Ahmed v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 499
•24 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Ahmed v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 499 |
CLAIMANT: | Rehana Ahmed |
INSURER: | Insurance Australia Ltd t/as NRMA |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Matthew Jones |
MEDICAL ASSESSOR: | Christopher Canaris |
DATE OF DECISION: | 24 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; permanent impairment dispute; psychological injury; pre-existing psychological condition; other factors relevant to symptomatology; claimant re-examined by Medical Assessors; claimant assessed as suffering from post-traumatic stress disorder; consideration of DSM-5TR criteria; assessment of pre-existing impairment; consideration of subsequent factors and whether causative of impairment; Held – claimant assessed at 11% impairment; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The assessment made by the Review Panel under s 63(4) of the Motor Accidents Compensation 1999 is as follows: 1. The Review Panel revokes the certificate of Medical Assessor Allan dated 16 March 2023 and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is GREATER THAN 10%: · post-traumatic stress disorder. |
REASONS
BACKGROUND
Ms Rehana Ahmed (the claimant) suffered injury in a motor accident on 21 August 2013. The claimant was a passenger in a motor accident involving a three-car rear end collision.[1]
[1] Insurer’s bundle, p 20.
Insurance Australia Ltd (the insurer) is liable to pay Ms Ahmed any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Allan dated 15 March 2023 (the medical assessment). The Medical Assessor found that the motor accident caused psychiatric injury and assessed permanent impairment at 22%.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
CONDUCT OF THE REVIEW
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
The parties filed bundles for the Panel’s consideration.
MEDICAL ASSESSMENT UNDER REVIEW
The Medical Assessor determined that the claimant suffered post-traumatic stress disorder and persistent depressive disorder caused by the motor accident and assessed permanent impairment at 22%.[9]
[9] Claimant’s bundle, p 8.
The reasons on diagnosis were:
“I diagnosed posttraumatic stress disorder and persistent depressive disorder. The accident appears to have been traumatising in nature for Ms Ahmed. She has developed significant and enduring physical health symptoms which she has never recovered. Her mood has markedly diminished as a result of the physical symptoms and the lack of recovery from them but there is evidence that from a very early point as per her account PTSD symptoms were present. I found no competing factors in regards to causation of her difficulties. The cause of her PTSD and persistent depressive disorder are the accident as described.”
STATUTORY PROVISIONS
Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
SUBMISSIONS
Insurer’s submissions dated 24 February 2022[10]
[10] Insurer’s bundle, p 9.
The insurer noted that the claimant had a long-standing history of depression and was prescribed Endep and Zoloft. The insurer referred to the clinical records of Royale Medical Centre in 2013 which referred to psychiatric symptoms.
The insurer noted that the claimant reported psychological symptoms to her general practitioner (GP) on 9 September 2013 and was referred to a psychologist, Dr Khan, who undertook an anxiety and depression (K10) questioning scored the claimant 39 out of 50.
The insurer noted that by 16 June 2014 the claimant’s anxiety had improved “a little bit” and had started driving and was no longer seeing a psychologist. In August 2014 the claimant reported that she was “a lot better now”, her anxiety and improved, she had started driving it was not following up with a counsellor.
On 14 November 2014 the claimant returned to Dr Khan complaining of tiredness associated with stress due to family issues.
The insurer submitted that the next relevant consultation was not until 13 April 2017 when Ms Naithani, psychologist, recorded family issues. Later that year the psychologist noted the claimant’s chronic pain syndrome with difficulties moving her neck and right shoulder with symptoms of tiredness and lethargy.
The insurer submitted that the next relevant entry was not until 6 February 2020 when Dr Girgis recorded symptoms of anxiety and depression.
The insurer noted the opinions of Dr George in August 2017 and March 2021. In the latter report, Dr George opined that assessment was not required because the claimant did not meet the criteria for post-traumatic stress disorder.
Insurer’s submissions dated 17 April 2023[11]
[11] Insurer’s bundle, p 1.
The insurer noted that the claimant relied upon the report prepared by Dr Klug, psychiatrist and that it relied upon a series of reports provided by Dr George.
The insurer’s primary submission is that the claimant did not meet the criteria for the diagnosis of the psychiatric/psychological disorder caused by the motor accident and, even if she did, there should be an apportionment for pre-existing impairment and unrelated medical issues.
The insurer referred to in submissions dated 24 February 2022 and noted the following aspects of the pre-accident medical records:
(a) the claimant was prescribed the antidepressant Endep on 12 December 2011;
(b) the claimant was very stressed following the recent passing of a brother and a consultation on 20 September 2012;
(c) there were complaints of fatigue, tiredness, reduced appetite and reduced ability to function on 21 March 2013 and it was noted that the claimant was using Ativan and Endep to help her sleep;
(d) On 27 March 2013 there were further complaints of tiredness, stress, low and anxious mood, disturbed sleep and trouble concentrating with the GP noting “h/o depression”. The claimant scored 29/50 on a K10 assessment, and
(e) On 2 April 2013 there were complaints of tiredness, low mood and disturbed sleep. The claimant was using Stilnox to assist her sleep, was keen to start using antidepressants and was prescribed Avanza.
The insurer submitted that there was a pre-existing condition and impairment.
The insurer noted that the assessment by the Medical Assessor was higher than that provided by Dr George and Dr Klug.
The insurer noted that the Medical Assessor failed to put inconsistencies to the claimant, specifically the pre-existing psychiatric symptoms.
The insurer noted that the claimant was being treated for bladder cancer, had undergone surgery and underwent chemotherapy. It was submitted that there were physical restrictions secondary to the claimant’s cancer diagnosis and treatment that would affect her psychiatric condition. Reference was made to the assessment by the Medical Assessor of a class 5 for “adaptation” where there was an absence of examination of the cancer diagnosis.
The insurer submitted that there should be a deduction for both pre-and post accident occurrences.
Claimant’s submissions dated 8 May 2023
These submissions were filed opposing leave to review the medical assessment.[12]
[12] Claimant’s bundle, p 1.
The submissions supported the findings of the Medical Assessor and opposed the referral to a review panel.
Given the matter has now been referred to a review panel which must conduct its own assessment, these submissions are of minimal assistance to the Panel.
EVIDENCE
Pre-existing conditions prior to first motor accident
The GP noted on 20 September 2012 that the claimant felt unwell, brother had recently passed away and was “very stressed about him”.[13]
[13] Insurer’s bundle, p 80.
In March 2013 the claimant reported feeling unwell and tired for the past month possibly associated with a viral infection.[14]
[14] Insurer’s bundle, p 80.
On 21 March 2013 the GP noted that the claimant reported being generally fatigued and function during the day and had been using Ativan and Endep prescribed by another GP to help her sleep.[15]
[15] Insurer’s bundle, p 79.
On 27 March 2013 the claimant reported tiredness, stressed, low and anxious mood, difficulty sleeping, trouble concentrating with a history of depression and had been on Zoloft and Endep in the past.[16]
[16] Insurer’s bundle, p 78.
On 2 April 2013 the claimant reported ongoing tiredness, body aches and pains, low mood and had been using Stilnox at night and was keen to start antidepressants. The GP prescribed Avanza.[17]
[17] Insurer’s bundle, p 78.
Contemporaneous medical evidence
The ambulance record noted that the claimant had neck tenderness and sternal chest pain.[18]
[18] Claimant’s bundle, p 36.
The discharge referral from hospital dated 22 August 2013 noted the motor accident when the claimant was a front seat passenger in a three-car pileup travelling at 70 to 80kmph with airbags deployed. There was no loss of consciousness reported. The claimant complained of generalised pain, particularly around the neck and upper chest including clavicle and sternum and non-specific thoracic spine tenderness.[19]
[19] Insurer’s bundle, p 31.
On 23 August 2013 the GP noted the motor accident with complaints of ongoing neck, upper back shoulder and chest wall pain.[20]
[20] Insurer’s bundle, p 77.
On 9 September 2013 the GP noted ongoing soft tissue injuries, the claimant was feeling anxious with interrupted sleep, flashbacks of the incident and unable to drive.[21] The GP then referred the claimant for management of her psychological symptoms.[22]
[21] Insurer’s bundle, p 77.
[22] Claimant’s bundle, p 243.
On 1 October 2013 the GP noted ongoing pain, not sleeping well, unable to drive, anxiety and palpitations and feeling low in mood.[23] Similar symptoms were noted on 15 October 2013.
[23] Insurer’s bundle, p 76.
The claimant completed a claim form dated 23 March 2014 alleging the motor accident caused neck, chest, shoulder and low back pain.[24] The claimant noted that her ongoing physical symptoms affected her ability to cook, clean, shower and maintain the home.
[24] Insurer’s bundle, p 24.
A medical certificate dated 24 March 2014 noted ongoing neck, shoulder and thoracic back pain and ongoing anxiety.[25] The clinical note referred to ongoing anxiety, claimant complaining of flashback sleep and was seeing a psychologist.[26]
[25] Insurer’s bundle, p 29.
[26] Insurer’s bundle, p 74.
On 16 June 2014 the claimant reported ongoing neck and upper back pain, gradually improving, anxiety symptoms had “only improved a little bit”, the claimant had started driving and was not seeing a psychologist anymore.[27]
[27] Insurer’s bundle, p 71.
On 21 August 2014 the claimant reported feeling a lot better with some back discomfort, anxiety improved, had started driving and not followed up with counsellor.[28]
[28] Insurer’s bundle, p 68.
Subsequent evidence
On 14 November 2014 the claimant reported feeling tired most of the time, recent stress involved issues with property overseas, son married against parents’ will and was feeling very stressed and her husband was angry with the situation.[29]
[29] Insurer’s bundle, p 66.
In January 2015 the GP noted that the claimant had ongoing tiredness associated with snoring and periods of apnoea.[30]
[30] Insurer’s bundle, p 64.
In March 2015 the GP noted ongoing issue included urinary urgency, iron deficiency, sleep apnoea and ongoing issues with back and neck pain.[31]
[31] Insurer’s bundle, p 63.
In April 2017 the GP noted issues with the claimant’s daughter-in-law, lack of respect, and relationship difficulties with her husband.[32]
[32] Insurer’s bundle, p 46.
In July 2017 Ms Naithani, psychologist, noted the claimant had chronic pain syndrome involving the right shoulder, experiencing nightmares and had a lack of acceptance of injury and associated pain.[33]
[33] Insurer’s bundle, p 45.
In July 2017 the GP noted that the claimant was tired and lethargic and had been losing memory since the accident but was reluctant to use antidepressants.[34]
[34] Insurer’s bundle, p 43.
In March 2019, Associate Professor Ireland noted the recent MRI scan showed a degree of subacromial bursitis in both shoulders, tendinosis and a partial right shoulder tear with features of adhesive capsulitis.[35] The doctor recommended surgery and discussed potential benefits and complications.
[35] Claimant’s bundle, p 274.
The claimant underwent arthroscopy and acromioplasty of the right shoulder on 5 April 2019.[36]
[36] Claimant’s bundle, p 275.
In February 2020 the GP noted that the claimant was “tired, sleepy” and suffered from a history of sleep apnoea.[37]
[37] Insurer’s bundle, p 90.
Various medical records in 2022 relate to the claimant’s treatment of her bladder cancer.[38] Subsequent tests show no evidence of malignancy.[39]
[38] Insurer’s bundle, p 248.
[39] Insurer’s bundle, p 265.
Qualified opinions
Dr Graham George, psychiatrist was qualified by the insurer and provided a series of reports.
In a report dated 22 August 2017[40] Dr George noted no prior psychiatric disorder and provided a diagnosis of chronic post-traumatic stress disorder of mild to moderate degree. The doctor assessed permanent impairment of the psychiatric condition caused by the motor accident at 5%.
[40] Insurer’s bundle, p 135.
Dr George provided a further report dated 11 March 2021.[41] The doctor noted that the claimant was assisted by housemaids for domestic tasks due to physical complaints of pain in the neck, right shoulder, lower back and knees.
[41] Insurer’s bundle, p 144.
The doctor noted that the claimant walked nearly every day in the local area to maintain fitness and socialise with friends in the local area. The relationship with a husband was strained because of complaints of pain and the fact she is not doing as much physically as she did previously. The claimant kept in close contact with the sons and visited the son in Wollongong and enjoyed walks along the coastline from North Wollongong Beach to the Harbour.
The doctor again diagnosed the claimant with residual symptoms but these did not meet the criteria for an ongoing disorder. Those symptoms did not interfere greatly with functional capacity.
Dr George noted that some of the symptoms identified by Dr Klug were not identified by the claimant as ongoing. For example, Dr George noted that the claimant was waking at night because she had needed to go to the toilet noting that she has albuminuria and some renal involvement from her diabetes. The doctor confirmed that the housemaids were required for housework and cleaning due to the physical complaints are not any psychiatric injury.
In a further report dated 7 June 2021 Dr George confirmed that following the recent examination the claimant did not meet the criteria for the diagnosis of post-traumatic stress disorder.[42]
[42] Insurer’s bundle, p 153.
Dr Peter Klug, psychiatrist, was qualified by the claimant’s solicitors and provided a report dated 22 September 2020.[43] Dr Klug stated:
“From a psychiatric perspective she has suffered from depression of her mood; a generally heightened level of anxiety; intermittent panic attacks; diminished appetite; increased weight; social withdrawal; phobic anxiety and avoidance; insomnia; recurrent nightmares; intermittent flashback experiences; diminished cognition; fatigue; bilateral hand tremor; an ongoing and overt preoccupation with the accident itself, her physical health and her physical wellbeing generally; distress on being reminded of the accident; marked difficulties with car travel due to hypervigilance, and agitation and panic attacks.
She has become very dysfunctional with respect to virtually all aspects of her life. She is heavily assisted by family members.”
[43] Claimant’s bundle, p 57.
Dr Klug opined that the claimant suffered from a chronic post-traumatic stress disorder, a chronic adjustment disorder and recurrent panic attacks. The doctor assessed permanent impairment at 15%.[44]
[44] Claimant’s bundle, p 69.
OTHER MEDICAL ASSESSMENTS
A Medical Review Panel on 13 November 2023 revoked the Medical Assessment Certificates of Medical Assessor Cameron dated 5 April 2022 and Medical Assessor Davidson dated 22 September 2022 and certified:[45]
(a) some of the treatment (care and domestic assistance) provided the claimant after the accident until 21 August 2014 is reasonable and necessary in the circumstances;
(b) none of the treatment (care and domestic assistance) provided or to be provided to the claimant beyond 21 August 2014 is reasonable and necessary in the circumstances;
(c) a reasonable level of necessary care and assistance beyond the date of the accident and 21 August 2014 is 8.5 hours a week (for the first 12 weeks), six hours a week (for the next 12 weeks) and three hours a week (the next six months), and
(d) the treatment (care and assistance) certified is related to the injuries caused by the motor accident.
[45] Insurer’s bundle, p 207
Medical Assessor Ho issued a Medical Assessment Certificate dated 21 December 2021 which assessed permanent impairment.[46] The Medical Assessor found that injury to the thoracic spine had resolved, injuries to both feet were not caused by the accident and injuries to both shoulders and the cervical spine related to the motor accident.
[46] Insurer’s bundle, p 180.
The Medical Assessor found that the claimant did not best demonstrate function of the shoulders with elements of pain behaviour and abnormal illness present. The Medical Assessor assessed whole person impairment at 0%.
EXAMINATION
The claimant was examined by both Medical Assessors. The examination report is as follows.
“On the day in question, which was in 2013, she was a front seat passenger in a car driven by her husband. Her recall is fragmented. She was on her way to pick up her son. They were coming back from the airport. She remembers ‘a lot of cars’ and ‘after that I remember our car was hitting another car – there was another impact – immediately after that, I was screaming – after that I cannot remember’.
She could not recall if police or ambulance were called. She was taken to hospital – she could not recall the name. She stayed overnight and came back home the next day saying, ‘I have two doctors at home – one of them is my husband – one of them is my son – he came from Bangladesh to look after me’.
She subsequently had a lot of pain in her whole body including her back and neck.
She continues to have pain.
She is also ‘very depressed’. She said, ‘Because of these issues, I cannot do any task properly, I cannot solve any task properly – I cannot give directions properly – speak in an organised way… I have memory loss as well’.
She is sad ‘most of the time – it has affected my personal life as well – at this stage, I’m going through a separation from my husband as well’. Her husband has initiated the separation because he says she is ‘depressed and valueless’ He has been with another woman since 2019 and claims that she is incapable of looking after him.
She became teary at this stage.
She said, ‘After the accident, I had some sort of fear – because of this fear I have sadness – I have pain – I can’t complete tasks because of this – I don’t want to go out as well’. She has lost interest in doing many things and most of the time feels upset.
She admits to feeling as though life is not worth living. She said, ‘After this accident, other family at home are not behaving well with me – they are ignoring me… my other children – they are kind of fed up with this situation’.
The Panel asked her to describe her fear. She said, ‘as soon as I try to get in a car or any kind of vehicle that I’m riding in – I’m afraid we will have another impact – also I cannot sleep because of my fear – if I have a shower, I fear that I won’t do things properly… I feel like I’m going to fall down – that I’m going to have a fall soon’.
She struggles with sleep ‘because as soon as I close my eyes, I see things – events that I remember – bad things’ saying she can see events such as ‘car accidents or a dog is biting someone, or a snake is chasing someone – that sort of fear I there all the time’. She in fact meant dreams saying that they would wake her, and she would find it hard to get back to sleep. If she does fall asleep, she does not sleep long.
She wakes in the mornings feeling very tired.
She saw a psychiatrist about four years after the accident.
She has been prescribed Efexor 75 mg and Endep 25 mg at night. She did see a psychologist before the pandemic but did not continue afterwards. She had not sought further treatment. She informed the Panel that she had developed bladder cancer and had been focused on treatment for this condition. She has had her whole bladder removed in 2023 and she uses a stoma bag. She has been tested since and said she has been in remission.
She did not think the medication has been particularly helpful. She said she could not recall when she started medication after the accident or what she had taken. She had difficulty recalling what she had taken in the past.
She lives in the same house as her husband. Her husband is upstairs, and she is downstairs. Her children are still at home but are looking at moving out.
She spends her days at home mostly in her bedroom on her bed and would sometimes try to watch TV but does not enjoy it. She says she cannot concentrate on what she watches and feels ‘kind of agitated after seven or eight minutes’ and would turn off the TV. She would then ‘just close my eyes and lie down on the bed’. She does not read saying she cannot manage more than a page.
She denied any other history of psychiatric illness. She initially said that she could not recall whether she had been on any psychotropic medication before the accident. The Panel asked her if she had ever spoken to her GP to say she was unhappy or depressed and she reiterated her denial. It was put to her that she had seen her GP several times some four months before the accident with mental health issues. She said she saw her GP about ‘cold and nasal symptoms’. She said she may have seen her GP in 2011 after her uterus was removed with such issues and the Panel noted a reference in her GP’s record that she had presented on 20 September 2012 after her hysterectomy and after her brother had passed away. The Panel put to her that there had been presentations in 2013 some four months before the accident. She then said, ‘My brother died – I was depressed – I saw the GP – something was prescribed – I did not take it because you can be dependent on these things’.
In relation to all this, the Panel noted a presentation on 24 January 2012 with tiredness albeit with ankle oedema for which she had been prescribed a diuretic (Lasix). On 11 March 2013, she presented complaining of feeling unwell over the preceding 3 to 4 weeks and a feeling tired most of the time. On 21 March 2013, she complained of ongoing tiredness, feeling generally fatigued and unable to function during the day, resting most of the time, and snoring loudly at night with interrupted sleep. She was noted to have been using Ativan (lorazepam – a sedative-hypnotic) and Endep (amitriptyline – a tricyclic antidepressant). On 27 March 2013, she presented complaining of ongoing tiredness, feeling stressed, experiencing low and anxious mood, having trouble sleeping saying that she felt tired but was unable to fall asleep when she went to bed and would keep waking up. She had trouble concentrating and she did not have much family support. She was noted at that stage to have a history of depression and to have been on Zoloft (sertraline – an antidepressant) and Endep in the past. She was offered a referral to a psychologist and the possibility of an antidepressant but refused. On 2 April 2013, she again complained of tiredness, body aches and pains, low mood, and to be using Stilnox (a sedative-hypnotic) and to be sleeping a little better. She was keen to start on an antidepressant and was commenced on Avanza (mirtazapine) 15 mg at night with the possibility of a sleep study.
The Panel noted evidence in the documentation of significant impairment before her accident. However, the claimant’s inconsistent account of her functioning before the accident made detailed exploration of this difficult. The Panel noted that she claimed to be working, that she said she had not employed anyone to assist with cooking or cleaning in her home, that she was sociable and outgoing, and that she had previously enjoyed ‘decorating my house and garden’.
The Panel noted her prior medical history as described in the documentation comprising diabetes type 2, hypothyroidism, hypertension, and hypercholesterolaemia for which she was on medication.
CURRENT AND PROPOSED TREATMENT
As described above.
MENTAL STATE EXAMINATION
She presented as a bespectacled woman of Bangladeshi appearance wearing a burnt orange dress and hijab who was accompanied to the interview by her son Asif Ahmed. She appeared well-groomed and no overt signs of neglect were apparent as best as could be judged via a telehealth assessment. She provided the history documented above.
She was able to persevere over a two-hour interview with no evidence of impaired concentration notwithstanding reiteration on her part that she had a poor memory.
The Panel noted significant inconsistencies between her account and information contained in the available documentation both in relation to her pre-accident history and in information recorded by doctors who had seen her either in treatment or for medicolegal assessments. When inconsistencies were put to the claimant, she initially spoke of having a poor memory particularly as she was dealing with events that had taken place many years previously. However, when confronted further, she was able to recall some facts that she had initially said she had forgotten.
No evidence of psychosis emerged. Cognitive functioning was not formally tested but the panel noted her ability to provide significant detail in relation to the accident and other aspects of her history such as her cancer surgery, her family situation, and the like. The Panel asked whether she had ever had her memory tested to which she replied in the negative.
Her overall demeanour was depleted with a depressed affect. She was briefly teary when speaking of the breakup of a marriage. She became frustrated at one point when answering questions in relation to her capacity for work.
COMMENTS ON CONSISTENCY
The Panel noted a number of inconsistencies as described above which they had attempted to explore with the claimant.
CURRENT FUNCTIONING
She does not do any cooking or cleaning. She said that when she tries to cook, she would forget to put salt in or put in too much of an ingredient, and she loses interest. She admitted she found it hard to get motivated. She would shower and change her clothes every second day – she needs help with this. She has employed two people who help with cooking and cleaning. The woman who helps with cooking also helps with showering. She sees she limitations in this regard as both mental and physical. Her helper washes her, washes her hair, dries her, and dries the shower area. One woman (the one who helps with cooking) comes into her home from 9:30 AM to 5:00 PM four days a week while her cleaner comes twice a week. It seems that she has had a helper coming into her home for almost 10 years. She does not enjoy her food and often skips meals. She had lost a lot of weight around the time of her surgery, but this may have related to her health issues at the time. She assumes she may have regained some of this because she is lying on her bed much of the day.
She does not go out socially. She does not feel like going out saying she feels ‘more relaxed’ at home and that she can ‘rest’. Visitors come but she does not feel like being around them. They come from her circle of friends and visit her and come around mostly once or twice a week ‘because I’m sick’ and might stay around an hour. She says they come to assist her and try to organise her clothing. They might sometimes bring food for her. She otherwise does not go out except for medical appointments – mainly her GP. She was asked about hobbies – she responded that she had no happiness or interest. She seemed not to have any activities that currently give her joy.
She drives rarely if at all saying, ‘I don’t do that because my brain doesn’t function properly’. She said that she did not drive at all for the first two or three years and then was advised to try driving, but even then, found ‘the fear was still there’. The Panel noted that Dr Khan had recorded that she was feeling better about one year after the accident and that she had resumed driving. This was put to the claimant who said she had forgotten – it was all a long time ago. It was put to her that she remembered some things very clearly but had forgotten others saying her recent memory was not as good. The Panel then asked her about travel to Bangladesh which she said she had decided to do ‘because no one was looking after me here’. She thought she had gone there in 2014 to Malaysia and for the Hajj saying her husband had suggested it would help her feel better. She did not travel overseas on her own – her husband came with her. She had a helper as well as her husband.
At the time of the accident, she worked in the family business including some tasks for her husband’s medical practice. She helped run a community college for overseas students owned by her husband. She stopped this after the accident. She said she could not do this work because of ‘physical and mental’ issues saying, ‘I cannot do things in a systematised way – I cannot talk in a systematised way… can’t you see that I’m just going back and forth’. Her frustration at this point was quite palpable. She said, ‘I have physical pain and mentally, I’m not motivated enough to initiate any kind of task’. Even if she did not have pain, she still lacked the requisite motivation. She has found she makes many mistakes in other activities ‘and that’s why everyone is fed up with me… and I have lost my motivation – I feel like I am valueless’.
The Panel noted that she had told a psychiatrist, Dr George, in 2017 that she was working in admin in a family company said to be a property maintenance company. She said the psychiatrist may have recorded an incorrect history saying, ‘At that time, I was on the bed – I was not working’. She reiterated that she had not been able to do any kind of work after the accident. She had similarly told Dr George that she enjoyed gardening. She said initially that she would have been describing her life in Malaysia when she was asked about her functioning. When asked how much she recalled of the consultation, she said that she did not remember much of it but that the history recorded by Dr George had to be wrong as she was simply not able to do anything at the time in question. She said, ‘I can’t recall a lot of things, but I could not have said that’.
DETERMINATIONS
Diagnosis: The claimant’s presentation over the years has been consistent with a diagnosis of posttraumatic stress disorder. Her current presentation remains consistent with this diagnosis and the Panel noted that the accident had been a traumatic experience for her. There is also evidence of a persistent depressive disorder (dysthymia) which seems to be an amplification of the negative alterations in cognition seen in posttraumatic stress disorder.
Her complaints of pain suggest a diagnosis of somatic symptom disorder with predominant pain. This diagnosis does not imply that her complaints are without physical basis but reflects rather the extent to which they have come to dominate her life.
In terms of DSM-5-TR criteria, the Panel noted the following in relation to posttraumatic stress disorder. The accident as described involved exposure to the threat of serious injury (Criterion A). She reported recurrent, involuntary, distressing and intrusive memories of the event, dreams involving among other things car accidents, and high anxiety when exposed to cues reminiscent of the accident such as being in a car (Criterion B). There was evidence of persistent avoidance of stimuli associated with the event manifested in her reluctance to get into cars, to drive, and for a significant time her inability to drive (Criterion C). Negative alterations and cognitions and mood manifested in depressed mood, her perception of herself as valueless, her markedly diminished interest and participation in significant activities, and her inability to experience positive emotions were very much present (Criterion D). There was evidence of marked alterations and arousal and reactivity manifest in irritability, hypervigilance, problems with concentration, and sleep disturbance (Criterion E). Her symptoms had been present now for many years (Criterion F), cause her clinically significant distress or impairment in social and occupational functioning (Criterion G) and were not attributable to the physiological effects of a substance or another medical condition (Criterion H).
In relation to the diagnosis of persistent depressive disorder (dysthymia), DSM-5-TR criteria included evidence of depressed mood for most of the day for more days than not over many years (Criterion A) insomnia, low energy, low self-esteem, and poor concentration (Criterion B) which had never been absent for any significant period (Criterion C). She may at times have met criteria for a major depressive disorder though this is not essential to the diagnosis (Criterion D). There had never been a manic or hypomanic episode nor was there every evidence of a cyclothymic disorder (Criterion E) with no evidence of a schizoaffective, schizophrenia spectrum, or other psychotic disorder (Criterion F). Her symptoms were not attributable to the physiological effects of a substance or to another medical condition (Criterion G) and cause her clinically significant distress and impairment in social and occupational functioning.
DSM-5-TR criteria for a somatic symptom disorder with predominant pain were also present. Her chronic pain was distressing and had resulted in significant disruption of daily life. There was evidence also of excessive thoughts, feelings, and behaviours related to her pain with evidence of disproportionate and persistent thoughts about the seriousness of symptoms and a persistently high level of anxiety about these (Criterion D). Her chronic pain, moreover, had been continuously present for many years (Criterion C).
CAUSATION AND REASONS
Her posttraumatic stress disorder was caused by the subject motor vehicle accident. The accident as described carried a significant likelihood of precipitating such a condition and she has a raft of symptoms specific to that event. While there is evidence of a pre-existing depressive condition of fluctuating intensity, her persistent depressive disorder appears to be a significant intensification of this and as noted above has the character of an amplification of the negative alterations in cognitions and mood seen in posttraumatic stress disorder. In relation to her somatic symptom disorder with predominant pain, the Panel noted pre-existing complaints of pain before the subject accident and equally noted other causes unrelated to the accident contributing to this. Even so, it appeared from the history on offer that the subject accident had at least partially contributed to an intensification of her pain disorder.
WHOLE PERSON IMPAIRMENT
In assessing whole person impairment, the Panel was troubled by inconsistencies in her history and by inconsistencies between her account of her functioning over the years and as documented by others who had assessed her. It particularly noted her complaint of poor memory and wondered about the utility of formal assessment of cognitive functioning including, but not limited to, symptom validity testing.
Self-Care and personal hygiene = Class 2
She does not do any cooking or cleaning. She said that when she tries to cook, she would forget to put salt in or put in too much of an ingredient and she loses interest. She admitted she found it hard to get motivated. She would shower and change her clothes every second day – she needs help with this. She has employed two people who help with cooking and cleaning. The woman who helps with cooking helps with showering. She sees her limitations in this regard as both mental and physical. Her helper washes her, washes her hair, dries her, and dries the shower area. One woman (the one who helps with cooking) comes into her home from 9:30 AM to 5:00 PM four days a week while her cleaner comes twice a week. It seems that she has had a helper coming into her home for almost 10 years. She does not enjoy her food and often skips meals. She had lost a lot of weight around the time of her surgery, but this may have related to her health issues at the time. She assumes she may have regained some of this because she is lying on her bed much of the day.
Comment: The Panel took into consideration limitations arising from physical issues noting the observations of Assessor Davidson in her certificate of 20 September 2020 and did not include them in the PIRS assessment in this category.
Social and recreational activities = Class 3
She does not go out socially. She does not feel like going out saying she feels ‘more relaxed’ at home and that she can ‘rest’. Visitors come but she does not feel like being around them. They come from her circle of friends visit her and come around mostly once or twice a week ‘because I’m sick’ and might stay around an hour. She says they come to assist her and try to organise her clothing. They might sometimes bring food for her. She otherwise does not go out except for medical appointments – mainly her GP. She was asked about hobbies – she responded that she had no happiness or interest. She seemed not to have any activities that currently give her joy.
Travel = Class 2
She drives rarely if at all saying, ‘I don’t do that because my brain doesn’t function properly’. She said that she did not drive at all for the first two or three years and then was advised to try driving but even then, found ‘the fear was still there’. The Panel noted that Dr Khan had recorded that she was feeling better about one year after the accident and that she had resumed driving. This was put to the claimant who said she had forgotten – it was all a long time ago. It was put to her that she remembered some things very clearly but had forgotten others to which she responded that her recent memory was not as good. The Panel then asked her about travel to Bangladesh which she said she had decided to do ‘because no one was looking after me here’. She thought she had gone there in 2014 to Malaysia and for the Hajj saying her husband had suggested it would help her feel better. She did not travel overseas on her own – her husband came with her. She had a helper as well as her husband.
Social functioning = Class 3
She is sad ‘most of the time – it has affected my personal life as well – at this stage, I’m going through a separation from my husband as well’. Her husband has initiated the separation because he says she is ‘depressed and valueless’. He has been with another woman since 2019 and claims that she is incapable of looking after him.
Concentration, persistence, and pace = Class 3
She spends her days at home mostly in her bedroom on her bed and would sometimes try to watch TV but does not enjoy it. She says she cannot concentrate on what she watches and feels ‘kind of agitated after seven or eight minutes’ and would turn off the TV. She would then ‘just close my eyes and lie down on the bed’. She does not read saying she cannot manage more than a page.
Adaptation = Class 3
At the time of the accident, she worked after the family business including some tasks for her husband’s medical practice. She helped run a community college for overseas students owned by her husband. She stopped this after the accident. She said she could not do this work because of ‘physical and mental’ issues saying, ‘I cannot do things in a systematised way – I cannot talk in a systematised way… can’t you see that I’m just going back and forth’. Her frustration at this point was quite palpable. She said, ‘I have physical pain and mentally, I’m not motivated enough to initiate any kind of task’. Even if she did not have pain, she still lacked the requisite motivation. She has found she makes many mistakes in other activities ‘and that’s why everyone is fed up with me… and I have lost my motivation – I feel like I am valueless’.
Comment: The Panel considered the contribution of physical factors to her impairment and did not include them in the PIRS assessment in this category.
Scores on PIRS: 2, 2, 3, 3, 3, 3
Median score = 3
Aggregate score = 16
WPI = 17%
PRE-EXISTING IMPAIRMENT
It was difficult to ascertain pre-existing impairment as she maintained that she was well and fully functioning woman before her motor vehicle accident. The documentary evidence, however, suggested otherwise.
Based on the history in the documentation, the Panel noted the history in her general practice between 11 March and 21 April 2013. While acknowledging a significant gap between 21 April 2013 and the motor vehicle accident on 21 August 2013, we assessed pre-existing impairment as follows:
Self-care and personal hygiene = Class 2
The Panel considered it likely, using clinical judgement, that the symptoms described would have contributed to at least mild impairment in this category.
Social and recreational activities = Class 2
The Panel considered it likely, using clinical judgement, that the symptoms described would have contributed to at least mild impairment in this category.
Travel = 1
There was no evidence in the documentation to suggest impairment in this category.
Social functioning = 2
There was documentary evidence of at least mild impairment in that there were comments suggesting that she had limited family support. Using clinical judgement, this was considered to be mild impairment as there was no fundamental rupture in her family relationships.
Concentration, persistence, and pace = 3
The Panel noted that she complained of feeling generally fatigued and unable to function during the day in the setting of interrupted sleep for which she had been using Ativan and Endep. Using clinical judgement, the Panel considered that she was likely to have had moderate impairment in this category.
Adaptation = 2
Using clinical judgement, the Panel was of the view that she would have been likely to have had mild impairment in this category because of her difficulties with concentration, persistence, and pace, but that she reported herself to be still working in her previous capacity.
Scores on PIRS: 1, 2, 2, 2, 2, 3
Median score = 2
Aggregate score = 12
WPI = 6%
TREATMENT EFFECTS
There was no evidence that treatment had had any impact on her level of impairment and so no adjustment for treatment effects was made.
DEGREE OF PERMANENT IMPAIRMENT CAUSED BY THE MOTOR ACCIDENT
11%”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[47] and Insurance Australia Ltd v Marsh.[48]
[47] [2021] NSWCA 287 at [40], [41] and [45].
[48] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive reasons provided by the Medical Assessors and adds the following reasons. We have otherwise carefully reviewed the claimant’s complaints in reaching our assessment of permanent impairment. We are particularly reliant on the clinical expertise of the Medical Assessors who jointly undertook the recent examination process and concluded that the motor accident caused the psychological condition.
We are satisfied that there is objective evidence of pre-existing impairment within the meaning of cl 1.31 of the Guidelines despite the claimant’s statements to the Medical Assessors.
The decision of Bell P (as his Honour then was) in IAG Ltd v Chahoud[49] noted the distinction between the date of the records and the date of the pre-existing impairment. His Honour stated:[50]
IAG submitted that in so finding, the proper officer wrongly construed cl 1.31 as requiring that the evidence itself be dated ‘at the time of the accident’. It submitted that the clause should instead be read as requiring that there be ‘evidence of pre-existing impairment at some time prior to the accident, that likely still existed at the time of the accident’. What was ‘likely still to exist’, in other words, were not records of any pre-existing impairment but the pre-existing impairment itself.”
[49] [2019] NSWSC 767 (Chahoud).
[50] Chahoud at [70].
Given the histories in the pre-accident clinical notes and the extent of treatment for psychological symptoms in March 2013, we are satisfied on balance, that those impairments would have existed at the time of the motor accident. Given the claimant’s general denial of pre-existing symptoms, we do not accept those denials as being accurate.
For these reasons we have made a deduction pursuant to cl 1.31 of the Guidelines as we are satisfied that there was objective evidence of impairment at the time of the motor accident.
The Panel considered that there was no subsequent impairment within the meaning of cl 1.34. The bladder cancer was reported as being in remission and the claimant stated that she was coping with that condition. We do not consider the other matters raised by the insurer as sufficient to constitute a basis for any deduction for subsequent causes as we do not accept that they caused or aggravated any impairment.
We also note that the claimant has significant ongoing complaints of physical pain and tiredness. The latter symptoms are generally due to other health issues such as sleep apnoea. We have excluded those conditions as part of the assessment of impairment arising from psychiatric injury caused by the motor accident.
CONCLUSION
The certificate issued by Medical Assessor Allan is revoked because we have reached a different assessment, although the claimant is still assessed as greater than 10% impairment. A replacement certificate is attached at the commencement of these Reasons.
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