AAI Limited t/as GIO v Worth
[2025] NSWPICMP 787
•13 October 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Worth [2025] NSWPICMP 787 |
CLAIMANT: | Christian Worth |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Terence O'Riain |
MEDICAL ASSESSOR: | Christopher Canaris |
MEDICAL ASSESSOR: | Himanshu Singh |
DATE OF DECISION: | 13 October 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review; insurer disputed causation and permanent impairment; alleging psychological disorder before accident including drug use; Commission referred psychiatric condition to assess permanent impairment; Medical Assessor’s (MA) certificate assessed 15% permanent impairment for post-traumatic stress disorder (PTSD) and major depression; referred for review; re-examination; claimant was cooperative and consistent; accident was capable of causing referred injuries; substance use disorder in remission; 12% permanent impairment with different clinical findings; Held – Review Panel revoked original Medical Assessment Certificate; permanent impairment greater than 10%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. This Review Panel diagnosed persistent depressive disorder (dysthymia) with anxious distress, which is different to Medical Assessor Fukui’s diagnosis of post-traumatic stress disorder and major depressive disorder. 2. The Review Panel revokes Medical Assessor Fukui’s certificate dated |
REASONS
BACKGROUND
The claimant was injured in a motor accident on 14 August 2021 when the insured car at fault hit his car forcefully from behind. The police and ambulance attended, and he was taken to hospital.
There is a dispute between the parties for the purposes of the Motor Accident Injuries Act 2017 (MAI Act) about whether permanent impairment arising from any injury caused by the motor accident is greater than 10%. The dispute was referred to the Personal Injury Commission (Commission) to be determined by a Medical Assessor.
Medical Assessor Fukui assessed the claimant on 14 March 2024 in relation to a psychological injury. She issued a certificate dated 20 April 2024, determining that the psychological injury caused by the accident caused permanent impairment of 15%.
The insurer applied to the President of the Commission under s 7.26 of the MAI Act to refer this assessment to a Review Panel on grounds that the medical assessment was incorrect in a material respect.
The President constituted this Review Panel (the Panel) on 20 June 2024 to review that assessment (the Review).
The Panel met on 21 May 2025.
The Panel considered re-examination was required and Medical Assessors Canaris and Singh would conduct this examination on behalf of the Panel on 16 July 2025.
THE REVIEW
The Panel conducts 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 legally qualified Member assigned to the Commission’s Motor Accidents Division.The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. It is a new assessment of all the matters concerning the medical assessment: 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 10 of the Motor Accident Guidelines (Guidelines), effective from 15 September 2025, applies to the Review.
STATUTORY PROVISIONS
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 Motor Accident Guidelines states that psychiatric impairment is assessed in accordance with ‘Mental and behavioural disorders’ found in cls 6.201-6.228 of the Guidelines.
Pre-existing impairment is addressed in cls 6.31-6.33 of the Guidelines, and specifically
cl 6.218 for psychological conditions. Clause 6.34 deals with subsequent injuries.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.
Degree of psychiatric impairment rating scale
Impairment is assessed following the Motor Accident Guidelines version 10 (the Guidelines) which include a chapter entitled “Mental and behavioural disorders.” The assessment is to be undertaken in accordance with the psychiatric impairment rating scale (PIRS) and the AMA 4 Guides are to be used as “background or reference only.”[1]
[1] Clause 6.203 of the Guidelines.
The PIRS requires a psychiatric diagnosis to be undertaken first in accordance with the current editions of either the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the International Statistical Classification of Diseases and Related Health Problems (ICD).[2]
[2] Clause 6.213 of the Guidelines.
The PIRS provides[3] for the consideration of any psychiatric condition present before the accident in question:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
[3] Clause 6.218 of the Guidelines.
The PIRS provides in cl 6.219 for six areas of function:
(a) self-care and personal hygiene;
(b) social and recreational activities;
(c) travel;
(d) social functioning (relationships);
(e) concentration persistence and pace, and
(f) adaptation.
The PIRS then provides at cl 6.220 for five classes of impairment with a descriptor for each which is “illustrative rather than literal criteria” and which is based on:
“… a history of the injured person’s pre-accident lifestyle, activities and habits, and then [an assessment of] the extent to which these have changed as a result of the psychiatric injury.”
The impairment may be adjusted for treatment,[4] that is treatment such as medication being taken to treat the psychiatric condition.
[4] See clauses 6.222 – 6.223 of the Guidelines.
Once all six areas of function have been categorised into a particular class, the median class score is determined, the aggregate score is determined and the median and aggregate is converted to provide a permanent impairment percentage.[5]
[5] See clauses 6.225 – 6.228 and table 17.
ASSESSMENT UNDER REVIEW
The Panel noted Medical Assessor Atsumi Fukui’s certificate dated 20 April 2024. Medical Assessor Fukui diagnosed post-traumatic stress disorder and major depressive disorder.
She noted prior motor accidents as well as an extensive substance abuse history.
She assessed the claimant with 15% permanent impairment rating him as Class 2 for self-care and personal hygiene, travel, and concentration, persistence, and pace and Class 3 for social and recreational activities, social functioning, and adaptation. She made no deduction for pre-existing impairment or adjustment for treatment effects.
REVIEW OF DOCUMENTATION
Summary of relevant documentation
The application for personal injury benefits dated 25 August 2021 cited “shock”, “anxiety”, and “car phobia” among other injuries.
The ambulance record in the St George Hospital record related to his presentation as a result of the subject accident.
Other St George Hospital records included the following entries pertinent to the accident:
(a) there had been an intentional overdose of Xanax (alprazolam) and Valium (diazepam) in 2011, in which he had expressed suicidal ideation and subsequently became violent towards his mother, who called the police. He was reviewed by the psychiatric registrar, who diagnosed polysubstance abuse and antisocial personality traits. He was noted to have discharged himself against medical advice;
(b) there was an admission in 2012 under s 22 of the Mental Health Act with a diagnosis of drug-induced psychosis in the setting of aggressive behaviour and verbal threats towards his mother, in which he threatened to kill her and himself. He had also been threatening towards the police and had to be tasered. He was noted to be seeing a private psychiatrist, and
(c) there were other presentations related to motor vehicle accidents as well as presentations for physical injuries with references to his intravenous drug use, prior history of benzodiazepine abuse, and use of methadone.
The claimant’s general practitioner (GP) Dr Emanuel records included correspondence from Legal Aid dated 4 March 2020 requesting a medical report relating to malicious wounding charges. There was also sundry correspondence in relation to prior claims and injuries.
There was a brief description of his 2014 accident when he was rear-ended and had to be cut out of his car when he collapsed after getting out. There were references to substance use.
Entries on 11 February 2021, 31 October 2020, and 18 March 2020 referred to sleeping problems, prescriptions for temazepam and Panadeine forte, and a request for a referral to an anger management program in Sutherland.
The Panel noted the Chullora Medical Centre medical records.
Long term treating psychiatrist Dr Bernard St George’s records included letters to probation and parole in 2004, a 2013 letter requesting urgent consideration for Department of Housing assistance referring to methadone treatment for 10 years for severe heroin dependence.
Dr St George provided sundry handwritten consultation notes from 2002 onward with a six-year gap between April 2014 and November 2020. In November 2020, he was noted to be in a new relationship and in February 2021 was noted to have started a café together with his partner.
In February 2021, there was reference to an assault charge in July 2020 and a corrections order. In May 2021, he was selling his café intending to return to work as a mechanic.
Dr St George recorded on 31 August 2021 the claimant reported to him about the subject motor vehicle accident.
On 29 April 2022, he was noted to be grieving for a cousin who had died possibly by suicide.
On 5 August 2022, his son had been born in July and subsequent notes suggest that he was doing well but contending with back pain and using medicinal cannabis. In July 2023, he had separated from his partner and the breakup was said to be permanent as she was accusing him of sleeping with her best friend.
In October 2023, he was noted to be unable to get back to being a mechanic because of his back pain but was still doing fishing charters.
On 31 January 2024, Dr St George noted the claimant was frustrated with the prolonged separation from his partner though he still had access to his son. He had also been charged, though his fishing charter was busy.
The final two entries on 13 May 2024 refer to a psychiatric assessment in relation to this accident and on 20 June 2024 he had stopped marijuana and have been diagnosed with “depression/PTSD” which presumably refers to Medical Assessor Fukui’s certificate. His separation from his partner continued and it seems that has less access to his son.
MiDispensary, a specialist pain clinic, provided records relating to prescriptions for medicinal cannabis beginning in March 2022 for chronic low back pain and shoulder pain with insomnia and anxiety not responsive to other medications and “intolerable side effects from medications prescribed previously from guidelines”.
The clinic assessed the claimant via a telephone consultation and a normal mental state examination was noted. The history taken at the time noted only occasional THC by way of drug use. It would appear in this case that he had significantly minimised his history of polysubstance use.
IME orthopaedic surgeon Dr James Bodel’s report dated 20 July 2022, which while primarily addressing physical issues noted his admission to St George Hospital in October 2011 relating to an overdose and substance abuse and “a very complex history of recurring abnormalities in extreme psychosocial difficulties”. He was noted to have been on methadone.
IME occupational physician Dr Thomas Rosenthal’s report dated 27 June 2023 deals predominantly with his physical injury. It notes that he was doing light work as a mechanic, driving charter boats in Cronulla twice a week for fishing trips, and receiving Centrelink. He was noted to be living with his grandmother in her unit and doing no household chores or no activities since the accident though he could still drive and go shopping. He did not do any sport. He was noted to be uncooperative at examination refusing to do certain movements.
ProCare provided a desktop investigation dated 15 May 2023 and 16 February 2024, which notes the claimant was operating a fishing charter service. Social media pages showed him assisting clients to reel in fish from his boat with online mentions of the claimant from 2022 onwards.
A later desktop investigation dated 18 October 2024 confirmed the claimant’s charter business was still active with a “highly active” Facebook page with 193 videos uploaded, presenting fish caught and interacting with customers on board. There was a similar active Instagram profile. He had an active Marketplace profile. The report recommended surveillance.
The claimant’s criminal history to 24 November 2023 showed offences going back to 2002 involving theft, break and enter, property damage, driving while disqualified, possession of a prohibited drug, illegal weapon possession, and a reckless wounding charge, with the last offence being on 11 February 2020. These were all dealt with by non-custodial options. It was apparent that much of his offending behaviour was drug related.
The Panel noted sundry assessment certificates from the SIRA Medical Assessment Service relating to physical injuries sustained in various accidents.
Medical Assessor Kenneth Howison’s certificate dated 14 November 2023 determined that the claimant’s nose injuries have given rise to a permanent impairment of 15%.
Medical Assessor Alan Home’s certificate dated 8 November 2023 related to the claimant’s injuries to his cervical and lumbar spine, ribs, thoracic spine, right ankle, right arm, and right hip, giving rise to 5% permanent impairment.
Medical Assessor Ahamed Veerabangsa’s certificate dated 3 January 2024 determined that a closed head injury gave rise to 0% permanent impairment.
Medical Assessor Michael Steiner’s certificate dated 1 November 2023 determined that his eye injury had resolved.
Submissions
Claimant’s submissions
The Panel noted the claimant’s submissions dated 28 April 2025 refer to the insurer’s submissions about the claimant’s adaptability and other PIRS classifications after the accident.
The claimant’s submissions ask the Panel to consider that positive social media reviews do not give an accurate picture of the claimant’s business, because there are also one star reviews relating to late cancellation of trips, lack of effective communication with customers, and turning up to appointments late.
Insurer’s submissions
The Panel noted the insurer’s detailed submissions in relation to Medical Assessor Fukui’s certificate. The insurer raises questions of credibility for example in relation to the claimant’s nose injury which it maintains is pre-existing.
It notes his claim to have had no criminal convictions for the preceding 15 years which is not in keeping with his criminal records which demonstrate a conviction for driving a vehicle with an illicit substance in 2017 and a reckless wounding in 2020.
The insurer also refers to the positive reviews of his business on the desktop investigations. It submits that the claimant should be classified one in all aspects of PIRS.
Re-examination
The claimant and Medical Assessors Canaris and Singh met on Microsoft Teams for the examination. The claimant was identified by his licence.
Psychosocial history and pre-accident history
The claimant is a 41-year-old single man. He has a fishing charter business which he does “a couple of times a week” assisted by a deckhand “and sometimes I get other people to do it for me”.
He said he had been “OK” when asked about his history of psychiatric illness. He admitted that he had had problems with drugs in the past “with stupid decisions and choices” and had a hospitalisation “once – a long time ago”. He used recreational drugs and had used heroin as well as smoked a lot of marijuana and for a time had used amphetamines.
He said he had been “Four years sober” at the time of the accident and had used his drugs “on and off” for months at a time. He had periods of daily use, and his use would increase with tolerance. He would “sometimes get aggressive” and denied losing touch with reality but admitted to “aggression”.
He thought he started using drugs in his early 20s, which was because of “just hanging around the wrong crowd”.
The Medical Assessors pointed out his history of what were described as overdoses. He denied this, saying, “That’s one thing I’ve definitely avoided”. He said, “I’m lucky I haven’t had any major issues with that”.
He said of his history of problems with the law, “It goes hand in hand with drug use”. He has never been to jail but has had possession charges. He has had good behaviour bonds and recently lost his licence because he was on medical marijuana. He said of this, “I was having anxiety driving, and I was using marijuana to stop anxiety”.
He had had a number of physical injuries over the years and had been in motor vehicle accidents “a couple of times, but not as severe as this… because of where I was on the bridge – I feel it could have taken me over the bridge – that sort of freaks me out”.
He saw Dr St George for advice about coming off drugs, but could not recall when he started on methadone, saying, “It was just some stuff I put behind me… bury it”.
He knew of no family history of psychiatric illness.
His father died in 2006 of cancer. His mother lives in Jannali. He has one brother with whom he stays connected. His father was a tiler and in construction. His mother had worked in a solicitor’s office and then raised her children as a single parent.
Growing up was “OK but a bit difficult without a dad in the house”.
He did not complete year 10 and then went to TAFE, completing his apprenticeship as a mechanic as well as a course in business and “a few bits and pieces here and there”.
He said of his mental health at the time of the accident, “It was OK – I was buying and selling cars – vintage cars and doing them up – working full time – I was in a relationship” and he denied any difficulties driving, self-care, or in his relationship saying he was able to focus without difficulty and going out socially.
He does not smoke. He stopped taking methadone over a year ago. He readily admitted his difficulties with drugs but denied using any in recent years saying, “I’ve been quite good on that – it’s been about seven or eight years since I’ve done any”. He had been on methadone until about a year ago and after the accident had been on medicinal cannabis for a time.
History of the motor accident
On the day in question (14 August 2021), he was on his way home after purchasing a car. He pulled over on the side of the road because “it was a new car, and I could hear something… I couldn’t find anything – I moved out again… something just hit me from behind”. He “hit me pretty hard – I remember someone just trying to wake me up – I don’t remember the actual hit – someone was explaining to me that I’d been in an accident”. Police and ambulance attended, and he was taken to hospital – he was not sure which hospital. He stayed overnight.
History of symptoms and treatment following the accident
He “hit my head – my shoulder – I was sore all over – I hit my nose – I hit my eye – I was really dazed – my leg was sore… I had a few good injuries”. He “got some stitches… got seen by psychiatrists a bit because I had a lot of anxiety afterwards… it was a really long process”.
He said, “I don’t remember it [the vehicle] actually hitting me – I just remember waking up – I couldn’t remember the accident, which was why I was really anxious… getting back into a car was really difficult… there was something really disturbing about being hit like that – it really shook me”.
He said, “Even today, I still deal with it – it’s been strange – it’s stuck with me – whenever I drive, I get just these thoughts – it could just happen any time… you’re really baffled – that really stuck with me – you’re driving, and your world just changes instantly”.
Pain is a continuing preoccupation because of which he has had to give up work as a mechanic.
He did not see a psychologist saying, “I was thinking about it, but I find it really hard talking about it – I’m still trying to deal with it quite a bit… I have a couple of good months and a couple of bad months”.
He sees psychiatrist Dr Bernard St George but has not seen him for some time. He has another appointment in six weeks.
He saw a doctor through MiDispensary and was receiving medical marijuana but has stopped this treatment because it wasn’t working. He ceased this, maybe a year ago.
He is not on any psychotropic medication. It had been suggested, “but just the thought of it makes me worse – having to take these sorts of medications for the rest of my life…”.
Details of any relevant injuries or conditions sustained since the accident
He has not had any subsequent injuries.
Current symptoms
His mood is “really up and down – I found it hard to get stuff done”. He admits to getting depressed and sad “sometimes”. On bad days, he would feel as though life was not worth living. When asked about harming himself, he said, “You think about stuff like that – I don’t like talking about it”. He would “struggle with my sleep quite bit… just trying to switch off at night… thinking about stuff – sometimes it’s random and sometimes it’s life – how the accident changed my trajectory – I used to enjoy being a mechanic – at the time to the accident I used to buy a few cars and fix them up…”.
He said, “When I lay down at night – it’s mostly the feeling of surprise and you’re blank and you wake up and you think what happened…”. He said, “I hate thinking about it – if I think about it, it’s back to that same place”.
Current and proposed treatment
As above. He spoke of hoping to deal with his mental health issues moving forward.
Mental state examination
The Panel interviewed the claimant by Microsoft Teams. A good audiovisual connection was established.
The claimant was at his grandmother’s home in Kogarah. His grandmother was present nearby in the kitchen but was not present at and did not interfere in the interview.
Medical Assessors Canaris and Singh were in their respective offices. He presented as a man of appearance consistent with his stated age whose hair was untidy but who otherwise appeared reasonably well kempt and appropriately clad with no evidence of malnourishment.
He provided the history documented above. His account was at times vague, and he was restless getting up at intervals. However, his overall account was coherent and consistent.
He asked for a break two-thirds of the way through the consultation and was away from the camera for about 10 minutes. He was palpably frustrated with his situation, and his demeanour seemed depleted, although he otherwise showed reasonable warmth and reactivity of affect. No evidence of psychosis or cognitive impairment emerged.
Current functioning
He stopped working as a mechanic, saying he found it too physically taxing, especially on his back and shoulders. He has last worked as a mechanic “over a year” ago saying he would “do jobs here and there” working for himself and had not worked for others since before the accident.
He works two or three days a week in his fishing charter business doing mainly weekend work as a sole trader. A charter would go for four or six hours. He would spend “at least one or 2 days a week” on maintenance and admin and has “fallen a bit behind on that – I’ve fallen a bit behind on that aspect – the actual charter is OK – I like fishing”.
He has been doing the charter for about three years. He would put the boat up on a slip in the marina and would do some work. He has a deckhand and would do some cleaning or painting. He services the engine “when I can – sometimes I pay someone else to do it”. He last took the boat out for a charter “not last week but it must have been the week before – the Saturday and the Sunday… one was just a half day – 4 hours – one was a full day – 6 hours”.
He would sometimes have two charters on the one day but gets the deckhand to do the second charter saying, “It’s a lot of time on the water – a bit too much”. When asked whether he enjoyed his work, he responded, “The only joy I get is when I’m on the boat”.
He would otherwise spend his days “just at home – I don’t do much – I try to clear my head – if I’m not on a charter, I’ll sometimes go fishing – it’s my therapy to be out on the water – I sometimes struggle to be out there”.
He has not been out fishing for at least a few months because “I sometimes don’t have it in me to get everything ready”. He does not go out socially, saying, “It’s been a long time since I’ve been out” and he “can’t even remember apart from going out fishing – I’ve been out fishing with my deckhand – I think I went out once in about two years – I haven’t been out for a night out”. He has “tried to go to the gym here and there – I go two or three times, and I can’t motivate myself”. He has not been out to the gym “for a few months”.
He would “do my best” in relation to showering and changing his clothes, which he might do “two or three times a week”. He has “lost about 20 kg since the accident – my weight does go up and down”. He does not eat breakfast but would have one meal a day.
His grandmother, who lives with him, prepares his meals. He does not do any cleaning or washing, although “I try to help out – I’m not good at it – I just don’t have the patience for it”.
He would drive “here and there – I try to avoid it – I drive a really big car – a 4-wheel-drive – it’s a bit safer”. He is an anxious driver. He “won't do any long drives on my own – I don’t like driving by myself”.
He broke up with his partner “over a year ago… about 18 months”. She had been with him at the time of the accident, and she left “just with the stress of everything”. They had been together about three years. They have a child aged three years.
He sees his child “once or twice a week” and his son would stay occasionally when his grandmother would help out with caring for him. He is not looking for a relationship. He has one good friend to whom he talks here and there “but apart from him not much”.
His concentration is “not the best” and he finds it hard to focus. He does not read much or watch TV. He used to love car magazines but does not read them now. On the boat, he would have to drive, and he has to focus on the customers which might involve baiting hooks and dealing with the ins and outs of fishing. He uses a GPS with an autopilot to navigate his boat and “usually my deckhand comes with me” as he needs someone to help out. He does try to keep his home tidy “as much as I can” and would put things back in their place.
Comments on consistency
No inconsistencies emerged. The Panel noted the insurer’s submissions in relation to his injury to his claim for his injury to his nose but did not consider this part of its remit. The Medical Assessors noted that the claimant did not conceal his pre-accident criminal history, although on some occasions he minimised his past drug use or the note taker did not record it.
The Panel checked the fact sheets with the claimant’s criminal convictions for the 15 years before the accident. These were largely drug related. He was criminally active up to 2009, but there was a large gap until a conviction for driving a vehicle with an illicit substance in 2017 and a reckless wounding in 2020.
The Panel also noted that the claimant had not been jailed for any offences or breached bail conditions with no dishonesty offences since 2009. The Panel decided that the criminal record should not carry weight in its decision-making process.
DETERMINATIONS
Diagnosis and reasons
The Panel considered a diagnosis of post-traumatic stress disorder but determined that the accident as described did not comprise a Criterion A event particularly as the claimant did not recall the accident although he would have found waking up in hospital distressing or “unnerving” as he put it.
Nevertheless, there was evidence of significant psychological symptoms which on balance amounted to a diagnosis of persistent depressive disorder (dysthymia) with anxious distress. There was evidence also of a somatic symptom disorder with predominant pain.
In terms of DSM-5-TR criteria for persistent depressive disorder, the Panel noted evidence of depressed mood for most of the day for more days than not as indicated by his subjective account (Criterion A) with evidence of poor appetite with 20 kg weight loss, insomnia, low energy, and poor concentration (Criterion B) which had never been absent for any significant period (Criterion C).
The Panel noted Medical Assessor Fukui’s diagnosis of major depressive disorder although the presence of major depressive disorder was not essential to the persistent depressive disorder diagnosis (Criterion C). There was no evidence of a manic, hypomanic, or cyclothymic presentation (Criterion D) or evidence of a schizoaffective disorder, schizophrenia, delusional disorder or other schizophrenia spectrum or other psychotic disorder (Criterion F).
The claimant’s symptoms were not attributable to the physiological effects of a substance or to another medical condition (Criterion G) and caused him clinically significant distress and psychosocial impairment manifest in his social withdrawal, the breakdown of his relationship, his limitations travelling, and reduced working hours (Criterion H). The anxious distress specifier captures posttraumatic symptoms.
In relation to somatic symptom disorder with predominant pain, the Panel noted his continuing distress over his chronic pain, which disrupted his life and prevented him from working as a mechanic (Criterion A).
There was evidence also of excessive thoughts, feelings, behaviours related to this, manifesting in his preoccupation with pain, which was evident both at interview and in the documentation on hand (Criterion B). He had been symptomatic for almost four years (Criterion C).
There was evidence of a polysubstance use disorder now some years in remission.
The Panel noted that he had attracted diagnoses of antisocial personality disorder but refrained from the diagnosis because behaviour underpinning this diagnosis was likely to have been significantly linked to his substance use.
Causation and reasons
While there were significant psychological symptoms prior to the accident, the accident as described with the injuries he sustained at the time carried a significant likelihood of precipitating a psychological injury.
Moreover, the claimant reported a raft of symptoms specific to the motor vehicle accident and its sequelae.
His persistent depressive disorder (dysthymia) with anxious distress was caused by this accident as was his somatic symptom disorder with predominant pain.
His polysubstance use disorder in remission was unrelated to the subject accident.
Permanency of impairment
His psychological injuries go back four years over which time he has had access to treatment from his psychiatrist. His level of impairment is unlikely to change substantially or by more than 3% over the ensuing year.
Degree of permanent impairment psychiatric impairment rating scale
| Psychiatric diagnoses | 1. Persistent depressive disorder (dysthymia) with anxious distress | 2. Somatic symptom disorder with predominant pain (not assessable for permanent impairment) |
| 3. Polysubstance use disorder in sustained remission | 4. | |
| Psychiatric treatment description | He sees a psychiatrist but is not on any psychotropic medication. | |
| Category | Class | Reason for Decision |
| 1. Self-Care and Personal Hygiene | 2 | He would “do my best” in relation to showering and changing his clothes which he might do “2 or 3 times a week”. He has “lost about 20 kg since the accident – my weight does go up and down”. He does not eat breakfast but would have one meal a day. His grandmother who lives with him prepares his meals. He does not do any cleaning or washing although “I try to help out – I’m not good at it – I just don’t have the patience for it”. Comment: There was no evidence of malnourishment. Moreover, he did not appear dishevelled during assessment. |
| 2. Social and Recreational Activities | 3 | He would otherwise spend his days “just at home – I don’t do much – I try to clear my head – if I’m not on a charter, I’ll sometimes go fishing – it’s my therapy to be out on the water – I sometimes struggle to be out there”. He has not been out fishing for at least a few months because “I sometimes don’t have it in me to get everything ready”. He does not go out socially saying, “It’s been a long time since I’ve been out” and he “can’t even remember apart from going out fishing – I’ve been out fishing with my deckhand – I think I went out once in about 2 years – I haven’t been out for a night out”. He has “tried to go to the gym here and there – I go 2 or 3 times, and I can’t motivate myself”. He has not been out to the gym “for a few months”. |
| 3. Travel | 2 | He would drive “here and there – I try to avoid it – I drive a really big car – a 4-wheel-drive – it’s a bit safer”. He is an anxious driver. He “won't do any long drives on my own – I don’t like driving by myself”. |
| 4. Social Functioning | 3 | He broke up with his partner “over a year ago… about 18 months”. She had been with him at the time of the accident, and she left “just with the stress of everything”. They had been together about 3 years. They have a child aged 3 years. He sees his child “once or twice a week” and his son would stay occasionally when his grandmother would help out with caring for him. He is not looking for a relationship. He has one good friend to whom he talks here and there “but apart from him not much”. |
| 5. Concentration, Persistence and Pace | 2 | His concentration is “not the best” and he finds it hard to focus. He does not read much or watch TV. He used to love car magazines but does not read them now. On the boat, he would have to drive, and he has to focus on the customers which might involve baiting hooks and dealing with the ins and outs of fishing. He uses a GPS with an autopilot to navigate his boat and “usually my deckhand come with me” as he needs someone to help out. He does try to keep his home tidy “as much as I can” and would put things back in their place. Comment: While he presented as restless and was at times a vague historian, the Panel was mindful of the history he provided in relation to adaptation. A moderate impairment would preclude him from being able to operate a charter boat, look after his boat, or service his engine. Using clinical judgement, the Panel rated him as Class 2 in this category. |
| 6. Adaptation | 3 | He stopped working as a mechanic saying he found it too physically taxing especially on his back and shoulder. He has last worked as a mechanic “over a year” ago saying he would “do jobs here and there” working for himself and had not worked for others since before the accident. He works 2 or 3 days a week in his fishing charter business doing mainly weekend work as a sole trader. A charter would go for 4 or 6 hours. He would spend “at least one or 2 days a week” on maintenance and admin and has “fallen a bit behind on that – I’ve fallen a bit behind on that aspect – the actual charter is OK – I like fishing”. He has been doing the charter for about 3 years. He would put the boat up on a slip in the marina and would do some work. He has a deckhand and would do some cleaning or painting. He services the engine “when I can – sometimes I pay someone else to do it”. He last took the boat out for a charter “not last week but it must have been the week before – the Saturday and the Sunday… one was just a half day – 4 hours – one was a full day – 6 hours”. He would sometimes have 2 charters on the one day but gets the deckhand to do the second charter saying, “It’s a lot of time on the water – a bit too much”. When asked whether he enjoyed his work, he responded, “The only joy I get is when I’m on the boat”. Comment: Taking into consideration both his charters and the work he has to do on his boat, he works less than 20 hours a week. The contribution of pain to cessation of work as a mechanic has been excluded as it is not assessable for permanent impairment. Using clinical judgement, this is consistent with Class 3. |
| List classes in ascending order: 2, 2, 2, 3, 3, 3 | ||
| Median Class Value: 3 | ||
| Aggregate Score: 15 | ||
| % Whole Person Impairment: 15% | ||
*%permanent impairment = Percentage Whole Person Impairment
Psychiatric impairment rating scale – pre-existing/subsequent impairment
| Psychiatric diagnoses | 1. Polysubstance use disorder in sustained remission and the maintenance therapy | 2. |
| 3. | 4. | |
| Psychiatric treatment description | He saw a psychiatrist at intervals and was on methadone. | |
| Category | Class | Reason for Decision |
| 1. Self-Care and Personal Hygiene | 1 | He denied difficulties in this category. |
| 2. Social and Recreational Activities | 1 | He denied difficulties in this category. |
| 3. Travel | 1 | He denied difficulties in this category. |
| 4. Social Functioning | 1 | He denied difficulties in this category. |
| 5. Concentration, Persistence and Pace | 1 | He denied difficulties in this category. |
| 6. Adaptation | 1 | He denied difficulties in this category. |
| List classes in ascending order: 1, 1, 1, 1, 1, 1 | ||
| Median Class Value: 1 | ||
| Aggregate Score: 6 | ||
| Pre-existing % Whole Person Impairment: 0% | ||
*%permanent impairment
Apportionment – pre-existing/subsequent impairment
In assessing impairment whether current or pre-existing, may be added 1%, 2%, or 3% if the condition has gone into partial or substantial remission with treatment.
In the claimant’s case, his substance use disorder had gone into complete remission while on methadone and he was still on methadone at the time of his accident. Consequently, the Medical Assessors rated his pre-existing impairment as 3%.
His impairment consequently comprised 12% attributable to the accident and 3% attributable to his pre-existing substance use disorder in remission.
Effects of treatment
There is no evidence of any treatment effect.
PERMANENT IMPAIRMENT
Permanent impairment ratings take symptoms into account, however the percentage permanent impairment is not a direct measure of disability.
A finding of 0% permanent impairment indicates that there was an injury caused by the accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.
The degree of permanent impairment caused by the motor accident is 12%.
DETERMINATION
The Panel gives weight to the opinion of its medical members that as a result of the accident the claimant developed persistent depressive disorder (dysthymia) with anxious distress. The Panel agrees with and adopts the reasons given by its medical members in their re-examination report in support of this finding.
The Panel is satisfied that the accident made a material contribution to the development of this disorder, and that but for the accident the claimant would not have developed these conditions.
The Panel has considered the class descriptors for each category of functioning in the PIRS and has evaluated the history provided by the claimant when the Panel’s medical members re-examined him.
The Panel acknowledges that the clinical judgment of its medical members, both of whom are psychiatrists, is the most important tool in applying the PIRS: cl 6.217 Impairment Guidelines. The Panel has given weight to the findings of its medical members with respect to the class they assigned for each PIRS area of functioning, and agrees with and adopts their findings, and the reasons they have given in support of those findings.
This Panel’s diagnosis is different to Medical Assessor Fukui’s diagnosis.
Given those findings, the Panel revokes Medical Assessor Fukui’s certificate dated
20 April 2024 and issues a new certificate certifying that the degree of permanent impairment of the claimant that has resulted from the persistent depressive disorder (dysthymia) with anxious distress caused by the accident is 12%, which is greater than 10%.
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