AAI Limited t/as GIO v Toskoski
[2025] NSWPICMP 347
•20 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Toskoski [2025] NSWPICMP 347 |
CLAIMANT: | Jasmina Toskoski |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Surabhi Verma |
MEDICAL ASSESSOR: | Paul Friend |
DATE OF DECISION: | 20 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); medical assessment of whole person impairment (WPI); claimant injured in motor vehicle accident; Medical Assessor determined the claimant’s permanent impairment at 15%; insurer sought a review under section 7.26; Review Panel re-examined the claimant; Held – MAC revoked; new certificate issued; substituted determination of 7% WPI. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Panel revokes the certificate of Medical Assessor Abishek Nagesh, dated |
STATEMENT OF REASONS
INTRODUCTION
Jasmina Toskoski (Ms Toskoski), the claimant, was injured in a motor accident (the accident) on 27 September 2019. Following the accident, she made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited trading as GIO (the insurer).
A dispute has arisen between the claimant and the insurer about whether the degree of permanent impairment that has resulted from psychological injury caused by the accident is greater than 10%. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(a) of the MAI Act. Ms Toskoski has brought a claim for common law damages for the injuries she sustained under the Motor Accident Injuries Act 2017 (the MAI Act).
The medical dispute was referred to Medical Assessor Abishek Nagesh for assessment. The Medical Assessor gave a certificate dated 8 September 2023 in which he certified that the injury gave rise to a persistent depressive disorder and gave rise to a permanent impairment (15%) that was greater than 10%.
The insurer sought a review of the further assessment under s 7.26 of the MAI Act. The President’s Delegate subsequently determined that there was reasonable cause to suspect that the assessment was incorrect in a material respect. The review application was accepted and referred to this Review Panel.
The Review Panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the review of the assessment.
THE REVIEW
The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the panel is to be constituted by two medical assessors and a member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128.
Version 9.2 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, apply to the Review.
STATUTORY PROVISIONS
Permanent impairment
If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’, found in clauses [6.201]-[6.228] of the Guidelines.
Pre-existing impairment
Pre-existing impairment is addressed in clauses 6.31-6.33 as follows:
“Pre-existing impairment
6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
Clause 6.35 of the Guidelines states that psychiatric impairment is assessed in accordance with “Mental and behavioural disorders” within the Guidelines, namely clauses [6.201]-[6.228] of the Guidelines.
In order to measure impairment caused by a specific event, a medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in the Guidelines, and subtract this value from the current impairment rating: cl 6.218.
Causation
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
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 non-medical informed judgement.’
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychiatric condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
ASSESSMENT UNDER REVIEW
Medical Assessor Nagesh assessed Ms Toskoski on 1 August 2023 and certified as to permanent impairment on 8 September 2023.
The injury referred to Medical Assessor Nagesh was Chronic Adjustment Disorder.
Medical Assessor Nagesh took a history at [8], he was told Ms Toskoski had been diagnosed with depression and anxiety in her 30s after she had been diagnosed with a ganglion and had to stop work. She was treated with antidepressants and referred to a psychologist. She said that her symptoms completely resolved, and she had stopped her antidepressant medication two to three years after the onset of her symptoms. At the time of the accident, her depression and anxiety were in complete remission.
Medical Assessor Nagesh then took a history of the accident at [9], followed by a history of symptom and treatments following the accident.
Relevantly, she told Medical Assessor Nagesh that the accident came as a shock. She had a young 10-month-old baby. She could no longer enjoy raising him. The pain affected her mood. She had two other children with plenty of activities which she could not manage. She developed depressed mood, insomnia, nightmares worried something similar would happen to her son, decreased appetite, driving anxiety, lack of energy and motivation, reduction in ability to concentrate, feelings of worthlessness, and anhedonia. The GP provided counselling and referred her to a psychologist.
Medical Assessor Nagesh noted at [12] that Ms Toskoski’s current symptoms were depressed moods, insomnia, lack of appetite, lack of energy and motivation, diminished concentration, anhedonia, and feelings of guilt and worthlessness.
EVIDENCE
The documentary evidence before the Panel consists of the ‘Insurer bundle for Review of Nagesh’ and the ‘Claimants Bundle of Documents that were provided separately.
The insurer’s bundle comprises 313 pages, and the claimant’s bundle comprises of 94 pages. The Panel has considered all this material.
SUBMISSIONS
Insurer’s submissions, dated 9 October 2023
I briefly summarise the submissions of the insurer by way of reference to paragraph numbers:
Part A: Background
[1.1] – [1.4]The insurer submits the claimant was involved in a motor vehicle accident on 27 September 2019. She lodged an application for assessment of threshold injury on 24 September 2021 for both physical and psychological injuries. On 29 August 2022, she applied for assessment of Whole Person Impairment (WPI) for both injury types. In December 2022, the claimant requested the same Medical Assessor to evaluate both disputes regarding the alleged physical injuries. Medical Assessor Home conducted the assessments, issuing a Certificate on 10 May 2023 determining that the claimant had threshold physical injuries.
[1.5] – [1.7] On 15 June 2023, the claimant's solicitor requested Medical Assessor Nagesh to assess whether the alleged psychological injury was a threshold/non-threshold injury. The claimant was assessed by Medical Assessor Nagesh on 1 August 2023, and a certificate dated
8 September 2023 was issued, though it was not provided to the parties until 11 September 2023.
In the certificate, Medical Assessor Nagesh recorded:
1.7.1The claimant’s psychological injury was a "non-threshold" injury.
1.7.2The claimant’s psychological injury resulted in a 15% WPI.
[1.8] – [1.9]The insurer submits that the Certificate of Medical Assessor Nagesh is incorrect in a material respect and requests that the matter be referred to a Review Panel for review. This application is limited to Medical Assessor Nagesh’s assessment of Whole Person Impairment.
Part B: Legislation
[2.1] – [2.2]The insurer refers to section 7.26(2) and section 7.26(5) of the MAI Act as grounds for review. The insurer submits that Medical Assessor Nagesh erred in his assessment by:
(a)Failing to sufficiently discharge his duty as a medical assessor.
(b)Failing to make appropriate enquiries of the claimant, leading to incorrect assumptions.
(c)Failing to apply the PIRS correctly.
Part C: Reasoning
[3.1] – [3.4] Medical Assessor Nagesh assessed the claimant as Class 2 for Travel, reasoning that she could drive independently up to a radius of five kilometres but could not travel to unfamiliar places without a support person. The insurer submits that previous assessments and the claimant's reports to her GP indicated greater limitations in her ability to drive, suggesting that Medical Assessor Nagesh may have failed to consider the treating medical evidence adequately.
[3.5] – [3.11]Medical Assessor Nagesh assessed the claimant as Class 3 for Adaptation, citing her inability to return to work since the motor vehicle accident and decreased ability to handle stress. The insurer contends that Medical Assessor Nagesh did not adequately inquire about the claimant's work history and circumstances post-accident. The claimant was on maternity leave at the time of the accident and returned to work part-time before ceasing employment due to her employer's requirement for a full-time worker. Had further enquiries been made, the insurer submits that the claimant would have been assessed at most as Class 2 for Adaptation.
Part D: Additional Material
[4.1] – [4.4]The insurer acknowledges that the Certificate of Medical Assessor Home dated 10 May 2023 was not before Medical Assessor Nagesh at the time of his assessment. This certificate provides evidence of the claimant's ability to return to employment post-accident. The insurer submits that this material is relevant and should be considered by a Review Panel when assessing the appropriate score under the PIRS category of "Adaptation."
Part E: Material
[5.1] – [5.2]The insurer submits that had the claimant been correctly assessed with a Class 2 for Adaptation, the overall WPI would be under 10%, as the median score would become 2, resulting in a 7% WPI.
Part F: Conclusion
[6.1] – [ 6.3]The insurer submits that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, as per the criteria established in Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWCA 1848. The insurer submits the culmination of the above factors warrants referral of the matter to a Review Panel for review to issue a new certificate.
Claimant’s submissions, dated 8 November 2023
I briefly summarise the submissions of the claimant:
Part A: Travel
The insurer submits that the Medical Assessor erred in assessing the claimant under class 2 for travel and has submitted that Dr Loi Lam’s practice (at Bonnyrigg Family Medical Centre, 39A Bonnyrigg Avenue, Bonnyrigg) is more than 5 km from the claimant’s residence at 11 Rayner Place, Bonnyrigg. This is incorrect. The distance between Dr Loi Lam’s practice and the claimant’s residence at 11 Rayner Place, Bonnyrigg is about 1.5km. There was no error in the Medical Assessor’s report and reasoning with respect to the Medical Assessor’s assessment of the category of ‘Travel’.”
Part B: Adaption
The insurer submits that the Medical Assessor erred in assessing the claimant under class 3 for adaptation. It is submitted that in his assessment the Medical Assessor correctly turned his mind to considering the claimant’s psychological ability to adapt as opposed to her physical ability. The focus of the category is not the ability to work per se, but the ability of one to adapt psychologically to differing environments. It is accordingly, submitted that the Medical Assessor has made no error in his assessment and has correctly performed the assessment of adaptation in accordance with the Guidelines. Whilst the insurer has disagreed with some of the classes that the Medical Assessor assessed the claimant under, that is evidence per se that there has been an error made in the Assessment.
RE-EXAMINATION
Medical Assessor Verma and Medical Assessor Friend examined Ms Toskoski on the 19th of February 2025 by audio visual link via Microsoft Teams.
Psychosocial history and pre-accident history
“Ms Toskoski was born in Macedonia. She immigrated to Australia, with her parents, when she was an infant. Her parents separated when she was two years old. Her mother entered another relationship when she was about five years old. She is the eldest sibling in a family of four having a brother and two sisters. She lived with her mother and siblings after her parents separated. She denied experiencing any traumatic incidents or witnessing adverse events while growing up. She described her stepfather as good.
She had no academic difficulties at school. She attended Bonnyrigg High School, where she formed great friendships. She attended school with her cousins and formed many friendships. Eventually, she left Bonnyrigg High as it was not academically oriented and completed the HSC pathway through TAFE. She completed a Bachelor of Arts in Tourism. She started a Bachelor of Teaching degree, but did not complete it, as she was working at the time.
Ms Toskoski reported sustaining a physical injury while working at Woolworths at around 16-17 years of age. She lodged a workers’ compensation claim and was diagnosed with depression as a result of the injury. She stated that she was not prescribed any antidepressants but did see a psychologist, which led to an improvement in her mental health. Subsequently, she was able to continue studying and juggling multiple jobs without any residual symptoms.
Ms Toskoski began working with Sydney Water at the age of 23, initially part-time, but was diagnosed with a ganglion and started experiencing pain and difficulties with typing.
Ms Toskoski also experienced panic attacks and her mental health gradually deteriorated during her time with Sydney Water. She conveyed feeling “a lot of trauma from Sydney Water and feeling rejected by them.” She also mentioned seeing a psychiatrist and being treated with antidepressants, which she took inconsistently. She expressed that she was trying to conceive her third child and experienced several miscarriages between 2013 and 2016.
She stated she stopped working because of difficulties at work at Sydney Water, and the ganglion eventually resolved on its own as she was not employed.
In 2017, she noted positive changes, and her mental health significantly improved when she became pregnant with her third child. She denied having any residual symptoms after that. Ms Toskoski described being in a “happy place” before the accident, enjoying her role in managing the household. She reported experiencing symptoms of fibromyalgia but was managing and coping well with them.
She began working at Catech in 2019 and was employed full-time for a year before taking maternity leave. She returned to work in early 2020, approximately six months after a motor vehicle accident, and worked part-time from home three days a week. Ms Toskoski reported that she last worked at Catech about a year ago, where she was involved in invoicing and general administration She mentioned working intermittently for about three years and denied having any performance issues at work. She indicated that she stopped working due to struggling with pain and an inability to focus.
Prior to accident, she reported experiencing pain in her buttocks, right leg, and right hand but was able to manage it. She mentioned using alcohol in social situations as a coping mechanism to “calm her nerves and feel normal.” She does not use illicit drugs or cigarettes and noted that she now drinks alcohol only on special occasions and over dinner.”
History of the motor accident
“Ms Toskoski was involved in a motor vehicle accident on 27 September 2019.
She had gone out with her friends and was driving her husband's utility. She was returning home after dropping off a friend. She had stopped at a traffic light and was waiting for the green arrow to turn right. She made a right-hand turn when she had a green arrow. An oncoming vehicle ran a red light and collided with the passenger side of her vehicle. The airbags did not deploy.
She was feeling "shocked”.
The other vehicle drove off and she followed. She said she called her friend, who exchanged details with the driver. There were police nearby who performed breath tests on them. She did not go to the hospital. An ambulance was not called. Her friend drove her home.”
History of symptoms and treatment following the motor accident
“Ms Toskoski reported that she began experiencing “emotional symptoms." She shared that she felt “sadness” and guilt about driving her husband' s utility vehicle. She also started struggling with increased pain in her neck and back, making it difficult for her to do “anything like sitting, housework, sitting for long durations, or handling children” due to the pain.
She had to stop participating in activities with her children, as her pain significantly impeded her ability to engage in household chores. She recalled still breastfeeding her youngest son during that time, but found it challenging to hold him because of the pain.
She remembered experiencing significant discomfort while carrying him. Ms Toskoski expressed that struggling with both emotional and physical pain hindered her enjoyment of caring for her son. She often questioned why she had been in the accident and why pain had become the focal point of her life. She experienced feelings of hopelessness and anger regarding the motor vehicle accident and its effects on her life. Nightmares related to “dying and family members dying” surfaced for her.
She would scream in her sleep and needed her husband to wake her. In the mornings, she struggled to get out of bed, feeling fatigued and not well- rested. She experienced anxiety, especially social anxiety, leading her to stop socialising with friends, which deepened her feelings of depression.
She felt inadequate and believed that her depression was the reason she was not being invited to gatherings. Although her appetite decreased, she gradually gained weight because she did not “watch her food and relied on fast food.” She reported experiencing anxiety, mainly while driving, and was easily triggered by any noise. For example, if her children talked while she was driving, she would become irritable and snap at them.
She felt anxious whenever another car changed lanes. She was referred to a counsellor, whom she consulted for about three months but had to stop due to the restrictions of the COVID-19 pandemic. She was not prescribed any antidepressants or anti- anxiety medications medication.”
Current symptoms
“Ms Toskoski continues to experience both physical and mental health symptoms.
Physically, she reported pain in her neck and back, numbness, and sensitivity to light and noise, stating she wants to "lay down all the time." She mentioned that her pain in the neck and back areas increased after the motor vehicle accident.
Mentally, she reported experiencing anxiety when driving, avoidance, procrastination, difficulty completing tasks, and feeling unable to support her family. She described struggling to take care of herself, her children, and the household, as well as experiencing nightmares, feeling hypervigilant, and being easily startled.
She barely does any household chores and only waters her roses occasionally. She is an Orthodox Christian but has not attended church in the last two to three years.
On a typical day, she gets up at 7:30 and prepares her youngest son for school, including making his lunch and serving cornflakes.
After dropping her son off at school, she returns home to do laundry, clean up, and handle other household chores like emptying the dishwasher. She goes to bed at various times during the night, not having a regular sleep pattern.”
Current and proposed treatment
“She is not consulting a psychologist or a counsellor.
She was referred to a rehabilitation clinic for her chronic pain and was treated with massage and swimming sessions.
She is not consulting a psychiatrist. She is not prescribed antidepressant or anti-anxiety medication.”
Mental State Examination
“Ms Toskoski was examined by video teleconference.
She presented as a middle-aged female of Macedonian background. She was casually dressed in a black T-shirt, and her hair was tied back.
She was on the verge of tears and appeared anxious throughout most of the examination. She reported her mood as low and sad, with her affect ranging from slightly dysphoric to anxious. Her speech was spontaneous and normal in volume and tone, though it was overly inclusive.
We needed to redirect her to the questions asked as Ms Toskoski was overinclusive at times. Her thoughts were logical and goal-directed. She currently reports ongoing low mood, lack of interest in activities, fatigue, social withdrawal, nightmares, intrusive thoughts, and anxiety. There was no evidence of any manic, psychotic, or perceptual abnormalities.
She had insight into her condition, and her judgement was intact. At times, she asked to repeat the questions, as she was forgetting what they were.”
Current functioning
“Self-Care and Personal Hygiene: Ms Toskoski brushes her teeth every day and showers at least once every morning.
She has gained weight and currently weighs about 75 kg. Her pre-accident weight varied from 62 to 66 kg. She can do the majority of the household chores, including cooking. She is also able to take care of herself and her children.
Social and Recreational Activities: Ms Toskoski previously enjoyed spending time with her husband, going out with friends, watching her son play soccer, and seeing her daughter dance.
She enjoyed cooking and taking care of her home.
She now cannot watch her son play soccer because she feels anxious about his safety.
She has been able to dine out with her husband and prefers to visit local restaurants. She maintains her friendship group, staying in touch with her best friend, whom she contacts once every six months.
Her sister has been organising get-togethers with their cousins and regularly calls her. She has been socialising with her sisters and cousins.
She can shop alone, but she avoids “big shopping”. She needs to engage in a lot of self-talk before leaving home to do the shopping.
Travel: Ms Toskoski leaves her house to visit her mother who lives 10 minutes drive away.
She drives to pick up and drop off her son from school and visits her brother, which is another 10-minute drive.
She dislikes loud noise in the car, when she drives, because it distracts her. She has been able to drive on the M5 and M4 and regularly goes to the shopping mall without any difficulty.
She avoids driving long distances and to unfamiliar places.
Social Functioning: Ms Toskoski’s husband has been very supportive and they share a “loving, nurturing, caring, and respectful relationship”. However, she sometimes resented him for having a successful life while she felt unhappy and stayed at home.
She feels that sometimes she cannot discipline her son which causes her daughter to intervene. She feels that her daughter does not manage those situations well and it is inappropriate for her daughter to have that responsibility. Her children do not understand her mental health problems.
There have been no periods of separation, domestic violence, or involvement of spouses, relatives, or community services with her children.
Concentration, Persistence and Pace: Ms Toskoski reported experiencing difficulties with attention and concentration.
She is unable to complete tasks and often gets distracted. She procrastinates on household chores.
She does not watch Television because she cannot handle noise.
She previously enjoyed reading books for pleasure, but she has been struggling to read.
She scored 3/3 on the three-word repeat task and 2/3 on the three-word recall task. She was able to name the days of the week both forward and backward without any difficulty.
Ms Toskoski requested us to repeat questions and appeared to be distracted.
Adaptation: The review panel attempted to clarify the barriers affecting the return to work.
Ms Toskoski explained that her inability to work was “mostly driven by physical pain.”
The review felt that she could work full-time, in a different environment different from her pre-injury work role, or 20 hours each week, in her pre-injury work role.
Summary of relevant documentation
Medical Assessor Verma noted the clinical documents from Bonnyrigg Family Medical Centre. Medical Assessor Verma noted past history of being diagnosed with depression in 2004. Medical Assessor Verma also noted multiple entries in September 2013, 2014, 2015, 2016 and 2017 with symptoms of anxiety, low mood, lack of motivation, interest, tears, feeling guilty, anxious, overwhelmed. Medical Assessor Verma noted that she was made redundant in 2015 and experienced panic attacks in 2017. Ms Toskoski too gave the Panel information about her past history. Medical Assessor Verma also noted history of right wrist pain including right hand and right shoulder dating 13 August 2013.
A GP mental health treatment plan dated 22 November 2017 mentioned mixed anxiety and depression and recommended CBT reviews, positive outlook and relaxation.
A GP mental health treatment plan review dated 22 November 2017 with the same recommendations.
Medical Assessor Verma noted referral by Dr Loi Lam dated 17 July 2017 to Psychologist for anxiety, palpitations and that she was on Clonazepam prn and Agomelatine for depression.
A GP mental health treatment plan dated 27 February 2017 mentioned that she was on combination of Celecoxib, Diazepam, Clonazepam, Tramadol and Valdoxan. Referral by Dr Loi Lam dated 1 November 2016 to Psychologist for pain, feeling pressure, feels financially stressed, feeling guilty for not working. Medical Assessor Verma also noted GP mental health treatment plan dated 7 October 2015 with diagnosis mentioned as depression and plan to continue Valdoxan and Rivotril dated 7 October 2015.
Medical Assessor Verma noted certificate by Medical Assessor Abhishek Nagesh dated
8 September 2023. Medical Assessor Nagesh concluded that the presentation was consistent with Persistent Depressive Disorder and calculated the whole person impairment as 15%. This calculation differs in the areas of social and recreational activities and adaptation. Kindly note the PIRS Scale for the differences.Certificate by Medical Assessor Alan Home dated 10 May 2023, which mentioned the injuries caused by motor accident, cervical spine, soft tissue injury, non-verifiable reticular complaints in right upper extremity, lumbar spine soft tissue injury and right shoulder muscular pain secondary to neck complaint, arthritis, shoulder injuries for the purposes of the Act.
Diagnosis and reasons
“Ms Toskoski is a middle-aged female, who lives with her husband and three children aged 16, 14 and 6 years of age.
She reported having past history of depression and anxiety first when she was about 16-17 in context of workplace injury where she saw a psychologist and her mental health improved.
She had relapse of depression and anxiety when working with Sydney Water and was diagnosed with ganglion and fibromyalgia.
She reported having personal stressors including miscarriages from 2013 to 2016, which also contributed to her worsening mental health. (there is no mention of the previous miscarriages in the past history. She reported experiencing panic attack at that time.
Her mental health improved in 2017 when she fell pregnant and she denied having any residual symptoms. She was not taking any medications or having any psychological intervention at the time of motor vehicle accident and was on maternity leave.
After the motor vehicle accident, she started experiencing both physical and psychological symptoms. She reported increase in her chronic pain, especially in her back and neck. She also reported experiencing low mood, anhedonia, lack of interest in activities, social withdrawal, diminished ability to concentrate, anxiety around driving and lack of motivation. There were themes of worthlessness and helplessness about the situation.
The Panel diagnosed Ms Toskoski as meeting the DSM-5 criteria for Major Depressive Disorder.
Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
(a) Depressed most of the day, nearly every day as indicated by subjective report (e.g. feels sad, empty, hopeless) or observation made by others (e.g., appears tearful)
(b) Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by subjective account or observation)
(c) Significant weight loss when not dieting or weight gain (e.g., change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day
(d) Insomnia or hypersomnia nearly every day
(e) Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)
(f) Fatigue or loss of energy nearly every day
(g) Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
(h) Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)
(i) Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide
The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
The episode is not attributable to the physiological effects of a substance or to another medical condition.
The occurrence of the major depressive episode is not better explained by Schizoaffective Disorder, Schizophrenia, Schizophreniform Disorder, Delusional Disorder, or other specified and unspecified schizophrenia spectrum and other Psychotic Disorders.
There has never been a manic episode or a hypomanic episode.”
Causation and reasons
“Ms Toskoski’s functioning has been adversely impacted by chronic pain in multiple areas of her life. Ms Toskoski’s current presentation arises from the injuries sustained in the motor accident on 27 September 2019.
She had a previous history of anxiety and depression, but these symptoms had resolved prior to motor accident. She was not taking any psychiatric medication or having any psychological treatment at the time of the motor accident.
She has not been in subsequent motor accidents, accidents of any kind, or traumatic experiences or has developed any new medical conditions.
There is no other cause for the condition of Major Depressive Disorder other than the motor accident on 27 September 2019.”
Summary of injuries referred by the parties
The following injury was caused by the motor accident:
(a) Major Depressive Disorder.
Permanency of Impairment
“Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
Ms Toskoski was involved in a motor accident over five years ago.
She has had psychological treatment. Her condition is not improving or deteriorating. It is very unlikely over five years since the motor accident that any new treatment would substantially change her condition.
Her condition is stabilised and permanent and is unlikely to change substantially and by not more than 3% in the next year with or without medical treatment.”
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 | 1. Major Depressive Disorder | 2. |
| 3. | 4. | |
| Psychiatric treatment description | Yes, received in the past. She is not on any current treatment. | |
| Category | Class | Reason for Decision |
| 1. Self-Care and Personal Hygiene | 2 | Mild Impairment. Ms Toskoski reported that she brushes her teeth every day and showers at least once every morning. She reported that she has gained weight and currently weighs about 75 kilos. Her pre-accident weight was ranged from 62 to 66 kilos. She is able to do majority of the household chores including cooking; however, including cooking, she is also able to take care of herself and her children. |
| 2. Social and Recreational Activities | 2 | Mild Impairment. Ms Toskoski earlier enjoyed spending time with her husband, going out with friends, enjoying watching her son playing soccer and her daughter dancing. She also enjoyed cooking and taking care of her house. She said that she is not able to watch her son play soccer as she feels anxious that he might be in danger. She has, however, been able to go out to the restaurants with her husband and prefers to go to the local restaurants. She has her friendship group and is in touch with her best friend and she contacts her once in six months. She reported that her sister has been organising get-together with their cousins and calls her regularly. She has been socialising with her sisters and her cousins. She has also been able to go out for shopping on her own, but does not do “big shopping” and has to do a lot of self-talk about pain. |
| 3. Travel | 2 | Mild Impairment. Ms Toskoski reported that she leaves her house to visit her mother, who lives in Bonnyrigg, which is a 10-minute drive. She also drives to pick her and drop her son and visits her brother, which is a 10-minute drive. She said that when she drives, she does not like loud noise in the car and seems to get distracted by it. She has been able to drive on M5 and M4 and regularly drives to the shopping mall without any difficulty. She, however, denied driving into far-off and unfamiliar areas. |
| 4. Social Functioning | 2 | Mild Impairment. Ms Toskoski reported that her husband has been very supportive and they have a loving, nurturing, caring and respectful relationship. She said that she, however, at times resented him for having a successful life when she was just staying at home and did not feel happy. She feels that at times, she is unable to discipline her son and her daughter has to intervene and that they do not understand her mental health. However, there were no periods of separation or domestic violence or spouse, relatives or community services looking after children. |
| 5. Concentration, Persistence and Pace | 3 | Moderate Impairment. Ms Toskoski reported that she has difficulties in attention and concentration. She is unable to finish the tasks and gets distracted. She procrastinates doing the household chores. She said that she does not watch TV as she is unable to handle noise. She used to read books for pleasure earlier, but has not been reading as she struggles with that as well. She scored 3/3 on three-word repeat and 2/3 on three-word recall. She was able to state the days in a week both forward and backward manner without any difficulty. Ms Toskoski, however, during the assessment was asking us to repeat the questions and seemed to be distracted. |
| 6. Adaptation | 2 | Mild Impairment. The review panel tried to clarify about the barriers impacting return to work and Ms Toskoski clarified that her inability to work was “mostly driven from physical pain.” The review panel believed that she could work full-time, but in a different environment from that of her pre-injury job. The review panel believed that she can work no more than 20 hours each week in the same work role because of her ongoing mental health symptoms. |
| List classes in ascending order: 2,2,2,2,2,3 | ||
| Median Class Value:13 | ||
| Aggregate Score: 2 | ||
| % Whole Person Impairment: 7%” | ||
*%WPI = Percentage Whole Person Impairment
Psychiatric Impairment Rating Scale – Pre-existing/subsequent impairment
“Ms Toskoski denied having any pre-existing impairment at the time of the motor vehicle accident, was fully independent, had no difficulties in travelling, socialising with her concentration, persistence and pace and engaging in recreational activities.”
SECOND REVIEW PANEL MEETING
The Review Panel met for a second time on the 5 March 2025 at 1:00pm. The Panel discussed the findings, diagnoses and reasons of Medical Assessor Verma and Medical Assessor Friend. After that discussion, together with all other material, the Panel arrived at the conclusion that the degree of permanent impairment caused by the accident was 7%.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Abishek Nagesh, dated
8 September 2023, and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident, gave rise to a WPI of 7%.
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