Allianz Australia Insurance Limited v BDR

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v BDR [2023] NSWPICMP 140
CLAIMANT:	BDR
INSURER:	Allianz Australia Insurance Ltd
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Samuel Lim
MEDICAL ASSESSOR:	Gerard Chew
DATE OF DECISION:	11 April 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 1 February 2017 from a T-bone collision; the dispute related to the assessment of permanent impairment of psychological injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; Panel satisfied that the claimant had significant pre-existing impairment which was deducted from present impairment; Panel not satisfied that an assault post motor accident contributed to any permanent impairment; Held – claimant assessed at 1% permanent impairment; original 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) is as follows: The Review Panel revokes the certificate of Medical Assessor Hong dated 4 March 2022 and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is NOT GREATER THAN 10%: · post-traumatic stress disorder.

REASONS

BACKGROUND

BDR (the claimant) suffered injury as a passenger in a motor accident on
[1] Insurer’s bundle, p 91.
[2] Claimant’s bundle, p 24.
1 February 2017. The claimant was travelling in a vehicle which made a right-hand turn and collided with another vehicle,[1] described as a T-bone collision at speed.[2]
Allianz Australia Insurance Ltd (the insurer) is liable for the driver of the other motor vehicle for liability to pay to BDR 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.[3]
[3] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[4]
[4] 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 Hong dated 4 March 2022. Medical Assessor Hong assessed the permanent impairment at 9%.
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.[5]
[5] 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.[6]
[6] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (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.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the Act.

MEDICAL ASSESSMENT UNDER REVIEW

This review is from the assessment of Medical Assessor Hong dated 4 March 2022 who determined that BDR suffered a 9% permanent impairment for his psychological condition caused by the motor accident. Medical Assessor Hong stated:[10]
“BDR has a long history of PTSD with anxiety and depressive symptoms and behavioural problems. This has been aggravated by the subject accident and he has sustained additional impairment from the accident. The aggravation as a result of the subject MVA, has not resolved and he has not returned to the level of symptomology or functioning as he was before the subject accident.
There is also a subsequent assault which impacted on him in a significant way. Because the nature of the subsequent injury is very similar, where there has been a traumatic incident with life threatening fear, to that in Iraq and also in the subject car accident, most of the subsequent impairment was an aggravation of pre-existing injury impairment from the subject accident.
He was assaulted by a group of men and suffered further psychological decline, and the main impairment from that assault was he is anxious to be out at night, which I have set aside from my assessment as it is causally unrelated.”
[10] Insurer’s bundle, p 83.

SUBMISSIONS

Insurer’s submissions dated 25 January 2021[11]

[11] Insurer’s bundle, p 3.

The insurer referred to the claimant’s and family background as a refugee from Iraq. It referred to the records from [redacted] High School between January 2016 and late 2017 which showed significant absenteeism, low grades and suspensions for violent and aggressive conduct both before and after the motor accident.
The insurer referred to the claimant’s referral to STARTTS “due to significant war related trauma as well as developmental trauma”.[12] The claimant first attended in February 2016 and several mild to severe symptoms were recorded within the records including sleeping difficulties, nightmares, panic attacks, memory/concentration problems, learning difficulties, anger outbursts, flashbacks, depressed mood and behavioural problems.
[12] Insurer’s bundle, p 6.
The insurer otherwise referred to the notes reporting:
(a)   complaints of physical abuse by the claimant on the mother in January 2017;
(b)   claimant arrested and placed on curfew (February 2017);
(c)   claimant attending boxing classes (March 2017);
(d)   school suspensions, arrests and incarcerations for violent behaviour, court appearances, drug use, gang affiliations and family altercations (February to December 2017), and
(e)   moving to Queensland for work (December 2017).
In February 2015 the general practitioner recorded poor concentration at school, impulsive and reckless behaviour which was similar to behaviour in Jordan. In March 2015 the claimant had been suspended from school and a Mental Health Plan was created.
Dr Pham, paediatrician provided a report dated 22 July 2015 referring to the claimant’s domestic problems and witnessing his mother being shot in the leg. The claimant was also reviewed by Dr Nassar, paediatrician. In December 2016 the general practitioner provided another mental health plan.
A further report by Dr Nassar dated 23 January 2017 referred to the claimant’s delinquent and aggressive behaviour.
The insurer referred to the physical injuries sustained in the motor accident. It noted the consultation with Dr Gregor on 6 September 2017 which referred to multiple injuries when the claimant was assaulted and kicked by a number of people. On 7 September 2017 the claimant described right wrist pain from boxing for the last two months which had flared up following the recent assault. Subsequent reports from Dr Kadir, orthopaedic surgeon, referred to the severity of the motor accident.
A subsequent hospital attendance on 3 October 2019 followed an alleged assault when the claimant was punched and kicked in the face and chest. On 12 February 2020 the claimant presented to Campbelltown Hospital in police custody following a punch in the right orbital from knuckle busters.
Dr Keller, orthopaedic surgeon, opined that there was no objective evidence of ongoing physical injuries caused by the motor accident.
The insurer relied on the opinion of Dr Newlyn, psychiatrist, dated 5 March 2020. Dr Newlyn referred to a number of forensic problems and opined that there was no psychiatric injury caused by the motor accident.
The insurer noted that Dr Teoh, the psychiatrist qualified by the claimant, assumed that the right wrist injury was caused by the motor accident. The doctor recorded a history of pre-existing psychological issues and opined that the claimant sustained a chronic adjustment disorder with mixed, anxious and depressed mood caused by the accident.

Insurer’s submissions dated 14 March 2022[13]

[13] Insurer’s bundle, p 17.

These submissions were filed seeking a review of the certificate of Medical Assessor Hong. The insurer submitted that the Medical Assessor failed to have regard to the effects of the assault in September 2017 and make a deduction.

Claimant’s submissions dated 14 March 2022[14]

[14] Insurer’s bundle, p 19.

These submissions were filed supporting that there be review of the Medical Certificate. Whilst disputing the insurer’s submissions, the claimant submitted that the Medical Assessor incorrectly and improperly calculated a 5% deduction for pre-existing impairment.

EVIDENCE

Pre-existing conditions

Dr Gregor provided a report dated 17 March 2015 noting that the claimant arrived from Jordan in January 2015. Symptoms included minimal attention span and disruptive at school. The claimant was reported to have been previously expelled from school which may be related to fighting with another pupil.[15] A mental health plan was then created by Dr Gregor with diagnosis of generalised anxiety, personality disorder and attention-deficit/hyperactivity disorder (ADHD).[16] The claimant was then prescribed Ritalin, 40 mg per day.
[15] Insurer’s bundle, p 371.
[16] Insurer’s bundle, p 374.
A referral dated 30 April 2015[17] noted poor attention, post-traumatic stress disorder, school disturbances and aggressive behaviour.
[17] Insurer’s bundle, p 416.
In a referral dated 13 July 2015, Dr Gregor noted that the claimant presented with “behavioural and attitude problems with aggressiveness”.[18]
[18] Insurer’s bundle, p 383.
A 2015 report prepared by the Department of Education for the claimant’s behavioural assessment.[19] The report noted the claimant and his family background. Teachers had reported the claimant’s difficulty in focusing to complete tasks, disruptive behaviours, impulsivity and refusing to follow instructions. The claimant had been suspended from school on two occasions in his first term.
[19] Insurer’s bundle, p 713.
A letter from the Head teacher noted three suspensions, two for physical violence and one for persistent disobedience. Observations of the claimant included short attention span, impulsive behaviour and physical altercations with other students.[20]
[20] Insurer’s bundle, p 717.
The authors noted that it was possible that the claimant had underlying behavioural or developmental disorder interfering with his ability to participate in school and recommended paediatrician referral and STARTTS counselling.
Dr Mimi Pham, paediatrician provided a report dated 22 July 2015.[21] The doctor noted reported problems of impulsive, difficulty remaining on task, physical aggression and an inability to control behaviour. Behaviour had resulted in school suspensions. Previous trauma witnessed by the claimant including domestic violence and his mother being shot.
[21] Insurer’s bundle, p 424.
The doctor noted that counselling from STARTTS was to commence and trailing medication for ADHD should be considered if the problems relate to inattention and hyperactivity.
A group intake and consent form dated July 2016 noted that the claimant was a friendly young man who enjoys sports. The family had experienced war related trauma in Iraq and Jordan and experienced family related trauma.[22]
[22] Insurer’s bundle, p 493.
In a report dated 13 August 2016, Dr Nassar noted the mother’s complaints that the claimant was taking Ritalin and giving his mother “hard times at home”.[23]
[23] Insurer’s bundle, p 430.
On 23 January 2017 Dr Nassar recorded that the claimant’s mother was on the verge of a depressive breakdown. The mother complained that the claimant was difficult to control due to his delinquent and aggressive behaviour, was hitting his mother, known to police for theft and had been associating with a gang of thieves and drug users. The claimant had been missing for two days and not taking his Ritalin.[24]
[24] Insurer’s bundle, p 431.
A Mental Health Plan dated 20 December 2016 prepared by Dr Gregor noted drug use disorders and adjustment disorders.[25]
[25] Insurer’s bundle, p 395.
In a report dated 2 March 2017, STARTSS referred to an attendance on 23 January 2017 when the claimant disclosed suicide thoughts which followed a school meeting concerning inappropriate behaviour.[26]
[26] Insurer’s bundle, p 498.

Contemporaneous medical evidence

The claimant was admitted to hospital following the motor accident complaining of left shoulder pain, abdominal and chest pain, left leg pain and various abrasions.[27] Tenderness was noted in the cervical, thoracic and lumbar spine.[28]
[27] Insurer’s bundle, p 139.
[28] Claimant’s bundle, p 25.
A referral for EEG assessment dated 1 March 2017 noted “significant was related trauma as well as a developmental trauma” and that the claimant had recent legal troubles “due to anger outburst and disregulation”.[29]
[29] Insurer’s bundle, p 447.
The clinical note dated 27 March 2017 referred to the motor accident when the claimant injured his left leg, back and neck.[30]
[30] Insurer’s bundle, p 342,
In a referral dated 7 July 2017, Dr Gregor noted that the claimant “has presented with a MVA and the lawyer wants to know if there is any psychological damage and after effects”.[31]
[31] Insurer’s bundle, p 402.
The claimant’s mother saw Dr Nassar on 12 July 2017 reporting that the claimant had been taken into custody for theft charges and shooting people with a laser pistol. The motor accident was noted. Dr Nassar opined that the claimant had been diagnosed with post- traumatic stress disorder, severe ADHD/ODD and other challenging disorders including conduct disorder.[32]
[32] Insurer’s bundle, p 432.
The claimant consulted Dr Nassar on 21 September 2017 advising that he had been recently released from juvenile detention and was under a curfew.[33] The claimant’s mother reported improvement in the claimant’s behaviour including no illicit drug taking, no contact with other people influencing in a negative manner and positive contact with a girlfriend. The doctor noted that the claimant was agitated in the morning since release from the detention centre.
[33] Insurer’s bundle, p 436.
A note from the general practitioner dated 13 October 2018 referred to the motor accident causing a wrist fracture discovered “1 week later”.[34] The claimant reported symptoms of insomnia, anger, tearfulness and family arguments. The note referred to an absence of psychological conditions “prior to accident”. The general practitioner then referred BDR to Mr Li, psychologist.
[34] Insurer’s bundle, p 255.

Qualified evidence

Dr Thomas Newlyn, psychiatrist, was qualified by the insurer and provided a report dated
[35] Insurer’s bundle, p 25.
5 March 2020.[35] The doctor opined that the claimant had a pre-existing childhood onset conduct disorder which was not aggravated by the motor accident. He otherwise opined there was no clinical psychiatric disorder attributable to the motor accident.
Dr Andrew Keller, orthopaedic surgeon, was qualified by the insurer and assessed the physical injuries.[36] The doctor found no ongoing physical abnormalities related to the motor accident and noted that the right wrist scaphoid fracture occurred in the latter part of 2017.
[36] Insurer’s bundle, p 43.
Dr Ben Teoh, psychiatrist, was qualified by the claimant and provided a report dated
[37] Insurer’s bundle, p 54.
17 April 2020.[37] The doctor noted significant traumatic events in Iraq as a result of the war and an assault in September 2017.
The doctor opined that the claimant suffered from a chronic adjustment disorder with mixed anxious and depressed mood caused by the chronic pain and disability caused by the motor accident. Those injuries included a fractured wrist which required surgery.
Dr Teoh accepted that the claimant had a pre-existing psychiatric illness and an assault on
3 September 2017 which aggravated the psychiatric condition.

2017 assault

On 6 September 2017 the claimant attended his general practitioner following an assault the previous day.[38] The claimant reported that he was attacked by a group of 25 people who kicked him in the head, back and face. Multiple scratch marks were observed, and the claimant reported pain to various parts of the body.
[38] Insurer’s bundle, p 341.

Right wrist fracture

There are no contemporaneous records associating the right wrist fracture with the motor accident.
An X-ray dated 7 September 2017 referred to pain after boxing and showed a mild ulnar negative variance.[39] A CT scan of the right wrist dated 15 September 2017 showed a mildly comminuted scaphoid waist and distal pole fracture. [40]
[39] Insurer’s bundle, p 287.
[40] Insurer’s bundle, p 274.
A referral from Dr Gregor dated 16 September 2017 referred to a presentation of right scaphoid comminuted fracture following an assault on 6 September 2017.[41]
[41] Insurer’s bundle, p 406.
The emergency discharge from Liverpool Hospital dated 17 September 2017 refers to the CT scan and the incident occurring on 13 July 2017 during an “alleged assault”.[42]
[42] Insurer’s bundle, p 284.
In 2019 Dr Kadir, orthopaedic surgeon, noted the CT scan showed a significant deformity and recommended a complex bone grafting procedure.[43]
[43] Insurer’s bundle, p 301.

Other medical assessments

Medical Assessor McGlynn provided a medical assessment certificate dated 30 April 2021.[44] The Medical Assessor found that the claimant sustained several skin abrasions caused by the motor accident which had resolved.
[44] Insurer’s bundle, p 62.
Medical Assessor Home provided a medical assessment certificate dated 8 June 2021.[45] The Medical Assessor found that the claimant sustained soft tissue injuries to the cervical and thoracic spine and contusions to the left leg. The latter had resolved. The complaints to the cervical and lumbar spine were described as intermittent and gave rise to no assessable permanent impairment.
[45] Insurer’s bundle, p 67.
The Medical Assessor held that the claimant did not sustain an injury to the thoracic spine and that the right wrist fracture occurred in September 2017.

Police/legal records

The Panel has read these records and does not intend to summarise them.

STARTTS

The claimant commenced counselling treatment with the NSW Service for the treatment and rehabilitation of torture and trauma survivors in January 2016. The notes are extensive concerning multiple appointments and are only briefly summarised.
(a)   16 January 2016 – counselling commenced;
(b)   14 March 2016 – claimant suspended from school for carrying a knife;[46]
[46] Insurer’s bundle, p 624.
(c)   12 August 2016 – reports that school going well and claimant interested in obtaining a job;[47]
[47] Insurer’s bundle, p 612.
(d)   5 January 2017 – mother complained of claimant’s physical abuse to her and wanted to relinquish care;[48]
[48] Insurer’s bundle, p 598.
(e)   11 January 2017 – concerns expressed by mother that claimant “going missing” for days. The claimant advised that he was staying at friend’s places;[49]
(f)    17 February 2017 – phone call from third party suggesting claimant was forced to sleep in the garage following altercations with mother and older brother;[50]
(g)   28 February 2017 – claimant had been suspended from school, had been arrested for breaching bail and threatened self-harm;[51]
(h)   6 March 2017 – claimant was attending boxing classes and engaging well;[52]
(i)    16 June 2017 – meeting with head teacher alleging that claimant had pointed a toy gun at the teacher yesterday and said “bang bang”. When claimant was told of his suspension he threatened to bring the gang to the school;[53]
(j)    4 August 2017 – claimant advised that he had been permanently suspended from school;[54]
(k)   10 August 2017 – claimant advised that a group of boys wanted a fight with him on the following day at the time of his court case;[55]
(l)    18 September 2017 – the claimant was recently released from jail for breaching his bail conditions. He was not scared of anyone there, was not using marijuana anymore and attempting to follow court orders,[56] and
(m)     4 December 2017 – claimant expressed interest in moving to Queensland as he gets in less trouble there. He had found an apartment and applied for a job.[57] It was noted:
“Client spoke about his last conviction in which he stabbed a boy in self-defence. Client stated that he had initially heard that the boy had died; client hasn’t slept in 3 day following incident. Client reported that the police later had informed him that the perpetrator did not die. Client explained that this gang is after him, and hence why he wants to start afresh in Queensland.”
[49] Insurer’s bundle, p 597.
[50] Insurer’s bundle, p 592.
[51] Insurer’s bundle, p 591.
[52] Insurer’s bundle, p 587.
[53] Insurer’s bundle, p 578.
[54] Insurer’s bundle, p 572.
[55] Insurer’s bundle, p 567.
[56] Insurer’s bundle, p 564.
[57] Insurer’s bundle, p 551.

RE-EXAMINATION

BDR was examined by the Medical Assessors on 23 March 2023. The examination report is as follows:
“Who attended the assessment
BDR attended the assessment via video link at his lawyer’s offices. He was assessed on his own. He informed the panel that he had travelled from where he currently lives in Warwick Farm, to his lawyer’s offices at Town Hall in Sydney via public transport. An Arabic speaking interpreter, Rose Hadat, was present to assist with the assessment. BDR elected to engage with the panel directly and only sought clarification from the interpreter on a handful of occasions throughout the assessment.
Psychosocial history and pre-accident history
BDR informed the panel that he was born in Iraq and left at the age of two due to the developing conflict there. He moved with his family to Jordan, where he lived for 12 years in a refugee settlement, until moving to Australia at the age of 14 or 15. He said that his father left the family shortly after their arrival in Jordan. As far as he is aware, his father lives in the United States. He said that none of his immediate family has any contact with his father. He has an older brother and a younger brother, as well as an older sister. He said that whilst living in the refugee camp, his mother worked and provided for the family by cooking meals. He attended school in Jordan. He described having an unpleasant experience living in Jordan. He explained that his family belongs to an ethnic minority that was persecuted by Muslims. He said that consequently, whilst living in Jordan, he and his family had to disguise their ethnic identity. He made references to having been a victim of torture and discrimination whilst in Jordan. He also reported having suicidal thoughts, and, at one point, when he was the age of 12, he threatened to jump off a building. He declined to provide further detail about his experiences in Jordan and stated that he would be at risk of emotionally decompensating if he did so. He was invited to provide information only to the extent he was comfortable doing.
He said that after arriving in Australia, he and his family settled in the Liverpool area. He stated that this was a difficult time as he could not speak English. He felt that people would continually laugh at him as a result of his poor proficiency in English and as a result of his appearance. He did not provide further detail about why he believed others would laugh at him on account of his appearance. He said that the school he attended had a mixed student population, with many Lebanese students as well as Australian students. He described being able to maintain friendships. He attended school to year 11 and subsequently dropped out.
He said that whilst at school, he got into trouble frequently and would often fight with other students. He stated that this was due to other students laughing at him. He described being threatened with expulsion and suspended on many occasions. He said that at one point, he was instructed to go to ‘behaviour school’. He recalled being reluctant to go to ‘behaviour school’ and asked for his homework to be sent to him at home, but said that this was not accommodated by the school. He alluded to being reluctant to attend school.
BDR informed the panel that, as a young child, he got into frequent trouble. He said that he would get into many fights and said that while this ‘sounds fun’, it was in fact, not fun. He also referred to his mother being physically violent towards him on a number of occasions.
He reported having been in a relationship for four years, but it ended two weeks ago. He said that this girlfriend had observed his mother beating him and had invited him to live with her and her mother. He said that whilst living with her, he felt he was exploited to a degree as he was instructed to do various household chores, including vacuuming and cutting grass. He said he felt ‘tormented’ all the time. He said his ex-girlfriend’s mother would also speak to him about inappropriate matters, including ‘sexual stuff’. He said that this prompted him to end the relationship. He said that at the present time, he is not focused on finding a new relationship. This is despite another female friend repeatedly texting him to say that she is in love with him. He said he prefers instead to focus on himself and to find some way of helping the community.
Forensic history
BDR informed the panel that he had been incarcerated on numerous occasions. He stated that his first period of incarceration was in juvenile detention at the age of 16, relating to an index offence of assault. He said that his other periods of incarceration had been for breaching AVO’s. He said he has been subject to an AVO taken out by his mother since last year. He told me he had asked his mother to remove it but that she declined to do so and that he could not understand why. He said that his longest period of incarceration was for six months, and he was discharged from gaol in or around November 2022. He was initially bailed to his mother’s house despite the AVO as he was wearing an ankle bracelet. He was then sent to a hotel for two days. His parole officer was able to assist him in identifying a Department of Housing unit in Warwick Farm, where he currently lives. He says he remains on parole and is subject to a good behaviour bond. This is due to end in June 2023. He denied being subject to any outstanding charges.
Past medical history
BDR reported being diagnosed with mental health difficulties prior to the subject motor vehicle accident. He was able to identify that these related to difficulties affecting his concentration and attention. He said he was prescribed medication that he took whilst in school when he was in year eight and in year nine. He could not recall significant benefits with this medication.
He said that he believes that he is infertile. He related this to his mother having tried to abort him when he was in utero by taking certain medications. He said that the effect of these pills had caused him to become infertile. He said that this had been confirmed on medical testing.
Psychosocial history and medical history following the subject motor vehicle accident
BDR informed the panel that whilst training to be a mechanic, subsequent to the subject motor vehicle accident, a big wheel on a truck fell onto his right wrist, causing him to develop a fracture. He required a bone graft. He said that in the recovery period following the surgery, he developed a pulmonary embolism. He stated that all these health problems took place approximately two years ago.
When asked about other aspects of his psychological treatment, he confirmed that he had participated in psychological therapy during the period shortly after the accident. He stated, however, that the focus of this treatment had been on his negative experiences prior to coming to Australia. He described a degree of frustration with psychological treatment and felt that this had been of little benefit. He stated that this informed his reluctance to participate in similar treatment subsequent to the motor vehicle accident for other psychological difficulties.
He said that he avoids alcohol as he does not like it. He has experimented with cannabis in the past but said that he avoids taking this as he previously had an unpleasant experience when he was supplied with cannabis by his older brother. He reported coughing his lungs out. He consumes nicotine through vaping and the occasional use of a Shisha. He denied using any other illicit substances.
BDR, when prompted by the panel, confirmed that he had been a victim of assault in September 2017. He broadly confirmed the details available in the supporting documentation, that he had been attacked by a number of youths in a shopping centre. He denied developing psychological symptoms relating to that event. When asked why he believed he had been assaulted, he said that this was just in the nature of his assailants and in keeping with his impression that they were laughing at him. When asked, he stated that his period of incarceration in juvenile detention later that month was not related to this incident but was related to another event in which he had assaulted another individual.
Reported functioning before the subject motor vehicle accident
BDR informed the panel that prior to the subject motor vehicle accident, he was living with his three siblings and his mother. He was attending school full-time. He described having a wide circle of friends and that he would see his friends frequently. He reported socialising in various ways, including playing basketball. He said that he and his siblings would all help out around the house. He said that whilst he did not have a driver’s licence, he would informally drive his sister’s car. He was noted to have difficulties with his school work and with his conduct and had also been diagnosed with Posttraumatic Stress Disorder.
Self-care and personal hygiene
BDR said that prior to the subject motor vehicle accident, he was still attending school and living with his mother and siblings. He described being able to attend to his self-care and assisted his mother with various chores around the house, along with his siblings. There was no psychiatric impairment identified. Class is 1.
Social and recreational activities
BDR stated that he had a circle of friends he would regularly see, mainly at school and would engage in various leisure activities, including playing basketball. There was no psychiatric impairment identified. Class is 1.
Travel
BDR did not identify any difficulties affecting his ability to travel. Class is 1.
Social functioning
BDR reported difficulties with getting into fights and reacting to perceived slights with aggression. This resulted in repercussions, both at school and with the juvenile justice system. There was also a reference in the supporting documentation of the family home being strained as a result of these behaviours. From a psychiatric perspective, this is mild impairment. Class is 2.
Concentration
BDR endorsed having concentration difficulties at school. There is a description of his relative educational underachievement whilst at school. It was also noted that he was diagnosed with ADHD and prescribed medication for this. He struggled with maintaining his participation at school due to his concentration difficulties as well as his conduct difficulties. From a psychiatric perspective, this is moderate impairment. The class is 3.
Employability
BDR, at the time of the subject motor vehicle accident, was not working and was still attending school. His participation in school was disrupted by disordered conduct and attention difficulties. He made references to frequent exclusion and threats of expulsion. He also made a reference that the school desired that he be placed in a different environment on account of his behaviour. From a psychiatric perspective, this is mild impairment. The class is 2.

History of the motor vehicle accident
BDR said that on the day of the motor vehicle accident, he was seated as a passenger in a car driven by his sister. He was seated in the middle in the rear, his brother sat on the left, and his mother sat on his right. His older brother sat in the front passenger’s seat. He recalled that they had just left the house and were on their way to the park. Whilst travelling, the colliding vehicle struck the left side of the car he was travelling in. He recalled a loud bang and flashing lights. His next memory was of his head and back hurting. He recalled being initially worried that his family had died. He informed the panel that his mother had been injured in the accident, her leg had been crushed in the car, and she needed to be cut out. He believes that she continues to have ongoing injuries affecting her leg as a result of the accident.
History of symptoms and treatment following the motor vehicle accident
BDR informed the panel that after the subject motor vehicle accident, he was taken to hospital by ambulance. He could not recall the journey but stated that he did not believe he was unconscious. He remained in hospital for one week and subsequently had trouble walking. He said this was partly due to having a catheter at the time. After discharge from hospital, he continued to participate in psychological therapy but reported that the focus of this treatment was mainly on his negative experiences prior to coming to Australia. He denied participating in specific psychological therapy for mental health difficulties relating to the subject motor vehicle accident. He recalled having been prescribed an antidepressant tablet by his treating general practitioner for his moods which he related to the motor vehicle accident. He could not recall the name of this medication and could not recall how long he took it for or when he took it. He stated, however, that he believed he would have taken it for a few months. He said that the medication did not help his symptoms and, furthermore, caused him to experience worsening sleep and a reduced appetite.
Current symptoms
BDR reported experiencing ongoing pain and discomfort in his legs but said this is less severe. He said, however, that he has been gradually getting used to the pain. He also expressed some uncertainty about whether the pain was from the complications of his surgery for his wrist or from the motor vehicle accident.
He made reference to previously having nightmares about the motor vehicle accident and reported these taking the form of disjointed images of the accident. He said, however, that these no longer affect him. He described having intrusive recollections about the motor vehicle accident, which tend to be triggered by the sound of cars accelerating or seeing flashes of light, which reminds him about the motor vehicle accident. He said that he became noticeably more cautious following the accident. He described hesitating when he walks on the street or when he is getting into a car. He described being preoccupied that ‘anything could happen, I could have died in the accident’. He stated that he feels safer travelling on public transport. He said that he generally prefers not to travel in cars with his friends and said that he worries about encountering irresponsible drivers.
BDR reported feeling depressed at times. He said that his tendency to get upset was related to him being ‘sensitive’ about his past and, furthermore, that he worried about being perceived as ‘dangerous’. He reported, however, that he remains hopeful for the future. He wants to be better in the future, and he would like to have a family and repair his relationship with his immediate family members. He said he was keen to avoid going to gaol again. He denied experiencing any suicidal ideation.
Mental state examination
BDR presented as a casually attired and adequately groomed man. He appeared to be in a reasonable state of physical health as far as could be accurately determined within the confines of a Telehealth assessment. He engaged cordially in the assessment and provided broadly relevant answers to the questions asked. He required prompting at times to supply further detail and had some difficulties with following complex questions. He demonstrated a poor recollection of events in certain circumstances. He maintained a pleasant and affable demeanour throughout the assessment. He displayed some hesitancy when he was asked about matters pertaining to his experiences whilst living in Jordan. He displayed an appropriate and full range of emotional reactivity. He did not present as distracted or disassociated. He was generally not avoidant when providing details about the subject motor vehicle accident. His concentration and attention were adequate for the purposes of the assessment.
Current functioning
BDR informed the panel that after leaving school and in between his periods of incarceration, he had worked in various jobs, including welding, as a mechanic, in construction, as a chef, and carpentry. He said that he had worked most frequently worked in construction and said that his last period of working in construction was some months ago. He said that he would work on a casual basis on job sites and did so mainly to support his younger brother, who would also be working on these sites at the same time. He further explained that he would often be given a supervisory position over younger and more inexperienced workers. He said that whilst he is currently looking for work, he is subsisting on a Jobseeker’s allowance.
BDR informed the panel that he currently has his learner’s licence but is deferring obtaining his probationary licence due to a disinclination to drive.
Self-care and personal hygiene
BDR stated that he is independent with his self-care. He currently lives on his own. He also assisted in the household chores whilst he was living with his girlfriend, and this included cooking together with her. He was able to shower every day and to change his clothes. No psychiatric impairment was identified. Class is 1.
Social and recreational activities
BDR reported having lost a number of friendships, although it was unclear about the timeline in which this took place and whether this was following the subject motor vehicle accident or subsequent to other matters affecting him, including his incarceration and his wrist injury. He stated, however, that he continues to have very close friends whom he sees often. He described enjoying playing pool in Villawood recently with a friend and this friend’s girlfriend and that he likes to play various games with other friends and also to share light meals with them. He reported going to the beach for leisure. He also reported having friendly relationships with his immediate neighbours. No psychiatric impairment was identified. Class is 1.
Travel
BDR described experiencing difficulty with travelling in a car and prefers to avoid this where possible. He has also deferred obtaining his probationary licence due to his concerns about being involved in a further motor vehicle accident. From a psychiatric perspective, this is mild impairment. Class is 2.
Social functioning
BDR reports being subject to an AVO taken out by his mother. He has had no contact with her. He describes having only contact with his younger brother and his sister. He provided a description of having lost some friendships and also of some susceptibility to acting in an aggressive manner to perceived slights. From a psychiatric perspective, this is moderate impairment. The class is 3.
Concentration
BDR has not been able to pursue any other courses or training. He displayed difficulties with responding to complex questions, and these had to be simplified. He also demonstrated difficulties with longer-term recall. From a psychiatric perspective, this is moderate impairment. The class is 3.
Employability
BDR described engaging in a variety of short-term employment, more recently in construction. He reported not staying in these positions for very long and that often, despite initially being allocated what he described as a supervisory role, the employer would often find better-suited individuals. His description suggested a degree of employment instability. However, he reported being able to work his allocated hours. The panel was of the opinion that this was reflective of a mild degree of impairment. The class is 2.
Comments on consistency
The history that BDR provided to the panel was broadly consistent with the information available in the supporting documentation. The majority of any inconsistencies that arose could be resolved by prompting him with reference to the supporting documentation. His difficulties in providing information, in certain respects, were, in the opinion of the panel, attributable to his concentration and memory difficulties. There was some observable discrepancy between his presentation during the assessment and of his description of suffering from depressive symptoms. However, the panel was of the view that this discrepancy was a manifestation of the difference between his objective presentation and BDR’s subjective experience of these symptoms rather that reflecting an intention on his part to maximise his symptoms.

Summary of relevant medical documentation
The complete record for the Kenyon Street Medical Centre, dated 13 April 2019, is noted. These entries date back to 13 October 2018. The entry dated 13 October 2018 references the subject motor vehicle accident, which is dated 2 February 2017. He was described as suffering from insomnia, anger, feeling scared, feeling down and having arguments with his family. He was noted to have been admitted to Liverpool Hospital and injured his legs in the accident. He was not able to walk for two weeks. The entry dated 1 November 2018 makes a reference to having bad dreams and poor sleep. It states that one of his dreams involved getting killed by a gun. He was described as feeling angry and scared and also frightened about the police. He requested to see a psychologist. The entry dated 10 November 2018 noted that he fractured his hand after he was assaulted and jumped at Westfield. His fractured hand occurred due to the assault and not the motor vehicle accident. The entry dated 14 December 2018 indicates that he saw a psychologist. He described having nightmares about the car accident, on average, once a week. He has a fear of being in a car. He stays at home all day.
The complete records for the Fairfield Chase Medical and Dental Centre, dated 7 April 2020, is noted. These entries date back to 13 February 2015. The entry dated
13 February 2015 notes that he is experiencing difficulties with behavioural problems. He was noted to have been poor at school since living in Jordan. Entry dated
17 March 2015 notes the persistence of his difficulties at school. He was noted to have been temporarily excluded from school and to be displaying disruptive behaviour. He was felt to have possible ADHD. The entry dated 31 March 2015 states that he has been disruptive and violent at school from the start. The entry dated 21 August 2015 states that he was prescribed Dexamphetamine tablets for ADHD. The entry dated
27 March 2017 references the subject motor vehicle accident. This was described as taking place on 1 February 2017. He was noted to have been admitted to hospital for one week. The entry dated 6 September 2017 stated that he was allegedly assaulted whilst at the Westfield in Liverpool yesterday around 2:30pm. He described being attacked by a group of around 25 people and kicked on his head, back and face. Subsequent entries noted that he had troubles with the police. The records indicate that he started to participate with STARTTS Counselling in 2015.
The discharge referral, dated 4 February 2017, notes that BDR was admitted to Liverpool Hospital on 1 February 2017 after a motor vehicle accident. It states that he did not sustain any physical injuries. He was noted to be on medication for hyperactivity.
The STARTTS Counselling referral form, dated 1 March 2017, stated that BDR had significant war-related trauma as well as developmental trauma. He was noted to have gotten in legal trouble due to anger outbursts and dysregulation. He was noted to be receiving treatment for ADHD. The STARTTS suicide prevention report and register form, dated 2 March 2017, noted that he arrived in Australia in 2015 and experienced both war-related trauma as well as developmental trauma. His family situation at home was described as dysfunctional. He was noted to have recently gotten into trouble with the police for theft and violence. He was currently on bail and awaiting a court case. He was noted to disclose thoughts of suicide. He was described as having a large friends network who were protective and supportive. He described having prior thoughts of suicide whilst living in Jordan.
The bundle of documents contains a number of records pertaining to BDR’s therapy sessions. The notes indicate that the feelings of these sessions relate to
BDR’s home life and also refer to negative experiences affecting him prior to his arrival in Australia.
The report written by Dr Sam Nassar, specialist paediatrician, dated 12 July 2017, notes that BDR had been diagnosed with Posttraumatic Stress Disorder and an associated severe ADHD/ODD along with other challenging behaviours, including conduct disorder. He was noted to be involved in unsafe behaviours. He was noted to have experienced a delay in receiving a further assessment for an autism spectrum disorder due to his unfortunate misbehaviours and the recent accident.
The report written by Dr Nassar, dated 21 September 2017, noted that BDR had recently been released from a juvenile detention centre. He was restricted to curfew at home with regular daily supervision from the police. He was noted to be smoking less and not be smoking illicit drugs any longer.
The referral written by Dr Hua, dated 13 October 2018, is for BDR to see a psychologist. He was described as having Posttraumatic Stress Disorder with associated anxiety and depression following a motor vehicle accident.
The report written by Dr Agus Kadir, dated 25 February 2019, notes that BDR was working as a car washer at the time. Dr Kadir’s report, dated 11 July 2019, references a workers compensation claim that was declined.
The report written by Dr Thomas Newlyn, dated 5 March 2020, is noted. Dr Newlyn conducted an independent medical examination of BDR on 5 March 2020.
BDR was felt to have a conduct disorder. His multiple psychiatric diagnoses after his migration to Australia in 2014 were felt to be best encapsulated as a conduct disorder. He was not felt to have a clinical psychiatric diagnosis related to the motor vehicle accident. His prognosis was felt to be uncertain. He was felt to be fit for pre-injury duties with no restrictions. He was noted to have been a victim of sexual harassment whilst in Jordan and that he had been beaten by teachers there.
The report written by Dr Ben Teoh, dated 17 April 2020 is noted. Dr Teoh conducted an independent medical examination of BDR on 17 April 2020. He was noted to be in his first year studying mechanics at TAFE. He described having behaviour problems at school and being bullied. He received counselling from STARTTS for Posttraumatic Stress. He reported being exposed to significant traumatic events prior to coming to Australia relating to trauma. He was felt to have a Chronic Adjustment Disorder with mixed anxious and depressed moods. His condition was felt to be caused by the subject motor vehicle accident, which led to chronic pain and physical disability. He was noted to have a pre-existing psychiatric illness with psychological trauma. His prognosis was felt to be poor. His WPI was calculated at 15%, with a 2% adjustment for pre-existing illness.
The medical certificate written by Assessor Hong, dated 4 March 2022 is noted. BDR was felt to have Posttraumatic Stress Disorder with anxiety and depressive symptoms related to the motor vehicle accident but his WPI from the accident was determined to be 9%. A description of his war trauma and of his assault on 3 September 2017 was provided in the certificate. He described experiencing increased anxiety and depressive symptoms after the subject accident. He was noted to self-harmed whilst in jail. He was noted to have been released from the maximum security section at Lithgow Jail two days prior to the assessment. He was identified as having a long history of Posttraumatic Stress Disorder with anxiety and depressive symptoms, and behavioural problems, which had been aggravated by the subject accident. He also suffered a subsequent assault which was felt to have impacted him in a significant manner. He suffered further psychological decline following the assault.
The referral letter written by Dr Gregor, dated 28 March 2015, states that BDR had problems of disturbed behaviour, inattention, disobedience and physical violence since childhood. He was noted to have been suspended from school twice.
The school counsellor report is not dated but refers to assessments conducted in 2015. BDR’s mother reported that his behaviour had been challenging since he was young. He was noted to have been physically beaten regularly whilst attending school in Jordan. He was afraid of school and his teachers and could become aggressive as a result. At home, he was described as often impulsive and putting himself in danger without thoughts for his safety. He was noted to have been suspended twice in his first term at school. The first following a physical altercation with two peers. He did not participate satisfactorily in behavioural programs. The report noted that BDR and his family went through traumatic events early in his life, which might be impacting on his presentation at the time.
The head teacher’s report for BDR noted that he had been suspended on three occasions since his enrolment, with two of his suspensions being for physical violence and once for persistent disobedience. He was described as becoming suddenly angry at the slightest provocation and having a very short attention span in the classroom.
The letter written by Dr Nassar, dated 23 January 2017, is noted. This states that [redacted] presented on the verge of a depressive breakdown and complained that it had been difficult to control BDR’s delinquent and aggressive behaviour. He was felt to have classical conduct disorder and was known to the police for theft. He was described as associating with a gang of thieves and drug users. He was felt to be using illicit drugs. His mother reported that he had been hitting her and making fun of her.
Determinations
Diagnosis and reasons
The information provided by BDR and that contained in the supporting documentation is indicative of him experiencing significant psychological difficulties associated with identifiable functional impairment prior to the subject motor vehicle accident. Notably, he displayed difficulties with externalising behaviours, emotional dysregulation manifesting as aggressive behaviour, conduct disorder and school refusal. He described having been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). He also provided a description of having experienced traumatic events whilst living in Jordan, which included, from his description, being subject to torture and violence. There was also a description of attachment trauma from the upheaval affecting his family and his father having left the family. He furthermore provided a description of his mother attempting to abort him while he was still in utero in a manner that has caused him to suffer from lingering infertility. He described continuing to endure psychological distress from these prior experiences and generally copes with these by avoiding and suppressing these memories. The panel considered it likely that, as well as a pre-existing ADHD, BDR’s presentation conformed to one of a Posttraumatic Stress Disorder. Notably, BDR was observably much more uncomfortable and avoidant of describing his experiences whilst living in Jordan, compared with providing a description of the subject motor vehicle accident.
Subsequent to the subject motor vehicle accident, BDR reported developing intrusive and unpleasant recollections of the subject motor vehicle accident. These initially took the form of nightmares, which have since resolved, but he continues to experience flashbacks of the accident in response to triggers, including triggers such as flashing lights and the sound of car engines. He reported being more cautious and anxious around cars and if he has to travel as a passenger in a car, which would be consistent with symptoms of hypervigilance. He also described a general avoidance of travelling in cars and of a perception of an increased level of the inherent danger associated with cars. The panel was of the opinion that this was consistent with the diagnosis of Posttraumatic Stress Disorder, noting that BDR’s description indicated that he had experienced a degree of remission in his symptoms following the subject motor vehicle accident, with the passage of time.
The nature of BDR’s symptoms relating to the Posttraumatic Stress Disorder following the subject motor vehicle accident were distinct compared with those relating to his reported experiences of trauma prior to coming to Australia. He also demonstrated a greater improvement in the symptoms of his Posttraumatic Stress Disorder relating to the subject motor vehicle accident, compared with that of his pre-existing condition. The panel was of the opinion that the Posttraumatic Stress Disorder from the subject motor vehicle accident is a distinct condition to the Posttraumatic Stress Disorder related to his traumatic experiences prior to coming to Australia.
Causation and reasons
The panel established that BDR’s history was consistent with a pre-existing ADHD as well as Posttraumatic Stress Disorder. The panel was of the opinion that he developed a distinct Posttraumatic Stress Disorder following the subject motor vehicle accident, noting that he developed a distinct set of symptoms following the subject motor vehicle accident that is directly relatable to the circumstances of the motor vehicle accident, but which had remitted to a degree with the passage of time to the extent that his observable and subjective distress relating to the subject motor vehicle accident, while still present to a degree, was distinct and far less severe, compared with his pre-accident traumatic experiences.
Summary of injury referred by the parties
The following injuries were caused by the motor vehicle accident:
· Posttraumatic Stress Disorder
Permanency of impairment
BDR’s symptoms of his Posttraumatic Stress Disorder relating to the subject motor vehicle accident, have improved to a degree with the passage of time. In particular, he reports a lessening of his nightmares and that the psychiatric symptoms relatable to the Posttraumatic Stress Disorder causally related to the subject motor vehicle accident impact relatively less on his psychosocial functioning, with the exception of his intolerance of cars. He reports a disinclination to pursue further specific psychological or psychiatric treatment for his condition. The panel was of the opinion that his presentation was unlikely to change for the foreseeable future, certainly by no more that 3% in the next 12 months and would consider him permanently impaired for the purposes of this assessment.
Degree of permanent impairment

Psychiatric diagnoses	1. Posttraumatic Stress Disorder		2.
	3.		4.
Psychiatric treatment description	None specific.
Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	1	BDR stated that he is independent with his self-care. He currently lives on his own. He also assisted in the household chores whilst he was living with his girlfriend and this included cooking together. He was able to shower himself every day and to change his clothes. No psychiatric impairment identified.
2. Social and Recreational Activities	1	BDR reported having lost a number of friendships, although it was unclear about the timeline in which this took place and whether this was following the subject motor vehicle accident or subsequent to other matters affecting him, including his incarceration and his wrist injury. He stated however, that he continues to have very close friends whom he sees often. He described enjoying playing pool in Villawood recently with a friend and this friend’s girlfriend and that he likes to play various games with other friends and also to share light meals with them. He reported going to the beach for leisure. He also reported having friendly relationships with his immediate neighbours. No psychiatric impairment identified.
3. Travel	2	BDR described experiencing difficulty with travelling in a car and prefers to avoid this where possible. He has also deferred obtaining his probationary licence due to his concerns about involved in a further motor vehicle accident. From a psychiatric perspective, this is mild impairment.
4. Social Functioning	3	BDR reports being subject to an AVO taken out by his mother. He has had no contact with her. He describes having contact only with his younger brother and his sister. He provided a description of having lost some friendships and also of some susceptibility to acting in an aggressive manner to perceived slights. From a psychiatric perspective, this is moderate impairment.
5. Concentration, Persistence and Pace	3	BDR has not been able to pursue any other courses or training. He displayed difficulties with responding to complex questions and these had to be simplified. He also demonstrated difficulties with longer term recall. From a psychiatric perspective, this is moderate impairment.
6. Employability	2	BDR described engaging in a variety of short term employment, more recently in construction. He reported not staying in these positions for very long and that often, despite initially being allocated what he described as a supervisory role, that the employer would often find better suited individuals. His description conformed to one of a degree of employment instability. However, he reported being able to work his allocated hours. The panel was of the opinion that this was reflective of a mild degree of impairment.
List classes in ascending order: 1 1 2 2 3 3
Median Class Value: 2
Aggregate Score: 12
% Whole Person Impairment: 6 %

Apportionment
BDR had a pre-existing Posttraumatic Stress Disorder and Attention Deficit Hyperactivity Disorder, which impacted his functioning. His percentage whole person impairment just prior to the subject motor vehicle accident was calculated in the table below.
Effects of treatment
BDR is not currently on any treatment for his psychiatric condition. No adjustment is indicated.

Pre-accident permanent impairment

Psychiatric diagnoses	1. Posttraumatic Stress Disorder		2. Attention Deficit Hyperactivity Disorder
	3.		4.
Psychiatric treatment description	Medication. Psychological therapy.
Category	Class	Reason for Decision
1. Self-Care and Personal Hygiene	1	BDR said that prior to the subject motor vehicle accident, he was still attending school and living with his mother and siblings. He described being able to attend to his self-care and assisted his mother with various chores around the house, along with his siblings. There was no psychiatric impairment identified.
2. Social and Recreational Activities	1	BDR stated that he had a circle of friends whom he would see regularly, mainly at school and would engage in various leisure activities including playing basketball. There was no psychiatric impairment identified.
3. Travel	1	BDR did not identify any difficulties affecting his ability to travel.
4. Social Functioning	2	BDR reported difficulties with getting into fights and reacting to perceived slights with aggression. This resulted in repercussions, both at school and with the juvenile justice system. There was also a reference in the supporting documentation of the family home being strained as a result of these behaviours. From a psychiatric perspective, this is mild impairment. Class is 2.
5. Concentration, Persistence and Pace	3	BDR endorsed having concentration difficulties at school. There is a description of his relative educational underachievement whilst at school. It was also noted that he was diagnosed with ADHD and prescribed medication for this. He struggled with maintaining his participation at school due to his concentration difficulties as well as his conduct difficulties. From a psychiatric perspective, this is moderate impairment.
6. Employability	2	BDR at the time of the subject motor vehicle accident was not working and was still attending school. His participation in school was disrupted by disordered conduct and attention difficulties. He made references to frequent exclusion and threats of expulsion. He also made a reference that the school desired that he be placed in a different environment on account of his behaviour. From a psychiatric perspective, this is mild impairment.
List classes in ascending order: 1 1 1 2 2 3
Median Class Value: 2
Aggregate Score: 10
% Whole Person Impairment: 5 %

Conclusion – Permanent Impairment
The degree of permanent impairment caused by the motor vehicle accident is 6%, minus 5%, equals 1%.”

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[58] and Insurance Australia Ltd v Marsh.[59]
[58] [2021] NSWCA 287 at [40], [41] and [45].
[59] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive and comprehensive reasons provided by the Medical Assessors. The Medical Assessors have explained in a comprehensive fashion the various psychiatric impairment rating scale (PIRS) assessments for both pre-accident and current impairment.

POST ACCIDENT DEDUCTION

The insurer also relied on the 2017 assault as a basis for making a deduction for a subsequent injury.
Clause 1.34 of the Guidelines relevant to the MAC Act which is in identical terms to cl 6.34 was discussed by Wright J in Slade v Insurance Australia Ltd.[60] His Honour determined that the principles discussed by Malcolm CJ in State Government Insurance Commission v Oakley[61] apply in the application of cl 1.34 of the Guidelines.
[60] [2020] NSWSC 1031 (Slade).
[61] (1990) Aust Torts Rep 81-003.
The assessment of any additional impairment caused by the further injury is problematic and complicated particularly after the deduction for the pre-existing condition results in a minor impairment. Whilst it is plausible that the subsequent injury is a contributing factor to an ongoing psychological condition, the Panel is not satisfied that it has contributed to any additional impairment.
The Panel is not satisfied in these circumstances that there should be a deduction due to subsequent injury.

CONCLUSION

The certificate issued by Medical Assessor Hong is revoked. A replacement certificate is attached at the commencement of these Reasons.

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Citations

Allianz Australia Insurance Limited v BDR [2023] NSWPICMP 140

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Insurance Australia Group Ltd v Keen [2021] NSWCA 287

Insurance Australia Ltd v Marsh [2022] NSWCA 31

Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031

[2023] NSWPICMP 140

11 April 2023