AAI Limited t/as Suncorp Insurance v Bjelan

[2025] NSWPICMP 708

DETERMINATION OF REVIEW PANEL

CITATION:

AAI Limited t/as Suncorp Insurance v Bjelan [2025] NSWPICMP 708

CLAIMANT:

Stefan Bjelan

INSURER:

AAI limited t/as Suncorp Insurance

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Christopher Canaris

MEDICAL ASSESSOR:

Himanshu Singh

DATE OF DECISION:

15 September 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; degree of permanent impairment disputes; claimant’s vehicle was struck in the rear by the insured vehicle while both were still moving forward; claimant wore a seatbelt; claimant did not go to hospital and was driven home by his friend; claimant suffered injuries to his neck, left shoulder, and lower back; claimant was referred for physiotherapy; also claims to have suffered psychological injuries; claimant says that he was frightened by the accident, became anxious and depressed, and developed a huge sense of anger; claimant says that he has become aggressive and has anger management issues as a result of the accident; Medical Assessor (MA) certified 13% whole person impairment (WPI) under the psychiatric impairment rating scale (PIRS); Held – Review Panel made a similar diagnosis but found 7% WPI on basis of slightly lower score for self-care and personal hygiene category; certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel revokes the certificate dated 27 February 2025 and issues a new certificate determining that:

(a)    the following injury caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%:

·     psychiatric injury – persistent depressive disorder (dysthymia).

(a)     

STATEMENT OF REASONS

INTRODUCTION

1. The subject motor accident occurred on 22 January 2020 at approximately 3.37pm. The accident happened in the westbound M5 Motorway tunnel at Arncliffe. The claimant was travelling home from work in the front seat of a car driven by a work mate. Traffic in the M5 tunnel was slow. The vehicle in which the claimant was travelling was struck in the rear by the insured vehicle while both were still moving forward. The claimant wore a seatbelt, but airbags were not fitted to the vehicle. Neither ambulance nor police officers attended the scene. The two drivers spoke to each other whilst still inside the tunnel and exchanged details after exiting. The claimant did not go to hospital. He was driven home by his friend after the accident.

2. The claimant says that he suffered injuries to his neck, left shoulder and lower back. He was referred for physiotherapy. He also claims to have suffered psychological injuries. The claimant says that he was frightened by the accident, became anxious and depressed, and developed a huge sense of anger. He says that he has become aggressive and has anger management issues as a result of the accident.

3. AAI limited t/as Suncorp Insurance (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages and statutory benefits under the Motor Accident Injuries Act 2017 (the Act). Neither party has provided any information concerning liability for the claim. The Panel assumes that the insurer would not concede that the claimant’s whole person impairment (WPI) exceeds the 10% threshold for physical and/or psychological injuries.

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Wayne Mason for assessment of a psychiatric condition, being post-traumatic stress disorder.

2. Medical Assessor Mason certified on 27 February 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 13% and IS GREATER THAN 10%:

• major depressive disorder

Medical Assessor Mason found there was no evidence of a pre-existing or subsequent condition so that apportionment was not required. He found there is no evidence that treatment has been effective so made no allowance for treatment effects.

1. In assessing WPI, Medical Assessor Mason utilised the psychiatric impairment rating scale (PIRS) with the following results:

   “List classes in ascending order: 1, 2, 2, 3, 3, 3

   Median Class Value: 3

   Aggregate Score: 14

   % Whole Person Impairment: 13%”

   Medical Assessor Mason found that the following injuries WERE NOT caused by the motor accident:

   ·     post-traumatic stress disorder (DSM-V), and

   ·     somatoform chronic pain disorder (DSM-IV)

   but did not so certify.

OTHER ASSESSMENT

1. Medical Assessor Margaret Gibson certified on 10 June 2021 as follows:

The following injury caused by the motor accident:

• cervical spine – soft tissue injury;
• lumbar spine – soft tissue injury;
• thoracic spine – soft tissue injury; and
• left shoulder – soft tissue injury

is a MINOR INJURY for the purposes of the Act.

1. Medical Assessor Farhan Shahzad certified on 9 October 2023 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 13% and IS GREATER THAN 10%:

• cervical spine – left paracentral and lateral disc bulge at C3/C4 and a broad based disc bulge at C5/C6;
• lumbar spine – right paracentral disc protrusion distorting the right anterior and a right paracentral disc bulge at L5/S1;
• left shoulder – assessable pursuant to the Nguyen decision;
• right shoulder – assessable pursuant to the Nguyen decision; and
• thoracic spine – strain.

1. A separate review panel (consisting of Member Stephen Boyd-Boland, Medical Assessor Leslie Barnsley and Medical Assessor Rhys Gray) certified on 14 May 2025 as follows:

   1.     The following injuries caused by the motor accident give rise to a permanent impairment of 0% and IS NOT GREATER THAN 10%:

   (a)cervical spine; and

   (b)lumbar spine.

   2.     Given the Panel’s findings, the certificate of Medical Assessor Farhan Shahzad dated 9 October 2023 is revoked.

2. A separate Review Panel (consisting of Member Belinda Cassidy, Medical Assessor Michael Li Yang Hong and Medical Assessor Matthew Jones) certified on 31 May 2022 as follows:

   1.     revokes the certificate of Medical Assessor Sidorov dated 10 June 2021, and

   2.     certifies that the claimant’s psychological or psychiatric injury is not a minor injury for the purposes of the Act.

   The Panel was satisfied that the claimant would have met the criteria for a major depressive disorder from some time between the date of the accident and his being referred to Dr Protulipac. The Panel found that, as at the date of assessment, the claimant continued to fulfil the criteria for a major depressive disorder. It stated that the claimant’s symptoms have caused him clinically significant distress or impairment in social, occupational and other important areas of functioning. It stated that, given the claimant’s reported narrative and the mild variability or reactivity of symptoms, he would be considered as having a mild to moderate episode.

THE REVIEW

1. The insurer sought a review of Medical Assessor Mason’s certificate, on the grounds that the medical assessment was incorrect in a material respect, under s 7.26 of the Act. The insurer relied on the particulars set out in the application and supporting documentation.

2. The insurer brought the application within the time prescribed by s 7.26(10) of the Act and
   cl 34 of Procedural Direction PIC 7 (28 days).

3. The insurer’s made the following submission:

   (a)    the treatment relating to the claimant’s psychological injury is limited to that provided by Dr Protulipac. There was a significant delay in the claimant’s reporting psychological symptomatology. It is evident from Dr Protulipac’s report that he conducted an initial assessment of the claimant on 24 June 2020, more than six months after the accident;

   (b)    Dr Protulipac diagnosed post-traumatic stress disorder notwithstanding all of the evidence indicating the accident was minor and in no way life threatening. It does not appear that Dr Protulipac continued to provide treatment beyond August 2020;

   (c)    there is a dearth of treating evidence both before and after the motor accident. There is no updating medical evidence reflecting ongoing psychological symptoms;

   (d)    there is no evidence to suggest the claimant has performed light duties since the accident and that, in the absence of objective evidence to support that assertion, it should be disregarded;

   (e)    there is more than a reasonable cause for suspicion that Medical Assessor Mason’s assessment was vitiated by the following material errors:

   (i)Failure to apply the test of consistency;

   (ii)Failure to properly apply the PIRS scale, and

   (iii)Failure to consider or address a substantially made argument in relevant submissions made on behalf of the insurer regarding relevant material.

   Particulars are given in support of each of those submissions.

4. In relation to the alleged failure to properly apply the PIRS, the insurer noted Medical Assessor Mason’s finding that the claimant may work anywhere between 9 and 48 hours a week. The insurer says this is entirely inconsistent with a Class 3 categorisation, noting the requirement is to work less than 20 hours per work (insurer’s emphasis). The insurer submits that, on the claimant’s own evidence, he can perform more than double the hours allowed by the class categorisation and for this reason, the insurer disputes that this is the correct class categorisation.

5. The insurer further submits that, even if the claimant worked 20 hours per week on average, as concluded by the Medical Assessor, a Class 3 categorisation is inappropriate. According to the PIRS, Class 3 requires an individual to be capable of less than 20 hours per week. In the circumstances, so the insurer submits, a Class 2 categorisation i.e. no more than 20 hours per week, is the appropriate class categorisation.

6. The insurer submits that the Medical Assessor failed to address its argument relating to the significant delay in the claimant’s reporting psychological symptomatology of which particulars are given. The insurer cites relevant decided cases which it is not necessary for the Panel to address.

7. The insurer’s application for review was opposed by the claimant on various grounds. As those submissions were not accepted by President’s delegate, it is not necessary to state them in detail.

8. In relation to the alleged Failure to apply the test of consistency, the claimant submits there is no error in the Assessor’s determining that the claimant falls within a Class 3 in relation to self-care and personal hygiene. The claimant submits it is relevant to note that his condition will wax and wane over the course of a number of months. Additionally, the claimant does not accept the correctness of the opinion reached by the insurer’s qualified psychiatrist, Dr Vickery, which, the claimant submits, is clearly inconsistent with the opinion of Dr Kuljic and the Medical Assessor. The claimant says there is no basis to assert that there is an inconsistency.

9. In relation to the alleged Failure to properly apply the PIRS scale, the claimant disputes there is evidence he can perform double the hours allowed for a Class 3 categorisation in relation to Adaptation. The claimant says that the Medical Assessor concluded that, on average, the claimant worked five hours per day for four days per week. The claimant says the appropriate categorisation is a Class 3 as the Medical Assessor found.

10. In relation to the alleged Failure to consider or address an argument made by the insurer, the claimant says it is not unusual for a claimant to delay seeking treatment, particularly psychiatric treatment, for a consequential psychiatric injury resulting from the subject accident.

11. The claimant then addresses the finding by Dr Vickery that there is a somatoform chronic pain disorder.

12. President’s delegate Stephanie Wigan issued a Determination of an Application for review of a Medical Assessment on 3 June 2024 which stated the satisfaction of the President’s delegate there is a reasonable cause to suspect that Medical Assessor Mason’s assessment was incorrect in a material respect. The basis of that decision was stated to be as follows:

    “The insurer submits the claimant provided a range of his current work hours. There is no doubt that on his self-report, he works variable hours. He provided a range of working 3 to 8 hours per day on 3 to 6 hours per week. That is to say, in any one week, he may work anywhere between 9 hours to 48 hours. This is entirely inconsistent with a Class 3 categorisation, noting the requirement is to work less than 20 hours per week. On the claimant’s own evidence, he can perform more than double the hours allowed by that class categorisation and for this reason, the insurer disputes that this is the correct class categorisation.”

13. Accordingly, the insurer’s review application was accepted. The Panel is to reassess the psychiatric condition that was referred to Medical Assessor Mason for assessment.

14. The Panel notes that the Medical Assessors are required, in accordance with the Motor Accident Guidelines (Guidelines), to determine if the claimant has a psychological or psychiatric injury caused by the accident and then make a diagnosis of that injury.

15. The Medical Assessors may, in their clinical judgement, diagnose a condition that is the same as, or different to, the diagnosis of the original Medical Assessor, or the diagnoses of the treating doctors or Medico-legal experts, or the particular diagnosis that may have been included in the application or reply form.

16. Having made a diagnosis, the Medical Assessors will then proceed to undertake an assessment of the WPI, resulting from that injury, as found.

17. Pursuant to cl 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Review Panel (Panel) is to conduct and determine the proceedings, in accordance with procedures determined by the Panel.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]

   [1] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Causation of injury is addressed in the Guidelines as follows:

   “6.5   An assessment of the degree of permanent impairment is a medical assessment matter under cl 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 AMA 4 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 AMA 4 Guides as follows:

   Causation means that a physical, chemical or biological 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 contributed to the worsening of the impairment, which is a non-medical determination.

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

   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.”

2. See Briggs v IAG Limited t/as NRMA Limited.[4]  See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):

   [4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

   [5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

   “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”

3. Wright J then described the Panel’s role in a medical review which is to:

   “Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

   (1)  a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

   (2)  a review of all relevant records available at the assessment;

   (3)  a comprehensive description of the injured person’s current symptoms;

   (4)  a careful and thorough physical examination;

   (5)  diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

BUNDLES OF DOCUMENTS

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned.  The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”.  The Panel has come to its own conclusions and has taken its own history.

MATERIAL BEFORE THE REVIEW PANEL

Claimant’s Documents

1. The claimant relied upon the following material which the Panel has considered:

Document Name	Date	Page
Claimant’s submissions in reply to the insurer’s review application (See previously)	10.04.2024	3
Certificate and Reasons of Medical Assessor Mason (See previously)	27.02.2024	9
Application for personal injury benefits	10.02.2020	21
Review Panel Certificate (See previously)	31.05.2022	27
Medico-legal report of Dr Matthew Giblin, orthopaedic surgeon, to the claimant’s lawyers	11.07.2022	43

As this report deals with the claimant’s physical injuries and impairments, it is not necessary to summarise it.

39.     Supplementary report of Matthew Giblin 16.08.2022 50

Dr Giblin assesses whole person impairment (WPI) using the AMA 4 Guides as follows:

Body parts	%
Left shoulder	11%
Cervical spine	5%
Lumbar spine	5%
Combined Value	19%

40.     Report of Dr Zoran Protulipac, treating clinical psychologist 26.08.2020 53

Under the heading DSM-IV DIAGNOSIS, Dr Protulipac says as follows:

“Based on the history as reported, the patient’s clinical presentation and the results obtained by objective psychometric testing, Mr Bjelan met the criteria for the following diagnosis:

309.81post-traumatic stress disorder

296.22major depressive disorder, single episode, moderate, without psychotic features

Dr Protulipac says that the claimant’s current conditions are attributable to the subject motor accident.

Ultrasound of the left shoulder	30.04.2020	64
MRI of the cervical and lumbar spine	18.05.2020	66
Ultrasound of the right shoulder	18.05.2020	68
Bone scan	16.06.2020	69
MRI of the left shoulder	08.08.2022	70
Certificate and Reasons of Medical Assessor Farhan Shahad (See previously)	09.10.2023	72
41.	Report of Dr Blagoje Kuljic, qualified consultant psychiatrist	11.02.2023	85

Dr Kuljic records that Mr Bjelan reported the onset of psychiatric symptoms a few weeks after the subject accident. He notes that the claimant came under the care of Dr Zoran Protulipac, clinical psychologist. Dr Kuljic provides the following diagnosis:

·        generalised anxiety disorder;

·        unspecified depressive disorder, and

·        unspecified trauma and stressor related disorder,

as per the DSM-V.

Dr Kuljic opines that the claimant’s psychiatric condition and functional impairments are caused directly by psychological injuries sustained in the accident, in the absence of previous injuries or accidents that should be considered affecting his presentation and established diagnosis. Dr Kuljic declines to assess WPI as the claimant’s condition had not stabilised.

Insurer’s Documents

1. The insurer relied upon the following material which the Panel has considered:

Document Name Date Page

Documents relied upon in insurer’s reply to claimant’s WPI application.

43.     Insurer’s submissions 21.11.2022 2

·        The treatment relating to the claimant’s psychological injury is limited to that provided by Dr Protulipac. There was a significant delay in the claimant reporting psychological symptomatology. Dr Protulipac conducted an initial assessment of the claimant on 24 June 2020, more than six months after the accident.

·        Dr Protulipac diagnosed post-traumatic stress disorder notwithstanding all of the evidence indicating the accident was minor and in no way life threatening. It does not appear that Dr Protulipac continued to provide treatment beyond August 2020.

·        The PIC Review Panel accepted the claimant developed emotional symptoms following the accident and, in addition, there was the complicating factor of continuing of intermittent pain which limited his physical functioning and affected his activities of daily living. It is apparent the Review Panel did not appreciate, or was not told, the claimant had not undergone any treatment for physical injury since mid-2020.

·        The insurer disputes the injuries referred for assessment result in greater than 10% impairment and relies upon the opinion of Dr Hyde-Page.

·        The insurer notes the observations of Dr Hyde-Page with respect to inconsistency in the claimant’s presentation throughout the assessment and that, whilst he was undressing, he was able to move freely without evidence of stiffness or reduced movement.

·        Dr Hyde-Page expressed concern that the claimant was fabricating the extent of pain and stiffness in his cervical spine, lumbar spine and left shoulder, and that he was inconsistent within examination.

·        The insurer submits that, given the concerns of Dr Hyde-Page, coupled with the unexplained gap in treatment of almost two years, portion should be applied in accepting the claimant’s subjective complaints of pain and disability.

Report of Dr Hyde-Page, consultant orthopaedic surgeon, to the insurer (See previously)	20.09.2022	15
Certificate of Medical Assessor Gibson	10.06.2021	18
44.	Report of Dr Graham Vickery, consultant psychiatrist, to the insurer’s lawyers	02.03.2023	24

Findings on Examination

“Mr Bjelan was casually dressed and groomed. There was a pain related behaviour. There was eye contact, and he was noted to be cooperative.

Mr Bjelan’s affect range was not overly restricted while his behaviour and mood were appropriate to the topic being discussed. His history and presentation were consistent. He was able to relate a coherent and chronological history.

Mr Bjelan was frustrated and despondent when discussing his current situation. There was no apparent melancholic depression, paranoid delusional ideation or formal thought disorder. There was no apparent incapacitating cognitive impairment.”

Diagnosis

Mr Bjelan’s symptoms satisfy the diagnostic criteria of Somatoform Chronic Pain Disorder (DSM-IV) where there is incapacitating pain perception associated with significant disruption to daily life and loss of function without any apparent significant medical basis.

The prognosis is reasonable. There was noted to be a minor injury.

Assessment of Whole Person Impairment pursuant to AMA 4 and the Motor Accident Guidelines.

Mr Bjelan does not have a psychiatric condition directly due to the motor vehicle accident. Somatoform Chronic Pain Disorder is a somatoform-related disorder and is not utilised in the assessment of whole person impairment. There is 0% whole person impairment due to the motor vehicle accident.

Insurer’s review submissions (See previously)	14.03.2024	37
Clinical notes of Dr Tomka	Various	43
Determination of President’s delegate (See previously)	03.06.2024	91
Documents relied upon by insurer in review application (R-M10542429/22)	Various	94 – 146

EXAMINATION REPORT

1. The report of Medical Assessor Christopher Canaris and Medical Assessor Himanshu Singh is as follows:

   “Name: Stefan Bjelan

   DOA: 22 January 2020

   Assessors: Canaris & Singh

   Legal Member: Patterson

   Review of Assessor Mason  

   Psychosocial history and pre-accident history

   The claimant is a 51-year-old self-employed carpenter who lives with his partner.

   He maintained that he was entirely well, both physically and psychologically, before the accident.

   He “would sometimes have a beer”. He smokes “too much”. He does not use drugs. He does not gamble.

   He denied any history of problems with the law. He alluded to an incident in which he had had a verbal altercation with someone who reported him to the police, who then spoke with him. He ended up in court. He was unsure whether this had happened before or after his accident.

   He knew of no family history of psychiatric illness.

   He hails from Croatia, although he is of Serbian descent. He was in Knin, which is a town. He has an older sister. His parents are alive, well, and together. His father worked in a bank while his mother worked for a printing firm. He spoke of “a normal childhood”. He had 8 years of schooling. After leaving school, he “was at home helping my parents but then there was this unfortunate war” in 1990. He denied any significant adversity during the war. He did not do national service. He had to leave in 1995 and went to a refugee camp, where he remained until he came to Australia in 2000.

   He has always worked as a carpenter but has at times worked as a gyprocker. He said he was trained by “an old carpenter”. He has not been to TAFE.

   He had a girlfriend for a time – he had “no idea” how long he had been with her. His partner is a maths teacher. He has been with her for some 15 to 16 years. He has no children.

History of the motor accident

On the day in question (22 January 2020), he was a passenger in a car driven by a former work colleague through the M5 Tunnel and “I had an accident”. He was hit from the rear by another vehicle. Airbags did not deploy.

History of symptoms and treatment following the motor accident

He said he sustained both physical and psychological injuries. He has “pain everywhere but nobody is acknowledging the pain that I have”.

He had back pain and pain in his left shoulder since the accident.

He says his pain is “in my head” meaning that “I get foggy at work – I make mistakes at work – I lose concentration, and also I argue with people”.

He said he had consequently lost a few jobs.

He said of his mood, “I have no mood at all”. He is “not in a good mood ever”. We asked if he felt sad. He replied, “I have all sorts of moods”. He admitted to being very irritable.

He would wake sometimes 3 to 4 times per night but could not articulate what woke other than “many things”. He said it was “sometimes pain and sometimes it’s being nervous and anxious”. He is tired because of his poor sleep.

When asked to clarify, he said, “That accident destroyed me… it looks like a person would have to be in a wheelchair for the profession to say there is something wrong with me”.

He said, “I’ve seen 4 to 5 doctors, and they say there's nothing wrong with me – what do I have to do – kill someone to show that I’m not injured”?

He is not seeing a psychiatrist saying, “I don’t have the money to pay for it”. He is similarly not seeing a psychologist.

He takes Panadeine Forte but is not on any psychotropic medication. He said, “Why would I take them – it would even make me worse”. He had been seeing a doctor while the insurance was still paying, and he had been on medication, but could not remember it.

Details of any relevant injuries or conditions sustained since the motor accident

There were no subsequent injuries or conditions.

Current symptoms

He complains of pain, low mood, irritability, insomnia, and poor concentration.

Current and proposed treatment

He is having treatment for pain, but not for his psychological condition.

Mental state examination

The claimant was interviewed via Microsoft Teams. A professional Serbian interpreter, Marina Pinter, NAATI Number CPN1QQ77F, was present throughout. His partner was also present offscreen because he was not computer savvy but did not interfere with the assessment in any way. A good audiovisual connection was established. We saw his head and shoulders. He presented as a man of appearance consistent with his stated age who had short grey hair and several days of bristle on his chin. He was unhappy about going through the assessment from the outset of the interview stating, “What am I – am I a fool – how come all these doctors have different opinions. Does that mean that I have to die for everyone to agree that something happened to me”? He provided the history documented above and was irritable sometimes to the point of frank belligerence over the course of the interview, needing at one point to be reminded not to shout. Halfway through the interview, he asked for a couple of minutes’ break, saying, “I can’t stand this”. His overall mood was dysphoric, and his affect was restricted and dominated by his irritability, although he apologised for this at the end of the interview. No evidence of psychosis or cognitive impairment emerged.

Current functioning

He has an ABN but insists he does not have a business. He works “but not much – occasionally”. He worked “as much as I can”. He says he has terrible working conditions because he has a bad back, and psychologically, I cannot last… I make mistakes”. He said he would work “sometime 3 hours a week – sometimes 4 – sometimes I work 3 hours or 20”. He was asked what his maximum working hours were. He said, “I don’t know – I’m not looking at the clock”. He gets paid daily. He was asked what he charged and what was the maximum he was paid. He replied, “The Taxation Office would have that information”. He would usually work alongside 3 or 4 fellow workers usually on a smaller jobs in residential house. He said he would be picked up by friends who would take him to a job saying, “I get jobs because I’m very good at my work”. He says he would sometimes “just sit there and read something” rather than work in which case he does not get paid. He was asked to revisit the question of his working hours. He said this week he worked 4 hours and last week 12 hours. He denied that he ever worked more than 20 or 25 hours a week.

When he is not working, he would “Go for a short walk or I sit at home, or I go for a coffee somewhere”. He admitted he would go out of his house every day “because I’m not in jail – even people in jail will go”. He might walk about a kilometre. He would go out with his partner “sometimes” which might be “maybe once a month – she’s working”. He would go to a pub or a club “very occasionally” and he would “very rarely go by myself”. In the last 6 months, he has been out “hardly ever”, saying he had had arguments and disagreements with a couple of people, and so we don’t see each other anymore.

He does not drive – he has never had a licence. He said he was “fearful when he was in a car”. He is “afraid that the same thing would happen to me as before”. He would “sometimes get the train” saying, “if I have to, I get up at 5 o’clock in the morning and I go”. He gets lifts from friends to take him to work.

He was asked about his concentration. He said, “I don’t really want to talk about it – I’m a very irritable and aggressive person – I don’t even want to talk about it”. He said, “What happened with the last doctor – I went into the city, and I was aggressive – he asked me what I was aggressive so instead of writing the report, he took a whole year”. He admitted to being forgetful and making mistakes “mainly at work,” for example, cutting the wrong lengths of timber. He reads a newspaper article in Serbian. He would not specify how long he could read. He does not watch TV, saying he does not understand English, and does not turn to services such as SBS, but he would watch sports or soccer on his phone. He would do this for around 5 or 10 minutes. His partner manages their finances, but he had always left this to her.

He admitted to conflict with his partner “like any couple”. They “are not big arguments – it’s just that in get back from work and I leave my dirty shoes and socks…”. The sexual side of life is “no good at all” but he did not want to clarify further. He has lost a few friends because of his irritability.

He would shower “when I come home from work – sometimes I skip a day… I don't shave as you can see”. He would change his clothes “like any other normal person – I don’t go dirty and untidy and unkempt – my partner would have a go at me sometimes and tell me to change”. His appetite varies (“sometimes less – sometimes more”). He has gained weight since the accident. He cooks “sometimes – once a year maybe”. His partner does the cooking. He said, “I love to eat meat”. Before the accident, he “used to clean around the place but now I don’t… because it’s getting on my nerves to clean”. He said, “After that accident, something happened to me – I was never rude – I was never aggressive…”.

Comments on consistency

While the claimant insisted that he never worked more than 20 or 25 hours in a week, the Panel noted that in the documentation, he was noted sometimes to work as long as 48 hours per week and that this had been one focus of the insurer’s submissions. However, because of his irritability, the Panel was unable to question the claimant in relation to inconsistencies.

REVIEW OF DOCUMENTATION

Summary of relevant documentation

The panel noted the insurer’s review application submitting that there was a clear inconsistency between the claimant’s level of self-care and personal hygiene as recorded by Dr Vickery and what he reported to Assessor Mason. It further contended that the claimant’s variable hours of work per week ranging from 9 to 48 hours and averaged as 20 hours per week per week were inconsistent with Class 3 impairment.

We noted the claimant’s submissions in relation to the insurer’s application.

We noted the certificate of Assessor Farhan Shahzad dated 9 October 2023 determining that the claimant’s physical injuries to his cervical, lumbar, and thoracic spines with an injury to both his shoulders pursuant to the Nguyen decision gave rise to an interim permanent impairment of 13%.

We noted the report of Dr Murray Hyde Page, IME orthopaedic surgeon, dated 20 September 2022. Dr Hyde Page expressed concerns that the claimant was fabricating the extent of pain and stiffness in his cervical spine, lumbar spine, and left shoulder with an inconsistent examination against the background of a very minor rear and collision which had not resulted in any significant damage to the vehicle in which he was a passenger following which he had returned to work in a matter of days. He considered him fit for a pre-accident occupation as a carpenter.

We noted the progress notes of Bathurst Street Medical Practice as at 7 December 2022. These contain only 3 entries in 2014 preceding the motor vehicle accident with no mention of any psychological symptoms. He attended the practice on 23 January 2020 the day after the accident and initial entries relate only to physical issues. On 26 June 2020, he is noted to be depressed and started on Lexapro (escitalopram – an antidepressant) and Lexotan (bromazepam – an anxiolytic). On 20 June 2022, he presented with insomnia, which was said to be anxiety-related and was prescribed temazepam (a sedative-hypnotic/anxiolytic). Further entries relate to physical issues.

We noted the clinical notes and report of Dr Zoran Protulipac, treating psychologist, dated 26 August 2020. Dr Protulipac diagnosed posttraumatic stress disorder and major depressive disorder, single episode, moderate, without psychotic features which he attributed to the motor vehicle accident. He regarded him as unfit to work as a carpenter because of his physical and psychological injuries.

We noted the report of Dr Graham Vickery dated 2 March 2023. Dr Vickery diagnosed somatoform chronic pain disorder, which he considered precluded a diagnosis of major depressive disorder or persistent depressive disorder. Dr Vickery noted that he appeared casually dressed and groomed, and there was no evidence of impairment in self-care. He was further of the opinion that the claimant did not have a psychiatric condition directly related to the accident.

We noted the report of Dr Blagoje Kuljic, IME psychiatrist, dated 11 February 2023. Dr Kuljic observed him to be unshaven and somewhat unkempt with impaired attention. He was diagnosed with generalised anxiety disorder, unspecified depressive disorder, and unspecified trauma and stressor-related disorder. He did not think his condition had stabilised as he had not had any ongoing treatment. While he did not assess whole person impairment, we noted his comments in relation to his functioning in the various categories of the PIRS.

We noted the certificate of Assessor Sidorov dated 10 June 2021 in which the claimant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood which was a minor injury.

We noted the subsequent determination of a review panel dated 31 May 2022 revoking the certificate of Assessor Sidorov and making a diagnosis of a major depressive episode.

The panel members noted the certificate of Assessor Wayne Mason dated 27 February 2024 certifying that the claimant’s injury, major depressive disorder, gave rise to a whole person impairment of 13%. Assessor Mason noted that he had seen a psychologist, Dr Protulipac and that he had seen a psychiatrist, Dr Kuljic, on one occasion. He had previously been prescribed escitalopram, bromazepam, and temazepam which he was not currently taking. Assessor Mason considered his presentation to be internally consistent and consistent with the documentation on hand. Assessor Mason assessed whole person impairment at 13% rating the claimant as Class 1 for travel, Class 2 for social and recreational activities and social functioning, and Class 3 for self-care and personal hygiene, concentration, persistence, and pace, and adaptation.

DETERMINATIONS

Diagnosis and reasons

The Panel rejected a diagnosis of posttraumatic stress disorder as the accident as described did not conform to Criterion A of the DSM-5-TR description. His presentation was manifestly more persistent, pervasive, and severe than one would expect from an adjustment disorder. His overall presentation was consistent with a diagnosis of persistent depressive disorder (dysthymia). In terms of DSM-5-TR criteria, the Panel noted evidence of depressed mood for most of the day for more days than not over well in excess of 5 years (Criterion A) with evidence of concurrent insomnia, fatigue, and poor concentration (Criterion B) which have never been absent for any significant period over several years (Criterion C). The Panel noted that he had attracted diagnoses of major depressive disorder although this was not essential to the diagnosis (Criterion D) while there was no evidence of a manic, hypomanic, or cyclothymic presentation (Criterion E). Similarly, there was no evidence of a schizoaffective disorder, schizophrenia, schizophrenia spectrum, or other psychotic disorder (Criterion F). His symptoms were not attributable to the physiological effects of a substance or to another medical condition (Criterion G) and caused them clinically significant distress and psychosocial impairment manifest in his difficulties working, his poor concentration, and his ongoing irritability (Criterion H).

Mindful of Dr Vickery’s diagnosis, the Panel considered a diagnosis of somatic symptom disorder with predominant pain but considered it did not have evidence indicating that his concerns in relation to his pain were disproportionate or that the time, energy, and effort directed towards his concerns was excessive.

Causation and reasons

His depression manifested itself only after his motor vehicle accident and appeared driven by pain and physical limitations related to the event. There was no evidence of factors outside the accident contributing to the emergence of his depressive illness.

Permanency of impairment

The claimant symptoms have been present now for well in excess of 5 years. Although he has had very little by way of treatment, the Panel was of the view that his symptoms have taken on an entrenched quality and that there was little likelihood of a substantial change or change greater than 3% in his level of impairment with or without treatment.

Degree Of Permanent Impairment Psychiatric Impairment Rating Scale

The Panel noted the claimant’s ongoing problems with pain and excluded from consideration any impairment attributable to it.

Psychiatric diagnoses	1. Persistent depressive disorder (dysthymia)	2.
	3.	4.
Psychiatric treatment description	Nil

Category	Class	Reason for Decision
1.   Self-Care and Personal Hygiene	2	He would shower “when I come home from work – sometimes I skip a day… I don't shave as you can see”. He would change his clothes “like any other normal person – I don’t go dirty and untidy and unkempt – my partner would have a go at me sometimes and tell me to change”. His appetite varies (“sometimes less – sometimes more”). He has gained weight since the accident. He cooks “sometimes – once a year maybe”. His partner does the cooking. He said, “I love to eat meat”. Before the accident, he “used to clean around the place but now I don’t… because it’s getting on my nerves to clean”. He said, “After that accident, something happened to me – I was never rude – I was never aggressive…”. Comment: The Panel noted that the insurer’s submissions and their reference to Dr Vickery’s report in which there were stated to be no impairment in this category. However, the Panel noted that Dr Vickery’s report related to his functioning over 2 years ago and could only assess the claimant as he was on the day.
2.   Social and Recreational Activities	2	When he is not working, he would “Go for a short walk or I sit at home, or I go for a coffee somewhere”. He admitted he would go out of his house every day “because I’m not in jail – even people in jail will go”. He might walk about a kilometre. He would go out with his partner “sometimes” which might be “maybe once a month – she’s working”. He would go to a pub or a club “very occasionally” and he would “very rarely go by myself”. In the last 6 months, he has been out “hardly ever” saying he had had arguments and disagreement with a couple of people and so we don’t see each other anymore”.
3.   Travel	1	He does not drive – he has never had a licence. He said he was “fearful when he was in a car”. He is “afraid that the same thing would happen to me as before”. He would “sometimes get the train” saying, “if I have to, I get up at 5 o’clock in the morning and I go”. He gets lifts from friends to take him to work. Comment: Despite his anxiety in cars, there was no evidence of any actual restriction in his capacity to travel.
4.   Social Functioning	2	He admitted to conflict with his partner “like any couple”. They “are not big arguments – it’s just that in get back from work and I leave my dirty shoes and socks…”. The sexual side of life is “no good at all” but he did not want to clarify further. He has lost a few friends because of his irritability.
5.   Concentration, Persistence and Pace	3	He was asked about his concentration. He said, “I don’t really want to talk about it – I’m a very irritable and aggressive person – I don’t even want to talk about it”. He said, “What happened with the last doctor – I went into the city, and I was aggressive – he asked me what I was aggressive so instead of writing the report, he took a whole year”. He admitted to being forgetful and making mistakes “mainly at work” for example cutting the wrong lengths of timber. He reads newspaper article in Serbian. He would not specify how long he could read. He does not watch TV saying he does not understand English and does not turn to services such as SBS, but he would watch sport or soccer on his phone. He would do this for around 5 or 10 minutes. His partner manages their finances, but he had always left this to her.
6.  Adaptation	3	He has an ABN but insists he does not have a business. He works “but not much – occasionally”. He worked “as much as I can”. He says he has terrible working conditions because he has a bad back, and psychologically, I cannot last… I make mistakes”. He said he would work “sometime 3 hours a week – sometimes 4 – sometimes I work 3 hours or 20”. He was asked what his maximum working hours were. He said, “I don’t know – I’m not looking at the clock”. He gets paid daily. He was asked what he charged and what was the maximum he was paid. He replied, “The Taxation Office would have that information”. He would usually work alongside 3 or 4 fellow workers usually on a smaller jobs in residential house. He said he would be picked up by friends who would take him to a job saying, “I get jobs because I’m very good at my work”. He says he would sometimes “just sit there and read something” rather than work in which case he does not get paid. He was asked to revisit the question of his working hours. He said this week he worked 4 hours and last week 12 hours. He denied that he ever worked more than 20 or 25 hours a week. Comment: It was difficult to establish the claimant’s working hours. However, the Panel accepted that he typically worked less than 20 hours per week noting his contention that he often did little while to workplace.
List classes in ascending order: 1, 2, 2, 2, 3, 3
Median Class Value: 2
Aggregate Score: 13
% Whole Person Impairment: 7%

*%WPI ^{= Percentage Whole Person Impairment}

Psychiatric Impairment Rating Scale – Pre-existing/subsequent impairment

There was no evidence of any pre-existing or subsequent impairment.

Apportionment – pre-existing/subsequent impairment

There was consequently no apportionment.

Effects of treatment

The Panel made no adjustment for treatment effects.

Degree of permanent impairment caused by the motor accident

7%”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6]

   [6] Section 7.26(6) of the Act.

2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[7]  The Panel adopts the examination findings and opinions of the Medical Assessors who concur with one another. The Panel adds the following further reasons.

   [7] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

3. The Medical Assessors have explained the basis and rationale of their assessments. They are similar to the findings and opinions of Medical Assessor Mason whose views they respectfully note. Medical Assessor Mason gave a higher PIRS rating for Category 1 – self-care and personal hygiene (3) than did the Medical Assessors (2). They are not materially different to the findings of the previous Review Panel (see paragraph 10 above) because the Medical Assessors’ diagnosis captures the diagnosis of Major Depressive Disorder that was made by that Review Panel”.

4. The Medical Assessors respectfully disagree with the opinions expressed by Dr Vickery in relation to his diagnosis of Somatic Symptoms Disorder. The Medical Assessors’ reasons are stated.

5. The medical assessment of permanent impairment is made at the time of examination. In that respect, the assessment made by other examiners are outdated, and do not reflect current symptomatology, in the Medical Assessors’ opinion.

6. In making its determination, the Panel has had regard to what was decided in Todev v AAI Limited t/as GIO [2023] NSWSC 836 that was cited in Insurance Australia Limited t/as NRMA Insurance v Cooper [2025] NSWPICMP 257.

CONCLUSION

1. For the above reasons, the Panel concludes the certificate issued by Medical Assessor Mason on 27 February 2024 should be revoked. The new certificate appears at the commencement of these reasons.