stress disorder, alcohol use disorder, and intermittent explosive disorder, but did not meet the criteria for persistent depressive disorder; MRP assessed WPI at 13%; Held – the Certificate of the Medical Assessor was revoked, and a replacement Certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the Certificate of Medical Assessor Alexei Siderov of 14 July 2022. 2. Issues a new Certificate certifying that the injuries were caused by the motor vehicle accident, giving rise to whole person impairment greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
Richard Rocchi (the claimant) was injured in a motor vehicle accident on
21 November 2017, when a motor vehicle collided with him while he was riding a motor scooter (the motor accident).GIO General Limited (the insurer) insured the owner and driver of the other motor vehicle for liability to pay to the claimant any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
This dispute is whether the degree of permanent impairment as a result of the psychological injury caused by the motor accident is greater than 10%.
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.
This application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Alexei Sidorov dated 14 July 2022.
Medical Assessor Sidorov assessed the permanent impairment at 25%.
On 19 September 2022, the President referred the medical assessment to the Panel as the delegate was 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.
Pursuant to s 63(3) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission) .
Conduct of the Review
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
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.
On 19 September 2023, the Panel requested the Parties to provide bundles of documents for its consideration. Both parties provided documentation for review by the Panel.
ASSESSMENT UNDER REVIEW
This Review is from the assessment of Medical Assessor Siderov dated 14 July 2022 who determined that the claimant sustained a 25% permanent impairment due to psychological injury, with diagnoses of:
(a) post-traumatic stress disorder;
(b) persistent depressive disorder with intermittent major depressive episodes, and
(c) alcohol use disorder.
Medical Assessor Siderov concluded that the conditions diagnosed were caused by the motor accident.
SUBMISSIONS
Insurer’s submissions of 4 August 2022
The Panel summarises the insurer’s submissions:
“[1.4] The Assessor erred by:
(a) Failing to provide lawful Reasons with respect to causation.
(b) Failed to take into account all of the available evidence, i.e., the records of the treating psychologist and psychiatrist, suggesting that the impairment was causally related to factors other than the motor accident.
(c) Concluding that the impairment was caused by the motor accident, failed to comply with clauses 1.5-1.7 of the Permanent Impairment Guidelines (‘the Guidelines’).
(d) Failed to identify and put to the Claimant the inconsistences between the history given by him, and what was recorded in the treatment records regarding the cause of the marital breakdown and the business failure.
[1.5]Refers to s 61(9) of the MAC Act and the duty to give Reasons for ‘any finding as to any matter Certified… in respect of which the Certificate is conclusive evidence.’
[1.6]Refers to Wingfoot and the obligation to set out the actual path of reasoning. Refers to the obligation to undertake he Medical Assessment in accordance with the Guidelines.
[1.7] Refers to the Medical Assessor’s reasoning in respect of causation at pg 9:
‘Mr Rocchi’s Posttraumatic Stress Disorder as well as the comorbid Persistent Depressive Disorder and Alcohol Use Disorder have been caused by the subject accident and its consequences including the lengthy course of medical treatment with associated complications as well as the breakdown of his relationships with his wife and his children and his inability to continue working in his business. There is no evidence that Mr Rocchi had suffered any psychiatric psychopathology prior to the subject accident. Therefore, his Posttraumatic Stress Disorder, Persistent Depressive Disorder and Alcohol Use Disorder have been wholly caused by the subject accident and its consequences. There are no other attributable causes.’
[emphasis added by drafter of the Submission]
[1.8] Refers to the report of Dr Vickery of 14 June 2021, where Dr Vickery opined that the psychological impairment was caused by ‘personal stressors including marital separation and ‘estrangement from his sons and his friends and the loss of his business’.
Further, the Submissions refers to the Medical Assessor’s specific comment on the findings of Dr Vickery in respect of causation:
‘It is unclear why Dr Vickery did not consider that Mr Rocchi’s psychiatric symptoms were secondary to the subject accident the absence of any psychiatric history prior to the subject accident and Mr Rocchi’s involvement in a serious accident causing significant injuries.’
[emphasis added by drafter of the Submission]
[1.9]The Medical Assessor failed to address the “personal stressors” referred in [1.9].
[1.10]The Medical Assessor failed to identify and address the reasoning of Dr Vickery.
[1.11] Reproduced the reasoning of Dr Vickery at [pp 8 to 11]:
‘a) Report of Dr Bertucen dated 3 November 2020 (A8) – the doctor took a history that the claimant had left his son in charge of his business following the motor accident, and “despite believing his son was performing capably he was coming under increasing pressure from the American parent company, which he regarded as completely unethical and opportunistic. In March 2019 the company disendorsed him and withdrew his contract. By this stage Mr Rocchi was still not physically or psychologically capable of returning to running his business and the decision of the parent company was a significant psychological blow. He was required to sell up to 40 commercial vehicles over the next six months which significantly contributed to his depressive symptomatology… Mr Rocchi's mood remains highly irritable, impatient, snappy and belligerent with people and often he has to struggle to ‘bite my tongue’. This was well as the tendency to ruminate about his misfortunes since the accident, being let down by other people, betrayed by the former employer etc has persisted but slightly settled since the introduction of cannabis oil and the return to restorative sleep.’ (pp. 2, 4);
a) Report of Dr Bhandari dated 11 May 2020 (R5) – the doctor took a history from the claimant that ‘the ongoing difficulties in the relationship with his wife have caused him considerable distress. Mr Rocchi believes the difficulties that occurred at the workplace had adversely impacted upon his marriage, resulting in significant marital discord and current marital separation’;
b) Dr Vickery further noted that there was no reference by
Dr Bhandari to the motor accident being a causative factor in respect of the marital separation and business failure;c) Dr Vickery concluded that ‘Mr Rocchi's anxiety, depression and anger are related to personal stressors… the current conditions… are due to the marital separation and estrangement from his sons and his friends and the loss of his business… the alleged disabilities are not the direct result of this motor vehicle accident. The disabilities are a result of subsequent personal stressors.’ (pp. 9 to 11)
[emphasis added by drafter of the Submission]
[1.12]Refers to the ‘salient evidence going to causation’ of the martial separation and the business failure, which material of was also before the Medical Assessor but no addressed by him in respect of causation, namely, the clinical records of Ms Hancock’s report of 1 May 2020:
a) ‘Ms Hancock’s report dated 1 May 2020 – ‘Richard reported having a happy marriage for 30 years, but that they were having issues about 3 years before his accident occurred in 2017. He attributes this to his wife experiencing ‘empty nest’ syndrome, as their 2 adult sons moved out of home, and her going through menopause. He reports she has a history of depression and is not willing to seek therapy. He reported feeling a relief for several weeks at being separated due to the toxic nature of their relationship over several years… Richard appears to have few support networks. His mother died 30 years ago and he has little contact with his father. Not only has he been unable to see his sons and grandchildren, he reports that he has become distanced from his friends due to his wife's inappropriate behaviour over the years (e.g. insecure and accuses his of having affairs with friend’s partners) … My clinical impression is that Richard's PTSD symptoms in relation to the MVA are linked with his current difficulties with his separation. He reported that the morning before the MVA his wife had an argument with him, and he did not seek her assistance when the accident occurred… During the session today Richard reported feeling ‘tormented’ and ‘lost’ with the current difficult family situation in which he finds himself. He reported being most distressed by his sons and grandsons not seeing him since the separation, his sons reporting they ‘don’t want to get involved and have enough problems of their own’
b) The attendance record of 29 May 2020 and its reference to the accusation in respect of a marital affair.
c) The attendance record of 7 December 2020 and the reference to other stressors:
‘father is dying… wife acting paranoid again… accusing him of affair’
d) Attendance record of December 2020:
‘…urgent telehealth appt following ‘breakdown’… all became too much for him… most of all wife harassing him with false accusations about infidelity and… realising he was not going to change and he must separate… sons pushing him away… too embarrassed to talk to friends… feeling v alone took four Valium and drinking vodka collapsed on front driveway.’
e) Attendance record on 21 December 2020:
‘She is still being unsupportive and continues to accuse him of infidelity… distressed cant get to visit his father in Cronulla who is dying.’
f) Attendance record 1 February 2021:
‘Stress for selling laundry business…’
The Submission refers to other attendance records, but the Panel has referred to the most significant.
[1.13]The clinical records of Ms Hancock show that the factors leading to the marital breakdown and the failure of his business and the accusations of infidelity of his wife and the “unethical practices” of the parent company were significant stressors productive of his psychological condition and not the motor vehicle accident.
[1.15]Medical Assessor failed to identify and consider Dr Vickery’s chain of reasoning as to causation, notwithstanding the overwhelming “preponderance of evidence” referred to by
Dr Vickery.b) Failed to identify ‘multiple contributing causes’ of the impairment and failed to make the inquiry as to whether or not the motor accident was a ‘contributing cause which was more than negligible.’
c) Failed to evaluate and review all of the available evidence.
[1.16]Given the marital breakdown and the business failure, failed to explain his preference for one conclusion over the other, i.e., that the impairment was caused by the motor accident as opposed to the other factors (refers to Campbelltown City Council v Vegan [2006] NSWCA 284 at [121]).
[1.17]b) Failed to put the inconsistencies, regarding the cause of the marital breakdown and the business failure, to the Claimant.
c) Failed to make an obvious inquiry about a critical fact.”
Claimant’s submissions of 5 September 2022
The claimant argues that Medical Assessor Siderov had not committed the errors and argues that, in fact, no reasoning was provided by Dr Vickery on proper consideration of the reports produced, but rather, broad-brush statements that the claimant’s diagnosed conditions related to “personal stressors” separate and distinct to the subject accident. In particular,
Dr Vickery failed to provide any adequate reasoning to address a lack of psychopathology predating the subject accident.The submission refers to what Medical Assessor Siderov said at pg 8 of his Certificate, and the refers to McColl JA in Campbelltown City Council v Vegan [2006] NSWCA 284 at [121].
The submission argues that the insurer selected isolated extracts of medical records to suggest the existence of pre-existing difficulties. These records post-date the accident. There are no records referred to by the Insurer which evidence pre-existing conditions.
The claimant argues that Medical Assessor Siderov’s path of reasoning was clearly disclosed:
"Mr Rocchi's post-traumatic stress disorder as well as the co-morbid persistent depressive disorder and alcohol use disorder have been caused by the subject accident and its consequences including the lengthy course of medical treatment with associated complications as well as the breakdown of his relationships with his wife and children and his inability to continue working in his business. There is no evidence that Mr Rocchi had suffered any psychiatric psychopathology prior to the subject accidents. Therefore, his post-traumatic stress disorder, persistent depressive disorder and alcohol use disorder have been wholly caused by the subject accident and its consequences. There are no other attributable causes."
CAUSATION
Introduction – the role of the medical experts
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J stated 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.”
Guidelines
With respect to causation, the MAI Guidelines provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 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 nonmedical informed judgement.
6.7 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 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.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following
elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the
occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where the Bench unanimously explained the test of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
The evidence before the Panel
Prior to the medical examination of the claimant, the Panel had available the material uploaded to Pathways by the parties.
The insurer’s bundle included a number of reports of Dr Minas Petrelis, orthopaedic surgeon, including the operation report of 15 May 2018, the follow-up reports of Dr Petrelis to the general practitioner.
The Panel had available the referral of 27 June 2018 from the GP, Dr Owen Boyd, to a psychologist, Mr George Stamell, for the opinion and management of the claimant’s low mood and stress:
“Richard suffered multiple injuries from an mva against his motorcycle in November 2017. Following this he has seen multiple specialists for his knee, shoulder, and elbow, and required surgery… He has also been re-admitted... with a left shoulder infection requiring further surgery…”
The Panel had available the Rehabilitation Progress Report. The Panel also had available:
(a) MRI Brain. Normal MRI study of the brain;
(b) discharge referral of Lake Macquarie Private Emergency Department dated
4 December 2017;(c) discharge referral of John Hunter Hospital indicated admission dated
21 November 2017 and expected discharge 24 November 2017;(d) treating GP consultation by Dr Owen Boyd on 31 January 2018;
(e) orthopaedic surgeon Dr David Dewar report of 27 November 2019;
(f) complete record of My Doctors Clinic Surfers, and
(g) WorkCover NSW certificate of capacity provided by Southport Metro Medical Centre, dated 29 May 2023.
Report of Karen Hancock, registered psychologist, of 1 May 2020
On 1 May 2020, Karen Hancock, registered psychologist, reported to Dr Pavan Bhandari, psychiatrist, on her initial video link assessment of previous week and her face-to-face consultation of 1 May 2020.
Ms Hancock notes:
“Richard reported having a happy marriage for 30 years, but that they were having issues about 3 years before his accident… in 2017… His wife [was] experiencing ‘empty nest’ syndrome as her two adult sons moved out of home, and her going through menopause. He reports that she has a history of depressions and is not willing to seek therapy. He reported feeling a relief for several weeks of being separated due to the toxic nature of their relationship over several years. He reported to be keeping himself busy with his motor cycle and boating hobbies…”
Ms Hancock continued:
“Mr Rocchi reported a range of post-traumatic symptoms including hyperarousal, to re-experiencing symptoms and high levels of instability. I conduced [sic] an assessment using PCL5 along with clinical interview. Mr Rochi meets the threshold for Post Traumatic Stress Disorder, scoring 56 out of 80, and meeting criteria for experiencing (13), avoidance (4), negative alterations in cognition and mood (22) and hyper-arousal. He reports increasing reliance upon alcohol to ‘numb himself’ and reports finding it difficult to sleep with drinking… He is not receiving anti-depressant treatment.”
Ms Hancock continued:
“…Richard does not have financial concerns. He described with pride the business success of his two adult sons…”
She continued:
“Mr Rocchi expressed the desire to improve his ability to manage anger and irritability, particularly in relation to the events that led to his separation as well as his MVA and ongoing pain. In addition, he would like assistance with managing his trauma symptoms and pain experience.”
She continued:
“My clinical impression is that Richard’s PTSD symptoms in relation to his MVA are linked with his current difficulties with his separation.”
Reports of Dr Pavan Bhandari
There is a report from Dr Pavan Bhandari, consultant psychiatrist, to Dr Owen Boyd, of
24 August 2020. Dr Bhandari diagnosed:“Richard suffers from depressive symptoms, which appear to be secondary to chronic pain.”
In a further report of 20 December 2019, Dr Bhandari noted:
“Mr Rocchi has sustained a number of physical injuries which have resulted in the development of chronic pain and have impacted upon functioning…. [He] reported that he had struggled with the return to work following his motor bike accident and eventually made a decision to close his business, as a consequence of deterioration of his emotional state…”
“Mr Rocchi has reported a range of post traumatic symptoms. It is unclear whether these meet the threshold for post-traumatic stress disorder or post traumatic syndrome. Mr Rocchi’s course has been complicated by marked irritability and hyperarousal. He reports lowered frustration tolerance and an increasing reliance upon alcohol… [He] reports some re-experiencing symptoms.”
Dr Bhandari provided a supplementary report of 11 May 2020 to the insurer. Dr Bhandari noted:
“Mr Rocchi indicated that the ongoing difficulties in the relationship with his wife have caused him considerable stress. … the difficulties… at the workplace had adversely impacted upon his marriage, resulting in significant marital discord and current marital separation…”
“[Further]… the current Covid-19 circumstances have adversely impacted upon him.”
Dr Bhandari noted:
“Mr Rocchi suffers from significant anxiety and depressive symptoms…”
“[He is] aware of the dangers of drinking alcohol excessively. He is currently drinking one bottle of vodka per week and has been encouraged to introduce two alcohol-free days…”
“[His] anxiety and depressive symptoms have persisted.”
The next section of the bundle contains the clinical notes of Karen Hancock, to which reference has been made by the insurer in its submissions.
The Panel has read these clinical notes.
There, follows the Clinical Notes of Hunter Rehabilitation and Health (HRH). Mr Rocchi had been attending HRH since 14 August 2018 and the most recent session was
9 September 2020. The Panel has had access to these notes.
MEDICO-LEGAL REPORTS
Medico-legal report of Paul Constable, consultant psychologist to the insurer, of
26 February 2018
Mr Constable reported at the request of the insurer.
He took a history that the claimant was on the verge of retirement and transitioning into retirement when the accident occurred.
Mr Constable took a history of the accident and that the claimant stated that he has had “flashbacks around this.”
Mr Constable opined that:
“Richard is suffering from typical symptoms associated with PTSD - he is quite anxious and angry, his sleep is poor, his libido is low and he worries a lot, he experiences intrusive thinking around the accident, he has nightmares in which he dies, he avoids the scene of the accident and feels quite timid and unsure of himself and has a significant loss of confidence. He tells me also that his short term memory is impaired at the moment, due to the knock on the head he suffered at the time of the accident. I presume.”
Medico-legal report of Dr Jeff Bertucen of 3 November 2020
The claimant’s solicitor qualified Dr Jeff Bertucen, who reported of his assessment with the claimant on 3 November 2020.
Dr Bertucen took a history that for the first six months after the accident the claimant reported a number of “classical” features of post-traumatic stress disorder, including nightmares of the event, re-experiencing phenomena, delayed sleep onset (“I could see her face” [the driver] replaying all the time in my head”), nocturnal hyperarousal, night sweats and thrashing.
Dr Bertucen noted that the claimant’s mood declined over 2018, largely due to constant pain, and forced absence from his business, and secondarily lack of sleep. He reported becoming highly irritable, explosive, and impatient.
Dr Bertucen diagnosed chronic post-traumatic stress disorder, chronic adjustment disorder/major depressive disorder as a direct result of the accident. Both these conditions were in partial remission as with secondary chronic alcohol use disorder.
Dr Bertucen rated the claimant as Class 3 or Category (A), 3 for Category (B), 2 for Travel (C), 2 for Social Functioning, and 3 for Concentration Persistent and 3 for Adaptation, with the result of whole person impairment assessed at 17%.
Medico-legal report of Dr Graham Vickery of 27 May 2020
The Panel has taken into account and carefully read the medico-legal report of Dr Graham Vickery of 27 May 2020. Dr Vickery took a history of a marital separation in March 2020, but was told:
“We are talking again”
He recorded the current symptoms the claimant was experiencing:
“There are ‘good days and bad days.’ He has cut back on his alcohol intake and his cannabis intake.
Mr Rocchi sleeps from 7pm to lam and ‘then I'm tossing and turning.’
There has been withdrawal from family and friends ‘since the marriage break-up.’
There is forgetfulness with ‘being easily distracted with my focus’."
At [5], under the heading ‘due to the injuries in this accident what are the Claimant’s current disabilities?’, Dr Vickery stated:
“There are ‘good days and bad days.’ He has cut back on his alcohol intake and his cannabis intake.
Mr Rocchi sleeps from 7pm to lam and ‘then I'm tossing and turning.’
There has been withdrawal from family and friends ‘since the marriage break-up.’
There is forgetfulness with ‘being easily distracted with my focus’.”
“Mr Rocchi was casually dressed and groomed. He appeared to be seated comfortably and there was eye contact. He was noted to be spontaneous and cooperative.
Mr Rocchi's affect range was not restricted while his behaviour and mood were initially quite abrupt, however were subsequently appropriate to the topic being discussed. His history and presentation were consistent and he was able to relate a coherent and chronological history.
Mr Rocchi was tense and frustrated when discussing his current situation. There was no melancholic depression, paranoid delusional ideation or formal thought disorder. There was no reasonably apparent cognitive impairment.
There was no psychiatric incapacity noted in the clinical examination.”
In answer to the request to “Provide an assessment on the available medical report”,
Dr Vickery stated:“In the correspondence of Consultant Psychologist, Paul Constable, on 28 February 2018, it was noted "Richard was engaging and cooperative with no evidence of any major mood disturbances, accelerated thinking, grandiosity or psychosis. He described his mood as angry and anxious. His speech was normal in all aspects with no psychotic processes or formal thought disorder noted. He was alert and orientated with no evidence of any cognitive disturbances."
‘We talked about some anxiety/mood treatment modalities {CBT, mindfulness) and we discussed some brain remediation interventions like Luminosity and ABC for brain functioning.’
It is significant there was no apparent abnormality in Mr Rocchi's presentation.”
At [9], Dr Vickery diagnosed an adjustment disorder in partial remission.
At [15], Dr Vickery concluded that the alleged disabilities were the direct result of the motor vehicle accident.
Dr Vickery provided an impairment assessment to the insurer of 27 May 2020, but at that point, the claimant had not reached maximum medical improvement and therefore did not provide a finding on whole person impairment.
Further medico-legal report of Dr Graham Vickery of 14 June 2021
Dr Vickery provided a further report to the insurer of 14 June 2021, by which time he had been provided with a comprehensive set of documentation, including the report of
Dr Bertucen of 3 February 2021 and additional records from Karen Hancock.At [7], Dr Vickery referred in detail to sections of the report of Dr Bertucen including the loss of his business contract, to the sale of the vehicles, to the reconciliation with his wife, the reduction of alcohol consumption, the benefits of sleep for cannabis oil, the fact that there had been significant decompensation since that time, with the subsequent martial separation and estrangement from his sons and his friends. He noted that Dr Bertucen states that:
“There has been the onset of Persistent Depressive Disorder from these personal stressors.”
He noted what Dr Bertucen said with respect to post-traumatic stress disorder and Dr Vickery commented that it was significant that the claimant had “not mentioned any of those trauma related symptoms when discussing [h]is psychopathology.”
Dr Vickery referred to the correspondence of Dr Bhandari of 20 December 2020 and noted that it was unclear whether the range of post-traumatic symptoms met the threshold for
post-traumatic stress disorder or syndrome and Dr Vickery noted there was no further mention of post-traumatic stress disorder in the correspondence consistent with the claimant not meeting the diagnostic threshold for post-traumatic stress disorder.Dr Vickery referred to Dr Bhandari’s supplementary report of 11 May 2020, to which the Panel has referred above.
Dr Vickery then stated, by way of conclusion, that the claimant’s psychopathology was “related to the loss of his business and the marital conflict… There was no mention of the motor vehicle accident directly impacting on Mr Rocchi.”
Dr Vickery concluded:
“Mr Rocchi’s anxiety, depression and anger are related to personal stressors”
At [8], Dr Vickery said:
“The current conditions of Persistent Depressive Disorder and Panic Disorder are due to the marital separation and estrangement from his sons and hi friends and the loss of his business.”
Further, at [9]:
“There is no diagnosis in relation to any psychological injuries directly due to this accident.”
As a result of the causation issue, there was no whole person impairment assessment by
Dr Vickery.
Medico-legal report of Dr Graham George, psychiatrist, dated 29 June 2022
Psychiatrist Dr Graham George provided an IME report dated 29 June 2022. He provided a history of the injury and subsequent treatment including the complications of the infection. He noted current constant pain in his left shoulder, the left side of his neck, right hip and right leg. He uses both Endone and codeine and found cannabis oil useless; he also uses Naprosyn and prednisone. Psychiatric medication consisted of mirtazapine 15 mg at night plus agomelatine 25 mg at night. He had previously used escitalopram 10 mg. He noted he had been treated by psychologist Dr Karen Hancock on a monthly basis for two years. Current psychological symptoms consist of insomnia caused by pain and nightmares. There were some flashbacks. He noted irritability and low frustration tolerance. He lost his business eight months after the motor accident and remains angry, frustrated and depressed. He has withdrawn from friends. He was drinking three bottles of spirits in a week to assist sleep and is still struggling with alcohol use. He noted no contact with his parents or sisters after he left home at age 14. He stated he had continued to go to school after he left home, probably to the end of the fourth form. He noted a history of marriage at age 24 which was good prior to the motor accident. He attributed the breakdown in his marriage to his change in personality, depressed mood and irritability since the accident. Dr George diagnosed chronic post-traumatic stress disorder, persistent depressive disorder and alcohol use disorder. He also noted opiate dependence to control pain. Whole person impairment was assessed at 24% (332335).
Supplementary report of Dr Graham George of 2 September 2022
In a supplementary report dated 2 September 2022, Dr Graham George clarified the primary psychiatric injury is chronic post-traumatic stress disorder. The persistent depressive disorder and alcohol use disorder could be seen as being secondary to post-traumatic stress disorder.
Determination of Medical Assessor Ian Cameron of 25 April 2022
The Panel has noted the contents and determination of Medical Assessor Ian Cameron, Certified 25 April 2022, that the physical injuries he had assessed:
(a) left knee – soft tissue;
left knee – fracture, soft tissue, nerve injury and scarring;(b) lumbar spine – soft tissue;
(c) right angle – soft tissue; and
(d) left shoulder – soft tissue;
did not give rise to whole person impairment in excess of 10%.
RE-EXAMINATION OF THE CLAIMANT BY THE PANEL
Medical Assessors Chew and Mason examined the claimant on 23 October 2023 by audiovisual link.
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 [2021] NSWCA 287 and Insurance Australia Ltd v Marsh [2022] NSWCA 31.
The Panel adopts the joint examination report of the Medical Assessors supplemented by the following further reasons.
History recorded by the Panel
The claimant is a 64-year-old man who lives alone in a unit in the Gold Coast which he has purchased and lived in for around two years. He also has a place in Newcastle which he travels to regularly by plane, roughly every 5-6 weeks, to receive treatment from the chiropractor and remedial massage.
He stated that he has not worked since the motor accident and is reliant on income from insurance benefits.
He remains married to his wife, and they communicate regularly but live separately, she is in Newcastle. They have been married for 40 years. He said that prior to the accident there had been some difficulties with his wife. He said that she had become worried that he was having an affair which he attributed to her going through menopause and his decreasing interest in sex which he attributed to aging. He was adamant that he has never had an affair. He said however that his relationship with his wife deteriorated further after the accident “because of the way I am”, in particular noting his irritability and anger issues.
He has two sons aged 37 and 39 and five grandchildren. He speaks to them regularly on the phone and also sees them when he goes to Newcastle.
Psychosocial history
The Panel took the following history:
The claimant reported that he was born in Australia. Both his parents have passed away. His mother died 35 years from natural causes. His father died two years ago from natural causes. He described short term grief compounded by inability to go to the funeral because of COVID-19. He said that the death was expected, and he had time to grieve throughout the process. His father had gone from an aged care service to a palliative care service prior to his death. He has two sisters who he has not had any contact with for 40 years. He denied a family history of psychiatric illness.
He described a “pleasant” and “good childhood”. The panel put to him previous accounts of leaving home age 14/15 and he said that his perception was that it was fine and that it hadn’t been something that he worried about or had affected him.
He completed year 12 at Blacktown High. He then worked in bricklaying and landscaping before obtaining a roof tiling apprenticeship age 20. He worked in the same job until the age of 27/28.
He then got married and they chose to move to Newcastle as they thought that it provided a better environment to raise their family compared to Blacktown. He obtained contract work with Visy recycling and worked up to NSW supply and sales manager with responsibility for 30-40 staff. He then got contracts for Brambles in 2002 managing classified waste. He worked in this capacity until the 2017 motor accident. He said that he was unable to work after the accident and eventually his contract was not renewed in 2019.
History of the motor accident
The Panel took the following history of the motor vehicle accident.
The claimant reported that he was riding his motorcycle around the corner around
30-40 kmph. he was wearing a helmet, gloves, long sleeve sloppy joe and shorts. He said that a lady pulled out in a brown car from the left, t-boning him. He said that he slid along the bonnet, up the windscreen, over the car and fell onto the ground.He felt pain all over his body. There was left elbow degloving that he noticed and cuts in various locations on his body. He reported feeling angry “If I could get up I would hit her”.
Emergency services arrived. He was taken to hospital. He spent some time in ICU. He was discharged after around 14-15 days and started a rehabilitation program involving physiotherapy, chiropractic and outpatient hospital follow up. In April 2018 he was referred to an orthopaedic surgeon and had an operation to repair his left shoulder/ bicep. He developed a post operative infection in May 2018 and spent 30 days in hospital with revision surgery and antibiotics. He has had two further admissions for infection in 2021 and 2022 where he has been treated with IV antibiotics.
He reported that he first started noticing that his mental health had been affected in late 2018/ early 2019. He said that his personality had begun changing. He said that he felt more irritable like he was “jumping out of his skin”. He had a decrease in appetite. He began increasing his intake of alcohol from two lite beers every few days to 4-5 bottles of vodka a week. He currently drinks between 1-2 bottles of vodka a week.
Injuries or conditions before and after the motor accident
The claimant said there had been no such injuries or conditions. He was questioned directly about his relationship difficulties prior and after the motor accident. His history was consistent with some mild problems prior to the accident and significant deterioration after. He was questioned directly about the impact of the death of his father. His account was consistent with normal bereavement.
Current symptoms
The claimant reported that he is now a “completely different person”. He reported that he is reclusive and “I don’t want to talk to anyone”. He said that as a result he avoided going out to see people. He reported that he often got angry and if provoked would fight back. He said that he had recently killed a dog that attacked him.
He reported ongoing pain at a “9/10” predominantly in his left shoulder, left neck, left knee and lower right back.
He reported “flashbacks” to the accident occurring at night. He said that he would wake drenched in sweat. He said that some months he would experience it weekly then it could go for a few months without. He said that two scenes were particularly prominent- seeing the brown car and the driver’s face and eyes and the paramedics shining a torch into his eyes.
Current and proposed treatment
The claimant reported that he has been seeing his psychologist, Karen Hancock, for around 3-4 years. He sees her between once a fortnight to once a month. Unfortunately, she has recently been admitted to John Hunter Hospital and he expects that he won’t be able to get another appointment for a few months.
He is not taking any antidepressants. He said that he had previously taken various antidepressants and did not tolerate the side effects. He found that they were not helpful for his symptoms. He is not interested in trialling other medications.
He is currently taking CBD oil every night which helps his sleep. He said that he obtained a prescription from a practice in Hunter St, Newcastle around 4-5 years ago and continues to obtain the medication directly from the supplier.
Mental state examination
The claimant appeared his stated age and was seen alone via the MS Teams platform.
He was noticeably irritable and began the interview with irritable and confrontational statements about having to do the interview and negative comments about the insurance company and process.
He was casually dressed and had reasonable grooming.
There was no abnormal psychomotor activity.
His speech was of normal rate, rhythm, volume, and prosody.
His affect was reactive and predominantly in the irritable range.
He reported his mood as predominantly angry and irritable.
There was no evidence of psychosis. There was no formal thought disorder, no delusions, or hallucinations.
He was oriented to time place and person and his cognition was grossly intact.
The predominant theme in his thought content was around how angry and irritable he was and how he avoids people as they make him angry.
He did not describe any thoughts of harm to self. He described thoughts of harm to others if they did him wrong or tried to hurt them. He said he enjoyed fighting and hurting people. There was no identified current person that he wished to harm.
Current functioning
Self-care and personal hygiene: He reported that he woke up at 4am and showered daily. He said that he doesn’t wash clothes but rather buys new clothes every 3-4 days. He has a cleaner who helps three hours a week. He said that his ability to clean is impacted primarily by pain. Mild impairment
Social and recreational activities: He reported that he goes for a walk every morning for 60-90 minutes. He often has a further walk later in the day. He went to Fiji a few weeks ago for a one-week holiday. He goes away for weekends occasionally. He said that he last went to Rainbow Beach about two hours away by car and did some 4WD activities, swimming, and fishing. He does not see any friends and avoids social events with other people. Moderate impairment
Travel: He is able to travel independently. He is able to drive to the shops. He flies to Newcastle regularly. Two weeks ago, he flew to Fiji for a one-week holiday. He drove to Rainbow Beach recently. Unimpaired.
Social functioning: He maintains a relationship with his wife, sons, and grandchildren. He has withdrawn from friendships. His relationship with his wife deteriorated after the accident and they are separated. He relates to his sons, but his daughters-in-law refuse to see him. Moderate impairment
Concentration, persistence, and pace: He said that his concentration had been poor. He used to be a “movie guy” but now it takes him 16 hours to watch a movie which he does in roughly 10-minute blocks. He said that he doesn’t read. He has been able to concentrate during the 75-minute interview. He is able to concentrate to book flights, accommodation and organise travel. Mild impairment.
Adaptation: He is unable to work in the same position as previously because of his psychiatric symptoms. He has no interest in household duties because depression and anger. Moderate impairment:
· Class Scores 2 3 1 3 2 3
· Median Score 3
· Aggregate Score 14
· % whole person impairment 13%
Consistency of presentation
There was no significant inconsistency.
Causation
The claimant was involved in a serious motor accident when another vehicle t-boned him causing significant physical injury and need for an Intensive Care Hospitalisation. He then developed Vancomycin resistant staph aureus infection of the shoulder following surgery resulting in three subsequent hospitalisations for antibiotic treatment. He has been left with significant physical injuries and pain. The Panel considers the motor accident was of sufficient severity to cause the conditions diagnosed.
In his report of 27 May 2020, Dr Vickery, at [9] and [15], diagnosed an adjustment disorder in partial remission, directly caused by the motor vehicle accident.
By 14 June 2021, when he had additional materials, Dr Vickery diagnosed onset of persistent depressive disorder from his “personal stressors”, i.e., not as a result of the motor vehicle accident.
Dr Vickery noted what Dr Bertucen had said with respect to post-traumatic stress disorder and stated that it was significant that the claimant had not mentioned trauma related symptoms to him.
The Panel notes, however, that Dr Bertucen, in his 3 November 2020 report, took a history that for the first six months after the accident, the claimant reported a number of “classical” features of post-traumatic stress disorder, including nightmares, re-experiencing phenomena, delayed sleep onset, nocturnal hyperarousal, night sweats, and thrashing around in bed.
The Panel, again, notes that Dr Bertucen diagnosed post-traumatic stress disorder and a chronic adjustment disorder/major depressive disorder as a direct result of the accident.
The Panel notes that Ms Hancock reported that the claimant had stated that he had a feeling of relief for several weeks of being separated, due to the toxic nature of his relationship with his wife over several years and reported to be keeping himself busy with his motorcycle and boating hobbies.
This does not seem consistent with the “personal stressors” related to the marital relationship, as described by Dr Vickery.
Further, the Panel notes what Ms Hancock set out in relation to post-traumatic symptoms, and which were summarised at [30] above.
Finally, the Panel refers to what Ms Hancock stated, summarised at [33] above, that:
“…Richard does not have financial concerns…”
While there were difficulties with his relationship with his wife prior to the motor accident, the evidence established on the balance of probabilities that the relationship seriously deteriorated after the accident, and the accident is the cause of this further deterioration.
Diagnosis
The claimant meets diagnostic criteria for post-traumatic stress disorder:
· Criterion A. He was in a frightening potentially life-threatening motor accident.
· Criterion B. He described intrusion symptoms consisting of traumatic dreams and memories.
· Criterion C. He described avoidance of reminders of the motor accident.
· Criterion D. He described negative alterations in cognitions and mood.
· Criterion E. He described marked alterations in arousal and reactivity in particular marked irritability and anger.
· Criterion F. The condition has lasted more than one month.
He also meets diagnostic criteria for alcohol use disorder as he has consumed alcohol in larger amounts than intended. He has difficulty cutting down use.
He does not meet criteria for persistent depressive disorder primarily because his predominant mood is irritable rather than depressed. However, he does meet diagnostic criteria for intermittent explosive disorder:
· Criterion A. There have been recurrent episodes of verbal and physical aggression since the motor accident. (He was also aggressive and highly confrontational towards the assessors at the beginning of the interview).
· Criterion B. The magnitude of aggression is out of proportion to the provocation.
· Criterion C. The aggressive outbursts are not premeditated.
· Criterion D. The outbursts cause impairment in interpersonal function.
Conclusion – whole person impairment
After, and as a result of the accident, the claimant developed diagnostic criteria for:
· post-traumatic stress disorder;
· alcohol use disorder; and
· intermittent explosive disorder;
resulting in whole person impairment of 13%.
CONCLUSION
The Certificate issued by Medical Assessor Siderov is revoked and a replacement Certificate is issued as set out in the commencement of these Reasons.
0
6
0